NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued August 5, 2015
Decided August 21, 2015
Before
DIANE P. WOOD, Chief Judge
WILLIAM J. BAUER, Circuit Judge
DANIEL A. MANION, Circuit Judge
No. 14‐2678
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff‐Appellee, Court for the Northern District of Illinois,
Eastern Division.
v.
No. 12 CR 789‐2
ISMAEL GARIBAY,
Defendant‐Appellant. Gary S. Feinerman,
Judge.
O R D E R
Ismael Garibay made the mistake of becoming involved in a drug‐distribution
ring and was caught. His appeal concerns only the sentence he received after he pleaded
guilty of violating 21 U.S.C. § 841(a)(1) by possessing with intent to distribute
7.38 kilograms of heroin. Garibay contended that he was entitled to a two‐level
reduction in his advisory offense level under U.S.S.G. § 3B1.2(b), because he played only
a minor role in the offense. The district court did not see matters that way. It found
instead that Garibay, a middleman, had provided the essential link in the chain between
the suppliers and local distributors for an 18‐month period. We conclude that the district
No. 14‐2678 Page 2
court did not clearly err in coming to that conclusion, and so we affirm Garibay’s
sentence.
I
Garibay pleaded guilty pursuant to a plea agreement, in which he admitted to
coordinating two heroin transactions. On one occasion he obtained the drug from a
supplier for two couriers; on the other occasion he arranged for heroin to be stashed in a
hidden compartment of a car. Garibay also conceded in the agreement that he arranged
three transactions for the sale of cocaine, involving a total of 6 kilograms. He contacted
suppliers, he relayed information about price and quantity to buyers, and he used his
place of business (a local bar) as the drop‐off and pick‐up point.
Before sentencing, the government interviewed Garibay to see if he might qualify
for safety‐valve treatment and thus escape any applicable statutory minimum sentence.
See 18 U.S.C. § 3553(f); U.S.S.G. §§ 2D1.1(b)(17), 5C1.2. During that interview Garibay
characterized himself as a “go‐between” on behalf of a heroin supplier. He used his
connections with suppliers, he explained, to set up deals with buyers who had contacted
his co‐defendant, Jesus Zambrano. This role, Garibay insisted, was practically
mechanical: he did nothing but convey to each side what the other had said; he did not
have any decisionmaking authority. For his efforts, he received up to $1,500 per
transaction. Garibay also acknowledged that he had been present during some
transactions, but he said that he was there for other reasons, such as picking up
promotional material for his business. Finally, he admitted that about 18 months before
his arrest, he began introducing cocaine suppliers to Zambrano and other distributors.
After the court accepted Garibay’s guilty plea, a probation officer prepared a
presentence investigation report in which she recommended denying a mitigating‐role
reduction in the offense level. As she saw it, Garibay’s role was not minor, because he
was the broker, he knew the amount of drugs being trafficked, and he was present at
some of the deals. In contrast, she suggested, Miguel Lopez (a co‐defendant who
translated between Spanish and English on behalf of the conspirators) was the least
culpable of the defendants. On the spectrum of culpability, Garibay fell somewhere in
the middle, and thus was not substantially less culpable than the others.
Garibay objected to these conclusions, which were set forth in the Presentence
Investigation Report (PSR). At the sentencing hearing, he maintained that he was less
culpable than either Zambrano, the supplier, or the buyer, each of whom made
No. 14‐2678 Page 3
significant amounts of money, operated independent organizations, and decided such
critical matters as amount and price. Garibay, in contrast, made at most a paltry $1,500
per transaction, “[sat] in the middle as a go‐between,” served only as a “glorified
gopher” used for his connections, and never possessed the drugs. He argued that
someone who does no more than to put one person in touch with another qualifies as a
“minor participant” for purposes of U.S.S.G. § 3B1.2(b).
After finding that Garibay, as the broker, was not less culpable than the average
member of the group, the district court denied the minor‐role reduction. In explaining its
decision, the court classified three members (two couriers and an accountant) as
“average” participants on the ground that they were functionaries who did not make
any decisions. “[U]pstream on the supply chain … at higher levels” were Zambrano, the
supplier, and the distributor. The court then reasoned that even if Garibay was “merely a
broker” and thus not as culpable as the supplier and distributor, his role connecting
those higher‐level conspirators rendered him “absolutely certainly” on a par with the
average participants. The court rejected Garibay’s assertion that he never possessed
drugs, because Garibay had stipulated in his plea agreement that cocaine was dropped
off at least twice at his bar. And although Garibay’s knowledge about the conspiracy was
“not perfect,” he knew that kilogram quantities of illegal drugs were being transported
and “took an active role” by attending meetings and transactions.
The court calculated an advisory guidelines range of 87 to 108 months for
Garibay, after deducting 5 levels for acceptance of responsibility and safety‐valve
treatment, see U.S.S.G. §§ 3E1.1, 2D1.1(b)(17), and 5C1.2, and taking into account the
then‐pending amendment that was to reduce by two levels the offense levels in the drug
quantity table found in U.S.S.G. § 2D1.1(c) (2014). It chose a sentence of 72 months,
below the advisory range. Had it given Garibay the minor‐role reduction, the advisory
range would have been 51 to 63 months.
II
On appeal, Garibay focuses only on the court’s refusal to give him the minor‐role
reduction. He takes issue with the weight the court chose to give to certain facts. In
particular, he says it erred by overstating the significance of his presence at a handful of
transactions, by ignoring his lack of control over the drugs, and by failing to recognize
his relative lack of knowledge about who else was involved.
No. 14‐2678 Page 4
Perhaps another district court would have weighed the evidence differently, but
that does not mean that this judge erred. The standard of review on appeal is for clear
error. See United States v. Leiskunas, 656 F. 3d 732, 739 (7th Cir. 2011). Here, ample
evidence supports the district court’s conclusion, and so we do not see error at all, much
less clear error. According to the safety‐valve proffer, Garibay knew roughly the
quantity being sold and the price per kilogram. He knew most of the other participants,
even if not all. And the court reasonably rejected his argument that he was less culpable
because he supposedly “was not regularly exercising control” over the drugs; this was
inconsistent with the fact that he did exercise control whenever drugs and money were
left at his bar.
Garibay also maintains that the court should have accepted his characterization of
himself as a middleman. This, he asserts, is the only reasonable conclusion, given how
meager his compensation was and how limited his role as a message‐transmitter. The
problem is that Garibay did more than relay messages. As the court noted, he attended
transactions, he arranged a delivery, and he used his bar as an exchange point. In
addition, the court properly relied on Garibay’s close relationship with higher‐level
members of the group as an additional reason to deny the reduction. See United States v.
Mendoza, 457 F.3d 726, 730 (7th Cir. 2006). The fact that Garibay did not earn more does
not automatically make him a “minor” participant. United States v. Panaigua‐Verdugo, 537
F.3d 722, 725 (7th Cir. 2008).
Taking a different approach, Garibay also asserts that the district court should
have accepted at face value his statement in his safety‐valve proffer that he served only
as a middleman. There is some support for Garibay’s position that statements accepted
as true in these proffers are credible. See United States v. Rodriguez, 342 F.3d 296, 301 (3d
Cir. 2003); United States v. Rodriguez De Varon, 136 F.3d 740, 744 (11th Cir. 1998), vacated on
other grounds, 175 F.3d 930 (11th Cir. 1999) (en banc). But the question here is not whether
to believe what Garibay said; it is how to characterize his proffer statements for legal
purposes. The court is not bound to accept legal characterizations. See generally Bonte v.
U.S. Bank, N.A., 624 F.3d 461, 465 (7th Cir. 2010) (for purposes of FED. R. CIV. P. 12(b)(6)
the court accepts factual allegations as true but not legal conclusions). In this case, the
court acted within its discretion when it found that Garibay qualified for the safety
valve, even though the court did not attach as much significance as Garibay would have
liked to his representation that he acted only as a middleman.
Finally, Garibay argues for the first time in his reply brief that the district court
impermissibly relied on some uncorroborated hearsay that was included in the PSR. He
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does not specify which factual findings he means, but he has bigger problems with this
point. He has waived it by waiting until the reply brief to raise it. See Hernandez v. Cook
Cnty. Sheriff’s Office, 634 F.3d 906, 913 (7th Cir. 2011). In addition, he did not produce any
evidence challenging the PSR’s accuracy or reliability, and so the district court was
entitled to rely on the facts found in the report. See United States v. Turner, 604 F.3d 381,
385 (7th Cir. 2010); United States v. Artley, 489 F.3d 813, 821 (7th Cir. 2007).
We therefore AFFIRM Garibay’s sentence.