In the
United States Court of Appeals
For the Seventh Circuit
____________
Nos. 02-3132, 02-3320 & 02-3643
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
Cross-Appellant,
v.
SECONDINO MEZA-URTADO,
Defendant-Appellant,
Cross-Appellee.
UNITED STATES OF AMERICA,
Plaintiff-Appellant,
v.
JUAN FARIAS-MERAZ,
Defendant-Appellee.
____________
Appeals from the United States District Court
for the Northern District of Illinois, Eastern Division.
Nos. 01 CR 987-1,3—Robert W. Gettleman, Judge.
____________
ARGUED OCTOBER 31, 2003—DECIDED DECEMBER 8, 2003
____________
Before POSNER, EASTERBROOK, and EVANS, Circuit Judges.
2 Nos. 02-3132, 02-3320 & 02-3643
EVANS, Circuit Judge. After Secondino Meza-Urtado filed
an appeal from his conviction on drug charges, the govern-
ment answered and filed a cross-appeal challenging a
downward departure Meza received at sentencing. The
government also tacked on an appeal of a similar downward
departure granted to one of Meza’s codefendants, Juan
Farias-Meraz. Meza’s appeal turned out to be especially bad
news for Farias, as the government attorney told us at oral
argument that an appeal of the downward departures may
not have been undertaken had no direct appeal in the first
instance been filed. This situation prompts us to recall the
wisdom of our earlier advice that “defendants, who benefit
from favorable calls under the federal sentencing guide-
lines, should think more than twice about appealing their
cases when their appeals have little likelihood of success . . .
because a defendant’s appeal may draw a guidelines cross-
appeal when the government would [probably] not . . .
appeal on its own in the first instance.” United States v.
Bradley, 165 F.3d 594, 595 (7th Cir. 1999). See also United
States v. Martinson, 37 F.3d 353 (7th Cir. 1994) (affirming
conviction but finding clear error in reduction of offense
level for acceptance of responsibility).
The facts of this case, very briefly, are that Meza had
recorded telephone conversations regarding the sale of 3
kilos of cocaine at $23,000 per kilo. Meza and others, in-
cluding Farias, arrived to sell the coke at a Kmart parking
lot in Chicago. Farias was in the party “for protection.” The
deal went south because the purchasers turned out to be
drug agents. Three kilos of cocaine were seized from a van
involved in the aborted transaction.
Meza claims the evidence the jury heard was insuffi-
cient to convict him. He also raises related issues regarding
what he sees as improper “leading questions” asked of
Farias, who pled guilty to being involved in the drug deal
and agreed to cooperate with the government by testifying
Nos. 02-3132, 02-3320 & 02-3643 3
against Meza and a codefendant. Finally, Meza questions
the government’s use during his trial of the colloquy that
took place in court when Farias entered his guilty plea.
It’s very difficult for a defendant to convince an appellate
court that the evidence presented to a jury was insuffi-
cient to support a conviction. For one thing, we view all
evidence in the light most favorable to the government and
uphold verdicts if any rational trier of fact could have found
that the elements of a crime were established. See United
States v. Albarran, 233 F.3d 972 (7th Cir. 2000). Stated
another way, we will set aside a conviction only if “the
record contains no evidence, regardless of how it is weighed,
from which the jury could find guilt beyond a reasonable
doubt.” United States v. Laurenzana, 113 F.3d 689, 693 (7th
Cir. 1997). The short answer to the first issue in this case
is that there is no basis for disturbing the verdict on
sufficiency of the evidence grounds. Meza’s own words, most
of which were recorded, his actions on the day of the
aborted drug deal, and some post-arrest statements were
more than sufficient for the jury to have concluded that he
was guilty of the charged crimes.
The “leading questions” issue is similarly without merit.
Meza contends that the government’s use of leading ques-
tions during its direct examination of Farias and another
witness, Ortega (a “confidential source” working with the
government to get the goods on everyone involved in the
drug deal), was “so suggestive and excessive” that it de-
prived him of his Sixth Amendment right of confrontation.
We disagree. As for Ortega, only four instances of allegedly
improper “leading questions” are noted. The challenged
questions, we think, were not improper. All simply directed
Ortega to explain the meaning and context of transcripts of
taped conversations that were admitted into evidence.
Six allegedly “leading questions” were asked of Farias,
and three drew no objection. None, we think, were improper
4 Nos. 02-3132, 02-3320 & 02-3643
and all were necessary as Farias obviously became conve-
niently “forgetful” despite his agreement to help the
government. In this situation, had the government asked,
he could have been treated as a hostile witness and asked
leading questions until the cows came home. See Fed. R.
Evid. 611(c).
Although the questions asked of Ortega and Farias were
not improperly leading, Meza would lose his appeal on this
point even if they were because no objection to them was
lodged, and thus our review would only be for plain error.
United States v. Bonner, 302 F.3d 776 (7th Cir. 2002). He
would lose because an objection to a question as “leading”
is only an objection to the “form” of the question. If an ob-
jection is offered and sustained, the examiner simply
rephrases the question and draws the desired information
from the witness. Any reasonably good lawyer worth his
salt can accomplish this little trick. Without a sustained
objection, an examiner would never have a chance to re-
phrase his question. For this reason, we think error, plain
or otherwise, could never be identified in a case where only
the form of a question to which no objection is made is
challenged on appeal.
In his related claim, Meza argues that it was error to
admit Farias’s plea colloquy into evidence. During the trial,
Farias turned out to be a slippery witness. He testified, for
example, that on the day of the drug transaction he and
others, including defendant Meza, were only going to the
Kmart lot to help a friend. He testified he was offered $200
for going and for providing protection during the errand.
These statements were contrary to sworn statements he
made when he pled guilty. At the district court’s suggestion,
rather than read his plea colloquy to the jury, the govern-
ment first attempted to refresh Farias’s recollection with
his statements. It was the government’s position that
Farias’s prior sworn statements, which were inconsistent
with his trial testimony, could be used for more than just
Nos. 02-3132, 02-3320 & 02-3643 5
refreshing his recollection, since they were admissible
under Fed. R. Evid. 801(d)(1)(A). Outside the presence of
the jury, Farias was read the testimony he gave when he
entered his guilty plea. He then said his recollection was
refreshed. But in front of the jury, he again testified
inconsistent with his plea statements. For one thing, he did
not acknowledge that the drug transaction was discussed on
the way to the Kmart lot. Consequently, pursuant to Rule
801(d)(1)(A), the district court permitted the government to
read the plea colloquy to the jury. In it, Farias admitted
that a drug deal was to take place and that he was paid
$200 for providing “protection.” Because these sworn
statements were clearly inconsistent with his trial testi-
mony, they were properly received as substantive evidence.
And because Farias could have been cross-examined at
length about them, no Sixth Amendment Confrontation
Clause is presented. This brings us to the final issue, the
propriety of the downward departures ordered by the
district court.
The downward departures here were not very dramatic.
Meza’s guideline range was 78 to 97 months. He received a
one-level departure to a range of 70 to 87 months and drew
a sentence at the bottom of the adjusted range. Farias got
a 2-level reduction from a range of 46 to 57 months to a
range of 37 to 46 months. His sentence was 37 months.
Thus, the bottom-line adjustment for each averaged a mere
8½ months. Despite the fact that these departures were
quite modest, they must be undone.
The downward departures were ordered because Meza
and Farias are aliens (illegal ones at that) who will not
receive certain “end of sentence” considerations (like a
halfway house) that would be available to them if they were
citizens of the United States. This perceived “disparate”
treatment was ameliorated, according to the district court,
by the sentence reduction it ordered.
6 Nos. 02-3132, 02-3320 & 02-3643
The recent amendments to 18 U.S.C. § 3742, in what is
commonly called the Protect Act, call for de novo review of
downward departures, as we explained last month in
United States v. Mallon, 345 F.3d 943 (7th Cir. 2003). The
departures here cannot withstand the new, and heightened,
standard of review. It’s doubtful, moreover, if they could
have been sanctioned even prior to the enactment of the
Protect Act.
In United States v. Guzman, 236 F.3d 830, 834 (7th Cir.
2001), a defendant argued that a downward departure was
permissible for one whose “status of being a deportable
alien can affect the conditions of imprisonment, can make
them harsher by disentitling a defendant to serve any part
of his sentence in a halfway house, minimum security pris-
on, or intensive confinement center [boot camp].” Id. We
held that these circumstances are “a permissible basis, in
exceptional circumstances, for a downward departure.” Id.
We explained:
But we emphasize that the defendant’s status as a de-
portable alien is relevant only insofar as it may lead to
conditions of confinement, or other incidents of punish-
ment, that are substantially more onerous than the
framers of the guidelines contemplated in fixing the
punishment range for the defendant’s offense.
Last year, in United States v. Gallo-Vasquez, 284 F.3d
780, 784-85 (7th Cir. 2002), we applied Guzman and re-
versed a downward departure based on deportable alien
status because the district court failed to explain how any
differences between the defendant’s and a citizen’s con-
finement conditions “made the defendant’s sentence more
onerous than was contemplated by the framers of the
Sentencing Guidelines.” Id. At 785. We remanded with
instructions that “the district court examine the actual
effects that Gallo-Vasquez’s alien status will have upon his
sentence and whether those effects will move Gallo-
Nos. 02-3132, 02-3320 & 02-3643 7
Vasquez’s sentence beyond the ‘heartland’ of cases contem-
plated by the framers of the Sentencing Guidelines when
they crafted proposed sentences for defendants convicted of
similar crimes.”
Because this issue seems to be presenting itself with
increasing frequency, we think it’s time to make a more
definitive statement: These downward departures are not
permissible because denying certain end-of-sentence mod-
ifications (several months in a halfway house, for example)
to illegal or deportable aliens cannot be viewed as a term of
imprisonment “substantially more onerous” than the
guidelines contemplate in fixing a punishment for a crime.
Meza’s and Farias’s “conditions of confinement, or other
incidents of punishment” will not be “substantially more
onerous” than the guidelines contemplate as the punish-
ment for their crimes of conviction. Indeed, their conditions
of confinement will be exactly what their guidelines require,
“a sentence of imprisonment.” Under our Guzman-Gallo
line of cases, we now hold that departures from the cor-
rectly established guideline range based merely on a
defendant’s status as a deportable alien are not authorized.
The principal error here is the assumption that a slight
difference in end-of-sentence confinement conditions be-
tween citizens and aliens—without more—constitutes an
appropriate ground for departure. Our cases have never so
held. In United States v. Farouil, 124 F.3d 838 (7th Cir.
1997), we said only that a departure is warranted where
a defendant’s “status as a deportable alien . . . resulted
in unusual or exceptional hardship in his conditions of
confinement.” At 847. In Guzman, the defendant raised
basically the same grounds the district court relied on
here—an alien’s ineligibility to serve a short part of his
sentence in a halfway house. We held that those grounds,
individually or together, constituted a basis for departure
only in the “exceptional circumstance[ ]” where the confine-
8 Nos. 02-3132, 02-3320 & 02-3643
ment conditions “were substantially more onerous than the
framers of the guidelines contemplated in fixing the pun-
ishment range for the defendant’s offense.” The district
court here, in effect, adopted Guzman’s appellate argument
and ignored our disposition of that argument. See also
Gallo-Vasquez, 284 F.3d at 785.
The guidelines place Meza and Farias solidly in Zone D
where the only sentencing option is imprisonment for a
fixed period within a limited range. That the Bureau of
Prisons (BOP) has certain programs for citizen-prisoners,
but not deportable aliens, does not make the aliens’ im-
prisonment substantially more onerous than the guidelines
contemplated in fixing the punishment range for the offense
of conviction.
The BOP’s end-of-sentence policies like community con-
finement for a few months are in place to help “reintegrate”
certain offenders back into society. That a deportable alien
is not eligible for a program designed to “reintegrate” him
back into American society does not make his imprisonment
under the guidelines “more onerous.” In fact, to cut a term
of imprisonment—even as here by only 8 or 9 months—for
a deportable alien when a citizen doesn’t get the same
shortened term would be discrimination in reverse.
For these reasons, the Meza judgment of conviction is
AFFIRMED. The sentences of Meza and Farias are VACATED
and their cases REMANDED for resentencing.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—12-8-03