In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 07-1656
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
RALPH DIAZ,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 06 CR 513—Amy J. St. Eve, Judge.
____________
ARGUED MAY 8, 2008—DECIDED JULY 11, 2008
____________
Before COFFEY, RIPPLE and SYKES, Circuit Judges.
RIPPLE, Circuit Judge. Ralph Diaz pleaded guilty to
conspiracy to possess with intent to distribute and con-
spiracy to distribute cocaine, see 21 U.S.C. §§ 846, 841(a)(1),
and the district court sentenced him to 46 months’ im-
prisonment. On appeal, Mr. Diaz contends that his sen-
tence is invalid because the district court mistakenly
applied a presumption in favor of a within-guidelines
sentence. He also argues, albeit only in his reply brief, that
the district court did not explain sufficiently why it re-
jected his arguments for a lower sentence. A review of the
sentencing transcript, read as a whole, refutes both argu-
2 No. 07-1656
ments, and, therefore, we affirm the judgment of the
district court.
I
BACKGROUND
In the summer of 2006, an informant, working with the
Drug Enforcement Administration (“DEA”) and Evanston,
Illinois police, arranged to buy three kilograms of co-
caine from Mr. Diaz. On the day of the sale, Mr. Diaz met
the informant at a residence in Evanston. While there,
Mr. Diaz telephoned an associate, who arrived by car
moments later. Mr. Diaz removed a guitar case from his
associate’s car and opened it. When the informant saw
that the case contained plastic bags holding a substance
that appeared to be cocaine, he gave the prearranged
arrest signal. DEA agents and local police appeared;
Mr. Diaz fled, but he was apprehended two blocks away.
Mr. Diaz pleaded guilty to conspiracy to possess with
intent to distribute and conspiracy to distribute cocaine.
See 21 U.S.C. §§ 846, 841(a)(1). At sentencing, the district
court computed the guidelines range from facts ad-
mitted in the plea agreement. The quantity of cocaine—
three kilograms—triggered a base offense level of 28. See
U.S.S.G. § 2D1.1(c)(6). The district court reduced this
level by two under the “safety valve” provision. See id.
§ 2D1.1(b)(11). It then applied another three-level reduc-
tion for acceptance of responsibility. See id. § 3E1.1. Com-
bined with his criminal history category of I, Mr. Diaz’s
total offense level of 23 yielded a guidelines imprison-
ment range of 46 to 57 months. Neither Mr. Diaz nor the
Government objected to this guidelines calculation.
No. 07-1656 3
Mr. Diaz, through counsel, argued for a below-guide-
lines sentence because of his impoverished childhood in
Mexico and his attempts to help family members who
remained there. He also contended that the circum-
stances of the drug deal warranted a lower sentence.
Counsel asserted, without producing any supporting
evidence, that Mr. Diaz took part in the deal only be-
cause he was struggling financially, that the confiden-
tial informant was the one who had specified the drug
quantity and that Mr. Diaz stood to earn no more than
$1,000 in his role as a “middleman” for the sale. Finally,
Mr. Diaz asked the court, again through counsel, to take
into account the conditions of his pretrial confinement as
well as his attempts to better himself while incarcerated.
The Government asked the court to impose a sentence
within the guidelines range. It argued that Mr. Diaz was
more than a “middleman” and noted that, although he
had no prior convictions, he was in the Country illegally,
had been arrested twice for drug crimes and had been
deported twice to Mexico. The Government also con-
tended that the court could not take into account the
conditions of Mr. Diaz’s pretrial confinement and that,
even if it could, those conditions were not sufficiently
extraordinary to warrant a lower sentence.
In imposing the sentence, the district court explicitly
stated that it had considered the factors in 18 U.S.C.
§ 3553(a). It imposed a sentence at the lowest end of the
guidelines range, 46 months. As the court explained:
Given the seriousness of the offense, the need to
promote respect for the law and to provide just pun-
ishment for this offense, and to deter criminal con-
duct and protect the public, and to deter others from
engaging in this type of conduct, I do find that the
4 No. 07-1656
Guideline range is reasonable here. Even considering,
if the Court can consider, factors such as being housed
at Kankakee, I do not think the differences warrant
any deviation from the Guidelines.
....
. . . I believe the low end of the Guideline range is
appropriate and will satisfy and address the factors
in Section 3553 that I have just reviewed.
R.30 at 15-16.
II
DISCUSSION
A.
Mr. Diaz contends that the district court misappre-
hended the extent of its authority to impose a sentence
outside the advisory guidelines range. In support of this
contention, he relies on the district court’s statement that
factors such as the conditions of his pretrial confine-
ment did not “warrant any deviation from the Guide-
lines.” R.30 at 15 (emphasis added). Notably, Mr. Diaz
acknowledges the court’s affirmative statement that it
was basing its sentence on the factors in section 3553(a).
In Mr. Diaz’s view, however, this reference to sec-
tion 3553(a) merely shows that the court was “confused.”
Read in isolation, the district court’s “deviation” lan-
guage might suggest that the court applied a presump-
tion in favor of a within guidelines sentence. However,
that reading of the district court’s terminology is not
the only plausible one. The court’s language might just
as well suggest that the court properly allowed the guide-
No. 07-1656 5
lines to serve as a suggested starting point for the
court’s consideration of the appropriate sentence. See
United States v. McIlrath, 512 F.3d 421, 426 (7th Cir. 2008).
We have recognized that common verbal formulations
often outlive their doctrinal usefulness. Here, the use of
pre-Booker nomenclature such as “deviation” might be
problematic, but, standing alone, it is not reversible
error. See, e.g., United States v. Harris, 490 F.3d 589, 596 (7th
Cir. 2007) (holding that use of the term “enhancement,”
also a pre-Booker term, did not require reversal where
district court properly considered the guidelines to be
advisory); United States v. Rosby, 454 F.3d 670, 676-77 (7th
Cir. 2006) (holding that use of the pre-Booker term “de-
parture” was not error because it did not make a sub-
stantive difference). Reading the district court’s state-
ment in context, as we must, see Rita v. United States, 127
S. Ct. 2456, 2469 (2007), there is no doubt that the dis-
trict court understood the post-Booker sentencing regime
and imposed a sentence accordingly.
Mr. Diaz invites our attention to United States v. Ross,
501 F.3d 851 (7th Cir. 2007). There, we reversed the judg-
ment of the district court because it had applied a pre-
sumption in favor of a within guidelines sentence. That
case cannot control the situation before us. In Ross, the
court stated that it was bound by Congress’ judgment
and that the lowest within-guidelines sentence was the
“lowest sentence that’s possible.” Id. at 852-53. By con-
trast, here, the district court affirmatively demonstrated
that it understood its authority to impose a sentence
outside the advisory guidelines range. On two occasions,
it explained that it was relying on the section 3553(a)
factors and listed them explicitly. The court did not say
that a sentence within the guidelines range was always
6 No. 07-1656
reasonable; it stated that such a sentence was reason-
able “here.” R.30 at 15. Instead of applying a presump-
tion of reasonableness, as Mr. Diaz suggests, the court
properly gave meaningful consideration to the section
3553(a) factors and then imposed a reasonable sentence.
See United States v. Laufle, 433 F.3d 981, 987 (7th Cir. 2006).
B.
In his reply brief, Mr. Diaz argues for the first time that
the district court also failed to give legally sufficient
explanations for rejecting his sentencing arguments.
Arguments may not be raised for the first time in a
reply brief; this submission therefore is waived. United
States v. Dabney, 498 F.3d 455, 460 (7th Cir. 2007); United
States v. Harris, 394 F.3d 543, 559 (7th Cir. 2005). Even if
this argument had been raised properly, however, it
would not be a basis for relief. We have explained re-
peatedly that the sentencing court need not address the
section 3553(a) factors in a “checklist fashion.” United
States v. Nitch, 477 F.3d 933, 937 (7th Cir. 2007). It must pro-
vide only an “adequate statement” of its reasons, id., and
it may ignore insubstantial sentencing arguments with-
out comment, United States v. Tahzib, 513 F.3d 692, 695
(7th Cir. 2008).
Although we would have welcomed a more detailed
exposition of the district court’s reasons for choosing the
particular sentence that it imposed, we believe that the
district court’s failure to address explicitly each of Mr.
Diaz’s arguments does not amount to a material devia-
tion from established sentencing procedures and creates
no significant doubt that the court heard and weighed
his submissions. See United States v. Cunningham, 429
No. 07-1656 7
F.3d 673, 678 (7th Cir. 2005). Indeed, extended discussion
was particularly unwarranted in this case because Mr.
Diaz had made no attempt to present evidence in sup-
port of his arguments in mitigation. See Tahzib, 513 F.3d at
695 (explaining that the defendant bears the burden of
proving any mitigating factors). Counsel’s unsupported
statements are, of course, not evidence. See United States v.
Swanson, 483 F.3d 509, 513 (7th Cir. 2007); Campania Mgmt.
Co. v. Rooks, Pitts & Poust, 290 F.3d 843, 853 (7th Cir. 2002).
Conclusion
For the foregoing reasons, we affirm the judgment of
the district court.
AFFIRMED
USCA-02-C-0072—7-11-08