NONPRECEDENTIAL DISPOSITION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 February 10, 2010
Decided July 6, 2010
Before
KENNETH F. RIPPLE, Circuit Judge
DANIEL A. MANION, Circuit Judge
ANN CLAIRE WILLIAMS, Circuit Judge
Nos. 09‐1478, 09‐1979
UNITED STATES OF AMERICA, Appeals from the United States
Plaintiff‐Appellee, District Court for the Western
District of Wisconsin.
v.
No. 08‐CR‐100
MAXIMO PINEDA‐BUENAVENTURA and
EFRAIN PINEDA‐BUENAVENTURA, Barbara B. Crabb,
Defendants‐Appellants. Judge.
O R D E R
Brothers and codefendants Maximo and Efrain Pineda‐Buenaventura each pled guilty to
conspiring to possess with intent to distribute five kilograms or more of cocaine, in violation
of 21 U.S.C. § 841(a)(1). Maximo was sentenced to 210 months’ imprisonment, and Efrain was
sentenced to 120 months. Both now appeal their sentences, arguing that it was error for the
district court to apply sentence enhancements based solely on facts contained in their respective
Nos. 09‐1478, 09‐1979 Page 2
Presentence Investigation Reports (“PSRs”), because those facts were not supported by
sufficient evidence. Because Maximo and Efrain have waived this argument, and because the
district court was entitled to rely on uncontested factual findings in their PSRs, we affirm both
sentences.
I. BACKGROUND
Maximo and Efrain Pineda‐Buenaventura were leaders of a large cocaine trafficking ring in
Jefferson County, Wisconsin. In June 2008, following an extensive undercover investigation
involving confidential informants, controlled drug purchases, and wiretaps, search warrants
were executed at Maximo and Efrain’s residences as well as at a storage locker rented by
Maximo. At Maximo’s residence, police recovered cocaine, a .357 Desert Eagle handgun, and
drug distribution paraphernalia. At Efrain’s residence, police recovered cocaine, a .22 caliber
handgun, ammunition, $10,581 in U.S. currency, drug distribution paraphernalia, and a key to
a Chevrolet Blazer owned by Maximo. In the storage unit, police discovered Maximo’s
Chevrolet Blazer in which $59,000 in U.S. currency and 599 grams of cocaine were concealed.
Drugs, money, and other items related to the conspiracy were also found at various other
locations searched in connection with the investigation.
Maximo, Efrain, and numerous coconspirators — mostly lower‐level runners — were
indicted. Maximo and Efrain each pled guilty to one count of conspiring to possess with intent
to distribute five kilograms or more of cocaine, in violation of 21 U.S.C. § 841(a)(1). Maximo
and Efrain’s PSRs involved the same calculations. Both had base offense levels of 32 based on
relevant conduct involving between 5 and 15 kilograms of cocaine, per U.S.S.G. § 2D1.1(c)(4).
Each PSR recommended two enhancements: a two‐level increase based on the firearms found
at their respective residences during execution of the search warrants per U.S.S.G. § 2D1.1(b)(1),
and a four‐level increase for playing leader/organizer roles in the conspiracy per U.S.S.G. §
3B1.1(a), resulting in an adjusted offense level of 38.1 After a three‐level downward adjustment
for acceptance of responsibility pursuant to U.S.SG. § 3E1.1(a), each had a total offense level of
35. Both faced a mandatory statutory range of 10 years to life, 21 U.S.C § 841(b)(1)(A), and the
recommended Guidelines range for each was 168‐210 months.
Both Maximo and Efrain filed written objections to their respective PSRs. Neither challenged
the validity of the facts contained in the PSRs, but instead challenged the legal import of those
1
Maximo was described as a “leader and organizer” of the conspiracy from late 2006 through
June 19, 2008, who acted as the primary contact person for many customers and directed
numerous runners in the conspiracy. Efrain was described as another “leader” who worked
with Maximo, acted as a primary contact for customers when Maximo traveled to Mexico, and
directed numerous runners as well.
Nos. 09‐1478, 09‐1979 Page 3
facts to the enhancements that they faced.2 As to the § 3B1.1(a) leader/organizer enhancements,
both Maximo and Efrain argued that facts demonstrated that they were only managers or
supervisors of the conspiracy, not leaders. As to the § 2D1.1(b)(1) firearm enhancement,
Maximo argued that the facts contained in his PSR did not demonstrate that he had any
knowledge of or control over the weapon found at his residence. Efrain did not raise any
objection to his firearm enhancement based on the weapon found at his residence.
Maximo was sentenced first. Asked at his sentencing hearing whether he had any additional
objections to anything contained in the PSR, Maximo answered that he did not, but did submit
an affidavit setting forth additional facts he hoped would mitigate against a finding that he
possessed the firearm that had been found at his residence. The government also submitted
additional facts supporting the conclusion that the gun was in fact Maximo’s. Maximo then
reiterated his arguments that neither the two‐level firearm increase nor the four‐level organizer
increase were warranted. The court heard arguments, overruled the objections, and found that
both enhancements were warranted. It then took into consideration the 18 U.S.C. § 3553(a)
factors and sentenced Maximo to the high end of his Guideline range, 210 months.
Efrain was sentenced shortly thereafter. Asked at his sentencing hearing whether he had any
additional objections to anything contained in his PSR, Efrain stated that he did not. The judge
heard arguments, concluded that the leader and weapon enhancements were warranted,3
applied the § 3553(a) factors, and sentenced Efrain to the mandatory‐minimum 120 months,
2
Efrain, for example, argued that “[t]he facts contained within the PSR are insufficient” to
support a finding that he was a leader in the conspiracy, but he did not dispute the facts
themselves. Similarly, Maximo argued that the facts in his PSR were legally insufficient to
establish the enhancements he faced, but he did not argue that the facts themselves lacked
sufficient evidentiary support.
3
In the course of making the finding that a leader/organizer enhancement was warranted for
Efrain, the district court appears to have mistakenly referred to two individuals he directed in
a related case in which he was an unindicted named coconspirator. This mistake was
inconsequential. It is clear that the conspiracy in this case involved at least five participants,
and other findings the judge made based on facts in the PSR independently supported the
conclusion that Efrain was an organizer or leader of this conspiracy under the § 3B1.1(a) factors.
See § 3B1.1, cmt. n.4; see also United States v. Wasz, 450 F.3d 720, 729 (7th Cir. 2006) (“no one of
[the § 3B1.1] factors is considered a prerequisite to the enhancement”); cf. United States v.
Diekemper, 604 F.3d 345, 353‐54 (7th Cir. 2010) (headcount not necessary for leadership
enhancement in an otherwise extensive conspiracy). And in any event, the enhancement did
not affect Efrain’s ultimate sentence —he received the lowest possible statutory minimum term
of 120 months, well below his recommended Guideline range.
Nos. 09‐1478, 09‐1979 Page 4
which was below his recommended Guideline range.4
II. ANALYSIS
Maximo and Efrain make the same argument on appeal: that it was error for the district court
to rely on the factual findings set forth in their PSRs in applying sentencing enhancements,
because those findings were not, in their words, supported by “evidence of record.” Because
neither Maximo nor Efrain made this argument to the district court, we must determine
whether the argument has been waived or forfeited on appeal. See United States v. Spells, 537
F.3d 743, 747 (7th Cir. 2008). Waiver is an intentional, strategic decision not to assert an
argument and precludes appellate review; forfeiture is an accidental or negligent omission and
permits review for plain error. United States v. Canady, 578 F.3d 665, 669 (7th Cir. 2009); United
States v. Jaimes‐Jaimes, 406 F.3d 845, 847 (7th Cir. 2005). “The line between waiver and forfeiture
is often blurry,” and the distinction hinges on whether a defendant “chose, as a matter of
strategy, not to present an argument.” United States v. Garcia, 580 F.3d 528, 541 (7th Cir. 2009).
To make this determination we must draw inferences from the record and the circumstances.
Id. at 542 (inquiry requires some “conjecture” and “divin[ing] from the record an intent to
forego an argument.”).
The government argues that Maximo and Efrain have waived the argument they make on
appeal, and we agree. Maximo and Efrain’s decisions not to challenge the facts contained in
their PSRs appear to have been strategic choices, not mistaken omissions. Both Maximo and
Efrain made conscious decisions in the district court to challenge the import of the facts in their
PSRs to the sentencing enhancements they faced, rather than to challenge the validity of the
facts themselves in the way they now do on appeal. See United States v. Brodie, 507 F.3d 527, 531
(7th Cir. 2007) (“[W]hen the defendant selects among arguments as a matter of strategy, he also
waives those argument he decided not to present.”); United States v. Kindle, 453 F.3d 438, 442
(7th Cir. 2006) (“There may be sound strategic reasons why a criminal defendant will elect to
pursue one sentencing argument while also choosing to forego another, and when the
defendant selects as a matter of strategy, he also waives those arguments he decided not to
present.”). Additionally, at their respective sentencing hearings, both Maximo and Efrain were
asked if they had further objections to their PSRs, and each stated on the record that he did not.
See Garcia, 580 F.3d at 542 (finding waiver where defendant stated he had no further objections
to PSR); Brodie, 507 F.3d at 532 (same); United States v. Staples, 202 F.3d 992, 995 (7th Cir. 2000)
(same). While a defendant’s statement that he has no further objections does not automatically
4
The Government stated at oral argument that the disparity between Maximo and Efrain’s
sentences was due to a U.S.S.G. § 5K1.1 substantial assistance motion that was filed on behalf
of Efrain.
Nos. 09‐1478, 09‐1979 Page 5
constitute a waiver of any later argument related to the PSR, see Jaimes‐Jaimes, 406 F.3d at 848,
here the defendants’ statements to that effect do support a finding of waiver given the
circumstances. Maximo and Efrain could have advanced the fundamental objection to their
PSRs that they now both make — that findings in a PSR should be supported by, in their terms,
“evidence of record” — but both lawyers chose instead to reiterate and elaborate on the specific
arguments they had made in their written objections.5 The conclusion that these choices were
strategic, and not negligent, is buttressed by the fact that both Maximo and Efrain were poised
to benefit from downward adjustments for acceptance of responsibility, and challenging the
validity of the facts in their PSRs could have put those adjustments in jeopardy. See United
States v. Salem, 597 F.3d 877, 890 (7th Cir. 2010) (waiver where defendant made apparent
strategic choice not to dispute relevant conduct in PSR when doing so might have jeopardized
reduction for acceptance of responsibility); see also United States v. Rosenberg, 585 F.3d 355, 358
(7th Cir. 2009) (same). We find that Maximo and Efrain have waived their challenge to the
accuracy or validity of the factual findings contained in their respective PSRs.
Even if we were to find that the argument was merely forfeited, Maximo and Efrain still
could not prevail. It was not error for the district court to rely on facts in the PSR in
determining Maximo and Efrain’s sentences. Evidentiary standards at sentencing are not as
stringent as those at trial, see United States v. Taylor, 72 F.3d 533, 543 (7th Cir. 1995), and a
district court may rely on facts in the PSR at sentencing so long as they are based on sufficiently
reliable information. See United States v. Are, 590 F.3d 499, 521 (7th Cir. 2009) (“In determining
whether a defendant is an organizer or leader, the district court need not rely solely on
admissible evidence.”); United States v. Artley, 489 F.3d 813, 821 (7th Cir. 2007); see also U.S.S.G.
§ 6A1.3. It is the defendant’s burden to show that the PSR is inaccurate or unreliable. United
States v. Turner, 604 F.3d 381, 385 (7th Cir. 2010). And “when a defendant has failed to produce
any evidence calling the report’s accuracy into question, a district court may rely entirely on
the PSR.” Taylor, 72 F.3d at 547. Here, Maximo and Efrain’s PSRs set forth facts relevant to the
sentence enhancements they faced: Maximo’s PSR contained facts showing that he was at the
top of the conspiracy’s hierarchy and that a firearm was found next to cocaine in a closet in his
residence; Efrain’s PSR contained facts showing that he had arranged to buy cocaine from
suppliers, had a number of coconspirators working under him, and had a firearm in his home.
Maximo and Efrain filed objections challenging the significance of these facts to the
enhancements they faced, but neither advanced any wholesale objection to the fundamental
reliability of these facts in the way they now do on appeal. And Maximo, for his part, supplied
additional facts to the court relevant to his gun enhancement, which the district judge took into
5
Maximo’s submission of an affidavit at his sentencing hearing presenting additional facts
related to his § 2D1.1(b)(1) enhancement further supports the finding of waiver. This affidavit
indicates a conscious choice to supplement the facts in the PSR rather than to challenge their
evidentiary basis in the way he now does.
Nos. 09‐1478, 09‐1979 Page 6
consideration in addition to those in his PSR before ruling (thus Maximo’s contention that the
district judge based her findings “solely” on claims in his PSR is not accurate). It was proper
for the district court to rely on facts in the defendants’ respective PSRs in determining their
sentences. See Turner, 604 F.3d at 385; Artley, 489 F.3d at 821.
The defendants’ briefs both cite a single case, United States v. Hudson, 129 F.3d 994, 995 (8th
Cir. 1997), to support their argument. There, the Eighth Circuit held that a district court’s
reliance on a PSR’s finding that the defendant had possessed a firearm, without any additional
evidence, was clearly erroneous. Id. Even it were a controlling case in this circuit, Hudson is
no help to the defendants because it is inapplicable. In Hudson, the defendant actually objected
to the PSR’s factual assertion that a gun had been found in her automobile. Id. at 994. Here,
as has been discussed, neither defendant made any equivalent objection to the factual findings
in their respective PSRs.
III. CONCLUSION
The defendants’ sentences are AFFIRMED.