In the
United States Court of Appeals
For the Seventh Circuit
Nos. 10-1081, 10-1083, & 10-1202
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
ISRAEL P ILLADO, IRINEO G ONZALEZ, and
L EOBARDO L ARA ,
Defendants-Appellants.
Appeals from the United States District Court
for the Northern District of Illinois, Western Division.
Nos. 08 CR 50017-1, 2 and 5—Frederick J. Kapala, Judge.
A RGUED M AY 9, 2011—D ECIDED S EPTEMBER 7, 2011
Before EASTERBROOK, Chief Judge, and W OOD and
W ILLIAMS, Circuit Judges.
W OOD , Circuit Judge. A law enforcement operation
that began with the promising interdiction of 943 kilo-
grams of marijuana, shipped from Jalisco, Mexico, ended
less than admirably. When government agents executed
a “controlled delivery” to an address in McHenry, Illinois,
close to the one on the shipping manifest (the address
2 Nos. 10-1081, 10-1083, & 10-1202
listed did not exist), they arrested five people. By the
government’s own account, three persons ensnared in
the sting operation had no prior connection to the illicit
cargo. They were merely laborers who happened to be
working on-site when they were persuaded to unload the
truck. Unload it they did, and after the cargo was on
the ground, police raided the scene. The other two defen-
dants had some prior connections to the shipment,
though they had never met the three men who helped to
unload the truck. The prosecution charged all five defen-
dants with conspiracy to possess marijuana with the
intent to distribute in violation of 21 U.S.C. § 846, and
possession with the intent to distribute in violation of
§ 841(a)(1). One defendant pleaded guilty and testified
against the others, who were tried together. Leobardo
Lara was acquitted on the conspiracy count but convicted
for possession with the intent to distribute. The other
three defendants were convicted on both counts. Israel
Pillado, Irineo Gonzalez, and Lara challenge their convic-
tions and sentences on an assortment of grounds; the
fourth defendant has not appealed. We reverse Lara’s
conviction and remand for a new trial. We affirm Gonza-
lez’s conviction but vacate his sentence and remand for
reconsideration. Pillado is out of luck; we affirm his
conviction and sentence.
I
The defendants raise a variety of arguments that require
us to take two different perspectives when viewing the
facts. Gonzalez and Lara argue that the court erroneously
failed to give their desired instructions to the jury. In
Nos. 10-1081, 10-1083, & 10-1202 3
addressing this contention, we view the evidence in the
light most favorable to the defendants. Pillado argues
that the evidence was insufficient to support his convic-
tion; to evaluate this argument we must view the evi-
dence in the light most favorable to the government. We
recount the undisputed facts in the record and point
out disputes where relevant.
On March 17, 2008, customs agents in Charleston, South
Carolina, conducted a routine x-ray examination of a
shipping container arriving from Mexico. They detected
irregularities that are typical of drug smuggling: dense
material packed in hollow objects, with the contrasting
densities evident in the x-ray images. The agents then
conducted a physical search, at which point they dis-
covered marijuana “bricks” stuffed into approximately
204 decorative mud vases. One thing led to another, and
a week later Immigration and Customs Enforcement
(ICE) Agent Warran was en route to the address in
McHenry, Illinois, posing as a truck driver for a con-
trolled delivery. Warran paired up with an actual truck
driver, Joe Nardo, who had worked with the govern-
ment before on sting operations. Nardo’s job was to help
Warran simulate the conditions under which cargo is
generally delivered. The goal, as Warran explained on
the stand, was to apprehend as many people as possible
connected to the shipment. At some point along the way,
they realized that the River Road address on the shipping
manifest was a fake. They contacted the owner of a fairly
large nearby property, which the parties call an “industrial
park,” with a few businesses and garages where equip-
ment is stored. Agents notified the property’s owner,
4 Nos. 10-1081, 10-1083, & 10-1202
Doc Roberts, that they would be executing a controlled
delivery on his property and later paid him $1,000 for
his cooperation.
There was another glitch. Agent Warran had difficulty
locating “Hector Alfonso Huerta,” the importer and
consignee whose name was on the shipment manifest
(along with the nonexistent address). To find someone to
accept the delivery, agents contacted the shipping com-
pany in Mexico and eventually connected with Irineo
Gonzalez. Warran and Gonzalez planned to meet at the
industrial park on River Road the night of March 25. That
night, Gonzalez arrived in a vehicle driven by a woman
identified only as “Maria” and another person, Manuel
Gomez.
Using hidden devices, the government recorded the
exchange between Gonzalez and Warran. Gonzalez spoke
only Spanish, and so Maria translated for him. Through
Maria, Gonzalez explained to Warran that he was
prepared to unload the entire shipment by himself, with-
out any unloading equipment. (Maria and Gomez were
unwilling to lend a hand.) Though Gonzalez insisted
that he wanted to unload the cargo alone, Warran ada-
mantly refused, saying that the load was too large and
it would take several hours for him to complete the
task. During this time, according to phone records
searched after the arrest, Gonzalez and Gomez made calls
to unidentified persons in Mexico. In the end, Warran
instructed Gonzalez to return the next day with more
people and equipment. Warran and Nardo also re-
quired Gonzalez to pay $450 for the delay, which he
Nos. 10-1081, 10-1083, & 10-1202 5
did. They then made a plan to reconvene at noon the
next day.
Enter Gonzalez’s co-defendants. Israel Pillado met
Gonzalez for the first time at a restaurant in Chicago the
next morning (March 26), though how the meeting oc-
curred is disputed. Pillado asserted that he ran into
someone known as “Individual A,” whom he knew from
church, at the restaurant, and Individual A introduced
Pillado to Gonzalez. According to Pillado, Gonzalez was
desperate for a ride to McHenry. Pillado agreed to drive
him in exchange for gas money and payment for
temporary license plates on his recently purchased used
cargo van. The government points out that phone records
show that Individual A contacted Pillado in the early
morning hours of March 26 (after Warran rebuffed Gonza-
lez’s plan to unload the shipment alone), and then again
in the late morning. In the government’s view, the phone
calls show that the rendezvous between Pillado and
Gonzalez at the restaurant was preplanned, not coin-
cidental as Pillado asserts.
Pillado and Gonzalez stopped to get temporary plates
for the cargo van on their way to McHenry. One of them
went inside a currency exchange (each says it was the
other) and registered the car to “Alfonso Huerta” at
Pillado’s home address. Along the way to McHenry,
Warran called Gonzalez’s cell phone looking for “Hector”
(still believing that one of the defendants was Hector
Alfonso Huerta, the person named in the shipping mani-
fest) to coordinate the delivery. Pillado answered the
phone as “Hector” and spoke to Warran about the logis-
6 Nos. 10-1081, 10-1083, & 10-1202
tics. In various calls, Pillado explained that they would be
there in a couple of hours and offered to pay Warran for
any delay. Pillado also said, in response to Warran’s
questions, that they did not have a forklift to unload the
cargo, but that they would have two to three more men
present to unload.
In his post-arrest statement, as recounted by Agent
Warran at trial, Pillado contended that he was merely
speaking for Gonzalez during these phone conversations
with Warran because Gonzalez did not speak English and
could not communicate on his own. Pillado also said that
during the journey Gonzalez was on the phone with
someone in Mexico known as “Guero,” who pressured
Pillado to help unload the cargo. Pillado swears that he
never knew exactly what was in the truck, but after talking
to Guero he suspected it was something “big illegal,”
probably guns or drugs. The government’s view of these
facts is quite different. As the agents see things, Pillado
spoke to Warran as “Hector” of his own volition, not
merely as a translator or conduit, and he had a personal
interest in arranging the logistics for the receipt of the
shipment. His intention, the government contends, was to
load his cargo van with the marijuana and transport it
elsewhere.
Pillado and Gonzalez arrived at the industrial park,
where Warran was waiting, around 1:30 p.m. But they
inexplicably left seconds later. After a couple of hours,
Warran too left the scene. Pillado and Gonzalez then
returned and called Warran to let him know they were
there. When Warran arrived with the cargo, Pillado and
Gonzalez were waiting. Warran approached Pillado and
Nos. 10-1081, 10-1083, & 10-1202 7
asked if he was Hector. Pillado responded, “No, that’s my
brother.” (As it turned out, Pillado really has a brother
named Hector.) Warran tried to get Pillado to sign the
shipping manifest and open the container, but Pillado
refused, saying Gonzalez was the “main guy.”
Then one of the men who owned a business in the
industrial park, Cardenas, took an interest in what was
unfolding. The record contains nothing to suggest that
Cardenas had any reason to believe that the truck con-
tained anything other than legitimate goods. Cardenas
chatted with Pillado, Gonzalez, and Warran for a short
time, observing that it was odd that the shipment had
been delivered to the industrial park when “Hector” ap-
peared to be nowhere in sight. While this conversation
was unfolding, Pillado was on the phone with someone
who had gotten lost en route to the River Road address.
After ending the call, Pillado abruptly left before the
shipping container had been opened.
At that point, Cardenas found some bolt-cutters to
open the truck. With Pillado gone, Cardenas translated for
Gonzalez as they discussed what to do with the ship-
ment, still apparently ignorant as to the contents. Gonzalez
asked Warran and the other driver, Nardo, to help unload,
but they refused. Cardenas then attempted to broker a
deal with Nardo for the truck to be driven to a storage
facility so Gonzalez could claim the shipment there later
when he located “Hector.” While these plans were in
the works, Warran interjected his disapproval. Warran
insisted that transporting and storing the cargo
would be too expensive, and it was better to unload
8 Nos. 10-1081, 10-1083, & 10-1202
immediately so that he and Nardo could head back to
South Carolina.
There is a gap in the recorded conversations at this
point. When the recordings pick up, the other defendants
have joined the scene. It appears that Cardenas had
summoned Arturo Morales, Casimoro Hernandez, and
Lara to the truck to discuss unloading. At this point
Gonzalez jumped in to the truck to inspect the contents.
In addition to neatly stacked Hewlett Packard boxes,
Gonzalez saw a few boxes toppled over and opened, along
with two broken mud vases exposing the marijuana. (ICE
agents had arranged the contents to ensure that the men
knew what they were dealing with once the truck was
opened.) Gonzalez then passed around a brick of mari-
juana and said the term “mota,” apparently Spanish slang
for marijuana. Cardenas, surprised to see drugs in the
truck, immediately said he did not want to be part of the
operation and told Warran to get off the premises with
the truck. Warran refused to leave, insisting that the truck
had to be “f****** unloaded” on the premises because
the seal had been broken. Cardenas then left the scene,
saying he was going to call the landlord. For the next
several minutes, the four men just stood around as
Warran tried to persuade them to unload the truck. They
appeared unwilling to get involved and consulted with
each other for a while longer. At some point, Gonzalez
offered Morales, Hernandez, and Lara bricks of marijuana
for their participation, but Lara refused the offer. Eventu-
ally, Warran contacted Doc Roberts, the landlord, to
seek his permission to unload. Warran told the men
Nos. 10-1081, 10-1083, & 10-1202 9
that Doc Roberts said it was fine to unload and that
Roberts would “take responsibility” for whatever hap-
pened. Eventually, Lara, Hernandez, and Morales un-
loaded the truck while Gonzalez stood to the side, mostly
watching and occasionally directing the others. Lara
owned a bobcat forklift, which he used in the endeavor.
When the cargo was finally on the ground, Warran
departed with the truck. Shortly thereafter, Pillado re-
turned with the cargo van, and Individual A arrived in
a separate car. After talking to some of the men, Pillado
left again minutes later without getting close to the
boxes or taking any marijuana. Several ICE agents
then emerged from the surrounding area and arrested all
of the suspects. The authorities found a loaded .38 caliber
revolver on Lara when he was arrested, but no drugs or
money. They were all advised of their Miranda rights
and subsequently gave statements to the authorities.
Meanwhile, another ICE agent picked up Pillado in
Wauconda, Illinois, about 10 miles away. The authorities
did not find any money, guns, or drugs in Pillado’s van,
though they did recover a hand-drawn map from Chicago
to McHenry. Pillado was also advised of his Miranda
rights, and he too gave a post-arrest statement.
At trial, Gonzalez and Pillado were convicted on both
counts, and Lara was acquitted on the conspiracy count
but convicted of possession of marijuana with the intent
to distribute. All three appeal their convictions and sen-
tences. We address each defendant’s arguments in turn.
10 Nos. 10-1081, 10-1083, & 10-1202
II
A. Leobarda Lara
1. Lesser Included Offense Instruction
We begin with Lara’s argument that the district court
erred in refusing to instruct the jury on the lesser offense
of simple possession of marijuana, in addition to posses-
sion with intent to distribute. A defendant is entitled to
a lesser offense instruction if: (1) the offense on which
he seeks an instruction is a lesser-included offense; and
(2) a rational jury could find him guilty on the lesser
offense but acquit on the greater offense. United States v.
McCullough, 348 F.3d 620, 624 (7th Cir. 2003); see also
Schmuck v. United States, 489 U.S. 705, 716 n.8 (1989). We
review the first step of the inquiry de novo and the second
step for an abuse of discretion. McCullough, 348 F.3d at
624. Everybody agrees that the elements of simple posses-
sion are a subset of possession with the intent to dis-
tribute, and so our focus is on the second step of the
inquiry. At issue is whether the element that distin-
guishes the lesser crime from the greater—the intent to
distribute—is “sufficiently in dispute.” United States v.
Chrismon, 965 F.2d 1465, 1476 (7th Cir. 1992) (internal
citations omitted).
The district court concluded that “given the large
quantity of marijuana in the truck, no reasonable jury
could infer that the defendants possessed the marijuana
for anything other than to distribute.” The court also
observed that Lara’s failure to say that he possessed the
marijuana for personal use meant that the only plausible
alternative was distribution. We cannot agree. This line of
Nos. 10-1081, 10-1083, & 10-1202 11
reasoning, which the government pursues on appeal,
presumes that a person can do only one of two things
with marijuana in her possession: consume it or sell it.
Of course it is preposterous to think that anyone could
personally use a ton of marijuana, and Lara makes no such
argument; to the contrary, he says that he is not a drug
user. We thus agree with the district court that the personal
use option is off the table. But the record in Lara’s case
plainly suggests another alternative: abandonment. Lara
unloaded the truck following persistent requests from
government agents to get the cargo out of the truck,
reinforced by a government-induced appeal from his
landlord to comply. After unloading the marijuana, Lara
walked away empty-handed. A jury could have found
that he was indifferent to what happened next: it could
have stayed there for days, it could have been rained on,
it could have been stolen, or the police could have col-
lected it.
The government responds by pointing to Chrismon and
United States v. Hernandez, 330 F.3d 964 (7th Cir. 2003), in
support of its argument that when a defendant possesses
a large quantity of drugs and does not intend to use it, she
must intend to distribute it. A closer look, however, reveals
that neither Chrismon nor Hernandez supports the gov-
ernment’s view. In Chrismon police raided what was
indisputably a stash house guarded by attack dogs. There,
officers found a triple-beam scale, weapons, two boxes
of small envelopes, a plastic bag filled with 120 small
envelopes packed with drugs, a police scanner, and a
screen that was hooked up to a camera monitoring the
outside of the house. Based on those facts, and “in light
12 Nos. 10-1081, 10-1083, & 10-1202
of the undisputed evidence that the trailer was a heavily
armed and guarded marijuana retail outlet staffed by
employees in shifts,” we said that “no rational jury could
find that [the defendants] were present in the trailer and
in possession of the small packets of marijuana, but did
not intend to distribute that marijuana.” 965 F.2d at 1477.
Our approach in Chrismon took into account all the cir-
cumstances, with a particular focus on the drug distribu-
tion paraphernalia recovered at the house, to conclude
that distribution was the only plausible inference. Like-
wise, in Hernandez, the defendants were confirmed gang
members who ran an elaborate drug-distribution ring
out of a Chicago housing complex; the evidence at trial
of a complex conspiracy to distribute drugs was over-
whelming. See 330 F.3d at 972. Reviewing that record, we
said that the defendants were not entitled to a lesser
offense instruction because they “conceded to the
district judge that they were not arguing that they pos-
sessed the drugs for their own personal use, and no other
reason for possessing them was given to the judge or produced
at trial.” Id. (emphasis added). These cases do not stand
for the proposition that when a defendant concedes she
did not possess the drugs for personal use, the only
possible inference is the intent to distribute.
The court should have considered whether evidence
in the record would have permitted the jury to identify
another plausible reason for possessing the drugs and
thus to reject the government’s allegation that he
intended to distribute. We have no trouble concluding
that Lara has pointed to such evidence here. Unlike in
Hernandez, where the evidence of the larger conspiracy
Nos. 10-1081, 10-1083, & 10-1202 13
to distribute was undisputed, the jury acquitted Lara on
the conspiracy count. Absent an agreement with others
to distribute the marijuana, a jury would have to infer
that Lara intended to distribute some or all of it to find
him guilty of the greater offense. Though a jury could draw
that inference, the facts do not require it. And unlike in
Chrismon, the authorities did not recover paraphernalia
of the drug trade in Lara’s possession, nor does the prose-
cution assert more broadly that it has any other evidence
suggestive of Lara’s involvement in drug distribution.
So while the sheer quantity of drugs could support the
distribution inference, a jury rationally could have con-
cluded that Lara intended to abandon the marijuana
after it was unloaded.
The court’s failure to instruct the jury on the charge
of simple possession was prejudicial error on these facts.
This of course does not mean that every defendant who
“abandons” his stash of drugs while in hot pursuit by
police is entitled to a lesser offense instruction; our point
is that the court must consider all of the facts of the case
before making its ruling. If a defendant proposes a plausi-
ble argument that she did not intend to distribute the
drugs, putting a key element “sufficiently in dispute,” then
she is entitled to the lesser offense instruction. See
Chrismon, 965 F.2d at 1476.
2. Entrapment
Lara also asserts that he is entitled to acquittal because
he was entrapped into his minor involvement with this
crime. Entrapment involves “the apprehension of an
14 Nos. 10-1081, 10-1083, & 10-1202
otherwise law-abiding citizen who, if left to his own
devices, likely would have never run afoul of the law.”
Jacobson v. United States, 503 U.S. 540, 553-54 (1992). The
defense has two elements: government inducement of the
crime and a lack of predisposition on the part of the
defendant. See Mathews v. United States, 485 U.S. 58, 63
(1988). (We have no need here to break the predisposition
element down into “positional” and “dispositional”
predisposition. See United States v. Hollingsworth, 27 F.3d
1196, 1200 (7th Cir. 1994) (en banc). We recognize that
other circuits have either rejected or expressed skepticism
about that distinction. See, e.g., United States v. Ogle, 328
F.3d 182, 188-89 (5th Cir. 2003); United States v. Squillacote,
221 F.3d 542, 567 (4th Cir. 2000); United States v. Thickstun,
110 F.3d 1394, 1398 (9th Cir. 1997). Lara’s case depends on
no such distinction, as we explain below.) In order to
obtain an entrapment instruction, a defendant must
proffer evidence on both elements. See United States v.
Santiago-Godinez, 12 F.3d 722, 728 (7th Cir. 1993). Once a
defendant meets this threshold, the burden shifts to the
government to prove that the defendant was not en-
trapped, meaning “the prosecution must prove beyond a
reasonable doubt that the defendant was disposed to
commit the criminal act prior to first being approached
by Government agents.” Jacobson, 500 U.S. at 549. We
review a district court’s refusal to give an entrapment
jury instruction de novo, United States v. Hall, 608 F.3d 340,
343 (7th Cir. 2010), bearing in mind that the question
whether a defendant has been entrapped is “generally
one for the jury, rather than for the court.” Mathews, 485
U.S. at 63.
Nos. 10-1081, 10-1083, & 10-1202 15
Lara contends that he is the quintessential “otherwise
law-abiding citizen” who, absent the government’s deliv-
ery of a ton of marijuana to his workplace, would never
have run afoul of the law. The court initially thought
that Lara’s assertion that Agent Warran told him that the
truck had to be unloaded might be enough to let him
present the issue to the jury, but it reserved ruling on the
matter. After hearing the evidence and considering the
parties’ arguments at the close of evidence, however, the
court ruled that Lara failed to meet his burden. The
court was persuaded by the government’s argument
that because the defendants failed to present evidence
of “extraordinary inducement” by government agents,
they were not entitled to an entrapment instruction.
The court reasoned that Lara’s concessions that Agent
Warran had not threatened or made promises to him to
induce his participation defeated his request for the in-
struction. (Gonzalez also argued entrapment; we con-
sider his claim below.) As the court saw things, because
Lara “was not forced to unload” the marijuana and he
“could have walked away,” no reasonable jury could have
inferred that Lara was entrapped. The ruling also noted
that, although there was some evidence that govern-
ment agents forcefully insisted that Gonzalez unload the
truck, these inducements were not directed at Lara and
thus they were irrelevant to his defense. Because the
court concluded that Lara failed to identify evidence
that showed the government employed “extraordinary
inducements,” it never considered whether Lara was
predisposed to commit the crime.
16 Nos. 10-1081, 10-1083, & 10-1202
Several errors are evident in this analysis. We begin
with the court’s observations that because Lara “could
have walked away” and was not “forced to unload,” he
was not entrapped. This line of reasoning troubles us, for
it appears to confuse the defense of duress with that of
entrapment. Lara has not asserted a duress defense;
he does not claim that government agents put the prover-
bial gun to his head to force him to unload. See United
States v. Tanner, 941 F.2d 574 (7th Cir. 1991) (holding that
“duress is a defense only if the defendant reasonably
feared immediate death or severe bodily injury which
could be avoided only by committing the criminal act
charged”). The government conceded at oral argument
that there is a difference between duress and entrapment,
yet counsel persisted with the argument that because
Lara could have walked away, he was not entrapped.
We disagree: an entrapment defense requires a showing
of government inducement, not coercion. While coercion
is sufficient to establish inducement, it is not necessary.
The parties vigorously dispute what the defendant
must proffer to warrant an entrapment instruction. The
district court thought that absent a showing of “extraordi-
nary inducement,” the inquiry ends. Before we explain
why the court was wrong on this point, we pause to
comment on the court’s decision not to consider predispo-
sition before making its final ruling. It is true that a de-
fendant must proffer some evidence on both elements of
the entrapment defense to warrant the instruction, but
this is a situation in which the two parts of the inquiry
inform one another. (We cannot become so enamored of
a two-part test that we forget its ultimate point.) A per-
Nos. 10-1081, 10-1083, & 10-1202 17
son’s lack of predisposition to commit a crime distinctively
reveals whether the government has ensnared “an
unwary innocent” in a criminal enterprise of its own
design. See Mathews, 485 U.S. at 63. As we explained in
United States v. Evans, “the centrality of predisposition
can be seen by considering the purpose of the doctrine of
entrapment. It is to prevent the police from turning a
law-abiding person into a criminal.” See 924 F.2d 714, 717
(7th Cir. 1991). Thus, when the entrapment defense is in
play, “predisposition . . . must be the key inquiry.” Id.;
Mathews, 485 U.S. at 63.
We recognize that where there is insufficient evidence
of inducement—either because there is no such evidence
at all, or because the government did nothing more than
offer a standard market deal in a sting—there is no need
to consider predisposition. But predisposition will often
be the more efficient place to start. If the defendant can
point to inducement from a sting, rather than become
embroiled in the question whether the government
offered only a standard deal or something much better,
the court would do better to begin by considering predis-
position to commit the crime. As we have noted before,
if there is sufficient evidence that a defendant was pre-
disposed to commit the crime, a request for an entrap-
ment instruction may be rejected without considering
government inducement. See Santiago-Godinez, 12 F.3d at
728. But the converse is not true: the court may not, as it
did here, begin and end the inquiry with government
inducement unless it is confident either that the govern-
ment did nothing at all or that the record demonstrates
that the government’s actions simply provided an op-
18 Nos. 10-1081, 10-1083, & 10-1202
portunity for a person who was already ready and
willing to commit the offense.
There is an additional reason why it is sensible to begin
the inquiry with predisposition. Whether a defendant
is predisposed to commit the crime charged informs the
nature and level of government inducement that must
be identified to warrant an entrapment instruction. As
we explained in United States v. Hollingsworth, 27 F.3d at
1200, when a defendant is so “situated by reason of
previous training or experience or occupation or acquain-
tances that it is likely that if the government had not
induced him to commit the crime some criminal would
have done so,” then he may be required to point to
“extraordinary inducements” to raise the entrapment
defense. This rule makes sense, because it deters criminal
suspects who have been properly targeted in a sting
operation, such as a known gun dealer who distributes to
the local street gang, from raising an entrapment defense
when apprehended. When there is independent evidence
that the person was predisposed to commit the crime
charged, there is little risk that an innocent person has
been transformed into a criminal by the government’s
presentation of an ordinary opportunity to engage in a
particular criminal activity. See United States v. De Marie,
226 F.2d 783, 785 (7th Cir. 1955) (“Where the officers
only furnished the defendant with an opportunity to carry
out a crime which he was already willing to commit,
there is no entrapment.”).
We use the term “ordinary” in this context to mean
something close to what unfolds when a sting operation
Nos. 10-1081, 10-1083, & 10-1202 19
mirrors the customary execution of the crime charged. For
example, federal agents offering to sell illegal guns to our
hypothetical arms distributor at the going rate on the
streets have simply created an “ordinary” inducement to
commit the crime. In contrast, it would be “extraordinary”
for the agents to approach the same person with an offer
to sell as many guns as the buyer wanted for only one
penny per piece. In the latter scenario, the defendant
would be entitled to present an entrapment defense to
the jury even though he was predisposed to buy guns,
because the government employed extraordinary induce-
ments to get him to commit the crime. This is because
there is a good chance that the government’s out-of-the-
ordinary offer induced the buyer to purchase guns when
he may have refrained from crime on that occasion. The
entrapment defense resolves that concern by having the
fact-finder determine whether the defendant was—based
on the evidence presented at trial—entrapped. The upshot
is that once a court has concluded that a person was
predisposed to commit a crime, a defendant must do
more to earn the instruction than assert that the govern-
ment provided an ordinary opportunity to commit the
crime; he must show extraordinary inducement.
Significantly, however, what we have set forth above
does not exhaust the possible applications of the entrap-
ment defense. The most important function of the
doctrine, the one that the Supreme Court has repeatedly
affirmed, is to ensure that people who are not predisposed
to commit a crime are not transformed into criminals by
the government. See, e.g., Sorrells v. United States, 287
U.S. 435, 442 (1932) (“A different question is presented
20 Nos. 10-1081, 10-1083, & 10-1202
when the criminal design originates with the officials of
the government, and they implant in the mind of an
innocent person the disposition to commit the alleged
offense and induce its commission in order that they
may prosecute.”); Sherman v. United States, 356 U.S. 369,
372 (1958) (observing that “a line must be drawn between
the trap for the unwary innocent and the trap for the
unwary criminal”). Suppose the rule was that every
defendant, even one not predisposed to committing the
crime charged, was required to make a showing of extra-
ordinary inducement before the defense could be pre-
sented to the jury. Government agents would be free
to target perfectly law-abiding individuals with induce-
ments that are subtle, persistent, or persuasive—yet not
extraordinary—and those individuals would never be
able to present the entrapment defense to the jury.
The government supports such a rule, pointing to cases
using the phrase “extraordinary inducements” in support.
We recognize that many of our cases have used that
phrase, e.g., United States v. Orr, 622 F.3d 864, 869 (7th
Cir. 2010), yet we caution against taking the adjective
“extraordinary” out of context to divine a new legal
standard. Our review of the cases confirms that the term
“extraordinary inducement” has been used only in con-
junction with a finding that the defendant was predis-
posed to commit the crime charged and thus had a higher
burden to prove entrapment. See Evans, 924 F.2d at 717
(“Given Evans’ propensities, it is probable that if the in-
formant had not offered Evans a chance to buy marijuana
in bulk, someone else would have done so, and that
Evans would have accepted the offer . . . .”); United States
Nos. 10-1081, 10-1083, & 10-1202 21
v. Haddad, 462 F.3d 783, 790 (7th Cir. 2006) (“Haddad was
predisposed to trafficking in food stamps well before the
CI approached him.”); Orr, 622 F.3d 864, 869 (“Here, all
factors indicate that Orr was predisposed to commit the
charged offense.”); United States v. Hall, 608 F.3d 340, 343
(7th Cir. 2010) (“The evidence presented in this trial
showed beyond a dispute that Hall was predisposed to
commit the crimes of which he was convicted.”); United
States v. Millet, 510 F.3d 668, 678 (7th Cir. 2007) (“Millet has
failed to show that he lacked the predisposition to commit
the crimes charged . . . .”). These cases stand for a pro-
position with which we have no quarrel: when the
record reveals that a defendant was predisposed to com-
mit the crimes charged, she is not entitled to an entrap-
ment instruction unless she can show that the govern-
ment provided an opportunity to commit the crime that
was out of the ordinary. But if the evidence is thin that
a defendant was predisposed to commit a crime, even
minor government inducements should entitle the de-
fendant to present her defense to the jury.
With these principles in mind, we consider Lara’s
claims. The government does not contend that Lara was
predisposed to commit any crime, let alone the ones he was
charged with following the sting operation. Rather, on
appeal the government hews closely to the argument that
prevailed below: because Lara failed to make a showing
of extraordinary inducement, the court need not consider
predisposition. We have already rejected that view. So we
begin by asking whether Lara was predisposed to the
crime charged: possession with the intent to distribute
about one ton of marijuana. (We put the conspiracy charge
to one side, because of the acquittal on that count.) This
22 Nos. 10-1081, 10-1083, & 10-1202
requires an evaluation of the following five factors:
(1) the defendant’s character or reputation; (2) whether
the government initially suggested the criminal activity;
(3) whether the defendant engaged in the criminal activity
for profit; (4) whether the defendant evidenced a reluc-
tance to commit the offense that was overcome by govern-
ment persuasion; and (5) the nature of the inducement or
persuasion by the government. Hall, 608 F.3d at 343. No
single factor controls, but most significant is whether
the defendant was reluctant to commit the offense. Id.
It is not surprising that the government spends no time
arguing that Lara was predisposed to commit the crime
charged, since even a cursory review of the record shows
no hint of such a predisposition. Indeed, this is a case
where we need not mechanically consider each factor
before concluding that a reasonable jury could infer that
Lara was not predisposed to commit the crime. Only a
few facts require mention: Lara was tending to his land-
scaping equipment when Agent Warran and his compan-
ion arrived with a truck chock-full of marijuana and
insisted that he unload it; Lara was not affiliated with
the cartel that shipped the marijuana, nor was he ac-
quainted with his co-defendants in this appeal prior to
the government’s involvement; when Lara learned the
truck contained marijuana, he initially resisted the
request to help with the unloading and acquiesced only
after government’s persistent efforts; and when the job
was done he promptly walked away empty-handed
without payment in drugs or money. Even the district
court noted Lara’s “initial reluctance” to unload the
container (as a way to draw a contrast between Lara and
Nos. 10-1081, 10-1083, & 10-1202 23
Gonzalez, who the court concluded was predisposed to
commit the crime). We recognize that Lara possessed a
pistol when he was arrested, but on these facts that
detail does not significantly alter our analysis of whether
he was predisposed to distributing the marijuana. (We
note that gun ownership is common in our society.) We
might view this fact differently if Lara was apprehended
in the midst of a drug transaction. But here he was simply
unloading a truck near his workplace. We are confident
that Lara has easily met the threshold requirements for
a chance to give the predisposition issue to the jury.
As for the element of government inducement, the facts
are sufficient for a jury to infer that the government
induced Lara to unload the truck. Agent Warran did more
than simply drive the truck to the River Road address
and patiently wait to see who volunteered to unload it.
He insisted that Gonzalez round up others to help (hoping
to get a bigger haul of criminals), and the only one who
took part in the so-called controlled delivery who was
eager to get involved was Gonzalez. As we noted, once
Lara realized the truck was full of marijuana, he again
hesitated to participate. During this time, Warran yelled
obscenities urging the men to unload and fraudulently
claimed that he could not leave the property until the
cargo was unloaded. The court concluded that Warran’s
verbal efforts to hasten the unloading were directed at
Gonzalez, not Lara, but we think that this shaves the
facts too finely. Government counsel conceded that the
statements were made in the presence of Gonzalez, Lara,
and the other men who were standing around; it is unreal-
istic to think that Warran’s performance had no effect on
24 Nos. 10-1081, 10-1083, & 10-1202
Lara. We note one final point that the district court
appears to have discounted. Government agents had
previously contacted Doc Roberts, Lara’s landlord, about
the controlled delivery. Roberts was paid $1,000 for
his cooperation in the affair; this payment, government
counsel conceded at oral argument, makes him a govern-
ment agent. In an effort to secure Lara’s participation in
the unloading, Warran again contacted Doc Roberts to
persuade Lara to unload. Warran then told Lara that Doc
Roberts said it was all right to unload the shipment and
he would take responsibility for whatever happened.
Based on these facts, we conclude that Lara has identi-
fied enough evidence in the record from which a jury
could conclude that the government induced him to
commit the crime.
So Lara is also entitled to a new trial based on the
entrapment defense. In that proceeding, prosecutors will
bear the burden to prove beyond a reasonable doubt
that Lara was predisposed to committing the crime by
identifying “preinvestigation evidence” bearing on this
issue. See Jacobson, 503 U.S. at 548-49 (“Where the Govern-
ment has induced an individual to break the law and
the defense of entrapment is at issue, as it was in this case,
the prosecution must prove beyond reasonable doubt
that the defendant was disposed to commit the criminal
act prior to first being approached by Government
agents.”). We stop short, however, of holding that Lara
is entitled to a judgment of acquittal based on a finding
that he was entrapped as a matter of law. The district
court approached this case with a mistaken understanding
of the relevant legal standards. Because of that error, the
Nos. 10-1081, 10-1083, & 10-1202 25
record was not developed properly, nor did the district
court make its ruling with the proper principles in mind.
On remand, the district court should consider the
question anew based on the record presented to the
second jury. After those proceedings are completed, Lara
will naturally have all avenues of appeal available to him.
We need not address Lara’s sentencing arguments given
our conclusion that Lara is entitled to a new trial on two
independent grounds.
B. Irineo Gonzalez
Like Lara, Gonzalez contends that he was entitled to an
entrapment instruction. Unlike Lara, however, Gonzalez’s
argument fails. The district court assumed that even if
Gonzalez could satisfy the inducement element, he was
nevertheless predisposed to commit the crime and thus
cannot avail himself of the defense. We agree with that
assessment. The record does not support Gonzalez’s
contention that he was an unwary innocent in this affair.
Although Gonzalez’s connection to the owners of the
shipment is unclear, the record shows that he arrived at
the River Road address on the night of March 25 in order
to receive the cargo. He exhibited not a shred of re-
luctance to commit the crime at that time. See Santi-
ago-Godinez, 12 F.3d at 728 (identifying reluctance to
commit the crime as the most important part of the in-
quiry). To the contrary, he pleaded with Agent Warran
to let him unload the truck single-handedly that night. It
was only at Warran’s insistence that he left that night
empty-handed. Gonzalez then arrived the next day pre-
pared yet again to receive the contraband.
26 Nos. 10-1081, 10-1083, & 10-1202
Other evidence also points to Gonzalez’s predisposition
to commit the crimes charged: he was in contact with
unknown persons in Jalisco, Mexico, during the period
when he was trying to get the truck unloaded; after he
was unable to unload the truck the first night, he paid
Warran and Nardo to return the next day; and he or
Pillado registered the cargo van in the name of “Alfonso
Huerta.” It is true, as Gonzalez points out, that there is
little unfavorable evidence relating to his character or
reputation. But this fact alone does not support an entrap-
ment instruction, particularly since the record reveals that
Gonzalez had only been in the United States for a few
months before his arrest. Indeed, the court concluded that
Gonzalez came to Chicago for the specific purpose of
receiving the cargo. In any event, what is most important
for our inquiry is that Gonzalez would have arrived to
collect the shipment even without the involvement of
government agents. Thus, the district court correctly
concluded that Gonzalez was not entitled to an entrap-
ment instruction.
Next, Gonzalez complains that he was not permitted
to introduce certain recorded statements made by Warran
during the sting operation. Gonzalez faces an insurmount-
able hurdle with this argument because he fails to identify
which recorded statements he sought to admit, why the
court excluded them, and why he believes the court’s
decision was in error. His failure to develop his argu-
ment properly makes it impossible for us meaningfully
to review his claim. We therefore conclude that these
arguments are forfeited. See Roland v. Langlois, 945 F.2d
Nos. 10-1081, 10-1083, & 10-1202 27
956, 963 (7th Cir. 1991) (“An appellate court reviews
arguments, it does not construct them.”).
Finally, Gonzalez challenges the four-level enhancement
imposed pursuant to U.S.S.G. § 3B1.1(a) for being the
leader or organizer of a conspiracy that includes five or
more participants. We review a district court’s factual
findings supporting an offense level for clear error. Ex-
plaining its reasoning, the district court concluded that
the enhancement was proper because Gonzalez led a
criminal enterprise that included five participants, in-
cluding his codefendants in this appeal, Pillado and Lara.
Considering the factors outlined by the guidelines, the
court observed that Gonzalez exercised decisionmaking
authority by paying the driver, signing for the shipment,
recruiting accomplices, and paying at least two of them
with bricks of marijuana. In the court’s view, those
actions are consistent with a leadership role.
Gonzalez takes issue with several aspects of the district
court’s analysis. First, he emphasizes that he arrived
alone to unload the shipment, and it was Agent Warran
who insisted that he return the next day with accom-
plices. When he returned, he still had not recruited others
to help with the task, which is why he ultimately turned to
Lara, Hernandez, and Morales, who much to their detri-
ment happened to be working there that day. Gonzalez
concedes that he paid Hernandez and Morales to unload,
but he asserts that he did not lead them sufficiently to
warrant the four-level enhancement. He also stresses
that Lara unloaded at his own discretion without direc-
tion from Gonzalez, presumably as a favor to his landlord.
28 Nos. 10-1081, 10-1083, & 10-1202
Though Gonzalez’s arguments are not frivolous, we
cannot conclude that the district court’s factual findings
regarding Gonzalez’s role in the offense were clearly er-
roneous. United States v. Matthews, 222 F.3d 307 (“If the
fact finder chooses between two permissible views of the
evidence, the choice is not clearly erroneous.”). Neverthe-
less, our analysis of the entrapment defense as it applies to
Lara requires a remand to the district court for a recon-
sideration of Gonzalez’s sentence. The four-level enhance-
ment pursuant to § 3B1.1(a) is premised on Gonzalez’s
leadership of a conspiracy that purportedly involved five
or more people, and the court explicitly based the en-
hancement on this fact. If, however, Lara was entrapped
into committing the conduct for which he is charged, the
number of participants drops from five to four. We recog-
nize that application note 1 says that a “participant” need
not have been convicted, but it goes on to say that a
“person who is not criminally responsible for the com-
mission of the offense (e.g., an undercover law enforcement
officer) is not a participant.” U.S.S.G. § 3B1.1, application
note 1. A defendant who prevails on an entrapment
defense is not criminally liable for her role in the offense,
even though she plainly committed the underlying con-
duct. See United States v. DeLeon, 603 F.3d 397, 407-08 (7th
Cir. 2010) (discussing, in the context of U.S.S.G. § 3E1.1,
how an entrapment defense “tends to negate an acceptance
of responsibility”). So we remand to the district court
for a reconsideration of whether the four-level enhance-
ment is warranted in light of our discussion of Lara’s
entrapment defense, or if Gonzalez’s sentence is other-
wise supportable as a matter of discretion. See 18 U.S.C.
§ 3553(a).
Nos. 10-1081, 10-1083, & 10-1202 29
Because we are remanding for reconsideration, we call
the district court’s attention to one final point. If Agent
Warran had not refused to let Gonzalez unload the
truck alone on March 25, as the government’s rec-
ordings plainly indicate Gonzalez planned to do,
Hernandez, Morales, and Lara would not have become
involved in this regrettable affair. Absent their involve-
ment, the four-level enhancement would be plainly
inapplicable. We note as well that the court gave Morales,
Lara, and Hernandez mitigating role reductions, reflecting
the court’s assessment that these three defendants were
less culpable than the average participant in this sort of
criminal enterprise. Although our standard of review on
appeal prevents us from directing the district court to
re-open fact-finding on this issue, we invite the district
court to reconsider this point on remand in the interest
of justice. See United States v. Johnson, 643 F.3d 545, 554
(7th Cir. 2011).
C. Israel Pillado
Finally, we turn to Israel Pillado. Pillado begins by
arguing that the district court erred in denying his motion
to suppress his post-arrest statements based on Miranda
v. Arizona, 384 U.S. 436 (1966). “Central to Miranda’s
holding is that law enforcement officers are obliged to
inform an accused who is subject to custodial interroga-
tion that she has the right to consult an attorney and to
have an attorney present during questioning.” United States
v. Shabaz, 579 F.3d 815, 818 (7th Cir. 2009). One conse-
quence of this rule is that when “a suspect invokes her
30 Nos. 10-1081, 10-1083, & 10-1202
Miranda rights, she ‘is not subject to further interrogation
by the authorities until counsel has been made
available . . . unless the accused [herself] initiates further
communication, exchanges, or conversations with the
police.’ ” Id. (quoting Edwards v. Arizona, 451 U.S. 477,
484-85 (1981)). In reviewing a denial on a motion to sup-
press, we review questions of law de novo and questions
of fact for clear error, “giving special deference to the
district court’s superior vantage point on matters of
witness credibility.” United States v. Whited, 539 F.3d 693,
697 (7th Cir. 2008).
Pillado says that he asked to speak to an attorney once
he was arrested, but Agent Warran’s and Officer
Gutierrez’s testimony at the suppression hearing squarely
contradicted this assertion. Pillado does not dispute that
he was read and understood his Miranda rights, or that his
statements to the authorities were voluntary. His argu-
ment therefore turns on who was telling the truth at the
suppression hearing. This is plainly something for which
the district court was in a better position to judge than
we are. Pillado nonetheless asserts that the court’s decision
to credit the testimony of the government agents was
clearly erroneous. In support, he points to one inconsis-
tency between the testimony of Warran and Gutierrez, and
suggests that the agents had a motive to fabricate their
testimony because they are friends and had a shared
interest to “protect their arrest.” These arguments do not
warrant overturning credibility determinations of the
district court.
Next Pillado argues that the evidence was insufficient
to support his conviction on both counts. Upon review, we
Nos. 10-1081, 10-1083, & 10-1202 31
consider the evidence in the light most favorable to the
government and will reverse only if no rational juror
could have found the essential elements of the offense
beyond a reasonable doubt. United States v. Sanchez, 615
F.3d 836, 842 (7th Cir. 2010). Pillado insists that his role
in this affair was tangential, limited to driving Gonzalez
to McHenry and returning to pick him up later. He empha-
sizes that he spent no more than 10 to 15 minutes at the
scene of the crime and, unlike the other defendants, did
not participate in unloading the marijuana. Indeed, he
asserts that he did not even know what was in the truck,
though he suspected that it was something illegal. He
further points out that when he was arrested on his way
back to Chicago, he had no money, weapons, or drugs in
his possession, suggesting that he had not gained
anything of value from his involvement. Based on these
facts, Pillado says that the evidence is insufficient to
sustain a conspiracy conviction, and without the con-
spiracy charge the possession with intent to distribute
charge must also be reversed.
We can imagine that Pillado got more than he bar-
gained for when he agreed to drive Gonzalez to McHenry.
The evidence showing that Pillado entered into an agree-
ment with Gonzalez or anyone else to distribute 943
kilos of marijuana is less than overwhelming. Were we
the fact-finders in this case, it is possible that we would
have drawn different inferences from the evidence pre-
sented. But the standard of review requires us to limit
our analysis to the question whether it was reasonable
for the jury to convict, viewing the evidence in the light
most favorable to the government. While Pillado argues
32 Nos. 10-1081, 10-1083, & 10-1202
that he was essentially no more than a chauffeur for
Gonzalez, the record permits a more incriminating in-
ference.
The evidence showed that Pillado had recently pur-
chased a cargo van. A reasonable juror could infer, as the
government argued, that the van was intended to transport
the marijuana. Pillado’s professed inability to recall from
whom he bought the van, even though it was a recent
purchase, casts serious doubt on his credibility. What is
more, after he picked up Gonzalez, the two drove to a
currency exchange to get license plates for the van and one
of them went inside and registered the van to “Alfonso
Huerta” at Pillado’s address. The jury was entitled to
believe Pillado was responsible for this action. Addi-
tionally, when Warran called Gonzalez’s cell phone,
Pillado spoke to him claiming to be “Hector.” He also
provided inconsistent explanations for why he returned
to the River Road address after leaving. Phone records
also show that on the day he was arrested, Pillado was
in contact with Gomez, who drove Gonzalez to the River
Road address on March 25, further suggesting a link
between the suspects. Although Pillado presents an
alternate narrative explaining some of these facts innocu-
ously, that is of little help given the standard of review.
Therefore we reject his insufficiency argument.
The last issues before us relate to Pillado’s sentence,
which he challenges on four grounds. Pillado contends
that the district court erred in finding that he obstructed
justice, in denying his request for a reduction based on his
role in the offense, and in declining to apply the “safety
Nos. 10-1081, 10-1083, & 10-1202 33
valve” to his sentence. These three arguments bear directly
on the court’s calculation of the proper guidelines range.
Pillado also contends that his sentence is unreasonable.
Without making any exceptions, the court adopted the
pre-sentence report, which put Pillado at an offense level
of 32, based on an initial level of 30 with a two-point en-
hancement for obstruction of justice. Pillado had zero
criminal history points, placing him in criminal history
category I. The court calculated the guidelines range, 121
to 151 months, and ultimately sentenced him to 150 months
in prison. We begin with Pillado’s argument that the
court erroneously enhanced his sentence pursuant to
U.S.S.G. § 3C1.1 for obstruction of justice. As the district
court saw things, Pillado lied at the suppression hearing
when he claimed to have requested an attorney after
waiving his Miranda rights. We have already concluded
that this finding was not clearly erroneous, and so we
accordingly conclude that the two-level enhancement was
proper. See United States v. Freitag, 230 F.3d 1019, 1026
(7th Cir. 2000) (upholding obstruction enhancement for
perjury).
The court also believed that Pillado failed to take re-
sponsibility for what was a central role in the drug conspir-
acy and that he was not truthful with the government
during his “safety valve” proffer. On these points, the
sentencing judge specifically concluded: “It’s significant
to me that not only does the defendant fail to accept
responsibility, he continues to insist that he was nothing
more than an innocent bystander in this chain of events. I
believe, I’m convinced that he was a willing and principal
34 Nos. 10-1081, 10-1083, & 10-1202
participant in this criminal enterprise. I know it, the
defendant knows it, and to claim otherwise I believe is
deceitful and disingenuous.” Based on these findings,
which we cannot conclude were clearly erroneous, the
court did not err in denying Pillado reductions for his
role in the offense pursuant to § 3B1.2 or the “safety
valve” pursuant to § 5C1.2.
Finally, Pillado also sought a variance from the guide-
lines range down to the statutory minimum based on
the § 3553(a) factors. He does not contend that the court
committed a procedural error in calculating the guide-
lines range; rather he believes that he should have been
sentenced to a shorter prison term. This is an argument
that his sentence is substantively unreasonable. We
presume that a sentence within the guidelines range is
reasonable. Rita v. United States, 551 U.S. 338, 347 (2007).
The court considered the defendant’s age at the time of
the offense (20 years old) and his lack of a criminal history
as mitigating factors, but it went on to conclude that he
“has led far from [] a law-abiding life . . . .” The court
observed that the defendant was in the United States in
violation of the immigration laws, and he had committed
other crimes, including using false names on registra-
tions and obtaining false identifications to conceal his
undocumented status. In addition, the court emphasized
the huge quantity of drugs involved in the crime, and his
central role in the offense. Because the court properly
addressed the 3553(a) factors in the process of determining
a within-guidelines sentence, we conclude the court did
not abuse its discretion.
Nos. 10-1081, 10-1083, & 10-1202 35
For the reasons stated above, we R EVERSE Lara’s convic-
tion and R EMAND for a new trial consistent with this
opinion. We A FFIRM Gonzalez’s conviction but V ACATE his
sentence and R EMAND for reconsideration. We A FFIRM
the judgment of conviction and sentence of the district
court in Pillado’s case.
9-7-11