sentencing and on appeal. Vazquez's excuse -- that he did not raise these sentencing claims before the Seventh Circuit because he instead sought equity, i.e. enforcement of his plea bargain -- is irrational and without merit.
The government argues and the court agrees that, in matters pertaining to sentencing issues, the United States Supreme Court has indicated that the time to complain is at sentencing and on direct appeal. Theodorou, 887 F.2d at 1339 n.4 (quoting United States v. Benchimol, 471 U.S. 453, 457, 85 L. Ed. 2d 462, 105 S. Ct. 2103 (1985) (per curiam) (Steven, J., concurring)). Vazquez did not do so; instead, Vazquez waited almost sixty months, or five years, after his sentencing to bring the instant sentencing issues before the court. Vazquez fails to explain his failure to follow appropriate appellate procedures and simply cites to equity maxims. Vazquez's claims, aside from being without merit, should be barred because of his failure to raise them on his direct appeal.
B. Lack of Merits
The court finds that even if Vazquez's claims were not barred by his failure to raise them before or at the time of his sentencing, or in his direct appeal, it would still reject the claims based on their merits. The court rules that Vazquez was properly sentenced in accordance to the appropriate Sentencing Guidelines.
1. Grounds One through Four
The court granted Vazquez's request to voluntarily dismiss Grounds One, Two, Three and Four. The other three arguments that Vazquez makes in this petition are equally frivolous and should be dismissed.
2. Ground Five
Vazquez first contends that his sentence, which included a term of supervised release, was statutorily impermissible because he was convicted of a narcotics conspiracy based on conduct that occurred before November 15, 1988. Vazquez's contention is without merit. In United States v. Paiz, 905 F.2d 1014, 1031 (7th Cir. 1990), the Seventh Circuit held that "term[s] of supervised release" shall not be imposed for § 841(b) crimes committed before November 1, 1987. Vazquez was actively involved in his narcotics organization from 1987 through February of 1988.
3. Ground Six
Vazquez next contends that his "double jeopardy protection was violated by the prosecution's obtaining his conviction and sentence while, in a collateral administrative and civil proceeding, forfeiting property of the defendant." This contention is also without merit. Vazquez did not state in his petition that he had contested the administrative and/or civil proceeding. If Vazquez did not contest the forfeiture proceeding, he was not made a party to that proceeding. In United States v. Torres, 28 F.3d 1463, 1466 (7th Cir. 1994), the Seventh Circuit held that an individual can not be placed in jeopardy by a forfeiture proceeding where he fails to contest the forfeiture in the forfeiture proceeding. See also United States v. Vega, 72 F.3d 507, 513 (7th Cir. 1995); United States v. Ruth, 65 F.3d 599, 602 (7th Cir. 1995). Because Vazquez did not contest the civil forfeiture proceeding, and thus was not a party, he was not put in jeopardy by that proceeding. Simply put, "you can't have double jeopardy without a former jeopardy." Torres, 28 F.3d at 1465. See United States v. Benson, No. 95 C 1458, 1996 U.S. Dist. LEXIS 5428, slip op. at 6 (N.D. Ill. Apr. 16, 1996) (Norgle, J). And, assuming arguendo that Vazquez did dispute the forfeiture, he still waived that claim by not presenting it in his direct appeal.
4. Ground Seven
Finally, Vazquez contends he was excessively fined $ 3,000,000, in that he was fined $ 1,000,000 on Count Two and $ 2,000,000 on Count Three. Vazquez contends that this constituted an impermissible double punishment. He complains that he suffered from constitutionally excessive punishment disparate to that of his codefendant brother, Jose Jaime Vazquez. Vazquez makes the argument that, for very similar conduct he received sixteen years and a $ 3,000,000 fine while his brother was sentenced to ten years and no fine.
Vazquez's arguments are without merit. The court imposed the $ 1,000,000 and $ 2,000,000 fines as required by the Sentencing Guidelines. Both Counts Two and Three carry mandatory fines in those amounts. Moreover, the court notes the differences between Vazquez's involvement and that of his brother. While Vazquez's brother was a participant, Vazquez was at the center of a narcotics distribution network dealing in multiple kilograms of high-grade heroin, cocaine, and marijuana in the Northern District of Illinois. At the sentencing hearing, Luis Vazquez made no claim that his brother, Jose Vazquez, was a major actor in the conspiracy nor did he raise an issue of the relative culpability between the brothers. The Vazquez organization was based at the El Sarape Restaurant, 1347 S. Michigan Avenue, Chicago, Illinois, and supplied controlled substances to major distributors in the various communities in Chicago. Court-authorized wiretaps gave a true picture of the tremendous volume of narcotics that the Vazquez organization distributed. In excess of 4,000 telephone calls were intercepted between December 10, 1987, and February 1988. Between 100-150 narcotics conversations were intercepted with Luis Vazquez as a participant. The evidence clearly showed that Jose Jaime Vazquez and the other defendants were subservient to defendant Luis Vazquez.
All of the codefendants were sentenced after extensive hearings. The court considered matters in aggravation and mitigation as to each defendant and the relative culpability and financial backgrounds of each defendant. This court waived a fine as to some of the defendants who showed an inability to pay. Vazquez could have been sentenced to 284 years in prison and fines of up to $ 10,630,000 under the statutes that he was convicted. The substantial monetary penalty that the court did impose is justified by the potential for a subsequent recovery of drug-related proceeds given the breadth of the conspiracy still remains. Vazquez's sentence was within the applicable range dictated by both the statutes involved and the Sentencing Guidelines. Vazquez could have appealed the fine, but failed to do so. As stated above, Vazquez's present attorney was Vazquez's sentencing and appellate attorney.
In conclusion, the court finds that Vazquez waived the instant claims by failing to raise them to this court before or after his sentencing and by neglecting to raise them to the Seventh Circuit Court of Appeals on his direct appeal. Nevertheless, even if the court had found Vazquez was entitled to raise the claims, it would still have denied Vazquez's motions on the merits. Accordingly, the court denies Vazquez's motion to vacate, correct or set aside his sentence.
IT IS SO ORDERED.
CHARLES RONALD NORGLE, SR., Judge
United States District Court
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