from the United States District Court for the Northern
District of Illinois, Eastern Division. No. l:12-cr-00755-8 -
Ronald A. Guzman, Judge.
March 30, 2017
Posner, Manion, and Hamilton, Circuit Judges.
Manion, Circuit Judge.
Montez appeals his conviction and sentence for possession
with intent to distribute cocaine. He principally argues that
the district court erred in admitting a wiretapped
conversation he had with an alleged supplier. He also asserts
that the district court improperly applied the Sentencing
Guidelines' career offender enhancement. Finding his
arguments unpersuasive, we affirm the judgment of the
case arose from an investigation of a drug trafficking ring
led by Jose de Jesus Ramirez-Padilla (known as
"Gallo"). Beginning in 2011, federal agents placed
court-authorized wiretaps on the phones of Gallo and others
connected with his organization. These wiretaps intercepted a
call between Montez and Gallo, and another one between Montez
and Gallo's brother, Helein Ramirez-Padilla
upon the evidence obtained through the wiretaps, the
government initially charged 40 individuals, including Gallo,
Helein, and Montez, with narcotics conspiracy in violation of
21 U.S.C. § 846. The grand jury eventually returned
indictments charging 23 individuals with
narcotics-trafficking crimes. While Gallo, Helein, and four
others were eventually indicted on conspiracy charges, Montez
was indicted on three counts of possession with intent to
distribute cocaine in violation of 21 U.S.C. §
841(a)(1). The three counts related to three distinct alleged
transactions: on October 27, 2011; December 12, 2011; and
June 17, 2012.
trial, Montez raised concerns that the recordings of the
wiretapped calls (or at least the words of Gallo and Helein
in those recordings) were inadmissible hearsay. Montez
pressed only general objections to calls from October 27,
December 12, and December 14, 2011. The district court
rejected what it termed Montez's "blanket objection
to every statement in the recordings, " and then went on
to provide some specific examples of statements that were not
hearsay. The court held that Helein's words were
necessary as context for Montez's admissions and allowed
the recordings to be played to the jury.
trial, in addition to the phone calls, the government
elicited Gallo's live testimony that Montez had been a
customer of his organization. Two FBI agents also testified
to the effect that Montez had admitted to purchasing cocaine
at the time of his arrest. Montez's strategy was to cast
himself as a user of the drugs, rather than a distributor. To
that end, he called one additional agent who testified that
he didn't find any typical drug-dealing paraphernalia in
Montez's home at the time of the arrest. In the end,
Montez was convicted of the December count, but acquitted of
both the October and June counts.
sentencing, the district court found that Montez was a career
offender under Section 4B1.1 of the Sentencing Guidelines
based on his 1985 Illinois murder conviction and 2007
Illinois conviction for aggravated battery of an officer.
After the enhancement, Montez's offense level was 32 and
his criminal history category was VI, accounting for a
Guidelines range of 210 to 262 months, capped by a 20-year
statutory maximum. The district court sentenced Montez to 210
months' imprisonment. Montez appealed his conviction and
the application of the career-offender enhancement.
raises four issues with the proceedings below. He says: (1)
the district court should have excluded at least portions of
his December phone calls with Helein because He-lein's
statements were inadmissible hearsay; (2) the district court
erred in its treatment of a witness's answer that he
worked on the "gang task force" after the parties
had agreed to omit any mention of gang activity in the trial;
(3) his conviction was tainted by incorrect transcripts of
wiretapped calls introduced before the grand jury; and (4)
his conviction for aggravated battery was insufficient to
justify the application of the Guidelines'
career-offender enhancement. We consider and reject each
argument in turn.
most significant complaint about the district court's
judgment is the court's decision to admit conversations
between himself and Helein from December 12 and December 14,
2011. Montez made only a blanket hearsay
objection to the entire conversation, refusing the district
court's invitation to identify particular statements by
Helein that constituted inadmissible hearsay. He has now
identified particular portions of the transcripts that he
says contain hearsay statements by Helein.
we would review the district court's evidentiary rulings
for abuse of discretion. United States v. Davis, 845
F.3d 282, 286 (7th Cir. 2016). The government argues that we
should apply the plain error standard of review because of
Montez's failure to make objections to particular
statements. See United States v. Walker, 237 F.3d
845, 851 (7th Cir. 2001). Abuse of discretion is a
"highly deferential" standard of review, but plain
error is "even more highly deferential." United
States v. Cheek, 740 F.3d 440, 451 (7th Cir. 2014).
However, we do not need to decide this question because even
under the abuse of discretion standard, we would uphold the
district court's evidentiary ruling.
three particular exchanges that Montez highlights in ...