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United States v. Montez

United States Court of Appeals, Seventh Circuit

June 5, 2017

United States of America, Plaintiff-Appellee,
v.
Daniel Montez, Defendant-Appellant.

          Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. l:12-cr-00755-8 - Ronald A. Guzman, Judge.

          Argued March 30, 2017

          Before Posner, Manion, and Hamilton, Circuit Judges.

          Manion, Circuit Judge.

         Daniel 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 district court.

          I. Background

         This 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 ("Helein").

         Based 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.

         Before 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.

          At 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.

         At 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.

         II. Discussion

         Montez 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.

         A. Hearsay Objections

         Montez's 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.[1] 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.

         Normally 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.

         The three particular exchanges that Montez highlights in ...


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