USA v. Alan Cisnero

Filing

Filed opinion of the court by Judge Rovner. AFFIRMED. Diane P. Wood, Chief Judge; Richard A. Posner, Circuit Judge and Ilana Diamond Rovner, Circuit Judge. [6814079-1] [6814079] [16-1300]

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In the

United States Court of Appeals
For the Seventh Circuit
No. 16-1300
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
ALAN CISNEROS,
Defendant-Appellant.

Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 1:12-cr-00356-1 — Samuel Der-Yeghiayan, Judge.

ARGUED NOVEMBER 8, 2016 — DECIDED JANUARY 25, 2017

Before WOOD, Chief Judge, and POSNER and ROVNER, Circuit
Judges.
ROVNER, Circuit Judge. On June 23, 2015, Alan Cisneros pled
guilty to possession with intent to distribute 500 grams or more
of cocaine, in violation of 21 U.S.C. § 846. The facts as developed at the plea hearing and during sentencing reveal that
Cisneros was a high-ranking member of the Latin Kings and

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was involved in a large-scale drug trafficking operation in
Summit, Illinois. In the 10-month period between approximately August 2011 and May 2012, Cisneros admits that he
was responsible for the purchase or sale of between 3.5 and 5
kilograms of cocaine, but he disputes the government’s
calculation—accepted by the district court—that the amount
exceeded 5 kilograms. The district court determined that the
Sentencing Guidelines range applicable to Cisneros was 188–
235 months, and sentenced him to 188 months’ imprisonment,
a supervised release term of four years, a special assessment of
$100, and repayment to the government of $34,600 in “buy
money” provided to Cisneros during the course of his offense.
Cisneros now appeals his sentence on three grounds. First,
he argues that the district court, in calculating the applicable
discretionary Sentencing Guidelines range, improperly
imposed a two-level enhancement for obstruction of justice. In
addition, Cisneros argues that the district court should have
granted him a three-level reduction for acceptance of responsibility. Finally, he contends that the district court erred in
determining that his offense involved more than 5 kilograms
of cocaine.
The district court applied the enhancement for obstruction
of justice based on Cisneros’ attempts to flee to Mexico to
evade authorities. Cisneros was initially apprehended on May
7, 2012, as he was in the process of a drug transaction at a
laundromat. Federal agents observed Cisneros approach a van
driven by his wife in the laundromat parking lot and retrieve
something from that van which he placed in his waistband. As
he walked toward the laundromat, the agents drove into the
lot. Seeing them, Cisneros fled into the side door of the

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laundromat. As he was running through the laundromat,
agents observed him throw a small package down on the floor,
which was subsequently determined to contain 58 grams of
cocaine. The agents were able to apprehend Cisneros before he
reached the laundromat’s front door, and placed him under
arrest. The agents also retrieved an additional 216 grams of
cocaine from the van.
The agents then transported Cisneros to a local police
department, at which point he acknowledged that the cocaine
belonged to him and indicated an interest in cooperating. They
released him at that time. The next day they contacted him and
asked him to meet them at a specific location in Bedford Park.
He did so, and voluntarily got into a vehicle with the agents,
who drove him to a local office of the Bureau of Alcohol,
Tobacco, Firearms, and Explosives. Only then did he learn for
the first time that the investigation was a federal one, and that
it had involved months of wiretaps and surveillance. The
agents asked him to cooperate in the investigation, and
Cisneros requested time to consider the option and expressed
concerns for his safety. The day after Cisneros was released
from the agents’ custody, the agents learned that he had
booked a flight to Mexico. They responded immediately and
apprehended him on the jetway at O’Hare Airport as he was
boarding the flight to Mexico. Cisneros had with him a suitcase
containing three new t-shirts that he had just purchased that
day on the way to the airport, as well as approximately $2500
in cash1, much of which had been returned to him by the
1

The briefs provide divergent amounts as to the cash Cisneros possessed
(continued...)

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agents. He had purchased a one-way ticket, and was traveling
on his Mexican passport.
Relying on that effort to flee to Mexico, the district court
imposed a two-level enhancement for obstruction of justice.
We review the district court’s obstruction finding for clear
error, giving deference to that court’s application of the
Guidelines to the facts. United States v. Arceo, 535 F.3d 679, 687
(7th Cir. 2008); United States v. Porter, 145 F.3d 897, 902 (7th Cir.
1998).
Section 3C1.1 of the Sentencing Guidelines provides for a
two-level enhancement if a defendant “willfully obstructed or
impeded, or attempted to obstruct or impede, the administration of justice with respect to the investigation, prosecution, or
sentencing of the instant offense.” Application Note 5 of that
provision includes a non-exhaustive list of the types of conduct
that “ordinarily” will not warrant that obstruction enhancement, and included in that list is “avoiding or fleeing from
arrest.” In interpreting that provision, however, we have
clarified that some efforts to evade authorities through flight
can nevertheless warrant the enhancement. The ultimate
question remains whether the defendant’s conduct evidences
a willful intent to obstruct justice. Porter, 145 F.3d at 903.
Accordingly, we have distinguished between “panicked,
instinctive flight,” generally in the immediate aftermath of the
crime, and “calculated evasion” constituting a deliberate
1

(...continued)
when apprehended at the airport, generally ranging from more than $2043
to $2500. Cisneros’ brief states the amount was $2500, and that is the
amount we will use.

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attempt to frustrate or impede an ongoing criminal investigation. See United States v. Schwanke, 694 F.3d 894, 897 (7th Cir.
2012); United States v. Gonzalez, 608 F.3d 1001, 1006–07 (7th Cir.
2010); Arceo, 535 F.3d at 687. Thus, although flight from officers
at the time of arrest may not constitute obstruction, we have
upheld the obstruction finding in many cases in which the
defendant has evaded authorities by traveling to distant
locations and assuming a new identity, or traveling to a foreign
country where the authorities will have significant difficulty in
finding and apprehending the defendant. See Schwanke, 694
F.3d at 895 (defendant fled to the Philippines and stayed for
four years); Arceo, 535 F.3d at 687 (defendant fled to Mexico for
several years and then relocated to Pennsylvania under an
assumed name); Porter, 145 F.3d at 902 (defendant traveled
from Indiana to Tennessee and used a false name, including a
false birth certificate and social security card, and altered his
hair color).
More recently, in United States v. Nduribe, 703 F.3d 1049 (7th
Cir. 2013), we further clarified the distinction between flight
that supports the enhancement and that which does not. The
Nduribe court clarified that the distinction does not rest on the
state of mind—“panicked or instinctual” versus “calculated.”
Id. at 1052. Although our cases recited that language, the
holdings in fact turned on whether the defendant’s conduct
impeded the administration of justice. Id. Therefore, the proper
question in applying that enhancement to efforts to flee are
whether the flight is “likely to burden a criminal investigation
or prosecution significantly—likely to make the investigation
or prosecution significantly more costly or less effective than
it would otherwise have been.” Id. at 1053. We further recog-

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nized in Nduribe that the phrase in § 3C1.1, “or attempted to
obstruct or impede,” allows imposition of the enhancement
whether or not the defendant was successful in the effort. Id. at
1053; see also Porter, 145 F.3d at 904. Where the defendant’s
efforts were foiled and therefore constituted only an attempt,
the standard is met “if, had it succeeded, it would have had
those consequences.” Nduribe, 703 F.3d at 1053.
In this case, we have examples of both efforts at flight that
support application of the enhancement, and flight that does
not. When Cisneros first spotted the agents near the laundromat, he fled through the side door and ran through the
laundromat towards its front door in an effort to escape. That
is the type of conduct that, in earlier cases, we would have
labeled “panicked, instinctive flight,” but which we now more
precisely would describe as the type of conduct that is not
likely to significantly burden the investigation or prosecution.
The flight was predictably intercepted almost immediately,
and even if he had evaded capture at that initial point, there is
no reason to believe that his freedom would have been
anything but short-lived. In contrast, his effort to flee to Mexico
was highly likely to significantly burden the investigation or
prosecution. Cisneros asserts that he had no intention of
remaining in Mexico, that he was simply seeking some time to
clear his mind and weigh his options, and intended to return.
The district court certainly was not required to credit that
version, and in this case the objective evidence belies his claim.
Cisneros booked only a one-way ticket, thus negating his
claim that he planned to return in short order. Furthermore, he
fled in a manner that appeared to be designed to evade notice.
Having been made aware that the agents had been monitoring

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his phone and his home as part of the investigation, Cisneros
did not pack clothes from home, but merely purchased a few
t-shirts on the way to the airport and attempted to depart
quickly. Other than those t-shirts, he filled the suitcase with
$2500 in cash, which would allow him to travel within Mexico
without easily being traced. In addition, the pre-sentence
report establishes that Cisneros was an illegal alien in the
United States, a fact that was acknowledged in discussions at
the plea hearing and sentencing, and which was evidenced by
his possession of a Mexican passport. Given that status,
Cisneros would not even have had the right to return to the
United States. Moreover, although any flight to another
country may have the potential for significant interference with
an investigation, the attempted flight in this case presented a
much more profound level of interference. By fleeing to Mexico
as a Mexican national, Cisneros could have placed himself
entirely outside the reach of the American authorities. The
extradition treaty between the United States and Mexico allows
each country to exercise its discretion over the extradition
requests of its nationals. See United States v. Munoz, 718 F.3d
726, 728 n.1 (7th Cir. 2013). Therefore, the attempted flight in
this case, similar to the flights to other countries in Schwanke,
Arceo, and Nduribe, was likely to significantly burden the
criminal investigation or prosecution if successful. Because the
obstruction enhancement applies to attempted obstruction, not
merely successful obstruction, the interception of Cisneros at
the airport does not render the enhancement inapplicable.
Here, given his status as a Mexican citizen and his actions in
purchasing a one-way ticket and bringing large amounts of
cash, the likely impact of his flight, if successful, is clear. The

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district court did not clearly err in determining that his attempt
to evade law enforcement by fleeing to Mexico warranted the
enhancement for obstruction of justice.
Based on that determination, we also conclude that the
district court did not err in refusing to grant a three-level
reduction for acceptance of responsibility. Cisneros’ argument
for the three-level reduction is based in part on his contention
that he did not obstruct justice, but as we have already rejected
that assertion, he has an uphill battle in seeking a reduction for
acceptance of responsibility. That is because “[a] defendant
who obstructs justice may receive credit for accepting responsibility only in ‘extraordinary cases.’” U.S.S.G. § 3E1.1, Application Note 4; United States v. Pons, 795 F.3d 745, 747 (7th Cir.
2015); Gonzalez, 608 F.3d at 1008. Cisneros has failed to demonstrate that his actions present such an extraordinary circumstance. He alleges only the type of eventual cooperation with
the government and assertions of remorse that are common in
cases before us. The district court did not clearly err in determining that Cisneros’ sentence would not be reduced based on
acceptance of responsibility.
Finally, Cisneros argues that the district court erred in
determining that his offense involved more than 5 kilograms
of cocaine. A criminal defendant has a “due process right to be
sentenced on the basis of accurate information.” United States
v. Bozovich, 782 F.3d 814, 817 (7th Cir. 2015); Ben-Yisrayl v. Buss,
540 F.3d 542, 554 (7th Cir. 2008). Sentencing determinations
must be made based on reliable evidence, but courts may make
reasonable though imprecise estimates based on the information that has indicia of reliability. Bozovich, 782 F.3d at 817–18.
Furthermore, a preponderance of the evidence is all that is

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required for a factual finding of drug quantity under the
Sentencing Guidelines. Id. at 818. We review the district court’s
determination of drug quantity only for clear error. Id.
Cisneros agreed with the cocaine amounts attributed to the
vast majority of the transactions, identifying only three errors.
First, Cisneros argues that the district court improperly
determined that a transaction referenced 12 ounces of cocaine
as opposed to 12 grams of cocaine. Second, Cisneros asserted
that the district court double-counted 500 grams of cocaine. He
contends that the purchase of 500 grams of cocaine on February 7 and the sale of 500 grams of cocaine on February 9
involved the same cocaine, and therefore the court erred in
counting that as 1000 grams rather than 500 grams of cocaine.
Finally, he argues that the court erred in including attempted
but not completed transactions.
As an initial matter, the government argues that we need
not address Cisneros’ challenges, because even if we subtract
500 grams from the February transactions, and subtract the
difference between the 12 ounces and 12 grams, the drug
quantity is still over 5 kilograms. The government acknowledges that Cisneros had also challenged in the district court the
inclusion of “attempted” but not “completed” transactions, but
asserts that Cisneros waived that claim in this appeal.
Cisneros does not address that claim of waiver in his reply
brief. Instead, he merely asserts that his challenge to the drug
quantity includes a challenge to the inclusion of 1500 grams
that were part of transactions that were attempted but not
completed. That argument, however, was referenced in only a
cursory manner in Cisneros’ opening brief to this court, in

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contrast to its presentation to the district court. In the district
court, Cisneros argued that the district court should not have
included in the drug quantity the “attempted” transactions on
May 2 & 3, 2012, that involved 1000 grams and on May 6, 2012,
that involved 500 grams of cocaine. Cisneros conceded in the
district court that under U.S.S.G. § 2D1.1, Application Note 5,
completed sales and attempts to sell can be aggregated to
determine the scale of the offense for offenses involving both
a substantive drug offense and an attempt, but he nevertheless
encouraged the district court to disregard such amount. That
application note also provides that where the offense involves
an agreement to sell, the agreed-upon quantity can be used to
determine the offense level, but that such amounts must be
excluded if the defendant establishes that he did not intend to
provide or purchase—or was not reasonably capable of
providing or purchasing—the agreed-upon quantity. U.S.S.G.
§ 2D1.1, Application Note 5. Cisneros did not contend that he
fell within that exception.
On appeal to this court, however, Cisneros in his opening
brief neither identifies the specific transactions constituting the
“attempts,” nor does he cite any of the relevant law. We have
repeatedly and consistently held that “perfunctory and
undeveloped arguments, and arguments that are unsupported
by pertinent authority, are waived.” United States v. Berkowitz,
927 F.2d 1376, 1384 (7th Cir. 1991); United States v. Alden, 527
F.3d 653, 664 (7th Cir. 2008). Cisneros failed to develop either
the factual or the legal basis for his claim in this appeal. For
instance, in his opening brief, Cisneros never identifies the
amount of drugs improperly attributed to him by the district
court based on attempted as opposed to completed transac-

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tions, or the dates of those challenged transactions. The sole
reference to the quantities and dates appears in an unrelated
paragraph seeking to establish that Cisneros dealt in gram
quantities as opposed to ounces, in which Cisneros states:
On three days in May 2012 there [sic] conversations
about transactions that never occurred in which
amounts between 500 and 1000 grams were discussed. These amounts were used by the District
Court to inflate the drug quantity, even though the
evidence clearly showed that no transaction in these
amounts occurred on the days in question.
Appellant’s Brief at 26. That is the sole detailed reference to the
“attempted” transactions that Cisneros purportedly challenges.
We would need to reference the district court arguments to
identify the exact dates and quantities. Moreover, in contrast
to his argument in the district court, Cisneros does not reference the Guidelines provision, nor does he identify any
caselaw regarding the propriety of relying on attempted
transactions. The sole case cite is to a case holding that drug
quantity calculation can include purchases, sales, or amounts
used, but that decision was not presented with—and therefore
did not address—the question here, which is the treatment of
attempted transactions. In addition, Cisneros makes no effort
to establish, as provided by the application note, that the
amounts must be excluded because he did not intend to
provide or purchase, or was not reasonably capable of providing or purchasing, the agreed-upon quantity. From the
government brief, it appears that at least some of those
“attempted” transactions were not completed because of
intervention by law enforcement, and Cisneros presents no

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argument as to why that should absolve him of responsibility
for that drug quantity, but we cannot be certain as to the
circumstances of those attempts because Cisneros provides no
discussion of the transactions involved. Because he has
provided only a perfunctory and undeveloped argument as to
both the law and the underlying facts, this claim is waived.
That leaves only the challenge to the 12 ounces and the 500
grams, but even if Cisneros succeeded on both those claims, he
would not fall below the five kilogram threshold and the
Guidelines range would be the same. Accordingly, we need not
address those claims.
The decision of the district court is AFFIRMED.