In the

United States Court of Appeals

For the Seventh Circuit

No. 11-3314

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

VINCENTE RAMIREZ-MENDOZA,

Defendant-Appellant.

Appeal from the United States District Court

for the Eastern District of Wisconsin.

No. 10-Cr-175—Rudolph T. Randa, Judge.

ARGUED MARCH 29, 2012—DECIDED JUNE 8, 2012

Before KANNE, ROVNER, and WILLIAMS, Circuit Judges.

KANNE, Circuit Judge. Facing charges of conspiracy

to kidnap, unlawful possession of a firearm in furtherance of a crime of violence, and conspiracy to distribute

marijuana, Vincente Ramirez-Mendoza agreed to plead

guilty solely to the marijuana-conspiracy charge. The

district court sentenced Ramirez-Mendoza to 144 months’

imprisonment. Ramirez-Mendoza now challenges

that sentence in part by arguing that the district
2 No. 11-3314

court insufficiently considered non-frivolous arguments

in mitigation. We agree and thus, remand for resentencing.

I. BACKGROUND

Vincente Ramirez-Mendoza was part of a large-scale

drug trafficking organization that distributed marijuana

in and around Chicago and Milwaukee. In April or May

2010, Roberto Vizcaino-Ortiz, a social acquaintance

of Ramirez-Mendoza, introduced him to Hector VizcainoOrtiz, Roberto’s brother. Shortly after their initial meeting,

Ramirez-Mendoza agreed to act as a middleman

for marijuana transactions between Hector and Jose

Rodriguez, a marijuana supplier. That is, RamirezMendoza arranged for Hector to purchase marijuana

from Rodriguez on consignment for which RamirezMendoza was paid a token commission. This arrangement

continued until approximately August 2010, when Hector

stopped paying Rodriguez for previously purchased

marijuana. That missed payment amounted to somewhere

between $30,000 (Ramirez-Mendoza’s estimate) and

$75,000 (the presentence report’s (PSR) estimate).

Predictably, Rodriguez demanded payment, and according to Ramirez-Mendoza, Rodriguez pressured him

to collect from Hector. When Ramirez-Mendoza’s calls

to Hector went unanswered, Rodriguez apparently suggested that Ramirez-Mendoza call Roberto to demand

payment on Hector’s debt. Roberto answered RamirezMendoza’s calls but refused or was unable to bail out

his brother. Undeterred, Ramirez-Mendoza and perhaps

one or more associates visited Roberto at work four or
No. 11-3314 3

five times in hopes of tracking down Hector. Through

this all, Ramirez-Mendoza maintains that he only called

on Hector and Roberto because Rodriguez threatened

injury to Ramirez-Mendoza’s family if he failed to

help Rodriguez secure payment. 

Rodriguez’s demands for payment came to a head

on August 27, 2010. That morning, two men assaulted

Roberto in Milwaukee, dragged him into a van, and

eventually transported him to a house on South Sacramento Avenue in Chicago where he was bound to a

chair with duct tape and flex-cuffs. Roberto reported that

the kidnappers carried firearms during the ordeal

and shocked him with an electric cattle prod. Roberto’s

captors also forced him to make phone calls to family

members seeking the money his brother Hector owed

Rodriguez. Fortunately, Roberto escaped the next day.

A subsequent search of the Sacramento Avenue house

revealed a pair of boots, later identified as Roberto’s,

which were duct taped to the legs of a chair found in

the basement. 

Although it is undisputed that Ramirez-Mendoza joined

the kidnappers on August 27, the government and

Ramirez-Mendoza disagree about his role in Roberto’s

kidnapping. Ramirez-Mendoza principally contends

that he was also held captive and tortured at the same

time as Roberto. To bolster his claim, Ramirez-Mendoza

points to a second chair found in the Sacramento Avenue

house that also contained remnants of duct tape—evidence

that supposedly proves that Ramirez-Mendoza was

forcibly restrained. Ramirez-Mendoza claims that his
4 No. 11-3314

cousin eventually freed him. The government, of course,

disputes Ramirez-Mendoza’s story and claims instead

that Ramirez-Mendoza played a role in the kidnapping.

As evidence, the government collected cell-phone tower

data, which shows that Ramirez-Mendoza’s phone—and

presumably Ramirez-Mendoza himself—traveled from

Chicago to Milwaukee on the morning of August 27,

and then back to Chicago (near the Sacramento Avenue

house) from Milwaukee later that same day. This itinerary

is consistent with the theory that Ramriez-Mendoza

traveled to Milwaukee to kidnap Roberto, and then

drove back to Chicago where Roberto was held captive.

And perhaps most importantly, the government points

out that Ramirez-Mendoza continued to lean on Roberto

and Roberto’s relatives for payment even after Roberto

escaped. 

During the subsequent investigation, detectives requested that Roberto place a recorded phone call to

Ramirez-Mendoza. Roberto asked Ramirez-Mendoza to

leave him alone and that it was not his obligation to pay

his brother’s debts. Ramirez-Mendoza responded that

“it’s not my doing” and “[i]t’s not coming from me

brother . . . you know what they did to me.” RamirezMendoza was arrested on September 8, 2010, for his role

in Roberto’s kidnapping and the Rodriguez marijuanadistribution conspiracy.

On April 12, 2011, the government filed a second superseding indictment charging Ramirez-Mendoza with: (1)

conspiracy to commit kidnapping, in violation of 18 U.S.C.

§ 1201(a); (2) possession of a firearm in furtherance of
No. 11-3314 5

a crime of violence, in violation of 18 U.S.C.

§ 924(c)(1)(A)(i); and (3) conspiracy to distribute 100

kilograms or more of marijuana, in violation of 21 U.S.C.

§§ 846 and 841(b)(1)(B). On June 23, Ramirez-Mendoza

pled guilty to count three, the drug-conspiracy charge.

An attachment (Attachment A) to the written plea agreement served as the factual basis for the plea. Attachment

A provides, in part, that large-scale drug trafficking

organizations—such as the organization to which RamirezMendoza belonged—often use violence against those

who fail to pay drug debts or as a means to otherwise maintain control over the organization. At the sentencing hearing, Ramirez-Mendoza’s counsel timely

objected to this portion of Attachment A by saying

that Ramirez-Mendoza “did not necessarily know some

of those facts”—meaning that Ramirez-Mendoza was

unaware that violence could be used in connection with

the conspiracy.

For the quantity of marijuana at issue, the PSR initially

calculated Ramirez-Mendoza’s base-level offense as

26. From there, the PSR recommended a two-level enhancement for possession of a firearm, see U.S.S.G. § 2D1.1(b)(1),

a two-level enhancement for use of violence, see U.S.S.G.

§ 2D1.1(b)(2), and a three-level adjustment for acceptance

of responsibility, see U.S.S.G. § 3E1.1(a)-(b). Thus, the PSR

recommended a sentencing range of 70 to 87 months’

imprisonment based on a total criminal offense level of

27 and a Category I criminal history. Notably, the district

court accepted the PSR’s recommendation, over the government’s objection, against applying a two-level enhancement under U.S.S.G. § 2D1.1(b)(12) for maintaining
6 No. 11-3314

a premises for manufacturing or storing marijuana.

The district court ultimately departed from the guidelines range and imposed a sentence of 144 months’ imprisonment.

II. ANALYSIS

We review Ramirez-Mendoza’s sentence for reasonableness under an abuse of discretion standard. United

States v. England, 604 F.3d 460, 464 (7th Cir. 2010).

First, we determine whether the sentencing court committed procedural error—such errors include, for example,

an improperly calculated guidelines range or the failure

to consider the 18 U.S.C. § 3553(a) factors. United

States v. Scott, 555 F.3d 605, 608 (7th Cir. 2009). If there

was no procedural error, we then review the sentence

for substantive reasonableness. Id.

On appeal, Ramirez-Mendoza contends that the district

court committed three errors in rendering an aboveguidelines sentence, although we have grouped the

first two for ease of analysis. First, Ramirez-Mendoza

argues that the sentencing court failed to adequately

address two of his arguments: (1) whether RamirezMendoza was coerced into participating in the kidnapping; and (2) whether Roberto’s kidnapping

was foreseeable. Second, Ramirez-Mendoza argues

that the length of his sentence was substantively unreasonable. 
No. 11-3314 7

A. Procedural Error

We begin with the oft-cited principle that the sentencing court “must adequately explain the chosen sentence

to allow for meaningful appellate review and to promote

the perception of fair sentencing.” Gall v. United States,

552 U.S. 38, 50 (2007); see also United States v. GarciaOliveros, 639 F.3d 380, 381 (7th Cir. 2011) (per curiam);

(“A sentencing court commits procedural error by not

adequately explaining its choice of sentence.”). But

in applying Gall, we have carefully noted that a sentencing judge “need not belabor the obvious,” United States

v. Gary, 613 F.3d 706, 709 (7th Cir. 2010), nor must the

sentencing judge always address “stock” arguments

made in mitigation, United States v. Tahzib, 513 F.3d

692, 695 (7th Cir. 2008); Gary, 613 F.3d at 709 (“ ‘[S]tock’

arguments in mitigation often can be rejected with little

or even no explanation.”). “Stock” arguments have

been previously defined as near-meritless arguments

that a sentencing court frequently encounters. See, e.g.,

United States v. Mendoza, 576 F.3d 711, 722 (7th Cir. 2009);

Tahzib, 513 F.3d at 695.

With that, we turn to the question of whether the district

court adequately addressed two of Ramirez-Mendoza’s

principal arguments. First, Ramirez-Mendoza argues

that the district court ignored his claim that he was coerced

into participating in the kidnapping, and thus, whether

he was entitled to a reduction to his calculated criminal

offense level. See U.S.S.G. § 5K2.12 (“If the defendant

committed the offense because of serious coercion, blackmail or duress, under circumstances not amounting to
8 No. 11-3314

a complete defense, the court may depart downward.”).

We agree. In his sentencing memorandum, RamirezMendoza offered evidence suggesting that he was

also kidnapped or, at a minimum, subjected to significant pressure to collect Hector’s debt. For example,

Ramirez-Mendoza claims that Rodriguez threatened

harm to Ramirez-Mendoza’s family if he did not

help collect the debt. Ramirez-Mendoza also points to

his statement during the recorded phone call with

Roberto—“[i]t’s not coming from me brother . . . you know

what they did to me”—which could be evidence of coercion. There is also the matter of the duct tape found on

a second chair in the South Sacramento house and

the simple fact that Ramirez-Mendoza consistently

and forcefully called on Roberto to answer for the

debt, even though Ramirez-Mendoza and Roberto

were social acquaintances. All this is to say that RamirezMendoza’s coercion argument is more than a mere

stock argument. Accordingly, the district court should

have addressed it at the sentencing hearing.

The government concedes that the district court never

expressly addressed Ramirez-Mendoza’s coercion argument; rather, the government contends that the district

court implicitly rejected the argument by calling

into question Ramirez-Mendoza’s credibility—but in a

different context. The district court’s intimation without

confronting the coercion argument head-on is simply

not enough for non-frivolous arguments. See United States

v. Schroeder, 536 F.3d 746, 756 (7th Cir. 2008). Alternatively,

the government suggests that any error by the

district court is harmless. See United States v. Acosta,
No. 11-3314 9

474 F.3d 999, 1004 (7th Cir. 2007). Acosta is inapposite.

There, we noted that the defendant’s coercion argument

was meritless, entirely premised on the defendant’s selfserving testimony, and not even a principal focus at

her sentencing hearing. Id. The exact opposite is true

of Ramirez-Mendoza’s argument. Additionally, harmless

error plays a role in sentencing when a district court

does not discuss an immaterial sentencing argument. Id.

at 1003 (citing United States v. Cunningham, 429 F.3d 673,

678 (7th Cir. 2005)). As discussed, Ramirez-Mendoza’s

argument is not frivolous, and thus, it cannot be swept

away through harmless error.

Ultimately, the government may dispute the relevance or

truth of the coercion evidence, and the government

might be correct in arguing that Ramirez-Mendoza created

this coercion story out of whole cloth. We take no view

on the veracity of Ramirez-Mendoza’s theory, except to

say that it was a principal argument worthy of the district

court’s attention. See Cunningham, 429 F.3d at 679 (“A judge

who fails to mention a ground of recognized legal

merit (provided it has a factual basis) is likely to have

committed an error or oversight.”). This argument

was neither meritless nor one frequently encountered

by sentencing courts. It deserved the attention of

the district court.

Ramirez-Mendoza also claims that the district court

failed to adequately consider whether his co-conspirators’

actions should be charged to him as relevant conduct.

See U.S.S.G. § 1B1.3(a)(1)(B) (Generally, a defendant can

be held liable for “all reasonably foreseeable acts and
10 No. 11-3314

omissions of others in furtherance of the jointly undertaken criminal activity . . . .”). Here, the district court

enhanced Ramirez-Mendoza’s sentence because

the kidnapping and use of firearms by his co-conspirators

was reasonably foreseeable to him, and thus, relevant

for purposes of crafting his sentence. But, RamirezMendoza faults the district court for improperly relying

on disputed evidence. Specifically, Ramirez-Mendoza

highlights his objection to one paragraph of Attachment

A to the plea agreement, which indicated that RamirezMendoza was aware of the violence drug trafficking

organizations typically use to collect drug debts. 

On appeal, Ramirez-Mendoza claims that the

district court improperly relied upon the objected-to

paragraph in Attachment A in holding that his co-conspirators’ violent acts were foreseeable. Assuming this is

true, Ramirez-Mendoza argues that the district court

never sufficiently explained why his co-conspirators’

violence should be charged to him as relevant conduct.

We generally agree with Ramirez-Mendoza that the district

court improperly mentioned his “admissions,”

which presumably is a reference to the objected-to paragraph in Attachment A. But, the district court also

made an explicit credibility finding on the foreseeability

issue. Specifically, the district court said: “A disassociation by the defense to these [foreseeability] facts is not

believable . . . given the physical evidence that . . . connect[s] the Defendant to these events. And I’m referring

to the cell phones and other facts that make those arguments relative to disassociation implausible . . . .” (Sent. Tr.

at 53.) Such a credibility finding is exactly the type of find-
No. 11-3314 11

We are skeptical that Ramirez-Mendoza’s foreseeability 1

argument is worthy of the district court’s attention—that is,

whether it is something other than a stock argument. Anyone

who so much as opens a newspaper must know that large-scale

drug conspiracies use violence to maintain territory, ensure

payment, and enforce organizational structure. Surely RamirezMendoza had some inkling that Rodriguez would resort to

violence if a customer failed to pay a $30,000 or $75,000 debt.

That said, we assume without deciding that this is a meritorious

claim and instead find that the district court’s credibility finding

sufficiently explains its choice of sentence.

ing necessary for a district court to have sufficiently

considered a defendant’s sentencing argument. Although

the district court should have avoided referring to

a contested admission, we are satisfied that its brief

credibility determination adequately explains the

decision to reject Ramirez-Mendoza’s foreseeability

argument. See United States v. Williams, 616 F.3d 685,

694 (7th Cir. 2010) (“Because this explanation demonstrated the court’s basis for its reasons, it matters little

that the explanation was brief.”); Schroeder, 536 F.3d at 755

(“A short explanation will suffice where the context

and record make clear the reasoning underlying the district

court’s conclusion.”).1

B. Substantive Reasonableness

Because the district court did not address one meritorious argument offered in mitigation, we need not consider

whether Ramirez-Mendoza’s sentence was substantively
12 No. 11-3314

unreasonable. See Cunningham, 429 F.3d at 680. But, we

take this opportunity to stress that sentencing judges

rightly maintain significant discretion in fashioning an

appropriate sentence. It is the sentencing judge that

hears evidence and makes credibility determinations, both

of which give the judge insights into a case that a

cold record simply cannot convey. Gall, 552 U.S. at 51-52.

Ultimately, given the seriousness and viciousness of

the alleged kidnapping, a 144-month sentence may

be reasonable, and the sentencing judge is free to reimpose

that sentence after adequately considering RamirezMendoza’s coercion argument.

III. CONCLUSION

For the foregoing reasons, we VACATE RamirezMendoza’s sentence and REMAND to the district court for

resentencing.

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