### In the 

# United States Court of Appeals

For the Seventh Circuit

____________________ No. 18

- 1981

U NITED S TATES OF A MERICA
, Plaintiff

- Appe llee

,

v.

R OBERTO M ACIAS
, Defendant

- Appell ant

.

____________________

Appeal from the United States District Court for the

Northern District of Illinois

, Eastern Division.

No. 09 CR 546

- 7

— Charles P. Kocoras

, Judge

.

____________________

A RGUED M AY 17, 2019

— D ECIDED J UNE 21, 2019

____________________

Before R IPPLE
, M ANION
, and S YKES
, Circuit Judges

.

M ANION
, Circuit Judge

. Roberto Macias helped move drug

mo ney from Chicago to Mexico. At his bench trial, he challenged a drug

- conspiracy charge by testifying he thought the

cash came from human smuggling, not drug trafficking. But the district judge did not believe him. The judge convicted him and imposed a two

- level enhancement under U.S.S.G. § 2D1.1(b)(15)(D) for obstructing justice by testifying falsely. On appeal, Macias argues th is enhancement does not apply to2 No. 18

- 1981

a defendant who perjures himself at trial. He also argues the judge failed to find all perjury elements independently and explicitly, as constitutionally required. But Macias waived

these challenges, foreclosing appellate r eview.

I. Background

A. Crimes

Macias helped smuggle illegal immigrants into America in the late 1980s and early 1990s

, incurr ing multiple convictions. Many years later, La Familia Michoacana asked him to help

move cash in to Mexico , telling him it came from human smuggling, according to his testimony. He agreed. From 2007

to 2009, he arrange d for his brother

- in

- law, Ismael Flores, to make trips from Chicago to Dallas with a total of about $10,000,000 1 bound for Mexico

. But La Familia Michoacana is a drug cartel . The cash was drug money. 2 Flores realized this during his first trip given the payload and secret instructions.

B. 2012 trial, sentencing, and appeal

W hen Macias faced charges, he testified he thought the cash came from human smuggling, not drugs. But t he jury

convicted him of conspiring to distribute at least five kilograms of cocaine and of conducting an unlicensed money

transmitting business. The judge sent him to prison for 300

1 The record gives variou s figures but the precise amount is immaterial for our purposes.

2 Macias a dmitted a significant part of the cash was from drugs. But

he argued the government did not prove all of it was

. The judge foun d the

cash came from “ the sale of illegal drugs and not from an y other source.” (Findings and Conclusions, DE 523 at 10.) Macias does not press this on appeal.No. 18

- 1981 3

months for the conspiracy concurrent with 60 months for the money transmitting. Macias appealed the conspiracy conviction, challenging the “ deliberate indifference ” jury instruction. We reversed because the instruction erroneous ly allowed convict ion simply “ because he wasn ’ t curious enough

to discover the sourc e of the illegal funds. ” United States v.

Macias , 786 F.3d 1060, 1063 (7th Cir. 2015). We remanded for

a new trial on th e conspiracy charge. We vacated the money

transmitting sentence to allow potential resentencing at a lower guidelines range without the conspiracy conviction.

C. 2016 re trial

Macias ’ s case was reassigned to Judge Kocoras on remand.
Macias consented to a bench trial, which he fa ced in August

2016. At this re trial, Flores testified he knew the money was drug money. But, a gain, Macias testified that he did not. He testified a superior in the cabal told him the money came from human smuggling. Macias testified that he believed throu ghout his involvement that he was in a human

- smuggling operation, un connected with drugs. But t he judge did not believe

him

.
The judge convicted Macias of conspiracy to transport cocaine. The judge found “ Macias was not a believable witness

and his testim ony that he was ignorant of the source of thecash transported was implausible, contradicted by other testimony and by his own actions during the course of the drug conspiracy charged and proved ... .” (Findings and Conclusions, DE 523 at 10.) The judge foun d “ Macias was untruthful in his testimony in a variety of respects in addition to his claim of ignorance as to the source of the transported cash and was not credible as to any material matter about which he testified

... . ” ( Id

. ) Macias moved for judgment o f acquittal. But the4 No. 18

- 1981

judge denied that motion, noting “ Macias was entirely unworthy of belief. ” (Ruling, DE 561 at 1.)

D. R e se ntencing

T he probation office recommended a n enhancement under § 2D1.1(b)(15)(D) for obstruction because Macias falsely testified he was ignorant of the cash ’ s true source

. In its sentencing memorandum, the government also asked the judge

to consider Macias ’ s perjury. Macias did not raise any objection to th is enhancement in his sentencing memorandum or objections to the presentence investigation report.

At the re sentencing hearing, Macias still did not object to

this enhancement. T he judge listed Macias ’ s challenges:

[ Judge ]: [T]he Guideline calculation is challenged for, one, there is a challenge t o the quantity of drugs and the calculation of price and how we got to the ultimate Adjusted OffenseLevel of 41. And there is a challenge to the leadership enhancement. Those are the challenges, I think, lodged way back when, right?

[Defense counsel]: Yes , your honor.

[ Judge ]: All right. Is there anything you want to add to those challenges?

[Defense counsel]: Judge, I think the challenges are pretty clearly stated in the papers.

(Tr. Sentencing H r ’ g, DE 587 at 5

– 6.) Defense counsel then a rgued about drug quantities and Macias ’ s lack of authority

over Flores , but did not mention obstruction.

The judge then asked again for any other challenges :No. 18

- 1981 5

[ Judge ]: Is there any other factual or legal challenge to anything we have discussed yet

— [Defense counsel]: No, your Honor.

[ Judge ]:

— based on the reports?

[Defense counsel]: No, no, no, not to the report

as it is now.

* * *

[ Judge ]: But we are all dealing with the calculation that I talked about.

[Defense counsel]: No, no, no. No additional objection, Judge. You addressed both

—
[ Judge ]: All right.

[Defense counsel]:

— of the objections.

( Id. at 15

– 16.)

The judge then addressed Macias directly :

[ Judge ]: [D]o you think there is any

— something is wrong factually in any of these materials?

[Macias]: No. The way my attorney explained it,
I believe, is correct.

( Id. at 16.)

D uring its turn at the re sentencing hearing, the government called Macias a liar:

[Prosecutor]: One thing that has changed since

the last time he was before Judge Bucklo is thathe got up on that witness stand over there (indicating), to my left, and he lied through his teeth6 No. 18

- 1981

to your Honor. This was a bench trial. He had lied to Judge Bucklo, contending that he was nothing more than a dupe; somebody wh othought that the money that was being generated, that he was transporting, came from human smuggling

— which was, frankly, an absurd idea, but one that he pursued not once, but twice. He did not accept responsibility before this Court for the injury that h e has caused in this district; and, rather, tried to make light of it by concocting a silly defense to the charge.

( Id. at 18.) The government sought a sentence of 360 months

. Defense counsel then argued about the level of Macias ’ s culpability

, explained Macias ’ s decision to go to trial , and bemoaned what he called “ a penalty imposed for testifying ”:

[Defense counsel]: So, he made a decision to challenge it and present a defense at trial. He did do that. And there is a penalty imposed for testifying. If you

— I always think this is kind ofa weird penalty, practically speaking, Judge, because i f you

— get the fortune to have a jury thatfinds reasonable doubt or a judge that finds reasonable doubt, you don ’ t get guilt. And if you

do

— if you don ’ t then you do. And I don ’ t knowhow helpful the enhancement is. I think it generally probably chills people from trying to present a defense; but, regardless of that, he gets the penalty for that. That is part of this, in terms of his Guideline range. But under the pract ical reality of his situation, I don ’ t think he should be heavily punished for deciding to defendNo. 18

- 1981 7

himself against the case, in the best way he
could, under the circumstances. Because the Sentencing Guidelines put him in a box that is very difficult for a d efendant to manage

— when you are looking at those kind of numbers

— or a lawyer. It is difficult to decide what your best strategy is and what you can do. They tie your hands significantly. And he made the decision

to defend his case and we defended it the be st
we could. And I don ’ t think he should be heavily punished for making that decision.

( Id. at 23

– 24.) Again, d efense counsel did not object to the obstruction enhancement. Instead, he begrudgingly acknowledged Macias “ gets the penalty for that. ” Defense counsel
present ed a wide variety of detailed mitigation arguments. But he never objected to the obstruction enhancement. He never argued it does not apply or the perjury ele ments were not satisfied. He ask ed for a sentence of between 180 to 240

months.

Then Macias spoke. He admitted a degree of guilt: “ I always knew that what I was doing was illegal and wrong, even if I did not know all of the details about what the people I was working with were doing. ” ( Id. at 34.) He echoed his counsel.He talked about consequences, plans, and hopes. He apologized. He did not challenge the obstruction enhancement.

The judge then explained his reasoning. He praised defense counsel several times : “ a very, very able advocate

... one of the better ones I have seen

. ” ( Id. at 38.) The judge imposed a sentence of 240 months for the drug conspiracy concurrent with 60 months for the money transmitting. Macias appeals.8 No. 18

- 1981

II. Analysis

Macias argues § 2D1.1(b)(15)(D) does not apply to a defendant who perjures himself at his trial. In the alternative, he argues the judge failed to find all perjury elements independently and explicitly, as required by United States v. Dunnigan , 507 U.S. 87 (1993), for a p erjury enhancement to be constitutional. 3 But Macias waived these challenges. Waiver forecloses appellate review. United States v. Walton , 255 F.3d 437, 441 (7th Cir. 2001). We generally will not force on a party a waivable position he chose not to take, and will not entertain arguments a party chose not to develop below, even if he changes his mind on appeal. Id. In our adversary system, a
party may have many strategic reasons to drop a viable claim.

We are very careful when finding waiver. It requires a

“ knowing and intentional decision ” to forego a right. United States v. Moody , 915 F.3d 425, 429 (7th Cir. 2019). A p arty
waives an issue when he “ intentionally relinquishes or abandons a known right

... .” Walton , 255 F.3d at 441. Mere forfeiture, on the ot her hand, permits plain

- error review. Moody

, 915 F.3d at 429. A party forfeits an issue when he “ fails to raise an argument due to accident or neglect. ” United States v. Seals

, 813 F.3d 1038, 104 5 (7th Cir. 2016).

Here, although Macias made other challeng es, he did not challenge the obstruction enhancement in his filings leading up to the re sentencing hearing or at t h e hearing itself . He did

3 T his alternative argument highlights the waiver doctrine’s importance. If the judge did not discuss perjury in depth at resentencing,

Macias bears fault for failing to object and alert the judge to a need for such discussion. Had Macias objected, we would have a different record on appeal.No. 18

- 1981 9

not argue § 2D1.1(b)(15)(D) does not apply to perjury or Dunnigan requires more explicit findings of perjury ’ s elements

.
At the re sentencing hearing ’ s outset, the judge identified

Macias ’ s challenges. The judge noted Macias challenged the drug and money amounts and the leadership enhancement.

The listed challenges did not include obstruction. The judge asked, “ Is there anything you want to add to those challenges? ” (T r . Sentencing H r ’ g, DE 587 at 5.) Defense counsel responded, “ Judge, I think the challenges are pretty clearly stated in the papers. ” ( Id. at 5

– 6.) H e did not add a challenge

to the obstruction enhancement. He presented arguments

about the drug and money amounts and the leadership enhancement. The judge resolved these issues and again invited other challenges. Defense counsel responded: “ No, no, no. No

addit ional objection, Judge. You addressed both

... of the objections. ” ( Id. at 15.)

The government then discussed the § 3553(a) factors and emphasized Macias lied at both trials. Defense counsel then

made another presentation. He argued Macias was not a
l i nchpi n and nothing about him was worse simply because

the cartel was big . He argued Macias challenge d the case due to the huge sentence he faced. He bemoaned the “ penalty imposed for testifying ” and argued the enhancement “ probably chills people from trying to present a defense; but, regardless of that, he gets the penalty for that. That is part of this, in terms of his Guideline range. ” ( Id. at 23

– 24.) Defense counsel

ma de many mitigation arguments but never objected to the obstruction enhancement. He never argued it does not appl y

or Dunnigan requires more explicit perjury findings

. Finally, after imposing sentence, the judge asked again, “ Is there anything else? ” And defense counsel again said no.10 No. 18

- 1981

T h is is not merely a case where a defendant failed to object when asked the rote question, “ Any other objections? ” Here,

the coup de grâce is the acknowledgement, albeit begrudging, that the enhancement applies : “ [ H] e gets the penalty for that. That is part of this, in terms of his Guideline range. ” ( Id. at 24.)

The decision not to challenge the obstruction enhancement makes strategic sense. As the government notes, there were good reasons to avoid disput ing the un truthfulness of

Macias ’ s testimony. The judg e already found it untruthful.And there were good reasons to avoid tainting mitigation arguments about personal history and family circumstances. When a judge convicts a defendant and tells him he lied under oath, it is a rational strategy (at least somet imes) not to dwell

on the lies. Moreover, Macias did object to th e obstruction enhancement in advance of the prior sentencing. Macias ’ s objection then did not follow the same lines he pursues now , but that objection tends to confirm that the decision not t o object

to the enhancement the second time around was made knowingly and intentionally. Macias offers no availing reason to think the lack of an objection to the obstruction enhancement

at re sentencing was not strategic.

III. Conclusion

Macias knowingly and intentionally waived challenges to the obstruction enhancement, foreclosing our review. 4 W e therefore DISMISS t his appeal.

4 We note Judge Kocoras sentenced Macias to 240 months imprisonment for Count 1, within the range he requested.