In the

United States Court of Appeals

For the Seventh Circuit ____________

No. 06-4147

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

OZIEL MARTINEZ,

Defendant-Appellant.

____________

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 04 CR 937-1—James B. Moran, Judge.

____________

ARGUED NOVEMBER 9, 2007—DECIDED MARCH 27, 2008

____________

Before CUDAHY, RIPPLE, and ROVNER, Circuit Judges.

ROVNER, Circuit Judge. After coordinating several shipments of cocaine and marijuana from Texas to Chicago,

Illinois, Oziel Martinez was arrested and charged with

one count of conspiracy to possess with intent to distribute cocaine and marijuana, 21 U.S.C. §§ 846, 841(a)(1),

and one count of possession with intent to distribute

cocaine, id. § 841(a)(1). He pleaded guilty to both charges,

and the district court sentenced him to a total of 210

months’ imprisonment. On appeal Martinez argues that

the sentencing court erred in finding that he managed or

supervised the conspiracy, see U.S.S.G. § 3B1.1(c), and
2 No. 06-4147

also failed to address his arguments for a lower prison

sentence. We affirm the judgment.

Martinez worked for a drug-trafficking organization

centered in Texas. In mid-2004 he recruited codefendant

Andres Macias to accept deliveries at a Chicago warehouse and unload the drugs from hidden compartments

in semi-trailers. In September 2004 Martinez coordinated

the first two deliveries: 90 kilograms of cocaine and 767

kilograms of marijuana. Martinez telephoned from Texas

and instructed Macias to prepare the warehouse and buy

a prepaid cell phone that Martinez could identify as the

recipient’s number on the bill of lading for the trailer

containing the marijuana. He also told Macias to go to

Midway Airport and pick up his brother, codefendant

Adan Martinez, who was flying in from Texas to oversee

the unloading of the two shipments. Martinez then hired

at least one of the drivers for the two loads and supervised the loading of both shipments. The cocaine shipment arrived safely in Chicago and was unloaded at the

warehouse by Macias, Adan Martinez, and codefendant

Santos Flores, whom Macias recruited. The marijuana

did not make it to Chicago, however, because authorities

stopped the truck in downstate Illinois. The police left a

voice mail at the number on the bill of lading, prompting

Macias to alert Martinez that the shipment had been

intercepted. Martinez then instructed Macias to take his

brother to the bus station for the return trip to Texas.

In October 2004 Martinez coordinated another shipment of cocaine—this time, 107 kilograms—destined for

Macias’s warehouse. Unbeknownst to Martinez or his

codefendants, the Drug Enforcement Administration

had discovered the hidden compartment in the trailer

used for this shipment and installed a tracking device.
No. 06-4147 3

After the loaded truck had left a warehouse in Texas,

agents stopped it and found the cocaine. The driver (the

same one who delivered the previous cocaine shipment)

agreed to cooperate and told the agents that he was

transporting the drugs for Martinez. The agents replaced

the cocaine with 100 kilograms of counterfeit cocaine,

and the driver continued on to Chicago. Meanwhile,

Martinez again had instructed Macias to prepare the

warehouse for the delivery and told him to meet the

plane when he flew into Chicago to oversee the unloading.

When Martinez, Macias, and Flores began unloading

the bogus cocaine from the hidden compartment, DEA

agents arrested them.

Martinez entered blind guilty pleas in June 2006. The

probation officer who prepared the presentence investigation report set the base offense level at 38 based on the

amount of cocaine and marijuana. See U.S.S.G. § 2D1.1

(2005). The probation officer then added three levels for

managing or supervising a conspiracy involving five or

more people, see id. § 3B1.1(b) (2005), and subtracted

three levels for acceptance of responsibility, see id. § 3E1.1

(2005). The leadership adjustment would make Martinez

ineligible for a “safety valve” reduction. See 18 U.S.C.

§ 3553(f); U.S.S.G. §§ 5C1.2(a)(4), 2D1.1(b)(7) (2005). The

resulting offense level of 38 coupled with Martinez’s lack

of criminal history yielded a guidelines imprisonment

range of 235 to 293 months.

At sentencing Martinez objected to the recommended

leadership adjustment. He argued that he was not a

manager or supervisor and instead was a “low-level

independent contractor” without authority over his

codefendants. Therefore, he argued, he should not receive a three-level upward adjustment under § 3B1.1(b)
4 No. 06-4147

and should be eligible for the safety valve. Martinez also

argued that the factors set out in 18 U.S.C. § 3553(a)

warranted a sentence below the guidelines range—down

to the statutory minimum of 10 years if he was not eligible

for a lower term under the safety valve. He principally

argued that a lower sentence was warranted because of

the harshness of being confined in pretrial detention for

almost two years without—by his account—treatment for

a cataract and an ulcer. (During his detention Martinez

had complained to the district court that he needed

cataract surgery and was told by the court that the marshals service would arrange for the elective procedure if

Martinez paid for it. Martinez said nothing to the court

about having an ulcer.) He also argued that a lower

sentence was warranted because he was a 39-year-old

father without any criminal history, see 18 U.S.C.

§ 3553(a)(1); he would be near 50 at the end of the statutory minimum and, according to research, at less risk of

recidivism, see id. § 3553(a)(2)(C); and he could benefit

society by being close to his wife and children, see id.

§ 3553(a)(5)(A). Finally, he pointed out that two of his

codefendants would likely get lower sentences even

though at least one of them had supervised another

participant. See id. § 3553(a)(6).

The district court found that Martinez was a manager

or supervisor of the conspiracy. The court reasoned,

however, that Martinez should receive an increase of

just two levels, see U.S.S.G. § 3B1.1(c) (2005), because his

role involved supervising the delivery logistics, which,

the court thought, involved only two other people. That

change from the presentence report lowered the total

offense level to 37 and the guidelines range to 210 to 262

months. In selecting a term at the low end but not below
No. 06-4147 5

1 Martinez additionally contends that, in light of Cunningham v.

California, 127 S. Ct. 856 (2007), the sentencing court was

required to submit the question of his role in the offense to a

jury to be decided by proof beyond a reasonable doubt. We

have rejected this reading of Cunningham. That decision does

not affect the remedial majority’s holding in United States v.

Booker, 543 U.S. 220 (2005), that guidelines issues are to be

decided by the sentencing court under a preponderance standard. United States v. Roti, 484 F.3d 934, 937 (7th Cir. 2007);

see also United States v. Savage, 505 F.3d 754, 764 (7th Cir. 2007).

the range, the court singled out the seriousness of the

crime and noted that Martinez would be able to have

cataract surgery while imprisoned.

On appeal Martinez first argues that the district court

erred in finding that he was a manager or supervisor. This

finding, he contends, led to an erroneous two-level increase under § 3B1.1(c) and made him ineligible for the

safety valve.

1

 We review the court’s finding for clear

error. See United States v. Johnson, 489 F.3d 794, 796 (7th Cir.

2007); United States v. Blaylock, 413 F.3d 616, 618 (7th Cir.

2005).

The district court did not commit error. Martinez coordinated three substantial shipments of drugs. He hired

at least one of the two drivers, he supervised the loading

of all three trailers, he recruited Macias to recover the

drugs from the hidden compartments when the trucks

arrived in Chicago, and he commanded Macias to attend

to details like preparing the warehouse for deliveries,

buying a cell phone, and picking up Martinez and his

brother from the airport. Orchestrating or coordinating

activities performed by others makes a particular defendant a manager or supervisor. See United States v. Skoczen,
6 No. 06-4147

405 F.3d 537, 550 (7th Cir. 2005); United States v. Carrera,

259 F.3d 818, 827 (7th Cir. 2001). Martinez’s activities

easily place him in this category, and his assertion that he

was just a “middleman” between the drug supplier and

Macias is without merit. Cf. United States v. Vargas, 16

F.3d 155, 160 (7th Cir. 1994) (holding that arranging

logistics of drug deliveries in addition to “supplying

drugs and negotiating the terms of their sale” may

justify finding that defendant was a supervisor or manager). Indeed, Martinez received a break when the district court increased his offense level by just two instead

of three levels; a defendant who acts as a manager or

supervisor in a criminal activity involving at least four

other participants should receive a three-level increase

even if he managed or supervised just one of the participants. See United States v. Gallardo, 497 F.3d 727, 739 (7th

Cir. 2007); Blaylock, 413 F.3d at 619-21.

Martinez also contends that the district court failed to

consider his arguments for a lower sentence. Most significantly, he says, the court refused to address his assertion

that the lack of treatment for his cataract while he was

in pretrial detention warranted a lower sentence. But in

fact the sentencing court acknowledged and rejected this

contention when it noted that Martinez could have

surgery shortly after he arrived in his designated prison

to serve his sentence. Moreover, none of the § 3553(a)

factors make pretrial detention or the conditions of that

detention a relevant consideration, see United States v.

Ramirez-Gutierrez, 503 F.3d 643, 646 (7th Cir. 2007), and

even if unusually harsh conditions could warrant a

lower sentence, the conditions Martinez describes are not

in that category.

Apart from the conditions of his pretrial confinement,

Martinez does not point to any other factor that, in his
No. 06-4147 7

view, should have been addressed by the sentencing

court but was not. Instead, Martinez simply declares that

the court did not address any of the § 3553(a) factors. We

reject this view of the record. All the district court was

required to do was consider the factors listed in § 3553(a)

and address explicitly any substantial arguments Martinez

made. See United States v. Acosta, 474 F.3d 999, 1003

(7th Cir. 2007); United States v. Cunningham, 429 F.3d 673,

678 (7th Cir. 2005). “[S]tock arguments” like those Martinez

made about his family situation and lack of criminal

history are precisely the types of routine contentions “that

a sentencing court is certainly free to reject without

discussion.” United States v. Tahzib, 513 F.3d 692, 695 (7th

Cir. 2008). The district court noted that Martinez was part

of an organized operation that trafficked in substantial

amounts of drugs, and that he was not “a mule hired for

a one-shot transaction.” That is a sufficient explanation

for the sentence. See United States v. Laufle, 433 F.3d 981,

987 (7th Cir. 2006); United States v. Dean, 414 F.3d 725, 729

(7th Cir. 2005); United States v. George, 403 F.3d 470, 472-73

(7th Cir. 2005). The court was not required to say more.

For the foregoing reasons, we AFFIRM the judgment of

the district court.

USCA-02-C-0072—3-27-08