In the

United States Court of Appeals

For the Seventh Circuit ____________

Nos. 07-2276 and 07-2353

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

AGUSTIN PANAIGUA-VERDUGO AND JOSE CHAVEZ,

Defendants-Appellants.

____________

Appeals from the United States District Court

for the Western District of Wisconsin.

No. 06 CR 219—Barbara B. Crabb, Chief Judge.

____________

ARGUED FEBRUARY 11, 2008—DECIDED AUGUST 8, 2008

____________

Before BAUER, KANNE and WILLIAMS, Circuit Judges.

BAUER, Circuit Judge. On November 29, 2006, the

grand jury returned an indictment charging Agustin

Panaigua-Verdugo and Jose Chavez with seven counts of

distributing fifty or more grams of a mixture or substance containing methamphetamine, in violation of

21 U.S.C. § 841(a)(1). Each count involved a separate

drug transaction carried out by Panaigua-Verdugo and

Chavez, or Chavez on his own, over a six month period

in 2006. On February 23, 2007, Panaigua-Verdugo and

Chavez pleaded guilty to one of the counts of the indict-
2 Nos. 07-2276 and 07-2353

ment. After a sentencing hearing, the district court sentenced Panaigua-Verdugo to seventy months’ imprisonment and Chavez to 108 months’ imprisonment. On

appeal, Panaigua-Verdugo challenges the district court’s

refusal to apply a minor participant adjustment to his

sentencing calculation; Chavez challenges the district

court’s decision to include drug amounts beyond his

conviction in calculating his sentence; and both defendants challenge the reasonableness of their sentences. For

the following reasons, we affirm.

A. Panaigua-Verdugo: Minor Role Reduction

Panaigua-Verdugo argues that the district court erred

when it declined to grant him a downward adjustment

for playing a minor role in the offense. According to

Panaigua-Verdugo, Chavez arranged the majority of the

drug deals in question with an undercover agent without Panaigua-Verdugo’s input, and, though PanaiguaVerdugo delivered the drugs on the majority of the occasions, his role was substantively inferior during the

course of the conspiracy.

Under U.S.S.G. § 3B1.2(b), a defendant’s offense level

can be decreased by two levels if he was a minor participant in any criminal activity. We review the district

court’s interpretation and application of the Sentencing

Guidelines de novo. United States v. Chamness, 435 F.3d

724, 726 (7th Cir. 2006). We review the district court’s

decision to deny a defendant an adjustment for a minor

role in an offense for clear error. United States v. Miller,
Nos. 07-2276 and 07-2353 3

1 The government argues that Panaigua-Verdugo did not

properly preserve this specific argument, and therefore our

review should be for plain error. See United States v. Blaylock,

413 F.3d 616, 619 (7th Cir. 2005). However, Panaigua-Verdugo

properly preserved the issue by objecting to the recommendation against the minor role adjustment, so our review will be

for clear error.

405 F.3d 551, 557 (7th Cir. 2005).1 Clear error exists when,

after reviewing the evidence, we are “left with a definite

and firm conviction that a mistake has been committed.”

United States v. Olivas-Ramirez, 487 F.3d 512, 516 (7th

Cir. 2007). We rarely reverse a district court’s decision

on this issue, given that the district court is in the best

position to evaluate a particular defendant’s role in a

criminal scheme. United States v. Sorich, 523 F.3d 702, 717

(7th Cir. 2008); United States v. Mendoza, 457 F.3d 726, 729

(7th Cir. 2006).

The commentary to § 3B1.2 defines a “minor participant”

as a defendant “who plays a part in committing the

offense that makes him substantially less culpable than

the average participant” and “who is less culpable than

most other participants, but whose role could not be

described as minimal.” U.S.S.G. § 3B1.2 cmt. nn. 3(A) & 5.

Panaigua-Verdugo has the burden of showing he is entitled to the adjustment by a preponderance of the evidence. United States v. Sandoval-Vasquez, 435 F.3d 739, 745

(7th Cir. 2006) (citing United States v. Rodriguez-Cardenas,

362 F.3d 958, 960 (7th Cir. 2004)).

Panaigua-Verdugo argues that he should receive the

minor participant adjustment because he: (1) lacked full

knowledge of the drug operation; (2) received little compensation for his efforts (approximately $100 for the
4 Nos. 07-2276 and 07-2353

deals); (3) was manipulated by Chavez; (4) did little to

forward the drug conspiracy; and (5) acted only as a

“firewall,” or a buffer, between Chavez and the purchaser.

The government, on the other hand, argues that PanaiguaVerdugo did not bring forth enough evidence to establish that he was entitled to the minor participant adjustment.

Panaigua-Verdugo delivered 523.47 grams of methamphetamine during four of the seven drug transactions

arranged by Chavez over a six-month period, which

amounts to almost ninety percent of the drugs involved

in the deals. He played an integral role in the scheme by

linking the seller to the buyer. Panaigua-Verdugo received the drugs from Chavez and followed his instructions on how to deliver the drugs. By directly coordinating

with Chavez in dealing the drugs to the undercover agent,

Panaigua-Verdugo acted as an “essential component” in

the conspiracy, and the fact that Chavez was arguably

more involved does not entitle a defendant to a reduction in the offense level. See United States v. McKee,

389 F.3d 697, 700 (7th Cir. 2004) (citing United States v.

Castillo, 148 F.3d 770, 776 (7th Cir. 1998)).

The fact that Panaigua-Verdugo did not reap substantial pecuniary gains does not automatically render his

level of participation minor. See United States v. Brick, 905

F.2d 1092, 1095 (7th Cir. 1990). Panaigua-Verdugo’s

suggestion that he was just a “firewall” does not take into

account the extent of his role. A more proper characterization would be one of a courier, and we have held that

a courier may play an important role in any drug distribution scheme, and therefore is not automatically

entitled to a mitigating role reduction. See United States

v. Hamzat, 217 F.3d 494, 498 (7th Cir. 2000).
Nos. 07-2276 and 07-2353 5

We conclude that the district court did not clearly err

in denying Panaigua-Verdugo a reduction under

§ 3B1.2(b), with one reservation. During the sentencing

hearing, the district court noted that “I am sentencing

you only for the drug deliveries you made, not for being

part of the larger conspiracy. So I don’t see that it is really

appropriate to give you a minimal participant reduction.”

This was an error. A defendant may receive a reduction

under § 3B1.2 even if he is held accountable only for his

own conduct. United States v. Rodriguez-Cardenas, 362

F.3d 958, 960 (7th Cir. 2004) (citing U.S.S.G. § 3B1.2,

comment. (n.3(A))). However, any error in this regard is

harmless, because the evidence presented by PanaiguaVerdugo falls far short of showing that he was entitled

to the adjustment. Panaigua-Verdugo delivered the vast

majority of drugs charged in the case, acting in concert

with Chavez in a repeated set of transactions. We uphold

the district court’s primary conclusion that PanaiguaVerdugo played an integral part in the transactions

and therefore did not deserve a minor participant reduction, noting the deference afforded district courts on this

issue. See Sorich, 523 F.3d at 717; Mendoza, 457 F.3d at 729.

B. Chavez: Calculation of Drug Quantity

Chavez appeals from the district court’s calculation of

the quantity of drugs involved in the offense, arguing

that the district court did not explicitly support its finding

that the drug amounts in the six other dismissed counts

should be included as “part of the same course of conduct”

for sentencing purposes. Because Chavez forfeited this

issue by failing to raise it below, we review for plain

error. United States v. Lee, 399 F.3d 864, 866 (7th Cir. 2005).

Under that standard, the defendant has the burden
6 Nos. 07-2276 and 07-2353

of proving an error that is obvious and that affects substantial rights. Id.

Under § 1B1.3(a)(2) of the Sentencing Guidelines, all acts

and omissions that were “part of the same course of

conduct or common scheme or plan as the offense of

conviction” should be considered “relevant conduct” for

sentencing purposes. Relevant conduct is factored into

the Guidelines sentencing calculations as if the defendant

had been convicted of that conduct. United States v. White,

519 F.3d 342, 347 (7th Cir. 2008).

When the district court aggregates drug quantities

from unconvicted relevant conduct for purposes of calculating a defendant’s base offense level, we require that

the court “explicitly state and support, either at the sentencing hearing or (preferably) in a written statement of

reasons, its finding that the unconvicted activities bore

the necessary relation to the convicted offense.” United

States v. Arroyo, 406 F.3d 881, 889 (7th Cir. 2005) (citing

United States v. Bacallao, 149 F.3d 717, 720 (7th Cir. 1998)).

That said, if it is clear that the district court took into

consideration and adopted the facts contained in the

presentence report (“PSR”), as well as the government’s

reasoning concerning those facts, we have upheld the

court’s decision to include the unconvicted activities as

relevant conduct, even without express findings. Id. (citing

Bacallao, 149 F.3d at 720).

Because uncharged drug quantities can add months

or years to a defendant’s advisory guidelines range, we

require that the evidence relied upon by the district

court at sentencing must bear “sufficient indicia of reliability.” United States v. Wilson, 502 F.3d 718, 721-22 (7th

Cir. 2007) (citing United States v. Acosta, 85 F.3d 275, 282

(7th Cir. 1996)). In Chavez’s case, there must be reliable
Nos. 07-2276 and 07-2353 7

evidence to support the district court’s conclusion that

the unconvicted transactions were “part of the same

course of conduct or common scheme or plan” as the

convicted transactions. Two or more offenses are part of

a common scheme or plan if they are connected by at

least one common factor, such as “common victims,

common accomplices, common purpose, or similar modus

operandi.” Bacallao, 149 F.3d at 719 (quoting U.S.S.G.

§ 1B1.3(a)(2), cmt. n. 9). However, “section 1B1.3(a)(2) must

not be read to encompass any offense that is similar in

kind to the offense of conviction but that does not bear

the required relationship to that offense.” Id. at 719-20. In

assessing whether there is a strong relationship between

the unconvicted conduct and the convicted offense,

courts should consider whether the government has

demonstrated a significant similarity, regularity, and

temporal proximity. Id. at 719.

Chavez relies heavily on Bacallao in arguing that the

court erred by not explicitly stating its finding that the

unconvicted activity bore the necessary relation to the

convicted offense. In Bacallao, the district court sentenced the defendant based on a quantity of 3.3 kilograms of cocaine without making an independent

finding that the additional quantity of drugs was

“relevant conduct” and instead relying entirely on the

information contained in the PSR. We held that, under

those particular circumstances, the PSR itself must explain

how the additional quantities were part of the same

course of conduct or common scheme or plan as the offense

of conviction. Finding that the PSR lacked any dates,

common accomplices, or detail concerning how the

cocaine was acquired or distributed, we vacated and

remanded for resentencing. Bacallao, 149 F.3d at 720-22.
8 Nos. 07-2276 and 07-2353

As in Bacallao, the district court made no explicit findings

linking the additional unconvicted drug transactions to

the offense of conviction and relied entirely on the PSR. At

the sentencing hearing, the court stated: “The probation

office prepared the advisory guidelines correctly using

the current guideline manual. The calculations take into

account all acts and omissions that were part of the

same course of conduct or common scheme or plan as

the offense of conviction.” In the written statement of

reasons, the district court specifically stated that it

adopted the PSR without change. It further noted that the

probation office properly prepared the PSR using the

Guidelines, and that “in accordance with § 1B1.3(a)(1) and

(2),” the acts that were part of the same conduct were

taken into account in the Guidelines calculation. Finally,

the court stated: “The base offense level is 32 pursuant to

§ 2D1.1(c)(4), because the offense, including relevant

conduct, involved at least 596.17 grams of methamphetamine.”

Unlike Bacallao, the PSR here contains specific information about the participants, dates, amounts, and prices of

the charged drug transactions. According to the PSR, on

seven separate occasions over a seven-month period,

Chavez arranged a drug transaction which was carried out

by either Chavez or Panaigua-Verdugo. One of the two

defendants delivered the following amounts of methamphetamine to an undercover agent: 14.07 grams on

April 19, 2006; 27.44 grams on April 25, 2006; 27.33 grams

on May 12, 2006; 27.69 grams on August 24, 2006; 84.36

grams on September 15, 2006; 165.68 grams on

September 26, 2006; and 246.10 grams on November 14,

2006. The undercover agent arranged the amount and

method of payment directly with Chavez. All of this
Nos. 07-2276 and 07-2353 9

information was provided by the undercover agent and

the Wisconsin crime laboratory which analyzed the drugs

and determined the weight of each purchase. Statements

by Panaigua-Verdugo corroborated the information.

Chavez had the opportunity to review the PSR and failed

to object to its contents.

This evidence was sufficient to support the district

court’s finding. The PSR establishes that Chavez

worked with a common accomplice over a short period

of time for the same purpose—the sale of increasingly

larger quantities of methamphetamine. The transactions

were repetitious in method and motive. The information

contained within the PSR was sufficiently reliable and

contained extensive information supported by witness

testimony. Chavez gives no reason for discrediting the

information contained within the PSR, and did not contradict the evidence before the district court. Accordingly,

the district court did not err in finding that the other

drug transactions were “relevant conduct” for sentencing purposes.

C. Consideration to § 3553(a) Sentencing Factors

Finally, Panaigua-Verdugo and Chavez both argue that

the district court failed to give meaningful consideration

to the § 3553(a) factors or adequately state its reasons

for imposing each defendants’ sentence.

We review sentences for reasonableness, using an

abuse of discretion standard. United States v. Shannon,

518 F.3d 494, 496 (7th Cir. 2008). A sentence that falls

within a properly calculated advisory guidelines range is

presumed reasonable. United States v. Omole, 523 F.3d 691,

696 (7th Cir. 2008) (citing Rita v. United States, ___ U.S. ___,
10 Nos. 07-2276 and 07-2353

127 S.Ct. 2456, 2462-63, 168 L.Ed.2d 203 (2007)). A sentence is reasonable if the district court gives meaningful

consideration to the factors enumerated in § 3553(a) and

arrives at a sentence that is objectively reasonable in

light of the statutory factors and the individual circumstances of the case. Shannon, 518 F.3d at 496 (citing Gall

v. United States, 552 U.S. ___, 128 S.Ct. 586, 596-97, 169

L.Ed.2d 445 (2007)).

We address Chavez’s argument first, as PanaiguaVerdugo adopts the argument in his brief. In reviewing

Chavez’s sentence, we consider whether the judge committed any procedural errors, such as failing to analyze

the § 3553(a) factors or failing to adequately explain the

chosen sentence. United States v. Gordon, 513 F.3d 659, 666

(7th Cir. 2008) (citing Gall, 128 S.Ct. at 597). The district

court need not address each § 3553(a) factor in checklist fashion, explicitly articulating its conclusion for each

factor; rather, the court must simply give an adequate

statement of reasons, consistent with § 3553(a), for believing the sentence it selects is appropriate. Shannon,

519 F.3d at 496.

In sentencing Chavez at the bottom of the 108-135 month

advisory guideline range, the district court sufficiently

analyzed the § 3553(a) factors and explained the reasons

for Chavez’s sentence, including a consideration of the

seriousness of the offense. See § 3553(a)(1) and (2)(A).

While the district court did not address each § 3553(a)

factor, it was not required to do so. Chavez argues that

the court did not address his pleas for leniency, including

the negative effects that deportation would have on his

family. On the contrary, the district court directly addressed this issue, noting:

The sentence will be punishment, but the deportation

will be even greater punishment given the number of
Nos. 07-2276 and 07-2353 11

family members that you have in the United States.

I wish you’d thought of that before you got involved

in this criminal activity. Unfortunately you didn’t,

you did get involved and there is a punishment that

follows.

The district court engaged with Chavez’s concerns regarding the effects that the sentence and subsequent deportation would have on his family. We find that the district

court’s statement of reasons was adequate, and in light

of these considerations, the court’s decision to impose a

sentence at the low end of the advisory guidelines range

was reasonable in light of § 3553(a).

We are reluctant to address Panaigua-Verdugo’s argument regarding the reasonableness of his sentence, considering that he cribs Chavez’s argument wholesale

without specifically examining how the argument applies

to his own sentencing hearing. Regardless, we find nothing

in the record to suggest that the district court failed to

consider the § 3553(a) factors in imposing PanaiguaVerdugo’s sentence, and Panaigua-Verdugo presents

nothing to disturb the rebuttable presumption of reasonableness of his within-guidelines sentence. See Shannon,

518 F.3d at 496.

Accordingly, we AFFIRM the sentences of PanaiguaVerdugo and Chavez.

8-8-08