In the

United States Court of Appeals

For the Seventh Circuit

No. 09-3333

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

JOSE FIGUEROA, also known as

JOSE FIGUEROA-MALDANADO,

Defendant-Appellant.

Appeal from the United States District Court 

for the Eastern District of Wisconsin.

No. 08-CR-217—Rudolph T. Randa, Judge.

ARGUED APRIL 20, 2010—DECIDED SEPTEMBER 13, 2010

Before FLAUM, WOOD, and EVANS, Circuit Judges.

WOOD, Circuit Judge. There was little out of the ordinary

in Jose Figueroa’s trial and conviction. Figueroa was

charged with leading a multimillion-dollar drug conspiracy in Wisconsin from 2005 to 2008. A jury convicted him of one count of conspiracy to possess

cocaine with the intent to distribute it and one count

of distribution of cocaine. Although he challenges one
2 No. 09-3333

evidentiary decision in this appeal, we find no merit in

that argument.

Figueroa’s sentencing was another matter. The district

court sentenced Figueroa to 235 months’ imprisonment.

This represented the low end of Figueroa’s advisory

guidelines range, and so on its face there is nothing

remarkable about his sentence either. But the process

the district court used to get there—in particular, its

extraneous and inflammatory comments during the

sentencing hearing—cast doubt on the validity of the

sentence. During the hearing, the district court

digressed to discuss Figueroa’s native Mexico, the immigration status of Figueroa and his sisters, and the

conditions and laws in half a dozen other countries—not

to mention unnecessary references to Hugo Chávez,

Iranian terrorists, and Adolf Hitler’s dog. We have no

way of knowing how, if at all, these irrelevant considerations affected Figueroa’s sentence. We therefore must

remand, to ensure that the district court’s choice of sentence was based only on the criteria that Congress has

authorized. See 18 U.S.C. § 3553.

I

In late 2007, the government became aware of

Figueroa’s involvement in a large drug conspiracy in

and around the state of Wisconsin. Figueroa, it discovered, was the head of an organization that distributed

millions of dollars of cocaine over a period of years.

The government’s key source of information was

Rodney Smith. Smith dealt drugs for Figueroa before
No. 09-3333 3

Smith’s incarceration in 2005. After his release the next

year, Smith agreed to cooperate with the government;

his cooperation was to include providing the government with information about Figueroa’s drug business.

This arrangement bore fruit when Figueroa reached out

to Smith in 2008 to resume Smith’s role in Figueroa’s

operation. Smith was in contact with Figueroa and

his associates in the spring of 2008, and under the

watchful eyes of the government, he received cocaine

to distribute and made payments back to Figueroa’s crew

for the drugs he presumably had sold. Smith wore a

recording device during a number of these encounters,

and the devices picked up conversations with Figueroa

during which Figueroa made inculpatory statements

about his role in the drug conspiracy.

The controlled communications, purchases, and payments yielded enough for the government to go after

Figueroa’s drug operation. Officers arrested him outside

his home on July 31, 2008, pursuant to an arrest warrant issued earlier that week. The officers commanded

Figueroa to get on the ground, advised him of his

Miranda rights, and placed him in handcuffs. During

this encounter, at least one of the officers had his

gun drawn. Miguel Correa, one of the officers on the

scene, then explained to Figueroa that he was arrested

and asked for permission to enter his home. Figueroa

agreed. Once inside, one of the officers asked Figueroa’s

wife if they could sweep the residence to determine

if anyone else was there. As one officer moved through

the home, another obtained Figueroa’s verbal and written
4 No. 09-3333

consent to search the entire residence. During this time,

Figueroa was seated uncuffed at the kitchen table.

The search of Figueroa’s home turned up $54,540 in

cash. (Later, Figueroa filed a pretrial motion to suppress this evidence.) Separately, officers recovered drugs

linked to Figueroa at the home of one of his associates.

In addition, at trial, Smith and Figueroa’s co-defendant,

Lilliam Torres, offered testimony that linked Figueroa

to the drug conspiracy. 

Figueroa was convicted of one count of conspiracy to

possess with the intent to distribute five or more kilograms of cocaine, 21 U.S.C. § 841(a)(1) & (b)(1)(A) and

§ 846, and one count of distribution of cocaine, id.

§ 841(a)(1) & (b)(1)(C). The district court sentenced

Figueroa to 235 months’ imprisonment. Figueroa appeals,

challenging the district court’s refusal to suppress the

fruits of the search and his sentence.

II

We begin with the search. Before trial, Figueroa asked

the district court to suppress the evidence found in his

home because, in his view, the police coerced him to

consent to their search of the premises once they had

entered. A magistrate judge rejected this argument,

concluding that Figueroa voluntarily consented to the

search. The district court adopted the magistrate judge’s

ruling. On appeal, Figueroa has changed his argument

slightly; he now contends that he never consented to the

officers’ initial entry into his home. This new argument

fares no better than the previous iteration.
No. 09-3333 5

Typically, on challenges to evidentiary decisions, we

review factual determinations for clear error and legal

questions de novo. If a party filed a motion to suppress

in the district court but raises new arguments for suppression on appeal, however, we review for plain error

if the defendant can show good cause for failing to

make those arguments in the district court. See United

States v. Murdock, 491 F.3d 694, 698 (7th Cir. 2007) (citing

FED. R. CRIM. P. 12(e) and United States v. Johnson, 415

F.3d 728, 730-31 (7th Cir. 2005)); see also United States v.

Acox, 595 F.3d 729, 732 (7th Cir. 2010) (asking, in the

absence of a district-court decision on good cause, “if

a motion for relief had been made and denied, [whether]

the district court would have abused its discretion in

concluding that the defense lacked good cause”).

Figueroa’s argument fails at every turn. First, he has not

established good cause for failing to argue in the

district court that his consent to the officers’ initial

entry was involuntary. Second, even if he passed that

threshold, Figueroa is unable to establish that the

district court erred—let alone plainly erred—in permitting the government to introduce evidence obtained

from his home. Consent is a well-established exception

to the warrant requirement, Schneckloth v. Bustamonte,

412 U.S. 218, 219 (1973), and we have held that an

arrested, handcuffed suspect is capable of giving voluntary consent to the search of his home, United

States v. Bernitt, 392 F.3d 873, 876-77 (7th Cir. 2004).

Figueroa conceded during cross-examination at the evidentiary hearing that he had consented to both the

initial entry and the fuller search inside:
6 No. 09-3333

Q: After you were arrested [outside of your home] did

the officers ask you if they could come into your

house?

A: Yes.

Q: Which officer asked you if they could enter your

house?

A: Correa.

Q: Correa. And what did you say to Officer Correa?

A: That yes.

Q: And then what happened after you—so you gave

him permission, correct?

A: Yes.

Q: And then what happened?

A: He asked permission to go in and I told him to

knock, that my wife would open the door for him.

Q: Is that what happened?

A: Yes.

If anything here is plain, it is Figueroa’s concession.

Officer Correa also testified that Figueroa consented to

the entry.

Nothing in the record suggests good cause for

Figueroa’s failure to raise this point earlier; nor do we

detect any plain error. We conclude that the evidence

was properly admitted; because Figueroa does not challenge any other aspect of his conviction, we affirm the

guilty verdict.
No. 09-3333 7

III

Figueroa also challenges his sentence. Defendants

may bring challenges to both the sentencing procedure

and the resulting sentence’s substantive reasonableness.

United States v. Cooper, 591 F.3d 582, 590-91 (7th Cir.

2010). Figueroa raises only procedural objections.

In cases such as Gall v. United States, 552 U.S. 38 (2007),

and Rita v. United States, 551 U.S. 338 (2007), the

Supreme Court established a framework for sentencing

in the federal courts. Briefly, the district court begins

by calculating the advisory guideline range, and then

it applies the sentencing factors set out in 18 U.S.C.

§ 3553(a) to arrive at a reasonable sentence. District

courts must explain their sentencing decisions to

permit meaningful appellate review.

In this case, the sentencing transcript reveals an

extended discussion of topics that are both outside of

the record and extraneous to any proper sentencing

consideration. In our view, the district court’s lengthy

and disconnected lecture saps any confidence we could

have in the portions of the hearing that hewed to the

§ 3553(a) factors.

We do not think it is necessary to rehash every detail

of Figueroa’s sentencing hearing; a few examples are

enough to illustrate what went wrong. Figueroa is of

Mexican descent, and the district court made a number

of comments about Mexico and its perception of

Mexico’s contribution to drug and immigration issues

in the United States. “The southwest is being overwhelmed,” the judge remarked, and he went on to
8 No. 09-3333

lament the factors that he believes motivate immigration

to the United States. The judge also commented on the

immigration status of Figueroa, his wife, and his

three sisters. At various points, he lashed out at illegal

immigration, occasionally referring to “you people” or

“those people.” (Figueroa understood these comments

to refer to persons of Mexican origin, although it is

possible that the district court was referring to illegal

immigrants or immigrants more generally.)

The sentencing transcript reveals an odd focus on

nation-states and national characteristics. The district

court linked the drug trade to Mexico, then to Colombia

and Venezuela, and then to Iranian terrorists through

the person of Venezuelan President Hugo Chávez. The

judge commented that respect for the rule of law differentiates the United States from Mexico, Venezuela,

Iran, and Pakistan. Turning to punishment, he remarked

that Figueroa should be happy that he was headed to

an American—rather than a Mexican or Turkish—prison,

and that Figueroa’s conduct could have resulted in execution had it occurred in Malaysia or Thailand.

The transcript also reveals the district court judge’s

use of colorful—and inappropriate—analogies to dispense with arguments that he did not appreciate. Rejecting Figueroa’s wife’s comment that the sentence

was unfair, he said that “[i]t reminds me of . . . the person

who killed his parents . . . asking [the judge] to have

sympathy for him because he’s an orphan.” The judge

appears to have been referring to the “classic definition

of chutzpa,” LEO ROSTEN, THE JOYS OF YIDDISH 94 (1971),

but this is a term that does not apply to a wife’s assertion
No. 09-3333 9

that her husband’s incarceration will harm the family.

Later, the judge discounted Figueroa’s claim that he was

a good family man: “even Adolf Hitler was admired by

his family. Adolf Hitler loved his dog. Yet he killed

six million Jews.”

We understand that sentencing is an individual, and

at times idiosyncratic, process. And we recognize that

the district court judge may have been frustrated by

Figueroa’s lack of remorse and his arguments about

the unfairness of his predicament. But this does not

excuse the court from its duty to ensure a fair process.

At sentencing, the district court “must adequately

explain the chosen sentence to allow for meaningful

appellate review and to promote the perception of fair

sentencing.” Gall, 552 U.S. at 50. We conclude that the

district court fell short of this requirement. It is true

that the district court made references to the § 3553(a)

factors and to the arguments based on them that defense

counsel raised, but the litany of inflammatory remarks

undermined anything else that the court said during

the hearing. Although we typically do not require an

exhaustive explanation when the court chooses a sentence within the recommended guideline range, see

United States v. Dean, 414 F.3d 725, 729-30 (7th Cir. 2005),

the fact that Figueroa received a within-guidelines sentence does not make up for these inflammatory statements. We have no way of knowing how, if at all, these

extraneous considerations influenced Figueroa’s sentence. It is no answer to say that the judge chose a guidelines sentence and thus all was well; for all we know,

setting his private views to one side the court may

have thought that a below-guidelines sentence was ap-
10 No. 09-3333

propriate. We are unpersuaded by the government’s

argument that the discussion of the Mexican drug wars

was sufficiently germane to the underlying conduct to

support the sentence. If these were the only extraneous

comments, then we might give the district court the

benefit of the doubt. They were not. We conclude that

the district court’s process was so far out of bounds

that Figueroa is entitled to resentencing. We emphasize,

however, that we are taking no position on the substantive reasonableness of the 235-month sentence that

Figueroa received.

For completeness, we note that Figueroa has framed

his challenge as an allegation of national-origin discrimination. See, e.g., United States v. Kaba, 480 F.3d 152, 156-58

(2d Cir. 2007); see also U.S.S.G. § 5H1.10 (forbidding

consideration of national origin in sentencing). Although

the district court may have made one or two comments that overemphasized national origin, this sentencing hearing had problems across the board. We need

not decide if these references to national origin, standing

alone, would require reversal.

Figueroa’s brief in this court also has traces of a challenge to the district court’s drug-quantity determination,

see U.S.S.G. § 2D1.1, insofar as it raises questions about

the credibility of witness Rodney Smith. We find this

argument to be insufficiently developed to merit consideration. See, e.g., Trentadue v. Redmon, 2010 WL 3239397,

at *5 (7th Cir. Aug. 18, 2010). Even if it had been properly

developed, we find enough in the record to support the

drug-quantity finding. Indeed, during oral argument,

counsel for Figueroa conceded that the district court
No. 09-3333 11

adopted the findings in the presentence investigation

report, including its conclusion about the quantity of

drugs connected with Figueroa’s relevant conduct. Although the district court could have spent more time

discussing the drug quantity and less time on the extraneous topics reviewed above, we see no reason to

upset its decision that Figueroa was responsible for

more than 50 kilograms of cocaine.

IV

Figueroa challenged an evidentiary decision and his

sentence. We have no problem with the district court’s

conclusion that Figueroa consented to the search of

his home, and we therefore see no error in the court’s

decision to admit the evidence found by the police. As

for his sentence, we conclude that the evidence was

sufficient to establish the drug quantity and the original guidelines calculation. We do not disturb those

conclusions. But we find that resentencing is necessary

to evaluate those factors that Congress has told us

should inform the length of the sentence. See 18 U.S.C.

§ 3553(a). We would not lightly interfere with the sentencing process because of extraneous comments during

a sentencing hearing. Here, however, the comments

were utterly out of bounds, and we have no way of assessing how these improper observations affected the

district court’s final choice of a sentence.

For these reasons, we AFFIRM Figueroa’s conviction,

VACATE his sentence, and REMAND for further proceedings consistent with this opinion. On remand,

Circuit Rule 36 shall apply.
12 No. 09-3333

EVANS, Circuit Judge, concurring. Judges sometimes

get carried away and say things they should not say.

I agree with my colleagues that the judge in this case

said things that he should not have said. And what

was said, I agree, marred the procedural aspects of

Figueroa’s sentencing proceeding.

Having said that, however, I do not think that what the

judge actually did, as opposed to what he said, demonstrated an intent to lay the wood to Figueroa or otherwise treat him unfairly. The sentence the judge imposed,

which was at the lowest point of Figueroa’s advisory

guideline range, looks to be reasonable. If the judge

truly wanted to stick it to Figueroa, he could have said

nothing out of the ordinary and imposed a sentence,

still within the guideline range, that was 58 months

longer than the one actually ordered. With that being

the case, we might very well have a no harm-no foul

situation. Yet Figueroa is entitled, procedurally, to a

cleaner hearing than the one he got so I join my colleagues in returning this case to a new judge for a

fresh hearing.

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