(R. 85-2 at 6-7.)
This Court then addressed Martin directly regarding his role in the criminal activity:

The Court: — Mr. Martin, in no uncertain terms, you played a key role in the
movement of cocaine in this country. There’s a lot of people
that are suffering from the use of cocaine. This country has
suffered, and this country is al war with the drug dealers.

Unfortunately, you are not at the upper level. I wish you were
because I wouldn’t hesitate to sentence you to the maximum
amount | could. But you’re playing a key role, and no matter
what they paid you, it wasn’t enough because today, just to
sentence you to the low end of the Guidelines, which I will,
you will pay a significant price, more than 11 years of your
life.

(R. 85-2 at 8.)
Martin filed a notice of appeal on May 17, 2004. (R. 66.) On appeal, Martin raised two

arguments: (1) that he should not have received the two-level leader/organizer adjustment pursuant

to USSG § 3B1.1(c); and (2) that this Court committed plain error by sentencing him under the then-

mandatory sentencing guidelines. (R. 116.) On April 27, 2005, following the Supreme Court’s
decision in Booker, the Court of Appeals issued its decision on defendant’s appeal. (R. 116.) ‘The
Court of Appeals upheld the leader/organizer upward adjustment but remanded pursuant to Paladino.
Alter the Court of Appeals remanded under Paladino, this Court afforded both parties the
opportunity to file sentencing briefs.
ANALYSIS
The sentencing of criminal defendants in the federal system is ultimately governed by 18

U.S.C. § 3553(a). Booker, 543 U.S. at 233-34. That section first requires that “[t}he court shall



distributing more than five kilograms of cocaine is ten years imprisonment. See 21 U.S.C. § 841
(a)(1) and (b)(1)(A)(ii).. By comparison, Martin’s eleven-year and three-month (or “135 month”)
sentence represents a low sentence for a quantity of drugs which is more than three times the
threshold for a ten-year mandatory sentence, Furthermore, Martin involved himself in controlling
the keys for the car where the cocaine was located and, more importantly, in discussions about the
sale price for the cocaine. (R. 85-2, Tr. al 5.) Thus, this Court concluded that Martin played a key
organizational role in the drug transaction. (/d. at 6-8.) ‘hese two factors—key organizational role
and a large quantity of drugs—convinced this Court to favor a Guidelines range sentence.

‘The Need for Adequate Deterrence and Protection of the Public

Furthermore, the need for adequate deterrence and public protection fully justily a sentence
of 135 months for Martin. Simply put, this country is losing its war with drugs. Despite Congress’s
and the Sentencing Commission’s long history of imposing significant sentences lor large-scale drug
dealers, true deterrence remains an elusive goal, Although a long sentence for a drug offense is not
always necessary when a defendant plays a minimal role in the offense, this Court strongly belicves
that long sentences are necessary to deter defendants who play meaningful roles in serious drug
offenses. Martin played a meaningful role in this cightecn-kilogram transaction, and, accordingly,
his 135-month sentence is appropriate. Our Circuit has expressly noted that harsh penalties may be
needed to deter serious drug crimes. See, e.g,, United States v. Wurzinger, F.3d __, 2006 WL
3055954 (7th Cir. Oct. 30, 2006) (262-month top-of-Guideline sentence affirmed as reasonable for
key role in conspiracy to manufacture methaphetamine); United States v. Melendez, __'.3d__,2006

WI. 3040749 (7th Cir. Oct. 27, 2006) (midrange 300-month sentence affirmed as reasonable for key

role in large marijuana distribution conspiracy).

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On the day before his sentencing, Martin filed objections to the PSR. (R. 60.) In the
objections, Martin stated that the USPO should not have found that the two-level leader/organizer
adjustment applied because he was just the “contact person” for the drug organization in Chicago.
(Ud. at 3-5.) At the sentencing hearing the following day, Martin made the same argument. ‘This
Court, however, rejected the argument and ruled that Martin qualified for the two-level
leader/organizer adjustment pursuant to USSG § 3B1.1(c). (R. 85-2 at 5.)

In finding that the leader/organizer adjustment should be imposed, this Court adopted the
facts laid out in the PSR. This court also expressly rejected Martin’s argument that he was just the
contact person in Chicago.

Defense Counsel: Well, Judge, I don’t think he’s controlling the entire transac-

tion. This defendant’s function within the organization was
to be the contact person in Chicago, and
The Court: — But he’s doing more than contacting. Ifhe’s taking car keys,
making discussions about the price, indicating his disappoint-
ment — let me just say this: Your objection is overruled.
(R. 85-2 at 5.) Additionally, this Court indicated that it was strongly persuaded by the admissions
in the plea agrecment that Martin was a leader/organizer of the criminal activity:
The Court: I want the record to be clear, I find the defendant is an
organizer. I don’t consider him a manager or a supervisor;
but he’s definitely an organizer, proved beyond a reasonable

doubt. Forget about a preponderance of the evidence, which
is what the standard is.


impose a sentence sufficient, bul not greater than necessary, to comply with the purposes set forth

in” 18 U.S.C. § 3553(a)(2). The sentence must:

(A)

(B)

(C)
@)

reflect the scriousness of the offense, to promote respect for the law, and to
provide just punishment for the offense;

afford adequate deterrence to criminal conduct;
protect the public from further crimes of the defendant; and

provide the defendant with needed education or vocational training, medical
care, or other correctional treatment in the most effective manner.

18 U.S.C. § 3553(a)(2), In addition to the factors sct forth at section 3553(a)(2) quoted above, the

court is to consider the following six factors “in determining the particular sentence to be imposed”:

(1)

(7)

the nature and circumstances of the offense and the history and characteristics
of the defendant;

the kinds of sentences available;

the kinds of sentences and the sentencing range established under the
Sentencing Guidelines, subject to any amendments made to such Guidelines
by an act of Congress;

any pertinent policy statement issucd by the United States Sentencing
Commission subject to any amendments made to such policy statement by an
act of Congress;

the need to avoid unwarranted sentence disparities among defendants with
similar records who have been found guilty of similar conduct; and

the need to provide restitution to any victims of the offense.

18 U.S.C. § 3553(a).

Within this general statutory sentencing scheme, the Sentencing Guidelines provide a critical

framework because they represent eighteen years’ worth of careful consideration of the proper

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CONCLUSION

For all these reasons, even with the additional sentencing diserction afforded by Booker,
this Court would impose the original sentence. In making this determination, the Court expressly
states that it is not relying on any presumption in finding Martin’s original sentence reasonable.
The nature and circumstances of this serious drug offense and Martin’s role in the offense fully
justify the sentence imposed. Furthermore, sentencing Martin below the Guideline range would
subvert the goals of Congress and the U.S, Sentencing Commission and lead to unwarranted
sentencing disparities, which would in tum fail to protect the public. The Clerk is directed to

transmit this opinion to the Court of Appeals.

ENTERED :
Judge Ruben Castillo
United States District Court

DATED: November 21, 2006

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IN TILE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

UNITED STATES OF AMERICA,

Plaintiff, Appeal No. 04-2279
(On limited remand)

v.
No, 03 CR 768-1
SERGIO CHICTIITZ-MARTIN
Judge Ruben Castillo
Defendant,

MEMORANDUM OPINION AND ORDER

Sergio Chichitz Martin (“Martin”), the defendant in this drug case, appealed to the Seventh
Circuit to have his sentence reduced via new opportunities provided by United States v. Booker, 543

U.S, 220 (2005). On May 5, 2004, this Court sentenced Martin to a total sentence of 135 months

followed by five years of supervised release. Seven months later, on January 12, 2005, the Supreme

Court dramatically changed the world of federal sentencing in its Booker decision, and each Circuit
has since struggled to determine how to apply Booker to cases pending on appeal. In United States
v. Paladino, 401 F.3d 471 (7th Cir, 2005), the Seventh Circuit determined that all cases pending on
appeal would generally be remanded back to the district court for reevaluation in light of Booker’s
determination that the Sentencing Guidelines were no longer binding and mandatory.

On May 17, 2005, the Seventh Circuit ordered a limited remand to this Court pursuant to
Paladino for proceedings to determine whether this Court would have imposed a different sentence
in this case if allowed to re-sentence. This Court followed the suggested Paladino procedure and
requested briefing on this issue from the parties. This procedure requires a district judge to attempt

to go back in history to the initial sentencing hearings for all affected defendants. After careful



sentences for federal oflenses, See United States v. Mykytiuk, 415 F.3d 606, 608 (7th Cir. 2005).

In Myhytiuk, a thoughtful opinion authored by Judge Wood, the Seventh Circuit Court of Appeals

indicated that the Guidelines remain an essential tool in creating a fair and uniform sentencing
regime across the country and, therefore, held that a sentence properly calculated under the
Guidelines is entitled to a rebuttable presumption of reasonableness, //.; see also United States v.
Blue, 453 F.3d 948, 952 (7th Cir, 2006) (reiterating holding in Mykytiuk that a sentence falling
within the properly calculated Guidelines range is presumed reasonable and that the defendant bears
the burden of rebutting the presumption by showing that the sentence is inconsistent with the section
3553(a) factors). This Court’s recent survey of sentencing case law in other Circuits indicates
similar reliance on the Guidelines. See United States v. Caputo, F. Supp. 2d __, 2006 WL
2946191 (N.D. IIL. Oct. 16, 2006).
The Defendant’s Initial Sentence Is Reasonable

On remand, Martin does not challenge this Court’s application of the Sentencing Guidelines.
Instead, he takes a sccond bite at obtaining a lower, non-Guideline sentence by rearguing all of the
mitigating factors: his remorse, his young age, his foreign citizenship and probable deportation, and
his lack of criminal history. All of these factors are significant and were propcrly considered by this
Court in its decision to impose a low-end Guideline sentence. Yet, the remaining sentencing factors
all justify a serious, Guideline sentence as outlined herein.

The Seriousness of the Offense

This Court stated repeatedly at the original sentencing proceeding that Martin had played a

key role in arranging for the delivery of eighteen kilograms of cocaine. This Court properly deemed

this quantity to be significant, The Court expressly notes that the mandatory minimum sentence for

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evaluation of the parties’ submissions, the sentencing transcript and the pre-sentence reports, this
Court has decided to hew to its original sentence for the reasons set forth herein.
RELEVANT FACTS

On August 7, 2003, Martin and two co-defendants were charged in a criminal complaint
alleging that (hey knowingly and intentionally possessed with intent to distribute in excess of five
kilograms of cocaine, in violation of 21 U.S.C. § 846, (R. 1, Compl.) On October 3, 2003, each
defendant was indicted for conspiring to possess with intent to distribute more than five kilograms
of cocaine, in violation of 21 U.S.C. §§ 841(a)(1) and 846 (Count One), and attempting to possess
with intent to distribute morc than five kilograms of cocaine in violation of 21 U.S.C. §§ 841(a)(1)
and 846 (Count Two). (R. 20.)

On January 29, 2004, Martin entered into a written plea agreement with the government and
pleaded guilty to Count One of the Indictment. (R. 47.) On May 5, 2004, after overruling Martin’s
written objections to a Presentence Report (“PSR”) prepared by the United States Probation Officer
(“USPO”) assigned to the casc, this Court sentenced Martin to 135 months in the custody of the
Bureau of Prisons, five years of supervised release, and a $100 special assessment. (R. 63.) On May
17, 2004, Martin timely filed a notice of appeal. (R. 66.)

In his written plea agreement, Martin admitted the following facts: On or about August 6,
2003, he arrived at a hotel in Chicago, Illinois, with two co-conspirators for the purpose of recciving
approximately cightecn kilograms of cocaine from another individual. (R. 47 at 3.) Unbeknownst
to Martin, the individual supposedly delivering the cocaine to him and his co-conspirators had
previously been arrested in Arizona and had agreed to work as a confidential source (“CS”) with the

U.S. Drug Enforcement Administration (“DEA”). (/d.) Martin and his first co-conspirator

2s


proceeded to the CS’s hotel room, and the second co-conspirator remained in the parking lot of the

hotel. (/d.) After Martin and the CS discussed the price the CS would be paid for transporting the
cocaine, Martin’s co-conspirator handed Martin $10,000, which Martin then handed to the CS. (/d.)
Martin then took from a table in the CS’s hotel room the keys to a 2001 Chevrolet Impala, which
both Martin and his co-conspirator believed contained cightcen kilograms of cocaine. Id.

Martin and his first co-conspirator then proceeded to the hotel parking lot where the Impala
was parked, and Martin handed the keys to his second co-conspirator. (/d.) Martin’s second co-
conspirator then drove the Impala out of the parking lot; Martin and the first co-conspirator left in
another car, intending to meet up with the second co-conspirator and the cocaine at another location.
(Id)

In his plea agreement, Martin disagreed with the government that he was a leader/organizer
of the criminal activity pursuant to USSG § 3B1.1(c). (R.47 at 4.)

After Martin pleaded guilty, the USPO prepared a PSR in which she concluded that Martin
was a leader/organizer of the criminal activity pursuant to USSG § 3BI,1(c). In making the
conclusion, the USPO rclicd on the following facts: (1) Martin was charged along with two other
defendants in the drug conspiracy; (2) Martin was the individual in the conspiracy who both
organized and made decisions regarding the drug transaction; (3) Martin directed his co-conspirators
as to how to proceed with the drug transaction; (4) Martin advised one of his co-conspirators that
many morc drug transactions were planned in the future and that the price per kilogram of cocaine
would be increased for future shipments; (5) {t was Martin’s job to ensure that the cocaine arrived
safely in Chicago and was transferred to another location; and (6) One of Martin’s co-conspirators

told agents that he was being groomed by Martin to take over Martin’s role in the organization.

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