### In the



# United States Court of Appeals

For the Seventh Circuit

____________________

No. 16

‐ 1188

U NITED S TATES OF A MERICA

, Plaintiff

‐ Appellee

,

v.

D ANIEL M ONTEZ

, Defendant

‐ Appellant

.

____________________

Appeal from the United States District Court for the

Northern District of Illinois, Eastern Division.

No. 1:12

‐ cr

‐ 00755

‐ 8

— Ronald A. Guzman

, Judge

.

____________________

A RGUED M ARCH 30, 2017

— D ECIDED J UNE 5, 2017

____________________

Before P OSNER

, M ANION

, and H AMILTON

, Circuit Judges

.

M ANION

, Circuit Judge

. Daniel Montez appeals his convic

‐

tion and sentence for possession with intent to distribute co

‐

caine. He principally argues that the district court erred in ad

‐ mitting a wiretapped conversation he had with an alleged

supplier. He also asserts that the district court improperly ap

‐ plied the Sentencing Guidelines’ career offender enhance

‐

ment. Finding his arguments unpersuasive, we affirm the

judgment of the district court.2 No. 16

‐ 1188

I. Background

This case arose from an investigation of a drug trafficking

ring led by Jose de Jesus Ramirez

‐ Padilla (known as “Gallo”).

Beginning in 2011, federal agents placed court

‐ authorized

wiretaps on the phones of Gallo and others connected with

his organization. These wiretaps intercepted a call between

Montez and Gallo, and another one between Montez and

Gallo’s brother, Helein Ramirez

‐ Padilla (“Helein”).

Based upon the evidence obtained through the wiretaps,

the government initially charged 40 individuals, including

Gallo, Helein, and Montez, with narcotics conspiracy in vio

‐

lation of 21 U.S.C. § 846. The grand jury eventually returned

indictments charging 23 individuals with narcotics

‐ traffick

‐ ing crimes. While Gallo, Helein, and four others were eventu

‐ ally indicted on conspiracy charges, Montez was indicted on

three counts of possession with intent to distribute cocaine in

violation of 21 U.S.C. § 841(a)(1). The three counts related to

three distinct alleged transactions: on October 27, 2011; De

‐

cember 12, 2011; and June 17, 2012.

Before trial, Montez raised concerns that the recordings of

the wiretapped calls (or at least the words of Gallo and Helein

in those recordings) were inadmissible hearsay. Montez

pressed only general objections to calls from October 27, De

‐

cember 12, and December 14, 2011. The district court rejected

what it termed Montez’s “blanket objection to every statement

in the recordings,” and then went on to provide some specific

examples of statements that were not hearsay. The court held

that Helein’s words were necessary as context for Montez’s

admissions and allowed the recordings to be played to the

jury.No. 16

‐ 1188 3

At trial, in addition to the phone calls, the government

elicited Gallo’s live testimony that Montez had been a cus

‐

tomer of his organization. Two FBI agents also testified to the

effect that Montez had admitted to purchasing cocaine at the

time of his arrest. Montez’s strategy was to cast himself as a

user of the drugs, rather than a distributor. To that end, he

called one additional agent who testified that he didn’t find

any typical drug

‐ dealing paraphernalia in Montez’s home at

the time of the arrest. In the end, Montez was convicted of the

December count, but acquitted of both the October and June

counts.

At sentencing, the district court found that Montez was a

career offender under Section 4B1.1 of the Sentencing Guide

‐

lines based on his 1985 Illinois murder conviction and 2007

Illinois conviction for aggravated battery of an officer. After

the enhancement, Montez’s offense level was 32 and his crim

‐

inal history category was VI, accounting for a Guidelines

range of 210 to 262 months, capped by a 20

‐ year statutory

maximum. The district court sentenced Montez to 210

months’ imprisonment. Montez appealed his conviction and

the application of the career

‐ offender enhancement.

II. Discussion

Montez raises four issues with the proceedings below. He

says: (1) the district court should have excluded at least por

‐

tions of his December phone calls with Helein because He

‐

lein’s statements were inadmissible hearsay; (2) the district

court erred in its treatment of a witness’s answer that he

worked on the “gang task force” after the parties had agreed

to omit any mention of gang activity in the trial; (3) his con

‐

viction was tainted by incorrect transcripts of wiretapped

calls introduced before the grand jury; and (4) his conviction4 No. 16

‐ 1188

for aggravated battery was insufficient to justify the applica

‐

tion of the Guidelines’ career

‐ offender enhancement. We con

‐

sider and reject each argument in turn.

A. Hearsay Objections

Montez’s most significant complaint about the district

court’s judgment is the court’s decision to admit conversations

between himself and Helein from December 12 and December

14, 2011. 1 Montez made only a blanket hearsay objection to

the entire conversation, refusing the district court’s invitation

to identify particular statements by Helein that constituted in

‐

admissible hearsay. He has now identified particular portions

of the transcripts that he says contain hearsay statements by

Helein.

Normally, we would review the district court’s evidentiary

rulings for abuse of discretion. United States v. Davis

, 845 F.3d

282, 286 (7th Cir. 2016). The government argues that we

should apply the plain error standard of review because of

Montez’s failure to make objections to particular statements.

See United States v. Walker

, 237 F.3d 845, 851 (7th Cir. 2001).

Abuse of discretion is a “highly deferential” standard of re

‐

view, but plain error is “even more highly deferential.” United

States v. Cheek

, 740 F.3d 440, 451 (7th Cir. 2014). However, we

do not need to decide this question because even under the

abuse of discretion standard, we would uphold the district

court’s evidentiary ruling.

The three particular exchanges that Montez highlights in

his brief are as follows:

1 Montez also objected to admission of the October conversation, but

that’s not relevant on appeal since he was acquitted on the October count.No. 16

‐ 1188 5

December 12:

Montez: And listen, is it hard or is it loose?

Helein: It’s real nice, dude.

Montez: Okay. That’s what I need to know.

Helein: It’s more or less.

Montez: Okay, no, no, so I know because these fucking

dudes are picky.

December 12:

Montez: I’m passing uh, almost by 47th.

Helein: Look, dude, take about fucking 20 minutes

around there, dude. Are you going to want the three?

Montez: I’m going to grab one first, uh, I’m

... because

the other dude is not going to give me the tickets yet;

but I will need three, yes.

Helein: All right.

Montez: So, so what do you want?

Helein: For you to arrive in about 20 minutes so I can

measure all of the shit.

December 14:

Montez: But, is it going to be uh, firmer

... not like

Helein: No, it’s nice, it’s nicer dude.

Montez: Good, because this other one you gave me,

man, wasn’t worth shit man. It was good, but it was all

loose, man. I had problems even giving it to that son of

a bitch.6 No. 16

‐ 1188

The district court, in overruling Montez’s general objec

‐

tions, found that Helein’s statements were not hearsay be

‐

cause they were necessary to provide context for Montez’s ad

‐

missions. However, as we explained last year, when an argu

‐

ment is made that out

‐ of

‐ court statements should be admitted

as context, the relevant legal question is still whether those

statements are offered for their truth. United States v. Smith

,

816 F.3d 479, 481 (7th Cir. 2016). In other words, the fact that

the declarant’s words help place the defendant’s admissions

into context is not an independent basis upon which to say

the declarant’s statements are not hearsay.

In Smith

, we explained the difference between a statement

offered for its truth and one offered to make sense of another

party’s admission. Suppose the declarant (Helein in this case)

says to the defendant, “I will pay you $7,000 in exchange for

a letter my client can use to seek a grant for a daycare center.

Do you agree?” To this, the defendant simply responds “yes.”

Under the reasoning in Smith

, the declarant’s words are ad

‐

missible because they are not offered for their truth, but rather

“to show the meaning of [the defendant’s] ‘yes,’ which does

not depend on whether [the declarant] was speaking truth

‐ fully.” Id. On the other hand, suppose the declarant had said,

“[l]ast week I paid you $7,000 for a letter that my client will

use to seek a grant for a daycare center. Do you remember?”

If the defendant responded “yes,” the declarant’s statement

would be hearsay “because it would be relevant only if [the

declarant] spoke the truth

– that he had paid $7,000 in ex

‐ change for a letter.” Id. at 482.

Similarly, in United States v. Amaya

, 828 F.3d 518, 528 (7th

Cir. 2016), an officer testified that an out

‐ of

‐ court declarantNo. 16

‐ 1188 7

had said “[t]hat was a big

‐ ass pistol” and the officer had re

‐ sponded “[h]ell yea.” We reasoned that the declarant’s state

‐

ment was hearsay because his exclamation regarding the pis

‐

tol only puts the officer’s response “in context and is only rel

‐

evant if the [declarant] was speaking the truth.” Id. These

cases teach that the ultimate question is whether the declar

‐

ant’s statement is relevant only if it is true. If a statement is

relevant irrespective of its veracity, then it is not hearsay.

In our case, the truth or falsity of Helein’s statements is ir

‐

relevant. For example, in the first exchange above, Helein’s

statements “[i]t’s real nice, dude” and “[m]ore or less” weren’t

offered to prove that the cocaine the two men were discussing

was in fact of high quality. Rather, they were offered to ex

‐ plain the meaning of Montez’s answers. Without Helein’s

statements, Montez’s “[o]kay” would be unintelligible, as we

would have no idea to what he was responding. Like the first

statement discussed in Smith

, Helein’s words are admissible

because they were offered irrespective of their truth to explain

Montez’s response. Montez’s words, particularly his admis

‐

sion that “these fucking dudes are picky,” do all the work to

incriminate him as a distributor of cocaine.

Likewise in the second exchange, Helein’s statements were

not offered for their truth (such as that he would take 20

minutes to measure the cocaine or that he had cocaine at all),

but to illustrate the significance of Montez’s agreement to

show up. And in the third exchange, the truth of Helein’s ut

‐

terance (that the cocaine was better than the batch he had pro

‐

vided two days earlier) was similarly irrelevant. Helein’s

words were instead offered to explain Montez’s complaint

about the quality of the December 12 cocaine. Once again,

Montez’s problem is not Helein’s words, but that his own8 No. 16

‐ 1188

statements on December 14 show that he did indeed pick up

cocaine from Helein on December 12.

We conclude that Helein’s statements in the wiretapped

calls were not offered for the truth of the matters asserted

therein. Therefore, the district court did not err, much less

abuse its discretion, by admitting the entirety of the conversa

‐

tions.

B. The “Gang Task Force” Comment

Montez next argues that the district court erred by failing

to do anything when a federal agent witness, by way of intro

‐ ductory questioning, testified that he worked in the gang task

force. Because the parties had agreed not to mention anything

gang

‐ related during the trial, Montez’s counsel asked for a

sidebar after the comment. While Montez now says the judge

should have issued a limiting instruction or struck the com

‐

ment from the record, at the time his counsel told the judge

there was nothing the judge could do about it. As a result, he

has waived any objection to the judge’s handling of the com

‐

ment.

“Waiver occurs when a criminal defendant intentionally

relinquishes a known right.” United States v. Haddad

, 462 F.3d

783, 793 (7th Cir. 2006). “Waiver of a right extinguishes any

error and precludes appellate review.” United States v. Brodie

,

507 F.3d 527, 530 (7th Cir. 2007). “We have found waiver

where either a defendant or his attorney expressly declined to

press a right or to make an objection.” United States v. Cooper

,

243 F.3d 411, 416 (7th Cir. 2001). That is precisely what hap

‐ pened here. The court asked Montez’s counsel what it should

do about the stray reference, but counsel rejected the judge’s

invitation to do something. Given the situation, this wasNo. 16

‐ 1188 9

“clearly a strategic decision rather than a mere oversight.” Id.

Montez cannot resurrect this argument on appeal. 2

C. The Grand Jury

Montez’s third argument is that his conviction was tainted

by improper evidence introduced to the grand jury. The im

‐

proper evidence amounted to a few mistakes in the tran

‐ scripts of recorded phone calls. This claim lacks merit because

“the petit jury’s guilty verdict[] render[s] harmless any possi

‐

ble error in the grand jury proceedings.” United States v. Mor

‐

gan

, 384 F.3d 439, 443 (7th Cir. 2004). As we have explained, a

rule designed “to protect the innocent from being indicted

... should not be enforced by reversing a conviction obtained af

‐

ter trial

– because we know, as surely as courts ‘know’ any

‐ thing, that the convicted defendant is not a member of the

class of beneficiaries of the rule.” United States v. Fountain

, 840

F.2d 509, 515 (7th Cir. 1988). Thus, even assuming that there

was error, we will not vacate Montez’s conviction on this

ground.

D. Sentencing

Montez’s last argument is that the district court erred by

applying the Sentencing Guidelines’ career

‐ offender enhance

‐

ment to him, increasing his offense level from 26 to 32. In or

‐

der to qualify as a career offender under Section 4B1.1 of the

Guidelines, a defendant must be over eighteen years of age,

2 Even if Montez had not waived this objection, the gang task force

reference would amount to harmless error under this court’s precedent.

See Sanchez v. City of Chicago

, 700 F.3d 919, 932 (7th Cir. 2012) (“As evi

‐

dence of an officer’s experience, assignment, and qualifications, the mere

mention that the officer is a gang specialist or assigned to a gang unit typ

‐ ically is appropriate and harmless.”).10 No. 16

‐ 1188

have committed a crime of violence or a controlled substance

offense, and have “at least two prior felony convictions of ei

‐

ther a crime of violence or a controlled substance offense.”

U.S.S.G. § 4B1.1. There’s no dispute that Montez satisfies the

first two requirements, but he argues that he hasn’t been con

‐

victed of two qualifying crimes.

The presentence report indicated that Montez had (among

other convictions) a 1985 Illinois conviction for murder and a

2007 Illinois conviction for aggravated battery of an officer. It

is undisputed that the murder conviction counts, so the ques

‐

tion here is whether aggravated battery of an officer under Il

‐

linois law is a “crime of violence” sufficient to satisfy the third

requirement of the career

‐ offender Guideline.

At the time of the sentencing, a “crime of violence” was

any state or federal crime punishable by more than one year

imprisonment that “has as an element the use, attempted use,

or threatened use of physical force against the person of an

‐

other.” U.S.S.G. § 4B1.2(a)(1). Under the framework of Mathis

v. United States

, 136 S. Ct. 2243 (2016), 3 the principal question

is whether the statute under which the defendant was con

‐

victed is “divisible” or “indivisible.” When a statute is “indi

‐

visible” such that it “sets out a single set of elements to define

a single crime,” it is proper to simply “line[] up that crime’s

elements alongside those of the generic offense [here, the

‘crime of violence’ definition] and see[] if they match.” Id. at

2248. Under this “categorical approach,” a crime counts as

3 Although Mathis was an Armed Career Criminal Act case, courts

have observed that the approaches used to apply the career

‐ offender en

‐

hancement and the Armed Career Criminal Act are similar and thus that

Mathis is controlling in a Guidelines case. See United States v. Hinkle

, 832

F.3d 569, 574 (5th Cir. 2016)No. 16

‐ 1188 11

crime of violence “if its elements are the same as, or narrower

than” that definition. Id.

Some criminal statutes, however, “have a more compli

‐

cated (sometimes called ‘divisible’) structure, making the

comparison of elements harder.” Id. at 2249. “A single statute

may list elements in the alternative, and thereby define mul

‐ tiple crimes.” Id. To deal with this problem, the Court devel

‐ oped the “modified categorical approach,” whereby “a sen

‐ tencing court looks to a limited class of documents (for exam

‐ ple, the indictment, jury instructions, or plea agreement and

colloquy) to determine what crime, with what elements, a de

‐

fendant was convicted of.” Id. The sentencing court then per

‐

forms the same analysis as in the categorical approach, com

‐ paring the elements of that particular crime to the elements

required for a “crime of violence.” Id.

The Illinois aggravated battery statute under which Mon

‐

tez was convicted read, “[i]n committing a battery, a person

commits aggravated battery if he or she

... knows the individ

‐

ual harmed to be an officer or employee of

... a unit of local

government.” 720 ILCS 5/12

‐ 4(b)(18). The underlying battery

statute said that “[a] person commits battery if he intention

‐ ally or knowingly without legal justification and by any

means (1) causes bodily harm to an individual or (2) makes

physical contact of an insulting or provoking nature with an

individual.” Id. 5/12

‐ 3(a). We have held that this statute is di

‐

visible and that violation of the first clause (the bodily harm

clause) is a crime of violence, while violation of the second is

not. See Stanley v. United States

, 827 F.3d 562, 566 (7th Cir.

2016); United States v. Rodriguez

‐ Gomez

, 608 F.3d 969, 973–74

(7th Cir. 2010). Thus, the career

‐ offender enhancement was12 No. 16

‐ 1188

proper if Montez was convicted under the statute’s first

clause.

Generally, “[t]he scope of our inquiry [into the precise

crime committed] is limited to (1) admissions made by the de

‐

fendant, and (2) the charging document, plea agreement, plea

colloquy, and comparable judicial records from the convic

‐

tion.” Rodriguez

‐ Gomez

, 608 F.3d at 973 (citing Shepard v.

United States

, 544 U.S. 13, 16 (2005)). Montez objects that the

government produced no document showing the facts of his

conviction that would satisfy the requirements of Shepard

. However, he did not contest the facts contained in the presen

‐

tence report, which said that the aggravated battery charge

was based upon his kicking a police officer in the chest several

times and in the face once. The government’s failure to rely on

Shepard documents isn’t error where the defendant “didn’t

question the accuracy of the summary in the presentence in

‐ vestigation report.” United States v. Aviles

‐ Solarzano

, 623 F.3d

470, 475 (7th Cir. 2010). That is because “[t]here is no reason

to go digging for a state

‐ court indictment if the parties agree

on what it says.” Id. Thus, Montez’s Shepard argument fails

and we will treat the facts admitted in the presentence report

as accurate.

In conclusion, because uncontested findings in the presen

‐

tence report indicate that Montez was indeed convicted under

the aggravated battery statute’s bodily harm clause, the dis

‐

trict court did not err by applying the career

‐ offender en

‐

hancement in this case.No. 16

‐ 1188 13

III. Conclusion

For the reasons stated above, the district court did not err

and we will not disturb Montez’s conviction and sentence.

A FFIRMED