United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

Argued May 4, 2006

Decided May 30, 2006

Before

Hon. RICHARD A. POSNER, Circuit Judge

Hon. DANIEL A. MANION, Circuit Judge

Hon. ILANA DIAMOND ROVNER, Circuit Judge

No. 05-2939

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

BALDEMAR PAYAN,

Defendant-Appellant.

Appeal from the United States District

Court for the Eastern District of

Wisconsin 

No. 04 CR190

J. P. Stadtmueller, 

Judge.

O R D E R

Baldemar Payan pleaded guilty, pursuant to a written agreement, to

conspiring to distribute more than 50 grams of crack cocaine, 5 kilograms or more of

cocaine, and marijuana, 21 U.S.C. §§ 846, 841. The district court sentenced him to

235 months’ imprisonment, five years’ supervised release, and ordered him to pay a

$1,000 fine and a $100 special assessment. Payan appeals, arguing that the district

court erred by applying a leader/organizer enhancement to his guidelines

calculation. We affirm.

Payan stated in his plea agreement that he and an associate, Adolf Alvarez,

operated a cocaine, crack cocaine, and marijuana distribution business in

UNPUBLISHED ORDER

Not to be cited per Circuit Rule 53
No. 05-2939 Page 2

1

 Payan’s brief also includes an undeveloped argument that his sentence is

(continued...)

Wisconsin. They paid three individuals to receive Federal Express packages

containing cocaine from Texas, drive drug-laden trucks from Texas, and travel via

Greyhound bus with drugs strapped to their bodies. Payan enlisted a fourth

individual to process the powdered cocaine into crack cocaine.

The conspiracy began to unravel when two of Payan’s couriers, Thadeus

Bartoszuk and Danielle Druktenis, were arrested for possessing crack cocaine. The

couriers, cooperating with officials, declined a request by Payan to transport cocaine

from Texas to Wisconsin, forcing Payan, Alvarez, and their girlfriends to travel to

Texas themselves. Before leaving, Alvarez delivered 5 pounds of marijuana to the

couriers, who surrendered the drugs to officials. A subsequent controlled delivery of

the marijuana led to the arrest of Payan and Alvarez.

The district court accepted Payan’s plea agreement. In a presentence report,

a Probation Officer argued Payan should receive a leader/organizer enhancement

under U.S.S.G. § 3B1.1 because he “recruited at least five individuals to transport

the cocaine and ‘cook’ the cocaine into crack cocaine.” The report recommended that

the court sentence Payan based on an overall offense level of 35 and a criminal

history level of IV, yielding a sentencing range of 235 to 293 months’ imprisonment. 

Payan conceded at sentencing that “we understand how [the sentencing

calculations] were arrived at and believe that they are accurately calculated within

the context of the guidelines. But, of course, do not agree that that should control

sentencing.” Notably, Payan’s counsel explicitly abandoned any specific challenge

to the sentencing calculation—including the leader/organizer enhancement—and

instead chose to seek leniency by attacking the reasonableness of the sentence: 

You know, there’s a factual, legal basis for the recommended basis in the

guidelines. Mr. Payan and I could perhaps ineffectively quibble about, you

know, the double, triple counting of his prior offense. But, of course, that’s

allowed. We could quibble about the number of points somebody gets for

being a little more of a director, a little less of a director of an enterprise. But

the bottom line is that looking at the prospect of 293 months in jail seems to

me to be excessive.

The court, though, rejected leniency and sentenced Payan to 235 months, the

bottom of his guidelines range.

Here, Payan argues that the district court erred when it applied the fourlevel leader/organizer enhancement.1

 He begins with the assertion that, based on
No. 05-2939 Page 3

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(...continued)

unreasonable because the district court did not consider the factors described in 18

U.S.C. § 3553(a). Beyond asserting that the court should have considered his

“involvement in the offense, his personal history, need for treatment, and criminal

history,” Payan does not describe the factors as they pertain to him or how they should

have affected his sentence. Thus the argument, which is not even presented in the

brief’s summary of the argument section, is waived. See Weinstein v. Schwartz, 422

F.3d 476, 477 n.1 (7th Cir. 2005); United States v. Holm, 326 F.3d 872, 877 (7th Cir.

2003) (enforcing waiver in criminal context).

 

his plea agreement, he expected a “maximum exposure of a little more than fifteenand-a-half years.” Thus, he argues, his sentence of almost 20 years “should have

required the Government to present evidence that proved beyond a reasonable

doubt that the Defendant was a leader/organizer in the drug conspiracy—a factor to

which he did not plead guilty or stipulate.” 

We review a sentencing court’s factual findings for clear error and its

application of those facts to the guidelines de novo. See United States v. Arnaout,

431 F.3d 994, 998 (7th Cir. 2005); United States v. Turner, 400 F.3d 491, 500 (7th

Cir. 2005). Payan, however, waived any challenge to the district court’s decision to

apply the leader/organizer enhancement. See United States v. Sensmeier, 361 F.3d

982, 986-87 (7th Cir. 2004). In the district court, counsel conceded that Payan’s

guideline range was properly calculated and explicitly acknowledged that the

leader/organizer enhancement could be a basis for a sentencing challenge. Rather

than pursue that argument, however, counsel challenged only the reasonableness of

the sentence. Thus, there was a clear waiver and the issue is foreclosed on appeal.

Payan argues that we should look past his waiver because he was sentenced

shortly after the Supreme Court’s decision in United States v. Booker, 543 U.S. 220

(2005). Even if the uncertainty following Booker caused counsel to forfeit, rather

than waive, particular guidelines arguments in favor of a general attack on the

reasonableness of Payan’s sentence, Payan’s arguments fail on the merits. Payan

first argues that the district court erred by not holding an evidentiary hearing. But

he complains only that the facts in the plea agreement did not support the

enhancement. An evidentiary hearing is necessary only to resolve disputes of

material fact, see United States v. Villegas, 388 F.3d 317, 324 (7th Cir. 2004), which

Payan does not allege. Payan next argues that the government should have been

required to prove beyond a reasonable doubt that he was a leader/organizer. But

we have, even after Booker, repeatedly observed that sentencing factors are decided

by a preponderance of the evidence. See, e.g., United States v. Garcia, 439 F.3d 363,

369 (7th Cir. 2006); United States v. Robinson, 435 F.3d 699, 701 (7th Cir. 2006). 
No. 05-2939 Page 4

Finally, though the argument is undeveloped and thus waived, see United

States v. Holm, 326 F.3d at 877 (waiver of undeveloped arguments “is true even in

the criminal context”); United States v. Berkowitz, 927 F.2d 1376, 1384 (7th Cir.

1991) (same), we observe that Payan’s sentence is reasonable. The district court

sentenced him to 235 months’ imprisonment, at the bottom of his guideline range. 

That sentence is presumptively reasonable, see United States v. Mykytiuk, 415 F.3d

606, 608 (7th Cir. 2005), and Payan does not point to any 18 U.S.C. § 3553(a) factor

to undermine that presumption. At argument he generally asserted that the

district court erred by not thoroughly discussing the reasonableness of his sentence,

but the court properly calculated his guideline range (which Payan conceded),

recognized that the guidelines were advisory, considered his plea for leniency, and

ultimately concluded that the need to deter drug crime justified the sentence

suggested by the guidelines. The court’s discussion does not give Payan any basis to

challenge the reasonableness of his sentence. 

AFFIRMED.