In the

United States Court of Appeals

For the Seventh Circuit

Nos. 07-3641, 08-1361, 08-3888 & 09-3484

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

ROBERT VALLAR, TYRAIL CURRY,

AMADOR HERNANDEZ, and

ELADIO PEDROZA, SR.,

Defendants-Appellants.

Appeals from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 1:05-CR-472—John W. Darrah, Judge.

ARGUED OCTOBER 26, 2010—DECIDED FEBRUARY 14, 2011

Before POSNER, FLAUM, and SYKES, Circuit Judges.

FLAUM, Circuit Judge. Three defendants were convicted of committing various drug-related offenses; a

fourth pled guilty. They raise a variety of arguments on

direct appeal, primarily challenging their sentences and

denials of motions to suppress their confessions. For the

following reasons, we affirm.
2 Nos. 07-3641, 08-1361, 08-3888 & 09-3484

I. Background

On September 20, 2005, a federal grand jury returned

a fifty-one-count indictment against seventeen individuals, including Amador Hernandez (“Hernandez”),

Eladio Pedroza, Sr. (“Pedroza”), Robert Vallar (“Vallar”),

and Tyrail Curry (“Curry”). It charged the four with

various offenses related to a drug conspiracy.

Juan Carlos Iniguez, a co-defendant who is not a party

to this appeal, directed a drug business that distributed

cocaine and heroin to multiple cities in the United States

beginning in the summer of 2004. Iniguez obtained

cocaine from an individual in Mexico, Juan Sanchez,

and heroine from an individual named Jesus Ocampo.

Iniguez distributed wholesale quantities of the drugs to

co-conspirators Phillip King, Gonzalo Sanchez, and

Vallar, among others, who were spread throughout

Kentucky, Ohio, and Chicago. Pedroza assisted Iniguez

in distributing cocaine and collecting proceeds.

Vallar was arrested at his home on May 26, 2005. He

waived his Miranda rights and confessed to participating

in the drug conspiracy. Hernandez was also arrested on

May 26, 2005. After waiving his Miranda rights, he also

confessed to various aspects of the charged crimes. Both

Vallar and Hernandez moved to suppress their confessions. The district court denied both motions.

Curry pled guilty to the conspiracy charge on September 6, 2006. On April 13, 2007, a jury found Pedroza,

Hernandez, and Vallar guilty on multiple counts.

Hernandez and Pedroza separately filed motions for

judgment of acquittal and a new trial in the alternative.

The district court denied both motions.
Nos. 07-3641, 08-1361, 08-3888 & 09-3484 3

On September 12, 2007, the district court sentenced

Vallar to 151 months of imprisonment on Counts 1 and 35

and 48 months of imprisonment on Count 37, to run concurrently. On October 28, 2008, the district court sentenced Hernandez to 324 months on Counts 1, 23, 40, and

48, 60 months on Counts 9 and 49, 240 months on

Counts 34 and 36, and 48 months on Counts 4, 25, 33, and

39, to run concurrently. On September 29, 2009, the

district court sentenced Pedroza to 360 months of imprisonment on Count 1 and 48 months on Count 12, to

run concurrently.

II. Analysis

A. Pedroza’s Sentence

Pedroza challenges his sentence on four grounds. We

review de novo whether the district court committed a

procedural error, which includes determining whether

the district court properly considered the factors in 18

U.S.C. § 3553(a) and mitigating evidence, and whether

it improperly treated the guidelines as mandatory or

otherwise unduly relied on them. See Gall v. United

States, 552 U.S. 38, 51 (2007); United States v. Coopman,

602 F.3d 814, 817-19 (7th Cir. 2010); United States v. Omole,

523 F.3d 691, 697-98 (7th Cir. 2008). Next, we review

for abuse of discretion whether the sentence is substantively reasonable in light of the factors in § 3553(a).

Coopman, 602 F.3d at 819.

First, while Pedroza concedes that the district court

correctly calculated his guidelines range, he claims that
4 Nos. 07-3641, 08-1361, 08-3888 & 09-3484

The factors in § 3553(a) include, among other things: 1

(1) the nature and circumstances of the offense and the

history and characteristics of the defendant; 

(2) the need for the sentence imposed—

(A) to reflect the seriousness of the offense, to promote

respect for the law, and to provide just punishment

for the offense; 

(B) to afford adequate deterrence to criminal conduct;

(C) to protect the public from further crimes of the defendant; and

(D) to provide the defendant with needed educational

or vocational training, medical care, or other correctional treatment in the most effective manner;

(3) the kinds of sentences available . . . .

18 U.S.C. § 3553(a). 

the district court misapplied the factors in § 3553(a) and 1

failed to adequately consider mitigating facts. This argument is vacuous.

The district court thoroughly analyzed the factors in

§ 3553(a) and committed no reversible error in doing

so. It discussed the nature and circumstances of the

offense—including the amount of drugs involved in the

conspiracy, Pedroza’s role in the conspiracy, and the

harm from the drugs he distributed—Pedroza’s history

and characteristics—including his age and the fact that a

guideline sentence would likely ensure that Pedroza

would die in prison, that he has a strong family that he

loves and supports, and his significant criminal history,
Nos. 07-3641, 08-1361, 08-3888 & 09-3484 5

including leading a drug distribution ring while imprisoned on a previous conviction—and the need for the

sentence imposed to deter, promote respect for the law,

provide just punishment, and protect the public from

further crimes by Pedroza—including that Pedroza’s

previous sentences did not deter him from recidivating,

his lack of remorse, and that he has no respect for the

laws of the United States. The district court also considered that Pedroza would likely return and recidivate

if he received a below-guidelines sentence and was deported after release, since he had been found in the

U.S. illegally on three occasions.

The district court meaningfully considered the factors

in § 3553(a). Pedroza claims that the district court did not

adequately consider each of his mitigation arguments.

The district court addressed the majority and strongest

of Pedroza’s arguments. That the district court did not

explicitly discuss each of Pedroza’s weaker arguments

does not constitute reversible error under the facts of

this case. See United States v. Paige, 611 F.3d 397, 398 (7th

Cir. 2010) (“[W]e regularly affirm sentences where the

district judge does not explicitly mention each mitigation argument raised by the defendant. Indeed, sentencing judges must only demonstrate meaningful consideration of § 3553(a) factors.”).

Second, Pedroza claims that the district court did not

adequately consider every factor in § 3553(a), specifically

mentioning that the district inadequately discussed

his history and characteristics, whether the sentence

provided just punishment for the offense and would
6 Nos. 07-3641, 08-1361, 08-3888 & 09-3484

promote respect for the law, and, more generally, whether

the sentence was longer than necessary to promote the

goals of sentencing. This argument is also meritless.

As the discussion above indicates, Pedroza’s argument

is belied by the record. The district court adequately

discussed the factors in § 3553(a) he references. Thus,

even if the district court did not consider each factor in

§ 3553(a), that would not constitute reversible error. See,

e.g., United States v. Shannon, 518 F.3d 494, 496 (7th Cir.

2008) (“The court need not address every § 3553(a)

factor in checklist fashion, explicitly articulating its conclusions regarding each one. Instead the court may

simply give an adequate statement of reasons, consistent

with § 3553(a), for thinking the sentence it selects is appropriate.”).

Third, Pedroza argues that the district court unduly

relied on the guideline range in selecting his sentence.

But we see no indication in the record that the district

court treated the guidelines as mandatory or presumed

that a within-guidelines sentence was reasonable. See

generally United States v. Carter, 530 F.3d 565, 577-78

(7th Cir. 2008) (discussing whether the district court

failed to properly recognize the advisory nature of the

guidelines); United States v. Schmitt, 495 F.3d 860, 865 (7th

Cir. 2007) (holding that a district court gave too much

weight to the guidelines where “his remarks indicated

that he felt that there was an outside constraint on his

discretion that he was not free to set aside”); United States

v. Ross, 501 F.3d 851, 853-54 (7th Cir. 2007). Instead, the

record demonstrates that the district court adequately
Nos. 07-3641, 08-1361, 08-3888 & 09-3484 7

explained its sentencing decision in light of the factors

in § 3553(a) and Pedroza’s characteristics.

Finally, Pedroza argues that his sentence is substantively unreasonable. He believes that a 360-month sentence is unnecessarily long in light of his age, fifty-seven,

and points out that he will likely die in prison. He

argues that a shorter sentence would sufficiently

address the goals of sentencing. This argument is also

unavailing.

We presume that Pedroza’s sentence is reasonable

because it falls within the properly calculated guidelines

range. United States v. Panaigua-Verdugo, 537 F.3d 722,

727 (7th Cir. 2008). Pedroza “can rebut this presumption

only by demonstrating that his or her sentence is unreasonable when measured against the factors set forth in

§ 3553(a).” United States v. Nitch, 477 F.3d 933, 937 (7th

Cir. 2007) (internal quotation marks and citation omitted). This is no easy task when the defendant receives

the lowest possible within-guidelines sentence, which

Pedroza did. We have written that such a sentence

“will almost never be unreasonable.” United States v.

Tahzib, 513 F.3d 692, 695 (7th Cir. 2008). Pedroza’s

strongest argument is that he is likely to die in prison if

his sentence is not reduced. Still, we find no abuse of

discretion under the circumstances of this case. See

Omole, 523 F.3d at 698 (“This totality-of-the-circumstances

analysis requires that we defer to the sentencing

judge, who considers each defendant as an individual

and decides sentences on a case-by-case, rather than

wholesale, basis. We recognize that the sentencing judge
8 Nos. 07-3641, 08-1361, 08-3888 & 09-3484

is in the best position to apply the § 3553(a) factors to

the individual defendant, and that the judge sees things

we cannot see, assesses in real-time the credibility of

witnesses and defendants when we cannot, and develops

insights from the various bits and pieces of information that he comes across in the course of a case that

nonetheless are not reflected in the record.”). Although

“death in prison is not to be ordered lightly, and the

probability that a convict will not live out his sentence should certainly give pause to a sentencing court,”

we have upheld such sentences on appeal where

the sentencing court considered the likelihood of a defendant’s death in prison, but concluded that other factors

warranted the particular sentence. United States v.

Wurzinger, 467 F.3d 649, 652-53 (7th Cir. 2006); see

United States v. Kincannon, 567 F.3d 893, 901 (7th Cir.

2009). The record demonstrates that the district court

seriously considered that Pedroza would likely die in

prison if he received a within-guidelines sentence,

but it nonetheless imposed the sentence based on the

seriousness of Pedroza’s crime, his past recidivism and

the likelihood that he would continue to commit crimes

if released from prison, the fact that he directed the

operation of a drug distribution ring while in a federal prison, his lack of remorse for his offense, and its

conclusion that Pedroza is a threat to society due to

his persistent distribution of drugs. The district court

did not abuse its discretion in sentencing Pedroza to

360 months.
Nos. 07-3641, 08-1361, 08-3888 & 09-3484 9

B. Hernandez’s Sentencing Enhancement

Hernandez challenges the district court’s application

of a three-level enhancement pursuant to U.S.S.G.

§ 3B1.1(b) based on its conclusion that Hernandez played

a supervisory or managerial role in the conspiracy.

We review the district court’s decision for clear error.

United States v. Curb, 626 F.3d 921, 924 (7th Cir. 2010).

We reverse “only if, after reviewing the entire evidence,

[the court] is left with the definite and firm conviction

that a mistake has been made.” Id. (internal quotation

marks and citations omitted).

Section 3B1.1(b) of the sentencing guidelines provides

a three-level enhancement if “the defendant was a

manager or supervisor (but not an organizer or leader)

and the criminal activity involved five or more participants or was otherwise extensive.” U.S.S.G. § 3B1.1(b).

The guidelines do not define the terms “manager” or

“supervisor.” But the fourth application note to § 3B1.1(b)

provides a list of factors that we consider when determining whether a defendant had a managing or supervisory role:

Factors the court should consider include the exercise

of decision making authority, the nature of participation in the commission of the offense, the recruitment of accomplices, the claimed right to a larger

share of the fruits of the crime, the degree of participation in planning or organizing the offense, the nature

and scope of the illegal activity, and the degree of

control and authority exercised over others.
10 Nos. 07-3641, 08-1361, 08-3888 & 09-3484

We note that there is some discussion in our case law re- 2

garding whether control over another participant is required

for an enhancement or whether it is merely one factor that

courts consider. See United States v. Gonzalez-Mendoza, 584

F.3d 726, 729 n.3 (7th Cir. 2009) (citing cases). Because we

affirm the district court’s conclusion that Hernandez had

control over other participants in the conspiracy, we need

not address the relative weight of control in this case.

U.S.S.G. § 3B1.1(b), cmt. n.4; see United States v. Howell, 527

F.3d 646, 649 (7th Cir. 2008) (“We have noted that these

factors are to be used to distinguish leadership from

management, but have found that they are still relevant

in ascertaining whether an individual had a supervisory

role at all.”). “No one of these factors is considered a

prerequisite to the enhancement, and, at the same time,

the factors are not necessarily entitled to equal weight.”

United States v. Anderson, 580 F.3d 639, 649 (7th Cir. 2009)

(internal quotation marks and citations omitted). When

examining these factors, “we emphasize both relative

responsibility and control over other participants.” Howell,

527 F.3d at 649.2

The district court discussed six of the seven factors

listed in application note four and based its finding

that Hernandez worked as a manager or supervisor on a

variety of factual determinations relevant to those

factors, which included, among other things, that

Hernandez (1) exercised decision-making authority;

(2) took part in planning and organizing the offense

by working as Iniguez’s right-hand man and taking

directions from Iniguez that required Hernandez to
Nos. 07-3641, 08-1361, 08-3888 & 09-3484 11

exercise managerial and supervisory responsibilities

over Raymond Salinas and Phillip King; (3) acted as a

sounding board for Iniguez by discussing the organization and planning of the drug conspiracy with Iniguez

on a somewhat regular basis; (4) exercised control and

authority over others when he supervised Salinas and

King; and (5) was entrusted with substantial sums of

money. The district court concluded that there was

“ample evidence” from trial and the sentencing hearing

that Hernandez had a managerial or supervisory role in

the drug conspiracy.

Hernandez claims that he played a passive role in the

drug conspiracy, merely assisting Iniguez in carrying out

the conspiracy without any authority or control over

anyone involved. More specifically, he argues that he

exercised no supervisory authority over Salinas or King

and that the district court erred by concluding otherwise.

He claims that it was Iniguez, not Hernandez, who attempted to supervise Salinas and King.

We find no clear error in the district court’s conclusion

that Hernandez was a manager or supervisor of the

drug conspiracy, or in the district court’s factual conclusions listed above that supported its decision to apply

the enhancement. With regard to Hernandez’s control

over Salinas and King, the record demonstrates that

Iniguez sent Hernandez to Kentucky on two separate

occasions to oversee the receipt and distribution of

drugs in Kentucky, despite the fact that both Salinas

and King were there. It also permits the conclusion that Hernandez had authority over Salinas when at-
12 Nos. 07-3641, 08-1361, 08-3888 & 09-3484

tempting to open hidden compartments in a car to

retrieve drugs in Kentucky. See United States v. GonzalesMendoza, 584 F.3d 726, 729 (7th Cir. 2009) (“Villa admitted he was in Chicago to oversee drugs and drug

proceeds for a Mexican cartel, which suggests he played

a coordinating or organizing part in the criminal activity.”). Hernandez claims that Iniguez exercised authority

over Salinas and King, but this does not preclude the

district court’s finding that Hernandez also had such

authority. See U.S.S.G. § 3B1.1, cmt. n.4 (“There can, of

course, be more than one person who qualifies as a

leader or organizer of a criminal association or conspiracy.”); see also United States v. Sainz-Preciado, 566 F.3d 708,

715 (7th Cir. 2009) (“[A]ssuming that [the leader of the

entire drug operation] did in fact tell Sainz-Preciado

who to call to pick up the cocaine, Sainz-Preciado’s resulting status as a mere middleman would not make

him immune from application of § 3B1.1. It is SainzPreciado’s relative responsibility and control over

other participants that qualifies him as a manager . . . .”

(internal quotation marks and citations omitted)).

Further, Hernandez does not point us to portions of the

record that negate the other above-mentioned factual

conclusions that the district court reached, and the

portions of the record to which the government directs

us supports the district court’s findings. See United States

v. Dunkel, 927 F.2d 955, 956 (7th Cir. 1991). Accordingly,

we find no clear error in the district court’s application

of a three-level enhancement for Hernandez’s role in the

drug conspiracy pursuant to U.S.S.G. § 3B1.1(b).
Nos. 07-3641, 08-1361, 08-3888 & 09-3484 13

C. Hernandez’s Motion to Suppress his Post-Arrest

Statement

Hernandez argues that he gave his post-arrest statement involuntarily and that the district court erred in

rejecting his motion to suppress. We review de novo

the district court’s determination that Hernandez’s confession was voluntary, United States v. Montgomery, 555

F.3d 623, 629 (7th Cir. 2009), and we review the district

court’s relevant factual findings for clear error, giving

“special deference to the district court’s credibility determinations,” United States v. Villalpando, 588 F.3d 1124,

1127 (7th Cir. 2009).

Due process requires that a criminal conviction not

be based on an involuntary confession. See generally

Schneckloth v. Bustamonte, 412 U.S. 218, 223-26 (1973);

United States v. Gillaum, 372 F.3d 848, 856-57 (7th Cir.

2004). We have held that “[a] confession is voluntary if,

in the totality of circumstances, it is the product of a

rational intellect and free will and not the result of

physical abuse, psychological intimidation, or deceptive

interrogation tactics that have overcome the defendant’s

free will.” Gillaum, 372 F.3d at 856 (internal quotation

marks and citations omitted); see also Schneckloth, 412

U.S. at 226. “[C]oercive police activity is a necessary

predicate to the finding that a confession is not ‘voluntary’

within the meaning of the Due Process Clause of the

Fourteenth Amendment.” Gillaum, 372 F.3d at 856

(internal quotation marks and citations omitted); see also

Montgomery, 555 F.3d at 632. “[W]e analyze coercion

from the perspective of a reasonable person in the posi-
14 Nos. 07-3641, 08-1361, 08-3888 & 09-3484

tion of the suspect.” United States v. Huerta, 239 F.3d

865, 871 (7th Cir. 2001). We consider the following

factors when evaluating coercion:

The defendant’s age, education, intelligence level,

and mental state; the length of the defendant’s detention; the nature of the interrogations; the inclusion

of advice about constitutional rights; and the use of

physical punishment, including deprivation of food

or sleep. Narcotics, alcohol, and fatigue also may be

considerations in a particular case.

Id.; see also Schneckloth, 412 U.S. at 226.

The facts of this case require affirming the district

court’s judgment. Agents came to Hernandez’s home at

6:30 AM on May 26, 2005, and arrested him. Hernandez

was in his late fifties at the time of his arrest. He has

diabetes, low blood sugar, and a heart condition, which

the interviewing agents knew at the time of the arrest.

He attended school through the 8th grade, reads and

speaks Spanish, and can speak English “80 percent.” He

also claims to have slow mental ability and a difficulty

understanding what people tell him, although he has

never been treated for mental disabilities. Agents asked

Hernandez for his medications at the time of his arrest,

which he provided, and then took him to their office for

questioning. Agent Maria Lia Fowler (“Agent Fowler”),

formerly known as Agent Lia Posada, asked if Hernandez

had breakfast. Hernandez responded that he had not. He

asked for a soda at 7:35 AM. Before the interrogation,

Agent Fowler gave Hernandez a soda and his medications and permitted him to use the restroom. The district

court found that after Agent Fowler played intercepted
Nos. 07-3641, 08-1361, 08-3888 & 09-3484 15

calls for Hernandez, she read a Spanish-language

version of Miranda warnings aloud and Hernandez

signed an advice of rights form. Hernandez testified that

he received his Miranda warnings at the end of the interrogation, that he received water but not a soda, and that

he did not use the restroom. But the district court concluded otherwise, crediting the agents’ testimony. Because Hernandez has not demonstrated that the agents’

testimony was “exceedingly improbable,” we defer to

the district court’s credibility determinations and accept its findings of fact. United States v. Dillon, 150

F.3d 754, 758 (7th Cir. 1998). The interview proceeded

in Spanish and lasted two-and-a-half hours, from approximately 8:30 AM until 11 AM. Hernandez was

handcuffed for the duration of the interview. Two agents

testified that Hernandez did not complain of chest pains,

shortness of breath, or other physical ailments before

or during the interview. Hernandez disputes this, but,

again, the district court credited the agents’ testimony,

and Hernandez fails to demonstrate that their testimony was “exceedingly improbable.” Id. Hernandez also

testified that he felt ill during the interrogation, but the

district court credited other evidence that contradicted

Hernandez’s claim that he experienced chest pains and a

heart attack during the interrogation. The agents gave

Hernandez a snack after the interview, at 11 AM. Later

that day, Hernandez was taken to a hospital to assess

his suitability for confinement. The district court reviewed medical records indicating that while Hernandez

was at the hospital, he said that his chest pains began

three hours prior to his arrival at the hospital, which

was at approximately 11:30 AM. Considering the totality
16 Nos. 07-3641, 08-1361, 08-3888 & 09-3484

of the circumstances, we affirm the district court’s decision to deny Hernandez’s motion to suppress his confession; the facts simply do not suffice to conclude that the

agents were coercive or that Hernandez’s post-arrest

statement was involuntary. Compare Gillaum, 372 F.3d

at 857 (finding that the defendant’s statements were

voluntary when he was thirty-seven at the time of his

arrest, he was personally familiar with the criminal

justice system, he was read the Miranda warnings and

indicated that he understood them, his interviewers,

who knew he was diabetic, offered him food and

insulin, which he refused, and he was interrogated for

less than forty-five minutes, during which he was not

handcuffed), and United States v. Jones, 359 F.3d 921, 923-34

(7th Cir. 2004) (holding that the defendant’s confession

was voluntary where the interviewing agents “informed

Jones about his rights and did not use physical violence[,]

Jones was not handcuffed, and, although he never

asked, he was not denied beverages, phone calls, or

access to a restroom,” where “he was in a familiar setting

because he had attended similar interviews as a union

representative,” and where Jones professed his innocence

with respect to one charge and ultimately ended the

interrogation, even though his interrogators yelled at

him and displayed a weapon) with United States v. Hull,

441 F.2d 308, 312-13 (7th Cir. 1971) (holding that a defendant’s confession was involuntary where he was

mentally and emotionally handicapped and he endured “a

continuous series of intensive interrogations for nearly

twelve hours,” during which he had no sleep or food

except for a cup of coffee). We affirm the district court’s

denial of Hernandez’s motion to suppress.
Nos. 07-3641, 08-1361, 08-3888 & 09-3484 17

D. Vallar’s Motion to Suppress his Post-Arrest Statement

Vallar appeals the district court’s denial of his motion

to suppress his post-arrest statement. When reviewing

a district court’s denial of a motion to suppress, we

review de novo whether the defendant knowingly, intelligently, and voluntarily waived his Miranda rights, and

we review the district court’s factual findings and credibility determinations for clear error. United States v.

Shabaz, 579 F.3d 815, 819-20 (7th Cir. 2009).

Vallar asserts three arguments on appeal. First, he

argues that he did not knowingly, intelligently, and

voluntarily waive his Miranda rights. He points out that

he was arrested at his home at 6:30 AM by officers with

weapons drawn, that he was handcuffed for about

an hour while agents searched his home, and that he

was then taken to the police station and forced to listen

to audio tapes implicating him in the alleged conspiracy

before he received and waived his Miranda rights and

provided the post-arrest statement he seeks to suppress.

Vallar’s argument is unpersuasive. Defendants may

waive their Miranda rights, but only if the waiver is “made

voluntarily, knowingly, and intelligently.” Moran v.

Burbine, 475 U.S. 412, 421 (1986) (quoting Miranda v. Arizona, 384 U.S. 436, 444 (1966)). Determining whether a

waiver meets this standard requires a two-step inquiry:

First, the relinquishment of the right must have

been voluntary in the sense that it was the product

of a free and deliberate choice rather than intimidation, coercion, or deception. Second, the waiver must
18 Nos. 07-3641, 08-1361, 08-3888 & 09-3484

have been made with a full awareness of both the

nature of the right being abandoned and the consequences of the decision to abandon it. Only if the

totality of the circumstances surrounding the interrogation reveal both an uncoerced choice and the

requisite level of comprehension may a court properly

conclude that the Miranda rights have been waived.

Id. (internal quotation marks and citations omitted). When

reviewing the totality of the circumstances, we consider

“the defendant’s background and conduct, the duration

and conditions of the interview and detention, the

physical and mental condition of the defendant, the

attitude of the law enforcement officials, and whether

law enforcement officers used coercive techniques, either

psychological or physical.” Shabaz, 579 F.3d at 820.

Vallar voluntarily, knowingly, and intelligently waived

his Miranda rights. Agent Michael Zobak, who participated

in Vallar’s arrest, testified at the suppression hearing that

Vallar was handcuffed while officers searched his home;

that agents permitted Vallar to use the restroom at

his house while the officers were present; that nobody

threatened or shouted at Vallar; that Vallar was offered

a beverage and the use of a restroom upon arriving at

the station, both of which he declined; and that Vallar

was not handcuffed during the interrogation except

when agents moved him to different rooms. Agent Zobak

also testified that he read Vallar his Miranda rights

and that Vallar waived them and signed an advice of

rights form without any indication that he was confused.

The district court credited Agent Zobak’s testimony.
Nos. 07-3641, 08-1361, 08-3888 & 09-3484 19

Considering the facts Vallar points out above and

Agent Zobak’s testimony, we conclude that Vallar’s

waiver was voluntary. Further, the district court found

that Vallar was capable of understanding his rights, and,

thus, that his waiver was knowingly and intelligently

made. Vallar does not challenge this finding on appeal, and

we find no indication in the record that this finding was

error. See Colorado v. Spring, 479 U.S. 564, 574-75 (1987)

(affirming a district court’s finding that the defendant

knowingly and intelligently waived his Miranda rights

where the defendant failed to allege that he did not

understand his Miranda rights or the consequences of

waiving them). Accordingly, we affirm the district

court’s decision that Vallar voluntarily, knowingly, and

intelligently waived his Miranda rights.

Second, Vallar argues that the agents should have

known that playing the recordings was “reasonably likely

to elicit an incriminating response,” and, thus, that it

constituted an impermissible interrogation because

Vallar had not received Miranda warnings before the

tapes were played. See Rhode Island v. Innis, 446 U.S. 291,

301 (1980); see also Enoch v. Gramley, 70 F.3d 1490, 1500

(7th Cir. 1995) (“We have stated that, under Innis, the

issue is whether a reasonable objective observer would

believe that the encounter was reasonably likely to elicit

an incriminating response from the suspect and

therefore constituted the functional equivalent of interrogation.” (internal quotation marks and citations omitted)). See generally Easley v. Frey, 433 F.3d 969, 973-74

(7th Cir. 2006). Vallar’s argument is unavailing. Merely

apprising Vallar of the evidence against him by playing

tapes implicating him in the conspiracy did not con-
20 Nos. 07-3641, 08-1361, 08-3888 & 09-3484

stitute interrogation. See Easley, 433 F.3d at 973-74 (7th

Cir. 2006) (holding that an officer’s statement informing

the defendant of the evidence against him and the

possible consequences of the charges the defendant

faced did not constitute interrogation, “even if its weight

might move a suspect to speak”); United States v. Sutton,

77 Fed.Appx 892, 895 (7th Cir. 2003) (“[M]erely reciting

the evidence supporting an arrest is not the functional

equivalent of an interrogation.”); Enoch, 70 F.3d at 1500

(holding that where “the police identif[ied] the victim to

the suspect and briefly stat[ed] the evidence against

him, followed by the suspect’s allegedly incriminating

statements” did not constitute interrogation because

“[b]riefly reciting to a suspect in custody the basis for

holding him, without more, cannot be the functional

equivalent of interrogation”). But more critical to our

analysis is the fact that Vallar made no statement in

response to the tapes before he received and waived his

Miranda rights. See United States v. Peterson, 414 F.3d

825, 827-28 (7th Cir. 2005) (writing that the problem

with the defendant’s argument that his confession

violated Miranda, where agents laid out the evidence

against him, administered Miranda warnings, obtained

a waiver, and secured a confession, was that none of

the defendant’s statements preceded the warnings).

Vallar’s next argument is unpersuasive for the same

reason.

Vallar’s last argument is that the tactics agents

used—specifically, playing taped conversations demonstrating that he participated in the alleged conspiracy

before reading Vallar his Miranda rights and receiving a

waiver—is improper under Missouri v. Seibert, 542 U.S.
Nos. 07-3641, 08-1361, 08-3888 & 09-3484 21

600 (2004); see also United States v. Stewart, 388 F.3d 1079,

1086-90 (7th Cir. 2004). In Seibert, the Supreme Court

reviewed a police protocol that called for interrogating

a defendant and receiving a confession before giving

Miranda warnings, then informing the defendant of his

Miranda rights, receiving a waiver, and interrogating

the defendant a second time, again obtaining a confession. 542 U.S. at 604. In a divided decision, the Court

found the confession inadmissible. Id. at 617-618, 622. We

have construed Seibert as holding “that post-warning

statements are inadmissible if they duplicate pre-warning

statements intentionally elicited in an effort to evade

Miranda.” Peterson, 414 F.3d at 828.

The agents’ strategy of playing taped conversations

and then reading Vallar his Miranda rights, receiving a

waiver, and beginning to interrogate Vallar does not

violate Seibert. The defendant in Seibert was interrogated

and made incriminating statements both before and after

waiving his Miranda rights. Id. at 604. Vallar was interrogated only after he received and waived his Miranda

rights and he made no incriminating statements before

signing his advice of rights form. See Peterson, 414 F.3d at

827-28 (holding that a defendant’s confession did not

violate the interrogation technique prohibited by Seibert

where agents presented the evidence against him

before reading him his Miranda rights and obtaining a

waiver because the defendant did not make any prewarning statement). We affirm the district court’s denial

of Vallar’s motion to suppress.
22 Nos. 07-3641, 08-1361, 08-3888 & 09-3484

E. Vallar’s Motions for Judgment of Acquittal and for

a New Trial

Vallar argues that the district court erred in denying his

motion for acquittal and a new trial on the theory that

there was insufficient evidence to find that he had a

conspiratorial relationship with Iniguez, as opposed to

merely a buyer-seller relationship. We review de novo a

district court’s denial of a motion for acquittal, United

States v. Fassnacht, 332 F.3d 440, 447 (7th Cir. 2003), and

we review the district court’s denial of a new trial for

abuse of discretion, United States v. Kosth, 257 F.3d 712, 718

(7th Cir. 2001).

When evaluating a sufficiency of the evidence claim,

“[w]e consider the evidence in the light most favorable

to the prosecution, making all reasonable inferences in

its favor, and affirm the conviction so long as any

rational trier of fact could have found the defendant to

have committed the essential elements of the crime.”

United States v. Paneras, 222 F.3d 406, 410 (7th Cir. 2000)

(quoting United States v. Masten, 170 F.3d 790, 794 (7th Cir.

1999)). “Only if, from this vantage point, the record

contains no evidence from which the jury could have

found guilt beyond a reasonable doubt, is reversal appropriate.” Kosth, 257 F.3d at 718. “Proving that no such

evidence exists presents a nearly insurmountable hurdle

to the defendant.” Fassnacht, 332 F.3d at 447 (quoting

United States v. Hach, 162 F.3d 937, 942 (7th Cir. 1998)).

“To convict a defendant of conspiracy, the government

must prove that (1) two or more people agreed to commit

an unlawful act, and (2) the defendant knowingly and
Nos. 07-3641, 08-1361, 08-3888 & 09-3484 23

intentionally joined in the agreement.” United States v.

Johnson, 592 F.3d 749, 754 (7th Cir. 2010). Attaining a

conviction for conspiracy under 21 U.S.C. § 846, the

relevant charge on appeal, requires proving “that

the defendant knowingly agreed—either implicitly or

explicitly—with someone else to distribute drugs.” Id. But

when the alleged coconspirators are in a buyer-seller

relationship, “we have cautioned against conflating the

underlying buy-sell agreement with the drug-distribution

agreement that is alleged to form the basis of the

charged conspiracy. To support a conspiracy conviction,

there must be sufficient evidence of an agreement to

commit a crime other than the crime that consists of the

sale itself.” Id. (internal quotation marks and citations

omitted). Thus, “to prove a conspiracy, the government must offer evidence establishing an agreement to

distribute drugs that is distinct from evidence of the

agreement to complete the underlying drug deals.” Id. at

755. Merely providing “evidence that a buyer and seller

traded in large quantities of drugs, used standardized

transactions, and had a prolonged relationship,” without

more, is inadequate to prove a conspiracy. Id. “Otherwise, the law would make any ‘wholesale customer of a

conspiracy . . . a co-conspirator per se.’ ” Id. (quoting

United States v. Colon, 549 F.3d 565, 569 (7th Cir. 2008)).

The following are examples of evidence that would

distinguish a conspiracy from a nonconspiratorial buyerseller relationship: 

[S]ales on credit or consignment, an agreement to

look for other customers, a payment of commission on

sales, an indication that one party advised the other
24 Nos. 07-3641, 08-1361, 08-3888 & 09-3484

on the conduct of the other’s business, or an agreement to warn of future threats to each other’s business stemming from competitors or law-enforcement

authorities.

Id. at 755-56. Importantly, “not all credit sales can

support an inference that there was an agreement to

distribute.” Id. at 756 n.5. We have explained that a supplier who extends credit to an individual who purchases

a small quantity of drugs for personal consumption

does not create a conspiracy. Id. But “when a credit sale

is coupled with certain characteristics inherent in an

ongoing wholesale buyer-seller relationship—i.e., large

quantities of drugs, repeat purchases or some other

enduring arrangement—the credit sale becomes sufficient

evidence to distinguish a conspiracy from a nonconspiratorial buyer-seller relationship.” Id. (internal

quotation marks and citations omitted). Once “the government has offered some distinguishing evidence, the

jury may rely on [the following] factors . . . to buttress

an inference that there was an agreement to distribute

drugs”: “whether the transactions involved large

quantities of crack . . . whether the parties had a standardized way of doing business over time . . . whether the

parties had a continuing relationship . . . whether the

seller had a financial stake in a resale to the buyer; and . . .

whether the parties had an understanding that the

drugs would be resold.” Id. at 758.

Vallar argues that the government’s evidence established a buyer-seller relationship between Vallar and

Iniguez, but not a conspiracy. He claims that the district
Nos. 07-3641, 08-1361, 08-3888 & 09-3484 25

court erred by characterizing two kilograms attributed

to him as a large quantity. He also argues that he had

no long-term agreement with Iniguez to deal drugs.

Although Vallar knew Iniguez for at least ten years, he

claims that wiretaps presented at trial demonstrated

that they were involved in drug dealing together for a

period of less than two months. Vallar concedes that

there was evidence at trial that he purchased drugs from

Iniguez on credit. But he attempts to minimize this by

arguing that Iniguez trusted Vallar due to their friendship, and that the government failed to prove that the

friendship was of a business nature. Vallar also concedes that the evidence may indicate that he and Iniguez

had a standardized way of doing business.

We reject Vallar’s argument. It is undisputed that he

purchased drugs on credit from Iniguez. Our review of

the record indicates that these purchases occurred on at

least two and likely three occasions. This distinguishes

the conspiracy from a buyer-seller relationship. See id. at

755-56, 758. There is also evidence indicating that Vallar

would not pay Iniguez until Vallar resold the drugs.

Despite Vallar’s argument that his relationship with

Iniguez renders the sales on credit less meaningful, it is

well-settled that repeated sales on credit, coupled with

the fact that Vallar and Iniguez had a standardized way

of doing business and evidence that Vallar would not

pay Iniguez until he resold the drugs, permits the inference that Vallar conspired with Iniguez. See, e.g., id. at

756 n.5; United States v. Rock, 370 F.3d 712, 715 (7th Cir.

2004). Viewing the evidence in the light most favorable

to the verdict, we affirm the judgment of the district court.
26 Nos. 07-3641, 08-1361, 08-3888 & 09-3484

F. Vallar’s Sentencing Enhancement for Obstruction of

Justice

Vallar appeals the district court’s application of a twolevel enhancement for obstruction of justice pursuant to

U.S.S.G. § 3C1.1. Section 3C1.1 permits courts to increase

a defendant’s offense level if he “willfully obstructed or

impeded, or attempted to obstruct or impede, the administration of justice.” U.S.S.G. § 3C1.1. Perjury is a wellsettled example of conduct that warrants an obstruction enhancement. United States v. Bermea-Boone, 563

F.3d 621, 626-27 (7th Cir. 2009). A witness commits

perjury “if, while under oath, he ‘gives false testimony

concerning a material matter with the willful intent to

provide false testimony, rather than as a result of confusion, mistake, or faulty memory.’ ” Id. at 627 (quoting

United States v. Dunnigan, 507 U.S. 87, 94 (1993)). On

appeal, “[w]e review the factual findings underlying the

district court’s application of the obstruction enhancement for clear error, and we review de novo whether

those findings adequately support the enhancement.”

United States v. Anderson, 580 F.3d 639, 648 (7th Cir. 2009).

The district court found that Vallar committed perjury

when he testified that he signed the Miranda waiver

because the agents tricked him by presenting the

waiver form as a property receipt. In light of testimony

from agents present when Vallar signed the waiver indicating that he freely and voluntarily waived his

Miranda rights, the district court concluded that Vallar’s

testimony was false and that he knew it was false.
Nos. 07-3641, 08-1361, 08-3888 & 09-3484 27

Vallar raises two challenges. First, he cites United States

v. Dunnigan, 507 U.S. 87 (1993), to argue that the district

court erred by failing to make sufficient findings that

Vallar committed perjury. 507 U.S. at 95 (“[I]f a defendant

objects to a sentence enhancement resulting from her

trial testimony, a district court must review the evidence

and make independent findings necessary to establish a

willful impediment to or obstruction of justice, or an

attempt to do the same, under the perjury definition

we have set out. When doing so, it is preferable for a

district court to address each element of the alleged

perjury in a separate and clear finding. The district court’s

determination that enhancement is required is sufficient, however, if . . . the court makes a finding of an

obstruction of, or impediment to, justice that encompasses all of the factual predicates for a finding of

perjury.”); see also Untied States v. Woody, 55 F.3d 1257,

1273 (7th Cir. 1995). Second, he claims that there is no

evidence in the record that would permit the court to

conclude that he willfully provided false testimony. He

asserts that he subjectively may have felt tricked, and that

testifying to that effect does not constitute willfulness.

We disagree. First, the district court adequately determined that Vallar committed perjury at the suppression

hearing. It explicitly found that Vallar’s testimony was

false. It also expressly concluded that Vallar intended to

provide false testimony, stating that Vallar’s explanation

of how “his name happened to appear on a Miranda

waiver, frankly, is not credible and not credible to the

point where I find that it manifested an intent by
28 Nos. 07-3641, 08-1361, 08-3888 & 09-3484

Mr. Vallar to deceive the court.” Further, the testimony

undoubtedly concerned “a material matter” because it

came during a suppression hearing at which Vallar argued

that his Miranda waiver was not voluntary, claiming that

it resulted from coercive tactics. Bermea-Boone, 563 F.3d

at 627 (quoting Dunnigan, 507 U.S. at 94); see United States

v. Carrera, 259 F.3d 818, 831-32 (7th Cir. 2001) (affirming

an obstruction enhancement where the district court

merely concluded that testimony was false, but did not

indicate its findings for each element of perjury, because

concluding that the testimony was “untruthful” encompassed materiality where there was “no doubt that the

district court considered [the subject of the false testimony] to be material”). Had the district court believed

Vallar’s testimony, it may have suppressed his confession. See U.S.S.G. § 3C1.1 cmt. 6 (“ ‘Material’ evidence,

fact, statement, or information, as used in this section,

means evidence, fact, statement, or information that, if

believed, would tend to influence or affect the issue

under determination.”); see also United States v. BedollaZavala, 611 F.3d 392, 396 (7th Cir. 2010). Second, it was

not clear error to conclude that Vallar willfully testified

falsely. The district court weighed Vallar’s testimony

against the government agents’ and concluded that

Vallar lacked credibility. We find no clear error in this

conclusion. See United States v. Ofcky, 237 F.3d 904, 910

(7th Cir. 2001) (affirming the application of an obstruction enhancement “where the trial judge weighed the

testimony of the defendant against that of others and

determined that the defendant’s testimony lacked credibility.”); see also United States v. Pedigo, 12 F.3d 618, 628-29
Nos. 07-3641, 08-1361, 08-3888 & 09-3484 29

(7th Cir. 1993). We affirm the district court’s application

of the obstruction enhancement.

G. Anders Brief in the Case of Tyrail Curry

Curry pled guilty to Count One, the conspiracy charge,

on September 6, 2006. He admitted to participating in

Iniguez’s drug enterprise by assisting in the receipt and

distribution of cocaine in Kentucky. The district court

sentenced Curry to 210 months of imprisonment, the

lowest within-guidelines sentence, and five years of

supervised release.

Curry’s counsel, a Federal Public Defender in the

Central District of Illinois, concludes that Curry’s case

is without merit and submits an Anders brief seeking

permission to withdraw. See Anders v. California, 386 U.S.

739 (1967). Curry did not respond to counsel’s facially

adequate brief. See Cir. R. 51(b). We limit our review to

the potential issues counsel discusses. United States v.

Schuh, 289 F.3d 968, 973-74 (7th Cir. 2002).

Counsel first considers whether Curry has any nonfrivolous arguments to challenge his conviction. Since

Curry does not seek to challenge his guilty plea on

appeal, counsel properly declines to address any plearelated issues in his Anders brief. See United States v.

Knox, 287 F.3d 667, 670-71 (7th Cir. 2002).

Counsel does consider, however, whether Curry has

any non-frivolous arguments challenging his sentence.

He properly concludes that Curry has none. First,

Curry’s within-guideline, 210-month sentence did not

constitute a violation of law where it did not exceed
30 Nos. 07-3641, 08-1361, 08-3888 & 09-3484

the statutory maximum sentence of life, 21 U.S.C.

§ 841(b)(1)(A); United States v. Franz, 886 F.2d 973, 977

(7th Cir. 1989), and where nothing in the record indicates

that the district court violated Curry’s equal protection,

due process, or other constitutional rights, see, e.g.,

United States v. Moore, 543 F.3d 891, 895-96 (7th Cir.

2008) (discussing a “class of one” equal protection

claim). See 18 U.S.C. 3742(a)(1) (permitting defendants

to appeal a final sentence that “was imposed in violation

of law”). Next, the district court committed no procedural errors when applying the sentencing guidelines

to determine Curry’s sentence: It properly calculated

the guidelines range, treated the guidelines as discretionary, considered the factors in § 3553(a), selected a

sentence based on appropriate facts, and adequately

explained the sentence it imposed. See Gall, 522 U.S. at 51.

Finally, Curry’s within-guideline sentence is not substantively unreasonable. See United States v. Rivera, 463

F.3d 598, 602 (7th Cir. 2006) (“A sentence, such as this, that

falls within a properly calculated Guidelines’ range is

entitled to a rebuttable presumption of reasonableness. . . .

[I]t will be a rare Guidelines sentence that is unreasonable.” (internal quotation marks and citations omitted)).

We grant counsel’s request.

III. Conclusion

For the foregoing reasons, we AFFIRM the district

court’s judgment and GRANT Curry’s counsel’s request

to withdraw and dismiss Curry’s appeal.

2-14-11