In the

United States Court of Appeals

For the Seventh Circuit ____________

No. 06-3193

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

ALEJANDRO SANTIAGO,

Defendant-Appellant.

____________

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 04 CR 245—Robert W. Gettleman, Judge.

____________

ARGUED MAY 1, 2007—DECIDED AUGUST 2, 2007

____________

Before RIPPLE, MANION and WILLIAMS, Circuit Judges.

RIPPLE, Circuit Judge. The defendant, Alejandro Santiago,

was indicted on one count of possession of cocaine

base with intent to distribute, in violation of 21 U.S.C.

§ 841(a)(1), and unlawful possession of ammunition by

a felon, in violation of 18 U.S.C. § 922(g). Mr. Santiago

pleaded guilty and was sentenced to 360 months’ imprisonment, based in part on the district court’s finding that

Mr. Santiago had been involved in other uncharged

conduct. Mr. Santiago now appeals that portion of his

sentence attributable to the uncharged conduct. For the
2 No. 06-3193

reasons set forth in this opinion, we affirm the judgment of

the district court.

I

BACKGROUND

Mr. Santiago was charged with possession of cocaine

base, which he conceded was crack cocaine, with intent to

distribute and with unlawful possession of ammunition

by a felon. Mr. Santiago pleaded guilty to the offenses.

The presentence investigation report (“PSR”) calculated

Mr. Santiago’s total offense level at 32 and his criminal

history category at V. This resulted in an advisory guidelines range of 188-235 months’ imprisonment. However,

the guidelines provide that, when the statutory mandatory

minimum sentence is greater than the advisory guidelines

range, the statutory mandatory minimum becomes the

guidelines sentence. See U.S.S.G. § 5G1.1(b). Based on Mr.

Santiago’s prior convictions and the quantity of cocaine

base involved, the statutory mandatory minimum sentence was 240 months’ imprisonment. See 21 U.S.C.

§ 841(b)(1)(A). Therefore, as calculated in the PSR, Mr.

Santiago’s advisory guidelines sentence was 240 months’

imprisonment.

The Government requested that the court increase Mr.

Santiago’s total offense level to 37, which would result in

an advisory guidelines range of 324-405 months’ imprisonment, and recommended a sentence at the top of that

range. The Government submitted that this increase was

appropriate because Mr. Santiago’s criminal history

category did not reflect adequately his prior criminal

conduct. The Government first pointed to Mr. Santiago’s

1983 conviction in Illinois state court for conspiracy to
No. 06-3193 3

commit murder. This conviction was not reflected in Mr.

Santiago’s criminal history category because his sentence

was completed outside of the fifteen-year limit for calculating his criminal history category under the advisory

guidelines. The Government further contended that an

increase in Mr. Santiago’s offense level was warranted

because of his participation in the kidnap and murder of

a man named Jesus Colon. The Government alleged

that, after a co-conspirator in the kidnapping, Francis Bell,

was apprehended while attempting to collect the ransom

demanded from Colon’s family, Mr. Santiago and two

other co-conspirators, Victor Lopez and Jose Perez, killed

Colon in a particularly gruesome manner and dismembered his body. Mr. Santiago had not been charged with,

or convicted of, any offense related to these events.

The Government produced no live witnesses at sentencing. To support its allegations that Mr. Santiago had

been involved in the kidnap and murder, the Government

presented: video confessions given by Lopez and Perez

to the Illinois state prosecutor implicating Mr. Santiago

in Colon’s murder; transcripts of sworn statements by

Simitrio Sanchez and Pablo Morales, two other co-conspirators in the kidnap of Colon, that corroborated the confessions of Lopez and Perez; transcripts of sworn statements by Agents Henry Harris and William Warren of the

Drug Enforcement Agency, both of whom had investigated

the kidnap and murder of Colon; and phone records

between the co-conspirators on the day Bell was arrested.

Additionally, the Government introduced a letter written

by Mr. Santiago to his brother while Mr. Santiago was

being held at the Metropolitan Correctional Center following his arrest on the present charges. The letter discussed his concern upon learning the news that Lopez and

Perez had been arrested in connection with Colon’s
4 No. 06-3193

1 The district court had concluded that Mr. Santiago’s total

offense level was 29 and his criminal history category was V.

This resulted in an advisory guidelines range of 140-175 months’

imprisonment. As noted previously, the guidelines provide that,

when the statutory mandatory minimum sentence exceeds the

advisory guidelines range, the statutory mandatory minimum

(continued...)

murder. In the letter, Mr. Santiago expressed that he

likely would be implicated in the murder by Lopez and

Perez, but that he was forming a plan to place the blame on

himself, Lopez and Perez in order to save his brother

from liability.

Mr. Santiago raised numerous objections at sentencing,

including his contention that any reliance on the out of

court statements by Lopez, Perez and the others would

violate his Sixth Amendment rights under the Confrontation Clause. He further submitted that, because the uncharged conduct would result in a significant increase in

his sentence, the court was required to find any facts

related to the uncharged conduct beyond a reasonable

doubt.

The district court overruled Mr. Santiago’s objections. It

then found that Mr. Santiago had participated in the

murder of Colon. The court noted that the confessions of

Lopez and Perez alone likely would not support such

a finding by a preponderance of the evidence. However,

based on Mr. Santiago’s letter to his brother, the court

found beyond a reasonable doubt that Mr. Santiago had

participated in the murder. Rather than apply these facts to

increase Mr. Santiago’s offense level under the advisory

guidelines,1

 as the Government had requested, the court
No. 06-3193 5

1 (...continued)

becomes the guidelines sentence. See U.S.S.G. § 5G1.1(b).

Therefore, the court concluded, the advisory guidelines sentence

was the statutory mandatory minimum sentence of 240 months’

imprisonment.

2 18 U.S.C. § 3553(a) provides:

(a) Factors To Be Considered in Imposing a Sentence.—The

court shall impose a sentence sufficient, but not greater than

necessary, to comply with the purposes set forth in paragraph (2) of this subsection. The court, in determining the

particular sentence to be imposed, shall consider—

(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;

(4) the kinds of sentence and the sentencing range

established for—

(continued...)

accounted for these facts as it evaluated Mr. Santiago’s

sentence in light of the statutory sentencing factors in

18 U.S.C. § 3553(a).2
6 No. 06-3193

2 (...continued)

(A) the applicable category of offense committed by

the applicable category of defendant as set forth in

the guidelines—

(i) issued by the Sentencing Commission pursuant to section 994(a)(1) of title 28, United

States Code, subject to any amendments made

to such guidelines by act of Congress (regardless of whether such amendments have yet to

be incorporated by the Sentencing Commission

into amendments issued under section 994(p)

of title 28); and 

(ii) that, except as provided in section 3742(g),

are in effect on the date the defendant is sentenced; or 

(B) in the case of a violation of probation or supervised release, the applicable guidelines or policy

statements issued by the Sentencing Commission

pursuant to section 994(a)(3) of title 28, United

States Code, taking into account any amendments

made to such guidelines or policy statements by act

of Congress (regardless of whether such amendments have yet to be incorporated by the Sentencing Commission into amendments issued under

section 994(p) of title 28); 

(5) any pertinent policy statement— 

(A) issued by the Sentencing Commission pursuant

to section 994(a)(2) of title 28, United States Code,

subject to any amendments made to such policy

statement by act of Congress (regardless of whether

such amendments have yet to be incorporated by

the Sentencing Commission into amendments

(continued...)
No. 06-3193 7

2 (...continued)

issued under section 994(p) of title 28); and

(B) that, except as provided in section 3742(g), is in

effect on the date the defendant is sentenced.

(6) the need to avoid unwarranted sentence disparities

among defendants with similar records who have been

found guilty of similar conduct; and

(7) the need to provide restitution to any victims of the

offense.

The court found the uncharged conduct relevant to evaluating Mr. Santiago’s history and characteristics, the need to

promote respect for the law and to provide an adequate

deterrent, and to protect the public from Mr. Santiago. In

light of these considerations, the court concluded that a

sentence of 360 months’ imprisonment was sufficient but

not greater than necessary to fulfill the purposes of

§ 3553(a).

II

DISCUSSION

Mr. Santiago now appeals his sentence. He first raises a

number of constitutional challenges to the procedure

employed by the district court in determining his sentence.

Mr. Santiago contends that under the Sixth Amendment, as

interpreted in Apprendi v. New Jersey, 530 U.S. 466 (2000),

and United States v. Booker, 543 U.S. 220 (2005), any fact that

increased his sentence had to be found beyond a reasonable

doubt by a jury. Next, Mr. Santiago asserts that, under the

Due Process Clause of the Fifth Amendment, the court was
8 No. 06-3193

3 Mr. Santiago pleaded guilty to possession of more than 50

grams of cocaine base in the form of crack. The statutory

maximum sentence for this offense is life imprisonment. See 21

U.S.C. § 844(b)(1)(A).

4 The district court found that the Government had established

beyond a reasonable doubt that Mr. Santiago had participated

in the murder of Colon. Thus, even if we had not rejected

previously Mr. Santiago’s contention that facts leading to a

significant increase in a defendant’s sentence must meet a

higher evidentiary burden, it would make no difference in this

case. See United States v. Boos, 329 F.3d 907, 910 (7th Cir. 2003).

required to find beyond a reasonable doubt that he had

participated in the murder of Colon because these findings

had resulted in a considerable increase in his sentence.

Lastly, Mr. Santiago submits that the district court violated

his Sixth Amendment right to confrontation under Crawford

v. Washington, 541 U.S. 36 (2004), when it considered

statements by Lopez and Perez without affording Mr.

Santiago the opportunity to cross-examine them. We

previously have considered and rejected each of these

contentions. See United States v. White, 472 F.3d 458, 464 (7th

Cir. 2006) (holding that Booker does not require facts found

at sentencing to be found by a jury beyond a reasonable

doubt as long as the factual findings do not increase the

defendant’s sentence beyond the statutory maximum for

the offense of conviction);3 United States v. Reuter, 463 F.3d

792, 793 (7th Cir. 2006) (holding that facts leading to large

increases in a sentence only need be found by a preponderance of the evidence);4 United States v. Miller, 450 F.3d 270,

273 (7th Cir. 2006) (holding that neither Crawford nor the

combination of Crawford and Booker extend the defendant’s

rights under the Confrontation Clause to sentencing

proceedings).
No. 06-3193 9

Mr. Santiago next asserts that the evidence was insufficient to support the district court’s finding that he had

participated in the murder of Colon. We review the district

court’s factual determinations with respect to sentencing

for clear error. United States v. Cross, 430 F.3d 406, 410 (7th

Cir. 2005). Further, due process requires that the district

court’s findings be based on reliable evidence. Id. Evidence

will satisfy this requirement if it “bear[s] sufficient

indicia of reliability to support [its] probable accuracy.” Id.

(citing United States v. Lanterman, 76 F.3d 158, 161 (7th Cir.

1996)) (alterations in original).

Mr. Santiago asserts that statements by Lopez and Perez

were unreliable. He points out that the district court

noted that it believed Lopez and Perez had been coached in

their statements and probably had rehearsed the statements before they were filmed. “[A] ‘very strong presumption of unreliability’ attaches to statements that are:

(1) given with government involvement; (2) describe past

events; and (3) have not been subjected to adversarial

testing.” United States v. Jones, 371 F.3d 363, 369 (7th Cir.

2004) (quoting United States v. Ochoa, 229 F.3d 631, 637 (7th

Cir. 2000)). The district court was mindful of these principles and noted that it “would be reluctant to conclude” by

a preponderance of the evidence that Mr. Santiago had

participated in the kidnap and murder of Colon based

solely on these statements. R.81 at 50.

However, the district court then concluded that Mr.

Santiago’s letter to his brother was “tantamount to a

confession” by Mr. Santiago. Id. at 51. The court held that

the letter was sufficient by itself to establish beyond a

reasonable doubt Mr. Santiago’s involvement in the

murder of Colon. The court noted that Mr. Santiago

discussed in the letter his plan to place the blame on
10 No. 06-3193

himself, Lopez and Perez and that he anticipated that they

all would be executed for the crime. The court found that

these statements evinced Mr. Santiago’s knowledge of,

and involvement in, the particularly gruesome murder of

Colon. Mr. Santiago does not assert that the letter itself is

unreliable. Because the letter was reliable and sufficient on

its own to establish his involvement in the crime, the

district court’s findings of fact were not clearly erroneous.

Nonetheless, the sentence imposed by the district court

must be reasonable in light of the factors set forth in

§ 3553(a). Booker, 543 U.S. at 261. In determining Mr.

Santiago’s sentence, the district court was required first

to calculate his sentence under the advisory guidelines.

United States v. Stitman, 472 F.3d 983, 989 (7th Cir. 2007).

The district court did so and concluded that the advisory

guidelines called for the statutory mandatory minimum

sentence of 240 months’ imprisonment. Mr. Santiago

does not allege any error in this respect. The court was

then required to give Mr. Santiago the opportunity to

invite its attention to any factor under § 3553(a) that

would warrant a departure from the guidelines, see id.,

which the court did. The final step in the sentencing

procedure required the court to consider the § 3553(a)

factors and articulate the factors that determined the

sentence imposed. See id. at 990. After considering the

factors set forth in § 3553(a), the district court concluded

that a sentence of 360 months’ imprisonment was sufficient but not greater than necessary to fulfill the purposes of § 3553(a). The district court concluded that Mr.

Santiago’s history of violent and antisocial criminal conduct made a sentence above the statutory mandatory

minimum necessary to promote respect for the law, to

provide deterrence and to protect the public from Mr.

Santiago.
No. 06-3193 11

Each of the reasons articulated by the district court for

justifying an above-guidelines sentence are grounded in

§ 3553(a). The district court’s findings revealed Mr. Santiago’s involvement in a series of violent crimes spanning

more than twenty years. Given Mr. Santiago’s violent and

persistent criminal conduct over such a long period of time,

we conclude that the district court’s decision to impose

a sentence greater than the advisory guidelines sentence

was not unreasonable.

Conclusion

For the foregoing reasons, the judgment of the district

court is affirmed.

AFFIRMED

A true Copy:

Teste:

 _____________________________

Clerk of the United States Court of 

Appeals for the Seventh Circuit 

USCA-02-C-0072—8-2-07