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Date: 11-15-2021
Case Style:
United States of America v. Jesus Beltran-Leon
Case Number: 19-2615
Judge: Ilana Kara Diamond Rovner
Court: United States Court of Appeals
For the Seventh Circuit
On appeal from The United States District Court for the
Northern District of Illinois, Eastern Division
Plaintiff's Attorney: United States Attorney’s Office
Defendant's Attorney:
Description:
Chicago, IL- Criminal defense lawyer represented defendant with a one count of conspiracy to possess with intent to distribute controlled substances charges.
Jesus Raul Beltran-Leon (“Beltran”)
pleaded guilty to one count of conspiracy to possess with
intent to distribute controlled substances, in violation of 21
U.S.C. §§ 841(a) and 846. Although his properly calculated
guidelines range was life in prison, the court ultimately
sentenced Beltran to twenty-eight years’ imprisonment. Beltran
2 No. 19-2615
challenges that sentence on multiple grounds. We affirm
Beltran’s substantially below-guidelines sentence.
I.
From at least 2009 until his arrest in November 2014,
Beltran was a high level lieutenant in a cell of the Sinaloa
Cartel, a transnational drug-trafficking organization based in
Mexico. At the time, the Sinaloa Cartel was led by Joaquin
Guzman Loera, also known as “El Chapo,” and the cell for
which Beltran worked was led by two of El Chapo’s sons, Ivan
and Alfredo Guzman. Beltran coordinated, brokered and
facilitated the movement of large amounts of cocaine and other
drugs between and within South and Central America, Mexico
and the United States. He also coordinated and oversaw the
collection of significant payments for drug proceeds. He pled
guilty to Count I of a five-count Ninth Superseding Indictment,
which charged conspiracy to possess with intent to distribute
controlled substances, including cocaine, heroin, methamphetamine and marijuana.
Prior to being charged with this crime, Beltran had never
been arrested much less convicted of a crime. Although his
plea declaration referenced a single transaction involving fortysix kilograms of cocaine, his lawyer agreed that “it’s an absurd
view that Mr. Beltran Leon only engaged in one single drug
transaction here or there.” R. 780, at 212–13. Counsel agreed
that Beltran was involved with the movement of hundreds of
kilograms of controlled substances in a “number of transactions” with the sons of El Chapo over a period of years. R. 780,
at 213. Under the guidelines, this placed him in Criminal
History Category I. For the purposes of sentencing, the
No. 19-2615 3
government proposed that Beltran was responsible for more
than 450 kilograms of cocaine and ten kilograms of heroin, and
the probation office and the court concurred with that assessment. That resulted in a base offense level of 38.
The probation officer and/or the government recommended
a number of sentencing enhancements including: (1) a twolevel increase because the offense involved the use of a
dangerous weapon, under USSG § 2D1.1(b)(1); (2) a two-level
increase because Beltran used violence, made a credible threat
of violence, or directed the use of violence, under USSG
§ 2D1.1(b)(2); (3) a two-level enhancement for the use of
bribery or attempted bribery of law enforcement personnel to
facilitate the crime, under USSG § 2D1.1(b)(11); (4) a two-level
enhancement for committing the offense as part of a pattern of
criminal conduct engaged in as a livelihood, under USSG
§ 2D1.1(b)(16)(C), (D), and (E), and § 2D1.1 comment 20(B) and
(C), and § 4B1.3; (5) a two-level increase for maintaining a
premises (a stash house) for the purposes of manufacturing or
distributing a controlled substance, under USSG § 2D1.1(b)(12)
and USSG § 2D1.1 comment 17; (6) a four-level increase for
being an organizer or leader of criminal activity that involved
five or more participants or was otherwise extensive, under
USSG § 3B.1.1(a); and (7) a two-level enhancement for obstruction of justice, under USSG § 3C1.1. After hearing testimony
from witnesses presented by the government and considering
other evidence and the arguments of counsel, the district court
applied the enhancements for use of a firearm, bribery,
criminal livelihood, and leader or organizer of criminal
activity; the court rejected the enhancements for the use of
violence; maintaining a stash house, and obstruction of justice.
4 No. 19-2615
This added up to an adjusted offense level of 48, from which
the court subtracted three levels for acceptance of responsibility, for a total of 45. Under Chapter 5, Part A, Application Note
2 of the guidelines, an offense level of more than 43 is to be
treated as an offense level of 43.1
Combined with Criminal
History Category I, the advisory guidelines “range” was a
single point: life imprisonment. The government requested a
sentence of no less than thirty-five years in light of Beltran’s
“extraordinarily serious conduct, his history and characteristics, and to avoid sentencing disparities.” R. 714, at 18.
Beltran, in turn, argued for the mandatory minimum
sentence of ten years. Beltran’s principal argument in mitigation was a claim that the Mexican authorities who effected his
arrest tortured him before turning him over to the United
1
There is some confusion in both the sentencing transcript and the briefs
regarding how the court arrived at this level but everyone agrees that the
final guidelines calculation placed Beltran at level 43. The PSR calculated
the guidelines level at 52 by starting with a base of 38, and applying
enhancements for use of a dangerous weapon (+2), use of violence (+2),
bribery (+2), criminal livelihood (+2), organizer/leader (+4), and obstruction
(+2). The PSR recommended against the stash house increase, and 38 + 14
resulted in level 52 before considering a reduction for acceptance of
responsibility. Our review of the transcript reveals that, after accepting
enhancements for use of a dangerous weapon, bribery, criminal livelihood
and organizer/leader, the resulting level should have been 48, but when the
court asked the parties what level applied, government counsel replied, “I
believe his total offense level is 46, minus the three for acceptance is a
level—,“ and the court added, “43.” In fact, his offense level was 48, minus
3 levels for acceptance of responsibility, for a total offense level of 45. This
error makes no difference to the appeal, however, because the guidelines
cap out at level 43 and so Beltran would have been sentenced at level 43
either way.
No. 19-2615 5
States. This torture, Beltran contended, affected the analysis of
the section 3553(a) factors. For example, Beltran argued that a
long sentence was not necessary for general deterrence because
the fact that he was tortured by members of the Mexican
government who worked in close proximity with U.S. law
enforcement would deter others. Similarly, for specific deterrence, Beltran argued that the level of brutality he experienced
in his first arrest was a life-changing event that was likely to
deter him from any criminal conduct in the future without
regard to the length of his sentence. Beltran made similar
arguments for the remaining section 3553(a) factors, essentially
arguing that the torture he suffered at the hands of Mexican
authorities overrode any of the usual concerns addressed by
the section 3553(a) factors. He also argued that the torture was
itself punishment for which he should receive some sentencing
credit.
The court entertained argument from both sides on
Beltran’s primary claim in mitigation. As we will detail below,
the proceedings became contentious when defense counsel
suggested that U.S. law enforcement officers had somehow
participated in or sanctioned the torture, and when counsel
implied that the government’s lawyers had failed to turn over
evidence related to the torture. At two points in the hearing,
the judge referenced an article that had not been disclosed to
the parties. According to the judge, the article established that
Mexican law enforcement suffered hundreds of deaths at the
hands of drug cartels, and the judge suggested that the
aggression of Mexican law enforcement was a response to this
loss of life. The judge, who noted that he is of Mexican descent,
also expressed “personal hurt” over the violence that drug
6 No. 19-2615
cartels have caused in Mexico. The court nevertheless significantly discounted Beltran’s sentence from the guidelines range
of life (and even from the minimum of thirty-five years
requested by the government) in recognition of the “severe
mistreatment” that Beltran experienced, setting a final sentence
of twenty-eight years. Beltran appeals.
II.
Beltran challenges the sentence on the grounds that the
district judge: (1) violated his due process rights when the
judge considered his own ethnicity in setting Beltran’s sentence; (2) improperly considered irrelevant, extra-record
evidence in determining his sentence; (3) failed to explain
adequately the basis for the sentence; (4) improperly drew a
negative inference from Beltran’s failure to testify at sentencing, in violation of his Fifth Amendment rights; and
(5) improperly failed to recuse from the sentencing proceeding
under the Federal Recusal Statute, 28 U.S.C. § 455. We review
constitutional challenges to a sentence de novo. United States v.
Fletcher, 763 F.3d 711, 715 (7th Cir. 2014); United States v.
Brucker, 646 F.3d 1012, 1016 (7th Cir. 2011). Our review of
sentencing decisions generally is limited to whether they are
reasonable, applying the abuse of discretion standard. Gall v.
United States, 552 U.S. 38, 46 (2007); United States v. McLaughlin,
760 F.3d 699, 703 (7th Cir. 2014). We first must ensure that the
district court committed no significant procedural error,
including, among other things, “failing to calculate (or improperly calculating) the Guidelines range, treating the Guidelines
as mandatory, failing to consider the § 3553(a) factors, selecting
a sentence based on clearly erroneous facts, or failing to
adequately explain the chosen sentence—including an explana-
No. 19-2615 7
tion for any deviation from the Guidelines range.” Gall, 552
U.S. at 51. Whether the district court committed procedural
error is a question of law that we review de novo. United States
v. Griffith, 913 F.3d 683, 687 (7th Cir. 2019). We review the
district court’s findings of fact for clear error. United States v.
Knox, 624 F.3d 865, 870 (7th Cir. 2010). Sentences that are
within the properly calculated guidelines range are entitled to
a rebuttable presumption of reasonableness. Rita v. United
States, 551 U.S. 338, 347 (2007); United States v. Mykytiuk, 415
F.3d 606, 608 (7th Cir. 2005). If the district court erred in
sentencing Beltran, we will apply the doctrine of harmless
error in determining whether resentencing is necessary. United
States v. Olson, 450 F.3d 655, 683 (7th Cir. 2006). An error
related to the validity of a defendant’s sentence is harmless
only if it did not affect the district court’s choice of sentence.
Olson, 450 F.3d at 683.
A.
Beltran does not challenge the calculation of the guidelines
range. He contends that the district court’s selection of a
sentence below the guidelines range was based on impermissible factors and that the court did not adequately explain the
basis for the sentence. A court’s failure to explain adequately
the reasons for the sentence would constitute procedural error,
Gall, 552 U.S. at 51, and would, in theory, hamper our efforts
to review the sentence so we will start with the court’s explanation for setting the sentence at twenty-eight years, which is a
8 No. 19-2615
substantial discount from the guidelines range of life.2
In
general, “[t]he sentencing judge should set forth enough to
satisfy the appellate court that he has considered the parties’
arguments and has a reasoned basis for exercising his own
legal decisionmaking authority.” Rita, 551 U.S. at 356. When a
judge decides to apply a within-guidelines sentence, “doing so
will not necessarily require lengthy explanation.” Id. In this
case, the court applied a below guidelines sentence:
Where the defendant or prosecutor presents
nonfrivolous reasons for imposing a different
sentence, however, the judge will normally
go further and explain why he has rejected
those arguments. Sometimes the circumstances will call for a brief explanation; sometimes they will call for a lengthier explana2
To gauge the generosity of the discount, we note that Beltran was a month
shy of his thirty-first birthday when he was first detained in 2014, and the
court credited all the time that he was in custody when setting his sentence.
A sentence of twenty-eight years would result in release at age fifty-nine at
the latest, with the possibility that Beltran could shave several years off that
release date by behaving satisfactorily in prison, a situation entirely within
his own control. See 18 U.S.C. § 3624(b) (providing for credit of up to fiftyfour days per year for prisoners who display exemplary compliance with
institutional regulations). Life, on the other hand, for a man who enters
custody at the age of approximately thirty-one, is potentially a substantially
longer term. The Social Security Administration provides a life expectancy
calculator which projects that a man born on Beltran’s date of birth will live
to age 81.7. See https://www.ssa.gov/cgi-bin/longevity.cgi (last visited
August 6, 2021). A sentence of twenty-eight years would result in a discount
of more than twenty-two years off of a life sentence, and provide a
meaningful opportunity to live (and die) outside of prison.
No. 19-2615 9
tion. Where the judge imposes a sentence
outside the Guidelines, the judge will explain
why he has done so.
Rita, 551 U.S. at 357. See also United States v. Stephens, 986
F.3d 1004, 1010 (7th Cir. 2021) (at a sentencing, the judge must
correctly calculate the range, address the parties’ principal
arguments, consider the statutory factors, and explain the
sentence; but the court need not march through every factor
under § 3553(a) in a checklist manner; only an adequate
statement of the applicable factors is needed). Section 3553(a)
provides the factors that judges should consider in imposing
a sentence sufficient, but not greater than necessary, to comply
with the purposes of the statute: (1) the nature and circumstances of the offense and the history and characteristics of the
defendant; (2) the need for the sentence imposed: to reflect the
seriousness of the offense, to promote respect for the law, and
to provide just punishment for the offense; to afford adequate
deterrence to criminal conduct; to protect the public from
further crimes of the defendant; and 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; and (4) the need to avoid
unwarranted sentence disparities among defendants with
similar records who have been found guilty of similar conduct,
among other things. 18 U.S.C. § 3553(a).
The court spent nearly two full days conducting the
sentencing proceedings and considering Beltran’s principal
argument in mitigation, namely, his claim that the torture he
suffered at the hands of the Mexican military affected the
application of the section 3553(a) factors, and that “the experi-
10 No. 19-2615
ence of torture will make every day of Mr. Beltran Leon’s
confinement far more difficult and painful than it would be for
another inmate.” R. 704, at 12. In explaining the reasons for the
sentence, the court noted that Beltran lacked proof regarding
the degree of his mistreatment, relying primarily on his own
affidavit, which the court did not entirely credit because of
inconsistencies. R. 780, at 269, 285–86, 293. The court nevertheless agreed that Beltran was “mishandled and treated inappropriately,” and had produced evidence of “severe mistreatment.” R. 780, at 264, 286.
In addressing the section 3553(a) factors, defense counsel
argued that the torture that Beltran experienced significantly
reduced his chance of recidivism, maintaining that because of
that experience Beltran did not want to have anything to do
with criminal activity again, and would not want to put his
family through the experience again either. The court disagreed, citing undercover recordings of Beltran in prison that
the government placed into evidence during the sentencing
hearing:
I didn’t use the obstruction enhancement, but
he certainly doesn’t come across like that in
the recordings that we heard yesterday.
That’s all I will tell you. It doesn’t sound like
the person you’re describing right now, Mr.
Brindley, so I just have to call you on that.
R. 780, at 276. The court thus rejected the idea that the
mistreatment that Beltran suffered at the hands of Mexican
officials significantly affected his risk of recidivism. Counsel
also argued that the torture affected Beltran’s level of trust
No. 19-2615 11
with the government and influenced his decision not to
cooperate. The court rejected this argument as the basis for any
reduction in the sentence, finding that the court needed to send
a message that, “if you’re going to be involved in this type of
drug dealing at this level and you decide not to cooperate, then
you will serve a significant sentence in the United States if
you’re successfully prosecuted[.]” R. 780, at 287–88. The court
further noted that “there is a premium on cooperating because
you do put your life at risk in cooperating.” R. 780, at 288. The
court thus considered the claim that torture affected Beltran’s
decision not to cooperate but declined to give it any effect due
to concerns about general deterrence in a case of this
magnitude and the need to encourage cooperation in the
future.
The court further explained the sentence by remarking that
Beltran was a “very, very significant drug dealer and probably
one of the most significant drug dealers I have sentenced, and
we—there’s a price to be paid for being involved in a drug
conspiracy as large as this was ultimately headed by Mr.
Guzman who was tried in New York.” R. 780, at 284. That
conduct evinced a great need for general deterrence because of
the magnitude of Beltran’s crime, which included high level
involvement with a large conspiracy run by a notorious drug
cartel. The court thus considered and rejected Beltran’s claim
that public knowledge of the torture would adequately address
general deterrence regardless of the length of Beltran’s
sentence. See R. 704, at 13.
Beltran’s counsel further posited that the torture served as
part of the punishment for the crime that was “worth something,” and it was up to the judge to decide how much. In
12 No. 19-2615
written pleadings for the sentencing, Beltran also contended
that the torture would affect Beltran’s daily experience in
prison, causing increased fear and anxiety regarding his
possible treatment by government officials. He also argued
that giving Beltran some allowance for the torture would
promote respect for the law, accounting essentially for the
lawlessness of the officials who tortured him. Here, too, the
court considered Beltran’s arguments and did in fact account
for his mistreatment at the hands of Mexican law enforcement
officials.
To place the court’s explanation of the sentence in context,
we include the bulk of the court’s concluding remarks here:
So you decided to involve yourself in [the
conspiracy], and, yes, today you do make a
statement which I want to rely on in terms of
how much you have reformed, but I am
unsure as to how much you really, really
have reformed. I cannot calculate that. What
I do know is that you were a serious drug
conspirator at a high level, and I need to
sentence you accordingly.
The elephant in the room is this allegation of
torture by Mexican Marines, and it is hard for
me to get a handle on that because there’s no
clear proof. There certainly is no proof of any
kind that the DEA was involved or anybody
from the United States. There’s a suspicion,
but as I said before, our—we don’t operate
No. 19-2615 13
our legal system here in the United States
based on suspicion.
If that were the case, I’d be sentencing you a
lot higher because there’s a strong suspicion
that you were trying to do something to one
of the witnesses in this case, but we cannot
rely on suspicion. We are a country of laws.
And … we cannot have a situation where the
end justifies the means in the administration
of criminal law.
So ultimately the United States does not
sanction torture of any kind in any country,
and that is the United States that I’m proud
to serve as a United States District Court
Judge.
Did the Mexican Marines torture Mr. Beltran
Leon? It will take a power greater than me to
come to the bottom line of that, but I do
submit that he has put forth some evidence
indicating severe mistreatment, and I do
think that part of the reason for that is what
I waved around before is that they, meaning
the Mexican military personnel, because at
the end of the day, the Assistant United
States Attorneys and I are not the ones
busting through doors in Mexico arresting
people who are heavily armed. They,
Mexican military personnel, have to
undertake that service.
14 No. 19-2615
They’ve lost considerable personnel in
Mexico. … 750 military personnel dead. I’d
like to know the number of family members
of military personnel who have been killed,
because that would be a sad story, let alone if
we go to media who have been killed in
Mexico. That’s a whole ‘nother story.
So nothing good has come out of the cartels
that have existed in Mexico, and that’s sad to
me because for all of my almost 65 years,
Mexican blood has run through my veins,
and so this is a personal hurt that I feel every
day. So I repeat, Mexico is tired of this
violence, and so is the United States.
So at the end of the day, I do agree with Mr.
Brindley that Mr. Beltran Leon’s sentence
should be somewhat modified downward
because of what may have occurred because
the end doesn’t justify the means. So at the
end of the day, I believe the sentence that is
appropriate for Mr. Beltran Leon, because of
his involvement in this significant drug
conspiracy that breeds nothing but harm to
this country because I will tell you every day
I see that, in my work with former federal
prisoners who are addicted to cocaine and
heroin, mostly minority men and women, it
is a sad day, I’m going to sentence Mr.
Beltran Leon to 28 years in the custody of the
Attorney General. That is what I believe is a
No. 19-2615 15
sufficient-but-no-greater-than-necessary
sentence, a sentence of 336 months in
custody.
And I believe a message should go out that if
you’re going to be involved in this type of
drug dealing at this level and you decide not
to cooperate, then you will serve a significant
sentence in the United States if you’re
successfully prosecuted, and that is the
message that I think my fellow judges have
been sending out. It is a different situation if
you cooperate, and there is a premium on
cooperating because you do put your life at
risk in cooperating, and I don’t minimize for
one second that Mr. Perez is at risk, our first
witness in this sentencing proceeding, by
giving the testimony he has given. That’s just
a fact of life. And I think any judge worth his
or her salt will take into consideration
cooperation each and every time.
R. 780, at 285–88.
This discussion, in combination with other remarks we
have cited, supplies a more than adequate explanation for why
the court imposed the substantially below-guidelines sentence
that it did. Although Beltran objects to some of the court’s
comments, it is plain that the court considered the section
3553(a) factors and either accepted or rejected the arguments
of both parties based on the facts and the law. We will consider
separately whether the sentence was also influenced by
16 No. 19-2615
impermissible factors, but the court’s explanation provides a
sufficient basis for our review of the sentence.
B.
We turn to Beltran’s specific objections, beginning with his
claim that the district judge violated his due process rights by
considering ethnicity in setting Beltran’s sentence. Specifically,
in assessing Beltran’s claim that he had been tortured by the
Mexican military, the judge remarked on the loss of military
personnel in Mexico who had been killed by members of drug
cartels and noted his Mexican heritage and his own sense of
“personal hurt,” as we quoted above. See R. 780, at 287. Under
the guidelines, national origin is not relevant to the
determination of a sentence. USSG § 5H1.10. See also Zant v.
Stephens, 462 U.S. 862, 885 (1983) (describing as
“constitutionally impermissible or totally irrelevant to the
sentencing process” factors such as the race, religion, or
political affiliation of the defendant); Franklin v. McCaughtry,
398 F.3d 955, 959 (7th Cir. 2005) (noting that the due process
clause guarantees litigants an impartial judge).
Nevertheless, in the context of a two-day hearing that
covers two hundred and ninety-four pages of transcript, it is
apparent that the judge did not use his own or the defendant’s
ethnicity in determining the substantially-below guidelines
sentence. When it is clear that the judge’s reference to his own
ethnicity did not affect the selection of the sentence, there is no
due process violation. See e.g., United States v. Traxler, 477 F.3d
1243, 1249 (10th Cir. 2007) (noting that due process analysis of
a judge’s bias extends only to those circumstances where
impermissible personal views expressed at sentencing were the
No. 19-2615 17
basis of the sentence, and collecting cases). As we discussed
above, the court fully explained the reasons for its choice of the
sentence, and those reasons are well-founded in the law
(including the section 3553(a) factors) and well-supported by
the record, including the judge’s decision to sentence Beltran
below the guidelines range based on his principal argument in
mitigation. The court systematically considered the
appropriate sentencing factors along with the evidence
provided, and issued several rulings in Beltran’s favor. The
court credited Beltran’s primary argument in mitigation, taking
exception only to the proof of the degree of mistreatment, and
settled on a substantially below-guidelines sentence for a very
serious crime. Because neither ethnicity nor personal bias
factored into the determination of the sentence, there was no
error of a constitutional dimension, and there is no need to
remand for resentencing.
C.
Two of Beltran’s other objections arise from the same part
of the sentencing hearing and so we will address them
together. First, Beltran objects to the court’s apparent use of
extra-record material in setting the sentence. Second, he asserts
that the district court improperly drew a negative inference
from his failure to testify at sentencing, in violation of his Fifth
Amendment rights. In the second day of the sentencing
proceedings, the judge took issue with one of Beltran’s lawyers
after counsel said that his client’s claims of torture were
credible and “[i]f there’s any issue of credibility, it has to be on
that table right there. They’re the ones that have been hiding
this information for a long time.” R. 780, at 256. Counsel
followed this with an accusation that the DEA was “right in the
18 No. 19-2615
middle of all these tortures, and they’re saying we don’t know
anything about it. That’s incredible.” R. 780, at 257. The court
noted that defense counsel had pointed to the government’s
table when making this accusation, and remarked that the
court had seen no evidence of government counsel hiding
information. Nor had the court been presented with any
evidence that the DEA was “in the middle of torture in
Mexico.” The court warned counsel of “needlessly, needlessly
expending your credibility with this Court.” R. 780, at 256–57.
The court then asked counsel for proof of the claim that the
DEA was in the middle of the torture in Mexico, and counsel
conceded he had none. The court said:
You don’t have one witness other than your
client , who doesn’t take the witness stand
and he’s free to take the witness stand. Let
him take the witness stand right now and see
how that goes for him.
R. 780, at 258. Counsel replied that Beltran had filed an
affidavit regarding the torture. The court then asked four times
whether Beltran would take the witness stand and repeat the
affidavit. Counsel replied that Beltran would not take the
witness stand. In response, the court said:
Okay. And there’s a reason for that, and any
lawyer in this business knows the reason
behind that.
So please don’t do this. You’re needlessly
expending your credibility with this Court,
and you’re tarnishing reputations of
No. 19-2615 19
prosecutors in this courtroom. For what? For
what? You don’t have proof.
R. 780, at 258. After essentially agreeing that he lacked direct
proof of DEA involvement, counsel reiterated that Beltran was
tortured.
The court then changed direction and asked counsel what
was driving the torturing of narcotics defendants in Mexico.
Counsel ventured that Mexican authorities were seeking
information on other people through the use of torture. The
court then responded:
Is that all? Do you think that’s all? Do you
think that’s all, sir? … How about this? Let
me just show you this: “Mexico war on drugs
leaves 750 military personnel dead,” okay?
R. 780, at 260. The item that the court showed counsel, that the
court “waved around,” was apparently an article that the court
had not supplied to either the defense or the government. The
court then asserted that the Mexican military engaged in
torture because they themselves had been tortured and 750
military personnel had been murdered in the war on drugs.
“Violence begets violence,” the court said. R. 780, at 261. The
court acknowledged that the ends did not justify the means,
that it was not right for this to occur, and that it should not
have happened. But the court also insisted that counsel
acknowledge that any torture was due, at least in part, to the
loss of life by military personnel, and counsel eventually
conceded the point. When counsel described the torture that
Beltran claimed to have suffered, which included both near
drowning and suffocation with plastic bags among other
20 No. 19-2615
horrific allegations, the court agreed that, if such things
happened, that was “definitely inappropriate,” but that
“there’s no conclusive evidence that that happened.” R. 780, at
264–65.
Beltran objects that the court wrongly relied on extra-record
material in setting the sentence when it cited an article
regarding the deaths of Mexican military personnel as a
possible motive or justification for the torture of drug suspects.
A defendant has a due process right to be sentenced only on
the basis of reliable information. United States v. Adams, 879
F.3d 826, 829 (7th Cir. 2018). A “court is generally prohibited
from relying on undisclosed evidence as this deprives the
parties of the opportunity to rebut or respond to the evidence.”
United States v. Betts, 576 F.3d 738, 744 (7th Cir. 2009). A court
should therefore not rely on an undisclosed article. Moreover,
the matters the court discussed based on this article, including
the number of military personnel killed in the war on drugs,
and possible motives for the military to engage in torture of
narcotics suspects, are not matters for judicial notice. Tobey v.
Chibucos, 890 F.3d 634, 647–48 (7th Cir. 2018) (a court may
judicially notice only a fact that is not subject to reasonable
dispute).
The government contends that Beltran did not preserve this
objection because counsel did not object to this material during
the sentencing hearing and largely agreed that the substance of
the article was correct, that is, that hundreds of Mexican
military personnel have been killed in the war on drugs, and
that the torture of drug suspects was occurring in reaction to
those deaths. R. 780, at 262 (where defense counsel states, “I
agree with you. I agree with you … I would say there’s
No. 19-2615 21
hundreds[.]”). Beltran asserts that this is not a fair reading of
the record and points to earlier parts of the transcript where
counsel would only say that he “suspect[ed]” Mexican Marines
had died in the war on drugs. Beltran also asserts that the
“court was clearly angered at what it perceived to be defense
counsel’s lack of empathy” for Mexican law enforcement
agents. Reply Brief, at 6. In the end, our review of the record
shows that counsel never objected to the court’s references to
the article and ultimately agreed with the substance of the
court’s statements, as we noted above. Counsel instead
disputed the significance of this information, and the court
then agreed with counsel that, although these law enforcement
deaths might explain why torture was occurring, it did not
justify the torture in any way.
Beltran forfeited his objection to the court’s use of this
article by not raising it below. His suggestion that counsel did
not object because the court was angry at counsel’s lack of
empathy does not change the analysis. See Puckett v. United
States, 556 U.S. 129, 134 (2009) (“If a litigant believes that an
error has occurred (to his detriment) during a federal judicial
proceeding, he must object in order to preserve the issue. If he
fails to do so in a timely manner, his claim for relief from the
error is forfeited.”); United States v. Hathaway, 882 F.3d 638, 640
(7th Cir. 2018) (a criminal defendant hoping to preserve an
issue for appeal must make a timely and specific objection in
the district court). “[T]he contemporaneous-objection rule
prevents a litigant from sandbagging the court—remaining
silent about his objection and belatedly raising the error only
if the case does not conclude in his favor.” Puckett, 556 U.S. at
134 (internal quotation marks omitted). Raising a timely
22 No. 19-2615
objection would have allowed the court to fix any error, and
perhaps clarify to what use it was putting this undisclosed
article. We review a forfeited claim for plain error only. Beltran
does not meet the plain error standard here.
In the context of the entire record, it is apparent that the
court did not use this extraneous material in setting the
sentence, and certainly did not use it to Beltran’s detriment. If
anything, the court’s references to the article supported the
court’s factual finding that Beltran had been mistreated by the
Mexican military because the article supplied a credible motive
for torture that supported Beltran’s less than fully credible
story. The court ultimately agreed that, despite holes in
Beltran’s affidavit and a lack of corroborating evidence on the
issue of torture, Beltran was severely mistreated, and that it
was wrong for this to occur. On the basis of that finding in
Beltran’s favor, the court discounted his sentence significantly.
Again, we can say with confidence after reviewing the record
as a whole that this article did not adversely affect the selection
of the sentence.
As for Beltran’s claim that the court improperly drew a
negative inference from his failure to testify at sentencing in
violation of his Fifth Amendment rights, after the court
pronounced the sentence, the government asked the court to
clarify those remarks. The court explained:
I have not held that against the defendant,
but I just wanted to clarify that he put forth
an affidavit, and there were some holes in
that affidavit the way I saw it in terms of who
did what, and there was just no opportunity
No. 19-2615 23
to buttress that in any sense, but I understand
he has a right not to testify.
R. 780, at 293. Beltran contends that the court’s explanatory
comments came too late and were insufficient to overcome the
court’s remarks regarding Beltran’s failure to testify, especially
in light of the court’s comment that “there’s a reason for that,
and any lawyer in this business knows the reason behind that.”
We disagree. The court explained that its earlier comments
reflected only that the affidavit was insufficient by itself and
that Beltran presented no other evidence to explain the
inconsistencies or corroborate his assertions. In any case, the
court ultimately did in fact credit Beltran’s claim of
mistreatment, noting only that Beltran had failed to provide
credible evidence of mistreatment rising to the level of torture.
The court significantly discounted Beltran’s sentence based on
this claim, setting a sentence twenty percent lower than the
government’s request for a sentence of at least thirty-five years.
D.
Beltran finally asserts that the district judge should have
recused from the sentencing proceedings under 28
U.S.C. § 455(a). Section 455(a) provides:
Any justice, judge, or magistrate judge of the
United States shall disqualify himself in any
proceeding in which his impartiality might
reasonably be questioned.
According to Beltran, the district judge’s bias was apparent
in his remarks about: personal hurt, the Mexican blood that
runs through his veins, Beltran’s claims of torture and the
24 No. 19-2615
reasons behind it, and the repeated references to the number
of Mexican military personnel and others killed by drug
cartels. Beltran did not move for recusal under section 455(a)
in the district court. We review challenges raised for the first
time on appeal for plain error. Fed. R. Crim. P. 52(b) (“A plain
error that affects substantial rights may be considered even
though it was not brought to the court's attention.”); United
States v. Perez, 956 F.3d 970, 974 (7th Cir. 2020). Beltran asserts
that we should review his claim de novo because he had no
opportunity to object in the district court. He claims that the
court’s bias did not reveal itself until moments before the
sentence was imposed, and that litigants should not be
“required to interrupt a court mid-ruling and demand the
court consider recusing itself.” Reply Brief at 11–12. By
Beltran’s broad description of his claim, it is clear that many of
the comments reflecting the purported bias came well before
the sentence was imposed. And it should go without saying
that lawyers who wish to preserve an issue for review are in
fact expected to lodge their objection as soon as something
problematic happens, even if it means interrupting a judge
mid-ruling. We speak from broad experience when we say that
the defense bar in the Northern District of Illinois is not
composed of shrinking violets who fear offending or
interrupting judges. Such reluctance cannot be an acceptable
excuse for failing to lodge an objection; it is not a workable
standard. Because a great deal of the purportedly biased
language came well before the end of the proceedings, counsel
had opportunities to object and so we will review for plain
error only.
No. 19-2615 25
When a defendant raises an objection for the first time on
appeal, we ask whether the defendant has shown that the error
was obvious, affects substantial rights, and seriously affects the
fairness, integrity, or public reputation of the proceedings.
United States v. Olano, 507 U.S. 725, 732 (1993). To determine
whether a judge’s violation of section 455(a) affects substantial
rights, we look to the three factors outlined in Liljeberg v. Health
Services Acquisition Corp., 486 U.S. 847, 864 (1988). See also Perez,
956 F.3d at 974–75; and United States v. Atwood, 941 F.3d 883,
885 (7th Cir 2019). Those factors are: (1) the risk of injustice to
the parties in this case, (2) the risk of injustice to parties in
future cases, and (3) the risk of undermining public confidence
in the judicial process. Atwood, 941 F.3d at 885.
Beltran does not meet the standard for plain error here,
largely for the reasons we set forth above. In particular, he is
unable to demonstrate that any improper factors affected the
court’s selection of the substantially below-guidelines sentence
here. The section 455(a) standard is rigorous:
Thus, judicial remarks during the course of a
trial that are critical or disapproving of, or
even hostile to, counsel, the parties, or their
cases, ordinarily do not support a bias or
partiality challenge. They may do so if they
reveal an opinion that derives from an
extrajudicial source; and they will do so if
they reveal such a high degree of favoritism
or antagonism as to make fair judgment
impossible. … Not establishing bias or
partiality, however, are expressions of
impatience, dissatisfaction, annoyance, and
26 No. 19-2615
even anger, that are within the bounds of
what imperfect men and women, even after
having been confirmed as federal judges,
sometimes display.
Liteky v. United States, 510 U.S. 540, 555–56 (1994). This was not
a case where fair judgment was impossible. Indeed,
impossibility of a fair judgment would be a most curious claim
when advanced by a defendant who has dodged a life sentence
by a very wide margin. “Rule 52(b) leaves the decision to
correct the forfeited error within the sound discretion of the
court of appeals, and the court should not exercise that
discretion unless the error ‘seriously affect[s] the fairness,
integrity or public reputation of judicial proceedings.’ ” Olano,
507 U.S. at 732 (quoting United States v. Young, 470 U.S. 1, 15
(1985)). We will not exercise our discretion to find plain error
here.
Outcome: Our review of the entire proceeding gives us complete
confidence that none of the discussed factors affected the
selection of Beltran’s sentence.
AFFIRMED.
Plaintiff's Experts:
Defendant's Experts:
Comments: