United States of America v. Aracely Gaona

In the
United States Court of Appeals
For the Seventh Circuit
No. 12-2039
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
ARACELY GAONA,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of Wisconsin.
No. 2:10-cr-00064-RTR-11—Rudolph T. Randa, Judge.
ARGUED SEPTEMBER 5, 2012—DECIDED OCTOBER 5, 2012
Before BAUER, MANION, and TINDER, Circuit Judges.
BAUER, Circuit Judge. The defendant-appellant, Aracely
Gaona, entered into a plea agreement that required
the Government to refrain from making a specific sen-
tencing recommendation. Gaona contends the Govern-
ment breached the plea agreement and now seeks
specific performance of that agreement before a dif-
ferent judge. Finding that Gaona waived her objection
to any breach of the plea agreement, we affirm.

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2 No. 12-2039
I. BACKGROUND
Beginning in at least January 2004 and continuing
until March 16, 2010, Gaona’s older brothers, Ruben
and Asencion Gaona, in addition to other participants,
engaged in a large-scale cocaine and marijuana
drug conspiracy. In short, participants in the scheme
would send cocaine and marijuana from El Paso, Texas,
to Milwaukee, Wisconsin, where other associates
would receive the drugs. Family or close friends of
the participants would then either wire the drug sale
proceeds back to El Paso, Texas, or transport the
proceeds by car under the guise of a family trip. In
support of the scheme, Gaona wired $69,631 to
Texas; traveled south by car on one occasion with
drug proceeds totaling $45,751; accompanied another co-
defendant, Gricel Solis, on approximately eight oc-
casions while Solis wired money; and held drug pro-
ceeds for her brother Ruben on at least two occasions.
On April 13, 2010, a Grand Jury in the Eastern Dis-
trict of Wisconsin returned an eight-count indictment
related to the drug-trafficking scheme in which
Gaona participated. The charges included conspiring
to distribute cocaine, distributing cocaine, and con-
spiring to conduct financial transactions in and
affecting interstate commerce that involved the pro-
ceeds of drug trafficking—more commonly known as
money laundering. Twenty-two individuals, including
Gaona and her brothers, were implicated in the
scheme. The scheme was generally broken down
into two separate groups of defendants, drug traf-

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No. 12-2039 3
fickers and money launderers; Gaona was a member of
the latter.
Gaona negotiated a plea agreement with the Govern-
ment in which she plead guilty to Count Eight of the
indictment, money laundering in violation of 18 U.S.C.
§ 1956. The parties signed and filed the agreement with
the district court on January 6, 2012. The part of the
plea agreement at issue in this case, Paragraph 21, pro-
vides: “The government will not make a specific sen-
tencing recommendation, but is free to present all facts
to the court.”
Gaona’s sentencing hearing was scheduled for Friday,
April 20, 2012. At that hearing, the Government described
the money laundering as being an essential aspect of
the drug conspiracy. The Government also explained
the conduct of five of Gaona’s co-defendants and the
sentences each of those defendants received. The sen-
tences discussed ranged from two years of probation to
thirty months in prison. The Government concluded by
stating that $69,000, the amount Gaona wired, “is at
the top of the drug proceeds that were wired by individu-
als who participated in the money laundering conspiracy.”
Gaona’s attorney addressed the court next.
Defense counsel argued that a probation sentence
was appropriate based on Gaona’s role in the scheme,
her familial relationship to the other defendants,
her education level and career status, and her current
pregnancy with her second child. Defense counsel
then informed the district court that the Government
did not recommend a prison sentence. The following
colloquy occurred:

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4 No. 12-2039
Defense Counsel: I also think it’s important to note,
Your Honor, that in this case the
Government is not asking the
Court to place Miss Gaona in
prison. I know that that was the
recommendation in some of the
cases. The Government is not rec-
ommending a prison sentence here.
The Government: Judge, I’m going to jump in here.
That’s not accurate. I was asked to
make a no sentence recommenda-
tion, which I did. And to say that
I affirmatively said no prison
would be an absolute misstate-
ment of my position.
The Court: All right.
The Government: I want to make that clear to the
Court. That I don’t believe this
woman should be placed on proba-
tion.
Immediately following this exchange, defense
counsel argued that the Government’s clarification state-
ment violated Paragraph 21 of the plea agreement. Al-
though not conceding that a breach had occurred,
the Government stated that it had no objection to
Gaona withdrawing her plea. The district court, in re-
sponse to the dispute, acknowledged the distinction
between the Government’s obligation under the plea
agreement (to refrain from making a specific sen-
tencing recommendation) and defense counsel’s charac-

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No. 12-2039 5
terization of the Government’s position (that the Gov-
ernment was not asking the court to place Gaona
in prison). Defense counsel, under the impression
there was no misunderstanding as to his comment out-
lining the Government’s position, replied:
And I understand if [the Government] had
some—wanted to clarify what I was saying, in the
process of doing so she indicated that she objects to
the Court placing my client on probation. That is
a breach of the Plea Agreement in this case. And
my client doesn’t want to withdraw her plea. She
wants specific performance of the Plea Agreement. . . . I
think this dispute here. . . may play a role in the
Court’s decision on what sentence it’s going to impose
in this case. (emphasis added).
The district court responded by carefully articulating
that the Government’s position pursuant to Paragraph
21 was not “to be interpreted by the defense as sup-
porting one position or another.” Then, recognizing
Gaona’s argument that the Government’s com-
ments constituted a breach of the plea agreement,
the district court continued the sentencing hearing
until Monday, April 23, 2012, to allow Gaona to
consider her options.
The parties reconvened in the afternoon on April 23.
Before beginning the sentencing hearing, the district
court inquired as to whether Gaona wanted to withdraw
her plea or continue with sentencing. The following
discussion ensued:

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6 No. 12-2039
The Court: Well, the Court has just stated it’s
here for a continuation of the sen-
tencing, but is the defense going
to move to withdraw its plea?
Defense Counsel: No, it’s not, Your Honor.
The Court: So the defense wishes to continue
on this case with the sentencing?
Defense Counsel: We do, Your Honor.
The Court: And, Ms. Gaona, you’ve heard the
discussion. Is that your desire, to
continue with the sentencing?
Ms. Gaona: Yes, Your Honor.
The Government and defense counsel were then given
the opportunity to restate their respective positions.
The Government again explained the nature of
Gaona’s crimes and referred the district court back to
the April 20 hearing when it compared the facts sup-
porting Gaona’s plea to the facts surrounding other co-
defendants whom the court had previously sentenced.
The Government also asked the district court to disre-
gard Gaona’s pregnancy when imposing a sentence,
describing its timing as “suspect.” Conversely, defense
counsel attempted to distinguish Gaona from those
who were involved in the actual drug trade and asked
the district court to align Gaona’s sentence with
the probation sentence it gave her older sister, Maricela
Gaona, earlier that day.
The district court sentenced Gaona to eighteen months’
imprisonment, with three years’ supervised release,

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No. 12-2039 7
restitution in the amount of $27,210, and payment of a
$100 special assessment. This sentence was in ac-
cordance with the sentence given to co-defendant
Soccorro Lopez, whom the district court viewed as a
similarly-situated defendant. Judgment against Gaona
was entered accordingly.
II. DISCUSSION
Gaona now appeals her sentence, contending that
the Government breached the plea agreement in
three ways: (1) by stating “I don’t believe this
woman should be placed on probation” when it
responded to defense counsel’s characterization of
the Government’s position pursuant to Paragraph 21;
(2) by comparing Gaona to the other co-defendant
money launderers sentenced before Gaona and insinu-
ating that Gaona was more culpable; and (3) by calling
the timing of Gaona’s pregnancy “suspect.” The Gov-
ernment contends Gaona has waived her right to
raise this issue on appeal.
We must first consider whether Gaona waived or
merely forfeited her challenge before we may reach
the merits of her argument. “Waiver and forfeiture
are related doctrines; waiver occurs when a defendant
intentionally relinquishes or abandons a known
right, whereas forfeiture occurs when a defendant fails
to timely assert his rights.” United States v. Wesley,
422 F.3d 509, 520 (7th Cir. 2005).
Here, Gaona waived her ability to argue that the Gov-
ernment breached the plea agreement. At the conclusion

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8 No. 12-2039
of the April 20 hearing, the district court gave Gaona
three days to consider how to proceed after hearing the
Government’s characterization of her conduct and its
clarification comments. Gaona unequivocally said “Yes”
when asked on April 23 whether the district court should
continue with the sentencing. Defense counsel did not
move to withdraw Gaona’s plea or ask for another judge
to sentence Gaona. The district court sentenced Gaona
in accordance with her wishes: to be sentenced on that
day, by that particular judge. A party cannot later chal-
lenge exactly what it asked the court to do. See
Wesley, 422 F.3d at 520-21. The situation before us
amounts to waiver in the simplest sense.
Seeking to avoid this result, Gaona directs our attention
to our prior decisions in United States v. Diaz-Jimenez,
622 F.3d 692 (7th Cir. 2010) and United States v. Bartlett,
567 F.3d 901 (7th 2009). These cases are easily distin-
gu is he d . In D ia z -Jim enez , t h e defend ant was
sentenced imm ediately after the Government’s
accidental breach of the plea agreement. 622 F.3d at 693-
94. The defendant was never given an opportunity
to withdraw his plea or request a different course of
action. Id. at 694. In this case, Gaona had a full
opportunity to reflect upon the Government’s
comments and decide what strategy to pursue. There
was also no confusion as to Gaona’s options
because defense counsel discussed both specific perfor-
mance and plea withdrawal at the April 20 hearing.
See Santobello v. New York, 404 U.S. 257, 263 (1971)
(noting that the remedies for a prosecutor’s violation of
a plea agreement during sentencing are specific perfor-

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No. 12-2039 9
mance of the plea agreement—i.e., sentencing by a dif-
ferent judge—and the opportunity to withdraw a guilty
plea).
The issue in Bartlett was whether defense counsel
was required to “object” on record to a sentence after it
had been handed down, even though he had
previously argued for a lower sentence. Bartlett, 567 F.3d
at 910. The district court sentenced the defendant to
208 months imprisonment—twenty months greater
than the top end of the Sentencing Guidelines range—
and the prosecution contended that the defendant
never explicitly objected on record to the heightened
sentence after it was given. Id. The case involved
forfeiture, however, not a strategic decision constituting
waiver. See United States v. Jaimes-Jaimes, 406 F.3d 845,
848 (7th Cir. 2005) (“The touchstone of waiver
is a knowing and intentional decision.”). The record in
this case reveals a strategic decision by Gaona to ignore
the breach issue and pursue sentencing with the judge
who gave her older sister probation. Thus, although it
may have been a reasonable strategy, see United States
v. Grigsby, No. 11-2473, 2012 U.S. App. LEXIS 18280,
at *33 (7th Cir. Aug. 29, 2012) (explaining that “a
district court necessarily considers the interest in consis-
tency between similarly situated defendants”), the fact
the district court determined Gaona was more similarly
situated to a different co-defendant does not entitle
Gaona to a second bite at the sentencing apple.
A defendant may elect for strategic reasons to pursue
one avenue over another when faced with sentencing, but

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10 No. 12-2039
doing so, however, may preclude review on appeal. Such
a situation is presented here. We find that the unambigu-
ous decision of Gaona and her counsel to continue
with sentencing at the April 23 hearing renders Gaona’s
argument that the Government breached the plea agree-
ment waived. It is unnecessary to reach the merits
of Gaona’s argument regarding breach of the plea agree-
ment.
III. CONCLUSION
For the aforementioned reasons, we AFFIRM the
judgment of the district court.
10-5-12

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