United States of America v. Jorge Consuegra-Rojas

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted February 3, 2022*
Decided February 7, 2022
Before
MICHAEL S. KANNE, Circuit Judge
DIANE P. WOOD, Circuit Judge
CANDACE JACKSON-AKIWUMI, Circuit Judge
No. 21-2606
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
JORGE CONSUEGRA-ROJAS,
Defendant-Appellant.
Appeal from the United States District
Court for the Western District of Wisconsin.
No. 18-cr-28-jdp
James D. Peterson,
Chief Judge.
O R D E R
Jorge Consuegra-Rojas appeals the denial of his motion for compassionate
release under 18 U.S.C. § 3582(c). Because an asserted error with respect to the original
* Appellee is not participating in this appeal. After examining the appellant’s
brief and the record, we have concluded that the case is appropriate for summary
disposition. See F ED. R. A PP . P. 34(a)(2)(C).
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with F ED. R. APP . P. 32.1

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No. 21-2606 Page 2
sentence cannot provide an “extraordinary and compelling” reason for compassionate
release, we affirm.
Rojas was sentenced in August 2018 to 60 months’ imprisonment for possession
of 15 or more unauthorized “access devices” and conspiracy to commit access-device
fraud. See 18 U.S.C. § 1029(a)(3), (b)(2). Access devices—here, 1,679 stolen credit card
numbers—are simply means of obtaining or transferring money or anything of value.
See 18 U.S.C. § 1029(e)(1). His total offense level under U.S.S.G. § 2B1.1, which is based
on the greater of the actual or intended monetary loss associated with the crime,
included a 14-level increase because of Application Note 3(F)(i), which sets the intended
unauthorized charges at a minimum of $500 per access device. At sentencing, the
district court considered, but ultimately rejected, Rojas’s argument that Application
Note 3(F)(i) was unfair as applied to his case and that the unfairness warranted a
downward variance from the guidelines range of 51 to 63 months’ imprisonment. Rojas
did not appeal his conviction or sentence, nor did he bring a motion under 28 U.S.C.
§ 2255.
Less than three years after sentencing, the Sixth Circuit invalidated Application
Note 3(F)(i). United States v. Riccardi, 989 F.3d 476 (6th Cir. 2021). Relying on a recent
Supreme Court decision narrowing deference to administrative agencies’ regulatory
interpretations, Kisor v. Wilkie, 139 S. Ct. 2400 (2019), the Riccardi court concluded that
Application Note 3(F)(i) conflicts with U.S.S.G. § 2B1.1 and that, “if the Commission
seeks to keep individuals behind bars for longer periods of time based on this type of
‘fictional’ loss amount, this substantive policy decision belongs in the guidelines, not in
the commentary.” Riccardi, 989 F.3d at 487. Based on its own interpretation of the
guideline, the court determined that it was error to apply the $500 minimum to increase
the defendant’s offense level. Id. at 489.
Rojas then moved for compassionate release, arguing that the Riccardi decision
warranted his immediate release from prison. He contended that he would receive a
shorter prison sentence if sentenced today, resulting in a disparity among similar
defendants that provided an “extraordinary and compelling” reason for his early
release. See 18 U.S.C. § 3582(c)(1)(A)(i).
The district court denied Rojas’s motion for two reasons: the Sixth Circuit case
was not binding, and Rojas’s 60-month sentence was appropriate even apart from the
application note. Rojas appealed. We review the denial of his motion for an abuse of
discretion. See United States v. Saunders, 986 F.3d 1076, 1078 (7th Cir. 2021).

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No. 21-2606 Page 3
Rojas principally contends, as he did in the district court, that the Sixth Circuit
decision discarding the $500 per device minimum created a sentencing disparity that
warrants his early release. The argument lacks merit.
First, Rojas fails to engage with the district court’s statement that he would have
received the same sentence even without the application note’s $500 per device
minimum. Acknowledging that the application note “was not, by itself, a good
indication of [Rojas’s] culpability,” the court explained that it had sentenced Rojas to 60
months because of his deep involvement in the criminal scheme and his two prior
offenses for the same type of activity. Earlier punishments had not deterred him.
Because Rojas would have received the same sentence with or without the application
note, the note did not negatively affect him.
Second, the district court was bound to apply the law of this circuit, and we have
not found Application Note 3(F)(i) to be an unreasonable interpretation of U.S.S.G.
§ 2B1.1. Indeed, we repeatedly have upheld sentences based on guidelines ranges
calculated with reference to that application note. See United States v. Popovski, 872 F.3d
552, 554 (7th Cir. 2017); United States v. Moore, 788 F.3d 693, 695 (7th Cir. 2015). It is
worth adding that we have not commented on this application note since Kisor. If
warranted, we would be under no obligation to accept the application note as a
reasonable interpretation of the guideline. See United States v. Goodwin, 717 F.3d 511, 519
(7th Cir. 2013) (“[W]e do not defer to interpretations that are ‘plainly erroneous or
inconsistent’ with the relevant Guideline, federal law, or the Constitution.”). And in any
event, Rojas has no basis for assuming that this court would conclude, as the Sixth
Circuit did, that the application note conflicts with the guideline.
Third, to the extent that Rojas challenges the validity of Application Note 3(F)(i)
either generally or as applied to him, a compassionate-release motion is not the
appropriate vehicle for those arguments. Rather than “circumvent the normal process
for challenging potential sentencing errors,” a defendant must raise any challenge to his
original sentence in a direct appeal or collaterally through 28 U.S.C. § 2255, not by way
of a compassionate-release motion. United States v. Martin, 21 F.4th 944, 946 (7th Cir.
2021). Rojas had the opportunity to challenge the application note on direct appeal or in
a collateral attack, but he did not. Even if he did not waive the challenge by failing to
raise it at those stages, the potential sentencing error cannot be his extraordinary and
compelling reason for compassionate release. Id.; United States v. Thacker, 4 F.4th 569,
574 (7th Cir. 2021).

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This principle obviates the need for us to consider Rojas’s argument that the
district court’s exercise of discretion was erroneous because it did not adequately
consider his rehabilitative efforts or the sentencing factors under 18 U.S.C. § 3553(a). His
motion failed at the first step of the two-step inquiry—lack of an extraordinary and
compelling reason—and “[o]ne good reason is enough to deny a compassionate release
motion.” United States v. Kurzynowski, 17 F.4th 756, 759–60 (7th Cir. 2021) (internal
citation omitted).
AFFIRMED

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