United States of America v. Francisco Rodriguez

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued November 18, 2022
Decided December 23, 2022
Before
MICHAEL B. BRENNAN, Circuit Judge
THOMAS L. KIRSCH II, Circuit Judge
JOHN Z. LEE, Circuit Judge
No. 21-2544
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
FRANCISCO RODRIGUEZ
Defendant-Appellant.
Appeal from the United States District
Court for the Northern District of Illinois,
Eastern Division.
No. 1:17-CR-00802(1)
Ronald A. Guzman,
Judge.
O R D E R
After Francisco Rodriguez pleaded guilty to possessing a firearm as a felon, the
district court sentenced him to 15 years in prison, finding that Rodriguez had
committed at least three prior violent felonies on different occasions, thereby triggering
the Armed Career Criminal Act (“ACCA”). 18 U.S.C. § 924(e)(1). On appeal, Rodriguez
argues that the district court’s application of the ACCA violates his Sixth Amendment
rights, because (1) the indictment did not allege the three prior violent felonies, and
(2) whether he had committed these felonies on different occasions was something that
a jury needed to decide. Because Rodriguez waived any objection to the indictment and
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with FED. R. A PP. P. 32.1

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he conceded at sentencing that he had committed three different violent felonies on
separate occasions, we affirm.
The government charged Rodriguez in 2018 with possessing a firearm after being
convicted of a crime punishable by imprisonment for a term exceeding one year in
violation of 18 U.S.C. § 922(g)(1) and for violating the ACCA. The ACCA imposes a 15-
year minimum sentence for violations of § 922(g) if the offender previously committed
three or more serious drug offenses or violent felonies on “different” occasions.
18 U.S.C. § 924(e)(1).
Rodriguez pleaded guilty to the violation of 18 U.S.C. § 922(g)(1) for unlawful
possession. During the plea colloquy, the government restated its position from the
indictment that Rodriguez “is subject to an enhanced penalty under 18 U.S.C. § 924(e).”
The district court then discussed with Rodriguez the impact that the ACCA could have
on his sentence. It explained that, while the maximum custodial penalty under
18 U.S.C. § 922(g)(1) was ten years, if the court found that Rodriguez qualified for a
sentencing enhancement under the ACCA, the minimum period of imprisonment
would be 15 years. After acknowledging that he understood this, Rodriguez pleaded
guilty to the unlawful possession charge.
The probation office then prepared a presentence investigation report in
anticipation of sentencing. The report asserted that Rodriguez qualified for the
enhancement under the ACCA because he had four prior convictions for violent
felonies committed on different occasions. Those prior felonies were aggravated
robbery in 2004, aggravated battery in 2007 and 2010, and aggravated unlawful restraint
in 2014. For each crime, the victims and locations varied.
In his sentencing memorandum, Rodriguez argued that imposing the ACCA’s
enhancement would violate his Sixth Amendment rights in two ways. First, according
to Rodriguez, the Sixth Amendment requires the government to specifically allege his
prior violent crimes in the indictment, which it did not do. Second, as he sees it, the
Sixth Amendment leaves it up to the jury (not the judge) to determine whether he had
committed those prior crimes on different occasions.
That said, at the sentencing hearing, the district court asked Rodriguez whether
he disagreed with the assertion in the presentence report that he had committed his
offenses on different occasions. His counsel replied “[n]o, we do not object to the facts,”
and agreed that “the offenses were separate offenses.” Based on those concessions, the

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No. 21-2544 Page 3
court found that Rodriguez had committed violent felonies on at least three different
occasions and concluded that the ACCA applied. The court then sentenced Rodriguez
to 15 years in prison and five years of supervised release.
On appeal, Rodriguez again asserts that the Sixth Amendment requires that the
government specifically allege the prior convictions in the indictment. He also reprises
his argument that a jury must find that those offenses were committed on at least three
different occasions.
We first address the government’s contention that Rodriguez waived these Sixth
Amendment challenges. Waiver occurs when a defendant intentionally relinquishes a
known right. United States v. Robinson, 964 F.3d 632, 639–40 (7th Cir. 2020). By pleading
guilty, Rodriguez waived his challenge to factual deficiencies in the indictment.
See United States v. Dowthard, 948 F.3d 814, 817 (7th Cir. 2020); United States v. Covelli,
738 F.2d 847, 862 (7th Cir. 1984). Rodriguez counters that he had no occasion to object to
the indictment as to the applicability of the ACCA, because he pleaded guilty only to
violating 18 U.S.C. § 922(g)(1). But this is incorrect.
At the plea hearing, the government reiterated its position that the ACCA
applied to Rodriguez. And the district court warned him that, by pleading guilty, he
could receive an enhanced sentence under the ACCA. Despite this, Rodriguez pleaded
guilty without raising any objection to any factual defects in the indictment. Thus the
objection is waived.
The government also believes that Rodriguez waived his argument that a jury
needed to decide whether he had committed his past felonies on separate occasions.
But, even assuming Rodriguez had preserved this argument, it is unavailing.
The lack of a jury finding for a sentencing enhancement is harmless if it is clear
beyond a reasonable doubt that a jury would have found the facts anyway.
See, e.g., United States v. Hollingsworth, 495 F.3d 795, 800, 806 (7th Cir. 2007) (applying
harmless-error standard to judge-made findings that violated the Sixth Amendment
right set out in Apprendi v. New Jersey, 530 U.S. 466 (2000)). Here, the record would
necessarily convince a reasonable jury that Rodriguez had committed his prior offenses
on different occasions.
First, Rodriguez conceded as much. When the district court asked Rodriguez if
he disagreed with the assertion that he committed his prior offenses on different

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No. 21-2544 Page 4
occasions, his counsel stated that the defense did not. Defense counsel also
acknowledged that “the offenses were separate offenses.” These concessions remove the
issue from reasonable dispute. See Robinson, 964 F.3d at 638–39; FED. R. C RIM. P.
32(i)(3)(A).
Second, the prior crimes noted in the presentence report involved unrelated
conduct (robbery, battery, unlawful restraint) and targeted different victims at different
locations. On this record, such material differences in timing, proximity, and character
render the offenses separate. Wooden v. United States, 142 S. Ct. 1063, 1070–71 (2022).
Rodriguez replies that, even if the district court’s error (assuming an error was
committed) was harmless, the Sixth Amendment requires resentencing. But he cites no
cases suggesting that a judge must resentence a defendant for a harmless Sixth
Amendment rights violation arising from the lack of a jury’s findings on otherwise
uncontested facts. Nor are we aware of any. Thus, because any Sixth Amendment rights
violation was harmless, Rodriguez is not entitled to relief.
AFFIRMED

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