United States of America v. Erlin Lucero-Asencio

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 24-3329
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
ERLIN LUCERO-A SENCIO,
Defendant-Appellant.
____________________
Appeal from the United States District Court for the
Southern District of Indiana, Indianapolis Division.
No. 1:22-cr-00058-JRS-KMB — James R. Sweeney II, Chief Judge.
____________________
A RGUED NOVEMBER 13, 2025 — DECIDED A PRIL 27, 2026
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Before EASTERBROOK, LEE, and M ALDONADO, Circuit
Judges.
EASTERBROOK, Circuit Judge. After Erlin Lucero-Asencio
pleaded guilty to four felonies—conspiracy to possess meth-
amphetamine with intent to deliver plus the substantive of-
fense; conspiracy to commit money laundering; and unau-
thorized reentry after being deported—he was sentenced to
324 months’ imprisonment. The district judge held him ac-
countable for roughly 4.5 kilograms of pure

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2 No. 24-3329
methamphetamine. He contends on appeal that the evidence
does not support that finding, and he also protests his $500
fine.
The appellate complaint about the fine supposes that the
district judge ignored Lucero-Asencio’s financial circum-
stances. That is not so; those circumstances were addressed at
sentencing. No more need be said about that subject.
The appellate complaint about the custodial term rests on
the observation that evidence of record does not support a
conclusion that the methamphetamine he distributed was
pure (or “actual” in the language of U.S.S.G. §2D1.1). And that
is true. The meth was tested, and an agent who had seen the
laboratory report testified, but the report itself was not intro-
duced into evidence.
There’s a reason for the lab report being missing: Lucero-
Asencio did not contest the statement in the presentence re-
port that the meth he distributed was pure. Quite the con-
trary, his lawyer stated that he agreed with the report’s conclu-
sion that his offense level was 38. That is the right level if, and
only if, Lucero-Asencio is accountable for about 4.5 kilograms
of pure methamphetamine. To agree with the level-38 recom-
mendation thus is to waive any challenge to the report’s fac-
tual premises. Once Lucero-Asencio accepted a level-38 find-
ing, it would have been pointless for the district judge to take
evidence and make findings. The amount and purity of this
drug were not being contested. (Counsel for Lucero-Asencio
was not a potted plant; he did not introduce the lab report or
cross-examine the agent, but made some objections to the
presentence report. Nor was the judge inattentive; he ruled in
Lucero-Asencio’s favor on two of those objections.)

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No. 24-3329 3
Lucero-Asencio wants us to apply the plain-error ap-
proach rather than the waiver approach. After all, counsel
contends, Lucero-Asencio did not explicitly concede that the
meth was pure. Yet he took the issue off the table by accepting
an offense level of 38; what more was there to do?
Counsel now tells us that the strategy was foolish. The
question, however, is whether it was deliberate, not whether it
was wise. United States v. Curtin, 142 F.4th 503, 508 (7th Cir.
2025). See also Henry v. Hulett, 969 F.3d 769, 785–87 (7th Cir.
2020) (en banc) (explaining the difference between waiver and
forfeiture). Imagine a defendant who waives the right to a jury
trial, is convicted after a bench trial, and then argues on ap-
peal that his only real hope would have been jury nullifica-
tion, so the choice must be disregarded and a new trial held.
Or imagine a defendant who signs a formal waiver of Miranda
rights, confesses, and then rues the decision because his sen-
tence exceeds what he expected when talking with the police.
The imprudence of the confession would not make the delib-
erate choice less a waiver. Just so with a waiver of the right to
contest a presentence report. Hindsight often makes us regret
our decisions, but the difference between waiver and forfei-
ture lies in the existence of a decision, not in the decision’s ef-
fects. “We do not ask whether a defendant’s decision to waive
is foolish.” United States v. Flores, 5 F.3d 1070, 1078 (7th Cir.
1993).
What’s more, we do not see any reason to doubt counsel’s
decision to let the offense score pass without objection. (In
other words, we are not inviting a collateral attack based on
ineffective assistance of counsel.) We have mentioned the ex-
istence of a lab report analyzing Lucero-Asencio’s inventory.
Some statements at oral argument suggested that the report

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4 No. 24-3329
could have documented more than 20 kilograms of pure
meth. We do not say that this is what it does show; after all, it
is not in the record. But defense counsel knew what it would
show, if introduced. Bad as things were for Lucero-Asencio at
level 38, they could have been worse had larger pure quanti-
ties been documented. Keeping that report out of evidence
may have been the best thing counsel could have done for the
client. Its absence set up the argument for a sentence at the
low end of the Guideline range, which he received.
And suppose we were to agree with Lucero-Asencio that
what happened at sentencing is reviewable under the plain-
error standard (rather than not reviewable at all, given
waiver). To show plain error, a defendant must establish an
effect on substantial rights, which generally entails demon-
strating prejudice, among other things. See, e.g., Greer v.
United States, 593 U.S. 503, 507–08 (2021); United States v.
Olano, 507 U.S. 725, 734–35 (1993); United States v. Page, 123
F.4th 851, 864–68 (7th Cir. 2024) (en banc). That burden is on
the appellant, not the prosecutor. Greer, 593 U.S. at 508; Olano,
507 U.S. at 734. To show an effect on his substantial rights,
Lucero-Asencio would have needed to put the lab report into
evidence through a post-sentencing addition to the record
and then demonstrate how those details would have helped
him. Yet his appellate lawyer has not done this. So whether
we tackle this appeal through the lens of waiver or that of
plain error, the 324-month sentence is invulnerable.
A FFIRMED

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