In the United States Court of Appeals For the Seventh Circuit ____________________ No. 18-1981 UNITED STATES OF AMERICA, Plaintiff-Appellee, v. ROBERTO MACIAS, Defendant-Appellant. ____________________ Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 09 CR 546-7 — Charles P. Kocoras, Judge. ____________________ ARGUED MAY 17, 2019 — DECIDED JUNE 21, 2019 ____________________ Before RIPPLE, MANION, and SYKES, Circuit Judges. MANION, Circuit Judge. Roberto Macias helped move drug money from Chicago to Mexico. At his bench trial, he chal- lenged a drug-conspiracy charge by testifying he thought the cash came from human smuggling, not drug trafficking. But the district judge did not believe him. The judge convicted him and imposed a two-level enhancement under U.S.S.G. § 2D1.1(b)(15)(D) for obstructing justice by testifying falsely. On appeal, Macias argues this enhancement does not apply to 2 No. 18-1981 a defendant who perjures himself at trial. He also argues the judge failed to find all perjury elements independently and explicitly, as constitutionally required. But Macias waived these challenges, foreclosing appellate review. I. Background A. Crimes Macias helped smuggle illegal immigrants into America in the late 1980s and early 1990s, incurring multiple convictions. Many years later, La Familia Michoacana asked him to help move cash into Mexico, telling him it came from human smuggling, according to his testimony. He agreed. From 2007 to 2009, he arranged for his brother-in-law, Ismael Flores, to make trips from Chicago to Dallas with a total of about $10,000,000 1 bound for Mexico. But La Familia Michoacana is a drug cartel. The cash was drug money. 2 Flores realized this during his first trip given the payload and secret instructions. B. 2012 trial, sentencing, and appeal When Macias faced charges, he testified he thought the cash came from human smuggling, not drugs. But the jury convicted him of conspiring to distribute at least five kilo- grams of cocaine and of conducting an unlicensed money- transmitting business. The judge sent him to prison for 300 1 The record gives various figures but the precise amount is immate- rial for our purposes. 2 Macias admitted a significant part of the cash was from drugs. But he argued the government did not prove all of it was. The judge found the cash came from “the sale of illegal drugs and not from any other source.” (Findings and Conclusions, DE 523 at 10.) Macias does not press this on appeal. No. 18-1981 3 months for the conspiracy concurrent with 60 months for the money transmitting. Macias appealed the conspiracy convic- tion, challenging the “deliberate indifference” jury instruc- tion. We reversed because the instruction erroneously al- lowed conviction simply “because he wasn’t curious enough to discover the source of the illegal funds.” United States v. Macias, 786 F.3d 1060, 1063 (7th Cir. 2015). We remanded for a new trial on the conspiracy charge. We vacated the money- transmitting sentence to allow potential resentencing at a lower guidelines range without the conspiracy conviction. C. 2016 retrial Macias’s case was ...
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