Corona vs us

7/29/2019 Corona vs us

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Corona vs. United Harbor Pilots Assn. of the Phils.

Facts: the PPA was created on July 11, 1974, by virtue of Presidential Decree No. 505. OnDecember 23, 1975, Presidential Decree No. 857 was issued revising the PPAs charter. Pursuantto its power of control, regulation, and supervision of pilots and the pilotage profession, the PPApromulgated PPA-AO-03-85 on March 21, 1985, which embodied the Rules and Regulations

Governing Pilotage Services, the Conduct of Pilots and Pilotage Fees in Philippine Ports. Theserules mandate, inter alia, that aspiring pilots must be holders of pilot licenses and must train asprobationary pilots in outports for three months and in the Port of Manila for four months. It isonly after they have achieved satisfactory performance that they are given permanent and regularappointments by the PPA itself

Issue: Is pilotage a property right? Is A.O. 04-92 violative of due process?

Ruling: Yes, The court a quo pointed out that the Bureau of Customs, the precursor of the PPA,recognized pilotage as a profession and, therefore, a property right

No, PPA-AO 04-92 does not constitute a wrongful interference with, let alone a wrongfuldeprivation of, the property rights of those affected thereby. As may be noted, the issuance aims

no more than to improve pilotage services by limiting the appointment to harbor pilot positions toone year, subject to renewal or cancellation after a rigid evaluation of the appointeesperformance.

PPA-AO 04-92 does not forbid, but merely regulates, the exercise by harbor pilots of theirprofession in PPAs jurisdictional area

Duncan Association of Detailman-PTGWO vs. Glaxo Phils.[G.R. No.162994. September 17, 2004]Facts:Petitioner Pedro A. Tecson was hired by respondent Glaxo Wellcome Philippines, Inc.) as medicalrepresentative on October 1995, after Tecson had undergone training and orientation. Tecson signed acontract of employment which stipulates, among others, that he agrees to study and abide by existingcompany rules; to disclose to management any existing or future relationship by consanguinity or affinitywith co-employees or employees of competing drug companies and should management find that suchrelationship poses a possible conflict of interest, to resign from the company.The Employee Code of Conduct of Glaxo similarly provides that an employee is expected to informmanagement of any existing or future relationship by consanguinity or affinity with co-employees oremployees of competing drug companies. If management perceives a conflict of interest or a potentialconflict between such relationship and the employees employment with the company, the managementand the employee will explore the possibility of a transfer to another department in a non-

counterchecking position or preparation for employment outside the company after six months.Tecson was initially assigned to market Glaxos products in the Camarines Sur-Camarines Norte salesarea. Subsequently, Tecson entered into a romantic relationship with Bettsy, an employee of AstraPharmaceuticals (Astra), a competitor of Glaxo. Bettsy wasAstras Branch Coordinator in Albay. Despiteof warnings, Tecson married Bettsy. The superiors of Tecson reminded him of the company policy andsuggested that either him or Bettsy shall resign from their respective companies. Tecson requested moretime to resolve the issue. In November of 1999, Glaxo transferred Tecson to Mindanao area involving the


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provinces of Butuan, Surigao and Agusan del Sur. Tecson did not agree to the reassignment and referredthis matter to the grievance committee. It was resolved and was submitted to voluntary arbitration. The NCMB rendered decision that Glaxos policy was a valid one. Aggrieved, Tecson filed a petition tothe CA where CA held that Glaxos policy prohibiting its employees from having personal relationshipswith employees of competitor companies is a valid exercise of its management prerogatives. Hence, this

petition.

Issue:Whether or not the policy of a pharmaceutical company prohibiting its employees from marryingemployees of any competitor company is valid.SC Ruling:There is no error to the Court of Appeals when it ruled that Glaxos policy prohibiting an employee fromhaving a relationship with an employee of a competitor company is a valid exercise of managementprerogative. Glaxo has a right to guard its trade secrets, manufacturing formulas, marketing strategiesand other confidential programs and information from competitors, especially so that it and Astra are rival

companies in the highly competitive pharmaceutical industry.The prohibition against personal or marital relationships with employees of competitor companies uponGlaxos employees is reasonable under the circumstances because relationships of that nature mightcompromise the interests of the company. In laying down the assailed company policy, Glaxo only aimsto protect its interests against the possibility that a competitor company will gain access to its secrets andprocedures. That Glaxo possesses the right to protect its economic interests cannot be denied. No less than the Constitution recognizes the right of enterprises to adopt and enforce such a policy toprotect its right to reasonable returns on investments and to expansion and growth.

Indeed, while our laws

endeavor to give life to the constitutional policy on social justice and the protection of labor, it does notmean that every labor dispute will be decided in favor of the workers. The law also recognizes thatmanagement has rights which are also entitled to respect and enforcement in the interest of fair play.Star Paper Corporation vs. Ronaldo Simbol, et al.[G.R. No.164774. April 12, 2006]Facts:Petitioner Star Paper Corporation is a corporation engaged in trading, principally of paper products.Josephine Ongsitco is its Manager of the Personnel and Administration Department while SebastianChua is its Managing Director.Respondents Ronaldo D. Simbol (Simbol), Wilfreda N. Comia (Comia) and Lorna E. Estrella (Estrella)were all regular employees of the company. Simbol was employed by the company on October 1993 andmet Alma Dayrit, also an employee of the company, whom he married on June 1998. Prior to themarriage, Ongsitco advised the couple that should they decide to get married, one of them should resignpursuant to a company policy. Simbol resigned on June 20, 1998 pursuant to the company policy. Comia was hired by the company on February 1997. She met Howard Comia, a co-employee, whom shemarried on June 1, 2000. Ongsitco likewise reminded them that pursuant to company policy, one mustresign should they decide to get married. Comia resigned on June 30, 2000.


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Estrella was hired on July 29, 1994. She met Luisito Zuiga (Zuiga), also a co-worker. Petitioners statedthat Zuiga, a married man, got Estrella pregnant. The company allegedly could have terminated herservices due to immorality but she opted to resign on December 21, 1999. The respondents signed a Release and Confirmation Agreement and stated therein that they have nomoney and property accountabilities in the company. Respondents offer a different version of their

dismissal. Respondents later filed a complaint for unfair labor practice, constructive dismissal, separationpay and attorneys fees. They averred that the aforementioned company polic y is illegal and contravenesArticle 136 of the Labor Code.Labor Arbiter dismissed the complaint and states that the company policy was decreed pursuant to whatthe respondent corporation perceived as management prerogative. On appeal to the NLRC, theCommission affirmed the decision of the Labor Arbiter. In its assailed Decision dated August 3, 2004, theCourt of Appeals reversed the NLRC decision. Issue:Whether or not the questioned policy is a valid exercise of management prerogative.SC Ruling:The case at bar involves Article 136 of the Labor Code which provides: It shall be unlawful for anemployer to require as a condition of employment or continuation of employment that a woman employeeshall not get married, or to stipulate expressly or tacitly that upon getting married a woman employeeshall be deemed resigned or separated, or to actually dismiss, discharge, discriminate or otherwiseprejudice a woman employee merely by reason of her marriage. With more women entering the workforce, employers are also enacting employment policies specificallyprohibiting spouses from working for the same company. We note that two types of employment policiesinvolve spouses: policies banning only spouses from working in the same company (no-spouseemployment policies), and those banning all immediate family members, including spouses, from workingin the same company (anti-nepotism employment policies).It utilizes two theories of employment discrimination: the disparate treatment and the disparate impact.Under the disparate treatment analysis, the plaintiff must prove that an employment policy isdiscriminatory on its face. No-spouse employment policies requiring an employee of a particular sex toeither quit, transfer, or be fired are facially discriminatory. On the other hand, to establish disparateimpact, the complainants must prove that a facially neutral policy has a disproportionate effect on aparticular class.The courts that have broadly construed the term marital status rule that it encompassed the identity,occupation and employment of one's spouse. They hold that the absence of such a bona fideoccupational qualification invalidates a rule denying employment to one spouse due to the currentemployment of the other spouse in the same office. Thus, they rule that unless the employer can prove

that the reasonable demands of the business require a distinction based on marital status and there is nobetter available or acceptable policy which would better accomplish the business purpose, an employermay not discriminate against an employee based on the identity of the employees spouse. This is knownas the bona fide occupational qualification exception. We note that since the finding of a bona fide occupational qualification justifies an employers no-spouserule, the exception is interpreted strictly and narrowly by these state courts. There must be a compellingbusiness necessity for which no alternative exists other than the discriminatory practice. To justify a bonafide occupational qualification, the employer must prove two factors: (1) that the employment qualificationis reasonably related to the essential operation of the job involved; and, (2) that there is a factual basis for


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believing that all or substantially all persons meeting the qualification would be unable to properly performthe duties of the job.The court does not find a reasonable business necessity in the case at bar. The protection given to laborin our jurisdiction is vast and extensive that we cannot prudently draw inferences from the legislaturessilence that married persons are not protected under our Constitution and declare valid a policy based on

a prejudice or stereotype. Thus, for failure of petitioners to present undisputed proof of a reasonablebusiness necessity, we rule that the questioned policy is an invalid exercise of management prerogative.

Rolando Rivera vs. Solid Bank Corporation[G.R. No.163269. April 19, 2006]Facts:Petitioner Rolando Rivera had been working for Solidbank Corporation since July 1977. He was initially

employed as an Audit Clerk, then as Credit Investigator, Senior Clerk, Assistant Accountant, andAssistant Manager. Prior to his retirement, he became the Manager of the Credit Investigation andAppraisal Division of the Consumers Banking Group. In the meantime, Rivera and his brother-in-law putup a poultry business in Cavite.In December 1994, Solidbank offered two retirement programs to its employees: (a) the OrdinaryRetirement Program (ORP), under which an employee would receive 85% of his monthly basic salarymultiplied by the number of years in service; and (b) the Special Retirement Program (SRP), under whicha retiring employee would receive 250% of the gross monthly salary multiplied by the number of years inservice. Since Rivera was only 45 years old, he was not qualified for retirement under the ORP. Underthe SRP, he was entitled to receive P1,045,258.95 by way of benefits. Deciding to devote his time and attention to his poultry business in Cavite, Rivera applied for retirement

under the SRP. Subsequently, Solidbank required Rivera to sign an undated Release, Waiver andQuitclaim, which was notarized on March 1, 1995. Rivera acknowledged receipt of the net proceeds of hisseparation and retirement benefits and promised that [he] would not, at any time, in any mannerwhatsoever, directly or indirectly engage in any unlawful activity prejudicial to the interest of Solidbank, itsparent, affiliate or subsidiary companies, their stockholders, officers, directors, agents or employees, andtheir successors-in-interest and will not disclose any information concerning the business of Solidbank, itsmanner or operation, its plans, processes, or data of any kind. On May 1995, the Equitable Banking Corporation employed Rivera as Manager of its Credit Investigationand Appraisal Division of its Consumers Banking Group. Upon discovering this, Solidbank First Vice-President for Human Resources Division (HRD) wrote a letter informing Rivera that he had violated theUndertaking and demanded the return of all the monetary benefits he received in consideration of theSRP within five days from receipt; otherwise, appropriate legal action would be taken against him.When Rivera refused to return the amount demanded within the given period, Solidbank filed a complaint.Petitioner avers that the prohibition incorporated in the Release, Waiver and Quitclaim barring him asretiree from engaging directly or indirectly in any unlawful activity and disclosing any informationconcerning the business of respondent bank, as well as the employment ban contained in theUndertaking he executed, is oppressive, unreasonable, cruel and inhuman because of its overbreath. Issue:


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Whether or not the post-retirement competitive employment ban is reasonable.Ruling of the Court:The post-retirement competitive employment ban is unreasonable because it has no geographical limits.The respondent is barred from accepting any kind of employment in any competitive bank within the

proscribed period.Retirement plans, in light of the constitutional mandate of affording full protection to labor, must beliberally construed in favor of the employee, it being the general rule that pension or retirement plansformulated by the employer are to be construed against it. Retirement benefits, after all, are intended tohelp the employee enjoy the remaining years of his life, releasing him from the burden of worrying for hisfinancial support, and are a form of reward for being loyal to the employer. Respondent is burdened toestablish that a restrictive covenant barring an employee from accepting a competitive employment afterretirement or resignation is not an unreasonable or oppressive, or in undue or unreasonable restraint oftrade, thus, unenforceable for being repugnant to public policyIn cases where an employee assails a contract containing a provision prohibiting him or her fromaccepting competitive employment as against public policy, the employer has to adduce evidence to

prove that the restriction is reasonable and not greater than necessary to protect the employerslegitimate business interests. The restraint may not be unduly harsh or oppressive in curtailing theemployees legitimate efforts to earn a livelihood and must be reasonable in light of sound public policy. Consideration must be given to the employees right to earn a living and to his ability to determine withcertainty the area within which his employment ban is restituted. A provision on territorial limitation isnecessary to guide an employee of what constitutes as violation of a restrictive covenant and whether thegeographic scope is co-extensive with that in which the employer is doing business. In considering aterritorial restriction, the facts and circumstances surrounding the case must be considered.Stonehill Vs. Diokno Case DigestStonehill Vs. Diokno

20 SCRA 383

L-19550

June 19, 1967

Facts: Upon application of the officers of the government named on the margin

hereinafter referred to as Respondents-Prosecutors several judges hereinafter

referred to as Respondents-Judges issued, on different dates, a total of 42 search

warrants against petitioners herein and/or the corporations of which they were officers,

directed to the any peace officer, to search the persons above-named and/or the premises

of their offices, warehouses and/or residences, and to seize and take possession of the

following personal property to wit:


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Books of accounts, financial records, vouchers, correspondence, receipts,

ledgers, journals, portfolios, credit journals, typewriters, and other documents and/or papers

showing all business transactions including disbursements receipts, balance sheets and

profit and loss statements and Bobbins (cigarette wrappers).

as "the subject of the offense; stolen or embezzled and proceeds or fruits of the offense," or

"used or intended to be used as the means of committing the offense," which is described in

the applications adverted to above as "violation of Central Bank Laws, Tariff and Customs

Laws, Internal Revenue (Code) and the Revised Penal Code."

Petitioners contentions are:

(1) they do not describe with particularity the documents, books and things to be seized;

(2) cash money, not mentioned in the warrants, were actually seized;

(3) the warrants were issued to fish evidence against the aforementioned petitioners in

deportation cases filed against them;

(4) the searches and seizures were made in an illegal manner; and

(5) the documents, papers and cash money seized were not delivered to the courts that

issued the warrants, to be disposed of in accordance with law

Respondents-prosecutors contentions

(1) that the contested search warrants are valid and have been issued in accordance with

law;

(2) that the defects of said warrants, if any, were cured by petitioners' consent; and

(3) that, in any event, the effects seized are admissible in evidence against herein

petitioners, regardless of the alleged illegality of the aforementioned searches and

seizures.


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The documents, papers, and things seized under the alleged authority of the warrants in

question may be split into two (2) major groups, namely: (a) those found and seized in the

offices of the aforementioned corporations, and (b) those found and seized in the

residences of petitioners herein.

Issue:

Whether or not those found and seized in the offices of the aforementioned corporations are

obtained legally.

Whether or not those found and seized in the residences of petitioners herein are obtained

legally.

Held: The petitioners have no cause of action to assail the legality of the contested

warrants and of the seizures made in pursuance thereof, for the simple reason that said

corporations have their respective personalities, separate and distinct from the personality

of herein petitioners, regardless of the amount of shares of stock or of the interest of each of

them in said corporations, and whatever the offices they hold therein may be. Indeed, it is

well settled that the legality of a seizure can be contested only by the party whose rights

have been impaired thereby, and that the objection to an unlawful search and seizure is

purely personal and cannot be availed of by third parties.

With respect to the documents, papers and things seized in the residences of petitioners

herein, the aforementioned resolution of June 29, 1962, lifted the writ of preliminary

injunction previously issued by this Court, thereby, in effect, restraining herein

Respondents-Prosecutors from using them in evidence against petitioners herein.

Two points must be stressed in connection with this constitutional mandate, namely: (1) thatno warrant shall issue but upon probable cause, to be determined by the judge in the

manner set forth in said provision; and (2) that the warrant shall particularly describe the

things to be seized.


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None of these requirements has been complied with in the contested warrants. Indeed, the

same were issued upon applications stating that the natural and juridical person therein

named had committed a "violation of Central Ban Laws, Tariff and Customs Laws, Internal

Revenue (Code) and Revised Penal Code." In other words, no specific offense had been

alleged in said applications. The averments thereof with respect to the offense committed

were abstract. As a consequence, it was impossible for the judges who issued the warrantsto have found the existence of probable cause, for the same presupposes the introduction

of competent proof that the party against whom it is sought has performed particular acts, or

committed specific omissions, violating a given provision of our criminal laws. As a matter of

fact, the applications involved in this case do not allege any specific acts performed by

herein petitioners. It would be the legal heresy, of the highest order, to convict anybody of a

"violation of Central Bank Laws, Tariff and Customs Laws, Internal Revenue (Code) and

Revised Penal Code," as alleged in the aforementioned applications without reference

to any determinate provision of said laws.

UY KHEYTIN VS VILLAREAL42 PHIL 886, 896 (1920) JOHNSON, J.Facts:

-On April 30, 1919, one Ramon Gayanilo, corporal of the Philippine Constabulary, presented to the judge

of the Court of First Instance of Iloilo an application for search warrant, the said Ramon Gayanilo stating

in hisapplication; "That in the house of Chino Uy Kheytin, Sto. Nio St., No. 20, Iloilo, under the writing

desk inhis store, there is kept a certain amount of opium."- Armed with that search warrant, the

respondent M. S. Torralba, on the same day (April 30th) searchedthe house of the petitioner Uy Kheytin

and found therein 60 small cans of opium. They wanted to searchalso the bodega on the ground-floor of

the house, but Uy Kheytin positively denied that it was his or thathe rented it. Lt. Torralba wanted to be

sure, and for this reason, he placed a guard in the premises to seethat nothing was removed therefrom,

and then went away to find out who the owner of the bodega was. The next morning he learned from

the owner of the house, one Segovia, of the town of Molo, that theChinaman Uy Kheytin was the one

who was renting the bodega. Thereupon Lt. Torralba and hissubordinates resumed the search and then

and there found and seized articles which were all withconnection to the using of opium.- A criminal

complaint was filed in the court of the justice of the peace of Iloilo against all the petitionersherein,

charging them with a violation of the Opium Law. They were duly arrested.

7

-Defendants urged: (1) that the search warrant of April 30 was illegal because the requisites prescribed

bythe General Orders No. 58 had not been complied with in its issuance

(specifically (a) because it was not issued upon either of the grounds mentioned in section 96 of General

Orders No. 58, and (b) because the judge who issued it did not determine the probable cause by

examining witnesses under oath)

;


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(2) that thesearches and seizures made on May 1st had been made without any semblance of authority

and henceillegal; and (3) that the seizure of the defendants' books and letters was a violation of the

provisions of the Jones Law providing that no person shall be compelled to testify against himself, and

protecting himagainst unreasonable searches and seizures.

Issue:

WON the defendants positions are with merit.

Ruling (s):

1. That although in the issuance of the search warrant in question the judge did not comply with

therequirements of section 98 of General Orders No. 58, the petitioners are not entitled to the return of

theopium and its paraphernalia which were found and seized under said warrant, and much less are

theyentitled to be exonerated because of such omission of the judge.2. That the search made on May

1st was a continuation of the search begun on the previous day, and,therefore, did not require another

search warrant.3. That the seizure of the petitioner's books, letters, telegrams, and other articles which

have no inherentrelation with opium and the possession of which is not forbidden by law, was illegal

and in violation of thepetitioners' constitutional rights.

RD:

(Contention # 1)-SEC. 96. of General Orders No. 58 provide: It (a search warrant) may be issued upon

either of thefollowing grounds: 1. When the property was stolen or embezzled. ; 2. When it was used or

when the intentexists to use it as the means of committing a felony.-Suffice it to say that, whatever

may be the technical common-law meaning of the word "felony", which isused in paragraph 2 of sec. 96above quoted, the Court believes it would be the height of absurdity tohold, upon technical grounds,

that a search warrant is illegal which is issued to search for and seizeproperty the very possession of

which is forbidden by law and constitutes a crime. Opium is such property.- Search-warrants have

heretofore been allowed to search for material so kept as to endanger the publicsafety.- A search

warrant may be likened to a warrant of arrest. The issuance of both is restricted by the sameprovision of

the Jones Law (sec. 3) which is as follows:

That no warrant shall issue but upon probablecause, supported by oath or affirmation, and particularly

describing the place to be searched and the person or thing to be seized.

- In the present case there was an irregularity in the issuance of the search warrant in question in that

the judge did not first examine the complainant or any witnesses under oath. But the property sought to

besearched for and seized having been actually found in the place described by the complainant,

reasoningby analogy from the case of an improper arrest, we are of the opinion that that irregularity is

not sufficientcause for ordering the return of the opium found and seized under said warrant, to the

petitioners, andexonerating the latter.(Contention # 2)


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8

- While it is true that a warrant is good for 10 days after the date of issuance, this cannot be interpreted

tomean that a search warrant can be used every day for 10 days, and for a different purpose each day.

Thiswould be absurd.-It appears from the oral evidence adduced during the hearing of the petitioners'

motion in the court belowthat the search for opium, the property mentioned in the warrant, was not

completed on April 30th; it wasinterrupted by the necessity to ascertain who the owner of the bodega

on the ground-floor was, becausethe petitioner Uy Kheytin falsely disclaimed ownership thereof. In

other words, the search of May 1st wasnot made "for a different purpose," nor could it be considered

"another search," but was really acontinuation of the search begun on April 30th. This is shown by the

fact that during the interval betweenthe two searches the premises in question were guarded by

Constabulary soldiers, and the petitionerswere made to understand on April 30th that the authorities

were not yet through with the search andwould continue the same as soon as they found out that the

bodega was also occupied by the petitionerUy Kheytin.(Contention # 3)- In order to comply with the

constitutional provisions regulating the issuance of search warrants, theproperty to be seized under a

warrant must be particularly described therein and no other property can betaken thereunder.- That the

officers of the law believed that the books, papers, etc., which they seized might be used asevidence

against the petitioners herein a criminal action against them for a violation of the Opium Law, isno

reason or justification under the law for the seizure: First, because they were not "particularlydescribed"

or even mentioned in the search warrant; second, because, even if they had been mentioned inthe

search warrant, they could not be legally seized, for a search warrant cannot be used for the purposeof

obtaining evidence; and third, because to compel a person to produce his private papers to be used

inevidence against him would be equivalent to compelling him to be a witness against himself

Garcia Padilla et al vs. Minister Enrile, General Fabian, General Ramos, and LT. COL. CoronelPetition:

An application for the issuance of the writ of habeas corpus on behalf of fourteen detainees, nineof

whom were arrested on July 6, 1982,

another four on July 7, 1982, and the last one on July 15, 1982. Thewrit was issued, respondents were

required to make a return, and the case heard on August 26, 1982.

Facts:

At the time of the arrest of the 9 detainees, they were having conference in the dining room of

Dr.Parong's. Prior thereto, all the 14 detainees were under surveillance as they were then identified


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asmembers of the Communist Party of the Philippines (CPP) engaging in subversive activities andusing

the house of detainee Dr. Aurora Parong as their headquarters. Caught in

flagrante delicto

,the 9 detainees mentioned scampered towards different directions leaving on top of theirconference

table numerous subversive documents, periodicals, pamphlets, books, correspondence,stationeries, and

other papers, including a plan on how they would infiltrate the youth and studentsector (code-named

YORK). Also found were one revolver, ammunition for M16 armalite, cash andassorted medicine packed

and ready for distribution, a sizeable quantity of printing paraphernalia,which were then seized.

The court decided to dismiss the petition on the application of habeas corpus. Padilla moved

forreconsideration. The motion asserted further that the suspension of the privilege of the writ of

habeas corpus does not vest the President with the power to issue warrants of arrest or

presidentialcommitment orders, and that even it be assumed that he has such a power, the SupremeCourtmay review its issuance when challenged. It was finally alleged that since petitioners were

notcaught in

flagrante delicto

, their arrest was illegal and void.

Issue:

WoN the arrest was illegal since they were not caught in

flagrante delicto.

Decision:

Pursuant to Section 8 of PD No. 1877, the motion for reconsideration should have been granted,and the

writ of habeas corpus ordering the release of the detainees covered by such Section 8 issued, butin the

light of the foregoing manifestation as to Norberto Portuguese, Sabino Padilla, Francis Divina

gracia,Imelda de los Santos, Benjamin Pineda, Zenaida Mallari, Mariano Soriano, Tito Tanguilig, Letty

Ballogan,Bienvenida Garcia, Eufronio Ortiz, Jr., Juanito Granada, and Tom Vasquez,

having been released

, thepetition as to them has been declared

moot and academic

. As to Dr. Aurora Parong, since a

warrant of arrest against her was issued


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by the municipal court of Bayombong on August 4, 1982, for illegalpossession of firearm and

ammunitions, the petition is likewise declared

moot and academic

Republic of the PhilippinesSUPREME COURT

Manila

EN BANC

DECISION

November 20, 1917

G.R. No. L-17959

ROBERT S. CLEMONS, petitioner,

vs.

WILLIAM T. NOLTING, as Auditor of the Government of the Philippine Islands,

respondent.

Manuel Tecson for appellants.

Velarde & Santos for appellee.

Johnson, J .:

Potenciano Roxas took over a debt of P1,612, which Mariano Tecson owed to Maria

Esguerra, with a mortgage, for securing the payment thereof, on a steam rice mill and the

frame building in which it was installed, with a bamboo fence and galvanized-iron roof. The

debt was to be paid three months after it had been assumed by the new debtor, Potenciano

Roxas, which was on June 4, 1907.

The Manila commercial firm of Hidalgo, Cuyugan & Co. was the creditor of Potenciano Roxas

and by entering suit in the Court of First Instance of Manila obtained judgment for the

payment of its bill amounting to P724.98, with interest at 6 per cent per annum from

January 10, 1908, and the costs. This judgment was rendered on February 20 and

execution ordered May 21, 1908.

Manuel E. Cuyugan also secured judgments against Potenciano Roxas in the justice of the

peace court of Manila in four suits, three for P500 and one for P340 with interest at 6 percent per annum from January 9, 1908, and the costs. These judgments were rendered

January 17 and execution ordered May 21, 1908.

On May 27, 1908, the sheriff of the Province of Bulacan levied upon (a) a steam engine and

rice mill, and (b) a house of mixed materials and an iron-roofed warehouse beside it, and

other equipment for cleaning rice.


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The Manila firm of Castle Bros-Wolf & Sons laid claim to all the machinery specified under

(a) and the creditors Hidalgo, Cuyugan & Co., and Manuel E. Cuyugan admitted this claim.

On June 26, 1908, the said property was sold at public auction by the sheriff of Bulacan and

adjudicated in payment: The machinery under (a) to Castle Bros-Wolf & Sons, and the

house, warehouse and other equipment under (b) to the judgment creditors Hidalgo,

Cuyugan & Co., and Manuel E Cuyugan, for the amounts of their respective judgments.

On June 27, 1908, the day after the auction, the sheriff issued to the respective bidders,

who had brought the property, the corresponding bills of sale.

The first time that Maria Esguerra appears is on June 25, 1908, when she claims preference

in payment over the bills of Hidalgo, Cuyugan & Co., and Manuel E Cuyugan, no mention

being made of Castle Bros-Wolf & Sons, asking the sheriff to keep in his possession the

proceeds of the sale of said property and then to pay her bill of P1,612, with legal interest

and costs, in preference to Hidalgo, Cuyugan & Co., and Manuel E. Cuyugan.

The sheriff was not notified or enjoined until June 29, 1908, when the sale had already been

consummated and the corresponding bills of sale issued to the vendees.

The Court of First Instance of Bulacan rendered judgment absolving Mariano Tecson Roxas

and the sheriff of the Province of Bulacan from the complaint and sentencing Potenciano

Roxas to pay to Maria Esguerra P1,612 with legal interest from the date of the filing of the

complaint and declaring the plaintiffs bill to have preference over the bills of the defendant

Hidalgo, Cuyugan & Co., and Manuel E. Cuyugan, against the defendant Potenciano Roxas.

As not only the warehouse in question but also a house of mixed materials and other

property, described under the letter (b), was adjudicated to Messrs. Hidalgo, Cuyugan & Co.

and Manuel E. Cuyugan, only for the sum of P1,564.98, less than the plaintiffs bill of

P1,612, they were sentenced to turn over to the plaintiff enough from the price of the

warehouse to satisfy the bill ordered paid to her, or otherwise the warehouse itself, with the

costs of the case, in equal parts, against Potenciano Roxas, Hidalgo, Cuyugan & o., and

Manuel E. Cuyugan. (B. of E.)

This judgment was appealed from by the plaintiffs as well as by the defendants Hidalgo,

Cuyugan & Co., and Manuel E. Cuyugan, both part is filing bills exceptions. The plaintiff

asked that the defendants mentioned be compelled to deliver to her P1,612, which was in

their possession as part of the price said property, without the option of turning over to her

the warehouse dealt with in the judgment. The defendants asked that the judgment be

annulled in so far as it granted to the plaintiff preference in payment of her bill against the

property already adjudicated through public auction, or against the price secured at the

auction or a portion thereof.

In deciding both appeals, it is necessary to observe:


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First. When on June 29, 1908, the sheriff was notified and enjoined to retain in his

possession the price he might secure from the auction, it was then impossible to do so, for

it had been collected and paid to the judgment creditors on the 27th preceding. Accordingly,

the complaint was wholly inoperative and the court could not definitely order the sheriff to

hold in his possession what had ready in just and legal manner, by payment of an

execution, passed into the hands of the judgment creditors.

Second. After the proceeds of the execution are in their possession by virtue of final

judgment, execution, auction, and payment, there is no valid reason why they should not

keep what they have justly collected or be obliged to return what they have received in

payment of their bill.

Third. Still less can they be obliged to turn over to any one the piece of real property which

they bought at a legal and valid public auction, after they have received the bill of sale,

through which they have acquired all the right, interest, title, and rights of action which the

judgment debtor had over the same (Code of Civil Procedure, sec. 463), and which have notbeen overthrown in any suit for nullifying or rescinding the sale at public auction by which

they acquired them.

Fourth. Even admitting that the plaintiffs bill should really have preference over that of the

defendants, such preference can not afford legal ground for annulling judgments and

executions already terminated, as though the petition of a less preferred creditor in his own

right signified nothing in the eyes of the law, when it is a well-known maxim that vigilanti

prospiciunt jura; that is, that the law protects him who is watchful of his rights.

Fifth. It is wholly improper, in such a state affairs and accomplished facts, to permit

discussion of the preference of claims, which would have been in order before judgment andpayment.

Therefore, the findings of the judgment appealed from by the defendants, which declare the

plaintiffs claim to have preference in payment and which order them to turn over to the

plaintiff either enough of the price of the warehouse to pay the bill adjudicated to her, or

the warehouse itself are hereby reversed, without special findings as to costs in this second

instance.

Mapa, Johnson, Carson, Moreland and Trent, JJ., concur.

UNITED STATES v. ARCEO

UNITED STATES of America, Plaintiff-Appellee, v. Edgar ARCEO, Defendant-

Appellant.

07-3296. No.


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Argued April 14, 2008. -- July 28, 2008

Before FLAUM, EVANS, and TINDER, Circuit Judges.

Thomas D. Shakeshaft (argued), Office of the United States Attorney, Chicago, IL, for Plaintiff-

Appellee.Pablo DeCastro (argued), Rascia & DeCastro Chicago, IL for Defendant-Appellant.

After a brief presentation of the facts, we turn to Arceo's arguments. 3C1.1 was not appropriateand that the district court did not adequately consider his cooperation with the government.

He also challenges his sentence, arguing that the obstruction of justice adjustment under

U.S.S.G. While he raises three issues, his main argument is that his right to a speedy trial wasviolated. The district court sentenced Arceo to 108 months' imprisonment followed by a term

of supervised release. Arceo appeals. Arceo then pled guilty to the conspiracy charge,

conditioning his plea on the right to appeal the denial of his motion to dismiss. His motion was

denied. He moved to dismiss the indictment based on an alleged violation of his constitutionalright to a speedy trial. More than six years later Arceo was arrested. 846. Edgar Arceo and a

co-defendant were charged with a conspiracy to possess with intent to distribute and to

distribute a controlled substance in violation of 21 U.S.C.

Background I.Arceo subsequently was transported to the Palatine, Illinois, Police Department for processing.The agents accompanied Arceo to a residence in Palatine, resulting in Salazar-Felix's arrest and

eventual prosecution. He identified his source of supply of cocaine, Jose Salazar-Felix, and

agreed to show the agents where he got the cocaine. He waived his Miranda rights and agreed

to cooperate with law enforcement. Immediately after his arrest, Arceo was interviewed by

agents. On August 11, 1999, Arceo was arrested in a parking lot in Aurora, Illinois, after

delivering approximately 5 kilograms of cocaine to a confidential informant who was working

with the Drug Enforcement Agency (DEA).

Both at the time of his arrest in the parking lot and again while at the Palatine Police

Department, Arceo was advised by the DEA Task Force Officer Lou Dominguez and other agents

that they did not know when he would be charged, but that he would, in fact, be charged at a

later time after his cooperation ended.1

Law enforcement and Arceo agreed to contact eachother the next day. He identified his source of marijuana, Jesus Rodriguez-Medina, andarrangements were made for a meeting. Arceo was released from custody in order to continue

his cooperation.

They were As a result the agents went looking for Arceo at his residence. Other agentslikewise tried to contact Arceo but did not succeed. On August 13, however, when Officer
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Dominguez called Arceo to arrange to meet, he was unable to reach him. Law enforcement and

Arceo agreed to meet the next day. Arceo did meet with Rodriguez-Medina, who was arrested.

He arranged for a marijuana transaction on August 12 with Rodriguez-Medina. For two days

Arceo cooperated with law enforcement. After the usual law-enforcement checks in the

Northern District of Illinois, Arceo still did not turn up. unable to find him and determined hehad moved out.

On July 27, 2000, Arceo's case was reassigned to the fugitive calendar. Between November1999 and July 2000, there were a number of court proceedings involving Rodriguez-Medina but

no docket entries reflect any activity as to Arceo. The docket does not show that an arrest

warrant was issued for Arceo. An arraignment notice was entered the next day. Enter order.

A minute order was entered that day, stating: The government will seek to have the defendant

detained without bond as to Edgar Arceo, granted. On November 4, 1999, Arceo and

Rodriguez-Medina were charged in a one-count indictment with a cocaine and marijuana

conspiracy.

On December 20, that warrant, along with a second warrant issued December 19, were quashed

for reasons not indicated in the record, and a third bench warrant was issued. None was issueduntil December 15, 2005, however. The agent who took over this case made two attempts in

2003 to have an arrest warrant issued for Arceo. No warrant was issued, so Officer Dominguez

contacted the AUSA once again in 2001 and still later in 2002, before he stopped working as a

DEA task officer. So on April 4, 2001, he contacted the Assistant United States Attorney

(AUSA) assigned to the case in an effort to obtain an arrest warrant. In early 2001, Officer

Dominguez discovered that no arrest warrant had been issued for Arceo.

He was living there under the assumed identity of Rowdy Sepulvida, which he admitted he

purchased from a friend. On April 4, 2006, Arceo was arrested in the Middle District ofPennsylvania.

She explained that Arceo could not use his own name because of the problem he had in Chicago. She also said it was about that time that Arceo began using the Rowdy Sepulvida name. Maria

said that they returned to the United States in 2002 and lived in Spring Grove, Pennsylvania,

near her family. She testified that she believed her husband knew he was wanted in Chicago.

According to Maria, it was her husband's idea to go to Mexico. She stated that in August 1999

she and her husband left Chicago for Mexico because of the problem in Chicago (without any

details about the nature of the problem) and that they lived in Mexico for about three years. A

detention hearing was held on April 5, 2006, in Pennsylvania, at which Arceo's wife of twelve

years, Maria Arceo, testified.2
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The court indicated that the government may not have done as much as it could have but

concluded that Arceo's attempt to avoid arrest and prosecution outweighed any negligence by

the government. The court found that Arceo was aware he had been arrested and that criminalcharges would be filed, yet chose to remove himself from the United States, later returning to

another jurisdiction under an assumed name until his arrest. The court considered thetranscript of Maria's testimony at the detention hearing and the testimony of former Task Force

Officer Dominguez about Arceo's arrest, cooperation, and flight, and then denied the motion to

dismiss. The district court held a hearing on the motion. Prior to trial Arceo moved to dismiss

the indictment.

The district court accepted his conditional plea and entered a judgment against him. His pleawas conditioned on his right to appeal the denial of his motion to dismiss. 846. On April 2,

2007, Arceo pled guilty pursuant to a plea agreement to a conspiracy to possess with intent to

distribute and to distribute a controlled substance, in violation of 21 U.S.C.

Arceo appeals. The court sentenced him to 108 months' imprisonment, at the bottom of theguidelines range. 3553(a) sentencing factors, specifically including Arceo's family history and

circumstances, his lack of criminal history since 1999, and his cooperation with the government

immediately following his arrest. 3C1.1 and acceptance of responsibility, and considered the 18

U.S.C. At sentencing the district court heard arguments relating to adjustments forobstruction of justice under U.S.S.G.

Sixth Amendment Right to A Speedy Trial II.See United States v. King, 338 F.3d 794, 797 (7th Cir.2003) (stating explicitly the standard of

review for a Speedy Trial Act claim and applying the same standard to a Sixth Amendment

speedy trial claim); see also United States v. Sutcliffe, 505 F.3d 944, 956 (9th Cir.2007) (stating

explicitly the standard of review for a constitutional speedy trial claim); United States v. Brown,

498 F.3d 523, 530 (6th Cir.) (same), cert. denied, --- U.S. ----, 128 S.Ct. 674, 169 L.Ed.2d 528

(2007). We review a speedy trial claim de novo and review the district court's factual findingsfor clear error. The government responds that there was no error because Arceo's own conduct

in evading law enforcement outweighs any government conduct contributing to the six-year and

eight-month delay following his initial arrest. Arceo's first and principal argument is that the

district court erred in denying his motion to dismiss because he was deprived of his Sixth

Amendment right to a speedy trial.

Doggett, 505 U.S. at 651, 112 S.Ct. 2686; see also White, 443 F.3d at 589. In doing so we assesswhether delay before trial was uncommonly long, whether the government or the criminal

defendant is more to blame for that delay, whether, in due course, the defendant asserted his


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right to a speedy trial, and whether he suffered prejudice as the delay's result. Barker v.

Wingo, 407 U.S. 514, 530, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972). In determining whether a

defendant has been deprived of this speedy trial right, we consider and weigh the conduct of the

government and the defendant. Doggett v. United States, 505 U.S. 647, 655, 112 S.Ct. 2686, 120

L.Ed.2d 520 (1992); United States v. White, 443 F.3d 582, 589 (7th Cir.2006). The SixthAmendment right to a speedy trial is triggered by an arrest, indictment, or some other official

accusation.

This lengthy delay weighs in favor of Arceo. See Doggett, 505 U.S. at 652, 112 S.Ct. 2686.This extraordinary delay stretches well beyond the minimum needed to trigger a further speedy

trial analysis. Here, more than six and one-half years passed from the time of Arceo's arrest in

August 1999 to his plea in April 2007. United States v. Oriedo, 498 F.3d 593, 597 (7th

Cir.2007); White, 443 F.3d at 589-90. A delay approaching one year is presumptively

prejudicial. Barker, 407 U.S. at 530, 92 S.Ct. 2182; White, 443 F.3d at 589. Unless the delay

is presumptively prejudicial, we need not consider the other factors. The length of the delay

acts as a triggering mechanism.

The government argues that the principal reason for the delay was Arceo's intentional attempt

to evade law enforcement. Arceo contends the delay is attributable to the government'snegligence. A more neutral reason such as negligence should be weighted less heavily

Barker, 407 U.S. at 531, 92 S.Ct. 2182. Different weights should be given to different reasons

for delay: A deliberate attempt to delay the trial in order to hamper the defense should be

weighted heavily against the government. The second factor is the reason for the delay, and it is

this factor that is at the heart of Arceo's claim.

This error seems to have contributed to over one year's worth of the delay as it was not until

early 2001 that the fact that no arrest warrant had been issued was first discovered. Nothing inthe record before us suggests that the delay caused by this error is attributable to the

government. Then on July 27, 2000, this case was reassigned to the fugitive calendar, which

implies that someone in the clerk's office and/or court staff believed there was an outstanding

warrant for Arceo's arrest. From the best we can glean from the record, for several months no

one noticed that an arrest warrant had not been issued. For one, when Arceo was indicted on

November 4, 1999, a minute entry reflects that an order for Arceo's arrest and detention wouldbe issued but, for some inexplicable reason-the government suggests a clerical error in the

clerk's office-none was entered. Here there were a few reasons for the delay.

See Barker, 407 U.S. at 531, 92 S.Ct. 2182. Thus, while we consider the reason for this part ofthe total delay, we do not weight it heavily against the government. This negligence

contributed to the delay from April 2001 through December 15, 2005, approximately four years


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and eight months. However, Arceo has offered nothing to suggest that the government acted

intentionally in causing this delay. The government's apparent inaction in response to

repeated notification that no warrant had been issued seems negligent. That warrant was later

quashed and ultimately a warrant issued on December 19, 2005. In total in the next few years,

the DEA agents made five attempts to have an arrest warrant issued, without success untilDecember 15, 2005. It was in early 2001 that Officer Dominguez discovered that no arrest

warrant had been issued, so he contacted the AUSA assigned to the case in an effort to obtain an

arrest warrant.

Id. at 652-53, 112 S.Ct. 2686. The Court deferred to the lower court's finding that the delay wasattributable to the government's negligence. Id. at 649-50, 112 S.Ct. 2686. He later was found

pursuant to a mass credit check on several thousand persons subject to outstanding arrest

warrants. Approximately two and one-half years after his indictment, Doggett returned to the

United States, where he lived openly under his own name. The DEA attempted to catch

Doggett on his return to the United States, but these efforts ceased with time. When law

enforcement attempted to arrest him, they learned that he had left the country a few days

before. Doggett, 505 U.S. at 648, 112 S.Ct. 2686. Doggett was indicted with others for a drug

conspiracy. Arceo likens his case to Doggett, in which the Supreme Court held that an eight

and one-half year delay between the defendant's indictment and arrest violated his speedy trial

rights. His actions support the conclusion that he was hiding from authorities in a calculated

effort to avoid arrest and prosecution. He returned instead to another jurisdiction hundreds of

miles away in Pennsylvania, where he lived under an assumed name. Arceo intentionally fled

to Mexico for three years, and returned to the United States, but not to the Chicago area. But

most of the blame for the delay lies with Arceo himself.

Thus, the district court's finding in this regard is not erroneous. Both at the time of his arrestin the parking lot and again while at the police department, Arceo was advised by Officer

Dominguez and other agents that he would be charged, though they did not know when the

charges would be filed. This finding is well-supported by the record. While Arceo may have

been unaware of the indictment against him until his April 2006 arrest, the district court found

that when Arceo fled in August 1999, he was aware that criminal charges were forthcoming. Id.

at 653-54, 112 S.Ct. 2686. Another significant difference is that Doggett had no knowledge of

the charges against him until his arrest. While Arceo was arrested relatively quickly-three andone-half months-after the December 2005 arrest warrant was issued, this was due in part, no

doubt, to good investigative work and perhaps some good luck. It cannot be said that law

enforcement could have quickly and easily found him within minutes if only they had made an

effort. Here, in contrast, Arceo was living under an assumed name: he was in hiding. Id. at

653, 112 S.Ct. 2686. Thus, the Court observed that for six years, the government investigators

made no serious effort to find Doggett, but had they done so they could have found him within


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minutes. Id. at 649, 112 S.Ct. 2686. Two facts easily distinguish this case from Doggett: First,

Doggett lived openly under his own name upon his return to the United States.

Thus, the reason for the delay weighs in favor of the government. While the government mayhave acted negligently, Arceo acted intentionally and he therefore bears more blame for the

delay. Arceo argues that he was using an assumed name simply for employment purposes, but

the district court could reasonably reject this explanation. This testimony does not contradict

the officer's testimony that he and others had discussed with Arceo several times on August 11

that he would be charged following his cooperation. Arceo makes much of testimony by Officer

Dominguez about conversations with Arceo as to when he would be charged with a crime and

whether the officer told Arceo on August 12 that he was going to be charged, to which Officer

Dominguez responded no and I don't recall.

The fact that Arceo moved to dismiss the indictment for a speedy trial violation cuts in his

favor; however, the fact that he knew that charges were certain but fled the jurisdiction to avoid

prosecution cuts against him. Upon fleeing to Mexico, he was no longer cooperating, so he wason notice that charges would soon follow. But Arceo had been arrested and knew that he would

be charged following his cooperation. And Arceo did move to dismiss the indictment, asserting

his speedy trial rights. See id. at 653-54, 112 S.Ct. 2686 (stating that if defendant knew of his

indictment for years before he was arrested, the third factor would be weighed heavily against

him, but where he was not aware of the indictment prior to his arrest, he is not to be taxed for

invoking his speedy trial right only after his arrest). Arceo was not informed that the

indictment had been returned against him until his arrest. The third factor is somewhat

neutral.

Considering all of the circumstances including the absence of any particularized prejudice to

Arceo, we conclude that the district court did not err in concluding that Arceo had not shown a

deprivation of his constitutional speedy trial right. This conduct weighs heavily against himand outweighs the government's negligence. He acted intentionally and deliberately in

attempting to avoid arrest and prosecution. Here, in sharp contrast, Arceo is at fault.

Doggett, 505 U.S. at 657-58, 112 S.Ct. 2686. But there, Doggett could not be blamed for the

delay; but for the government's egregious negligence, he would have been prosecuted six years

earlier than he was. Again, Arceo likens his case to Doggett where the presumptive prejudicecaused by the delay was sufficient to warrant relief for a speedy trial violation. Oriedo, 498 F.3d

at 600. Yet this presumed prejudice is not sufficient to carry a speedy trial claim absent a

strong showing on the other Barker factors. Id. at 655-56, 112 S.Ct. 2686; Oriedo, 498 F.3d at

600. Proof of particular prejudice is not necessary in every case; in some cases of excessive

delay prejudice may be presumed. He argues that the extraordinary length of the delay suffices


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to establish prejudice. Arceo does not claim that he suffered any particularized prejudice

caused by the delay. The fourth factor is prejudice to the defendant.

Obstruction of Justice III.Porter, 145 F.3d at 903 (quoting Draves, 103 F.3d at 1337). 3C1.1, cmt. n. 5(d); see Porter, 145F.3d at 903, our cases draw a line between panicked, instinctive flight, which does not

warrant an enhancement, and calculated evasion, which does. 3C1.1 states that avoiding orfleeing from arrest generally will not warrant an obstruction of justice enhancement, U.S.S.G.

While the application note to Porter, 145 F.3d at 903 (quoting United States v. Draves, 103F.3d 1328, 1338 (7th Cir.1997)). 3C1.1 is whether the defendant's conduct evidences a willfulintent to obstruct justice. The pertinent question under United States v. King, 506 F.3d532, 535 (7th Cir.2007) (per curiam); United States v. Porter, 145 F.3d 897, 902 (7th Cir.1998).

3C1.1. We review an obstruction of justice finding for clear error, giving deference to the district

court's application of the guidelines to the facts. Arceo's next challenge is to the district court's

application of the obstruction of justice adjustment under U.S.S.G. Arceo knew he would be charged with a crime; yet he fled the jurisdiction, living in Mexico for

several years and later returning to the United States, relocating to distant Pennsylvania under

an assumed name. See King, 506 F.3d at 535 (concluding challenge to obstruction of justicefinding would be frivolous where defendant while on pretrial release absconded for two months,

obtained a driver's license using a stolen social security number, and used that false identity to

buy a car); Porter, 145 F.3d at 903-04 (concluding obstruction of justice enhancement

warranted where defendant, though not yet arrested, knew an indictment against him wasimminent and nonetheless fled the jurisdiction and changed his identity). Arceo engaged in

conduct that clearly supports the obstruction of justice finding.

We agree that Arceo's conduct was a calculated effort to evade prosecution, and we find no error

in the district court's obstruction of justice finding. But again he offers no evidence tosubstantiate this assertion. Arceo also suggests that he left Chicago because of fear of

retaliation from the individuals who were arrested because of his cooperation. Arceo suggests

that he had reason to believe he might not be charged because of his substantial assistance to

law enforcement over two days, but he points to nothing in the record-nothing said by Officer

Dominguez, another DEA agent, or any other law enforcement or government agent-to make

such a belief reasonable. Nothing in the record suggests that these assertions were ever

retracted. While Officer Dominguez did not tell Arceo specifically when he would be charged

and did not discuss with him on August 12 whether he would be charged at all, it is undisputed

that Arceo was told several times on August 11, both when he was arrested and while he was

being processed at the police station, that he would in fact be charged. The record belies this


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claim. He claims that he only knew that he might be charged. Arceo argues that it is not clear

that he fled the jurisdiction because he knew he would be charged with a crime.

Substantial Cooperation IV.United States v. Harvey, 516 F.3d 553, 556 (7th Cir.2008). 3553(a) factors. But thispresumption may be rebutted by a showing that the sentence is unreasonable when considered

against the Id. (citing Rita v. United States, --- U.S. ----, 127 S.Ct. 2456, 2462-63, 168 L.Ed.2d203 (2007)). A properly calculated within-guidelines sentence is presumed reasonable.

United States v. Omole, 523 F.3d 691, 696 (7th Cir.2008) (citing Gall v. United States, --- U.S. --

--, 128 S.Ct. 586, 597, 169 L.Ed.2d 445 (2007)). The third issue is whether the within-

guidelines sentence was reasonable given Arceo's substantial cooperation with the government.

We review a sentence for reasonableness under an abuse-of-discretion standard.

In his view, he should have received a below-guidelines sentence. He contends that hissentence was unreasonable because it did not adequately account for his substantial cooperation

with law enforcement. Arceo's objection is more pointed. 3553(a) factors. The record also

reflects the district court's consideration of the The record shows that he did. 3553(a) factorsthat might warrant a non-guidelines sentence. Nor does he dispute that he had an opportunity

to identify the Arceo does not argue that the district court erred in calculating the applicableguidelines range.

See United States v. Willis, 523 F.3d 762, 770 (7th Cir.2008) ( [T]he district court has

substantial discretion in choosing a reasonable sentence.). This case exemplifies whatsentencing discretion is all about. Neither fairness nor the requirement that a sentence be no

greater than necessary compels the conclusion that a sentence at the very bottom of the

guidelines range was unreasonable. The 108-month sentence adequately accounts for Arceo's

cooperation along with the other facts and circumstances of the case. While the court could

have relied on Arceo's cooperation as a basis for going below the guidelines range, it was not

required to do so. We think this effective 14-month reduction adequately accounts for Arceo's

cooperation. Thus, Arceo received 108 months instead of 122. The court sentenced him at the

low end of the guidelines range (108-135 months) instead of the midrange-where the judge said

he typically sentences defendants-based in large measure on Arceo's cooperation. The district

court did account for Arceo's cooperation though. 3

Accordingly, we conclude that the district court did not abuse its discretion in imposing Arceo's

sentence.Arceo has not shown that his sentence at the very bottom of the guidelines range wasunreasonable.

Conclusion V.
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For the foregoing reasons, Arceo's conviction and sentence are Affirmed.

FOOTNOTES

1For example, on direct examination Officer Dominguez stated that we told him [Arceo] that

we didn't know when we would be charging him, but that we would charge him at a later time

after his cooperation was done. The transcript of that hearing contradicts this claim. Arceoalso claims that Officer Dominguez testified at the hearing on the motion to dismiss that Arceo

was told that he may be charged. However, he did not present any testimony, not even his

own, or any other evidence to support his assertion. Arceo argues that he was not told that he

definitely would be indicted, but only that it was a possibility. .

2We have no basis for concluding that the district court erred in disbelieving this testimony,

which was more favorable to Arceo than Maria's initial testimony. On redirect, however, Mariaclaimed that she had no idea what the problem in Chicago was and that Arceo started usingSepulvida's name just so he could work. .

3That determination does not appear to be the product of an unconstitutional motive. 5K1.1motion. From the government's perspective, Arceo's deliberate flight made him unqualified for

a His flight left him unable to follow through with his initial cooperation by testifying, ifnecessary, at Rodriguez-Medina's and Salazar-Felix's trials. Moreover, although Arceo initially

cooperated with law enforcement, providing valuable information which led to the arrest and

convictions of Rodriguez-Medina and Salazar-Felix, a short while later he fled the jurisdiction.

5K1.1 motion was based on an unconstitutional motive. Arceo does not argue that the

government's decision not to make a United States v. Bosque, 312 F.3d 313, 318 (7thCir.2002). [W]e may review the government's refusal to move for a departure based on

substantial assistance only for unconstitutional motive. 5K1.1 motion and the government's

explanation for not making the motion-office policy-was a whim. Arceo also suggests that

his cooperation would justify a U.S.S.G. .TINDER, Circuit Judge.
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