USA v. Thomas Cureton, No. 15-3575 (7th Cir. 2018)
Annotate this CaseThis opinion or order relates to an opinion or order originally issued on January 5, 2017.
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In the United States Court of Appeals For the Seventh Circuit ____________________ Nos. 15 3575 & 15 3581 UNITED STATES OF AMERICA, Plaintiff Appellee, v. THOMAS CURETON, Defendant Appellant. ____________________ Appeals from the United States District Court for the Southern District of Illinois. Nos. 10 CR 30106 & 10 CR 30200 — David R. Herndon, Judge. ____________________ ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES DECIDED FEBRUARY 16, 2018 ____________________ Before EASTERBROOK, KANNE, and HAMILTON, Circuit Judges. PER CURIAM. In his third round of appeals, we affirmed de fendant Cureton’s convictions and sentences for using a fire arm during a crime of violence and related crimes. 845 F.3d 323 (7th Cir. 2017). The Supreme Court granted certiorari, va cated, and remanded for reconsideration in light of Dean v. 2 Nos. 15 3575 & 15 3581 United States, 581 U.S. —, 137 S. Ct. 1170 (2017), which disap proved our circuit precedents such as United States v. Roberson, 474 F.3d 432 (7th Cir. 2007), barring judges sentencing defend ants under 18 U.S.C. § 924(c) and other crimes from consider ing the mandatory minimum sentence under § 924(c) when deciding the sentences for other crimes. The Dean issue had not been raised in any of Cureton’s three sentencings, in his two earlier appeals, or in his briefs to this court in these ap peals. In his statement under Circuit Rule 54, Cureton urges full resentencing on a theory of plain error. The government ar gues for either affirmance or a limited remand along the lines of United States v. Paladino, 401 F.3d 471 (7th Cir. 2005), to al low the district judge to decide whether he would be inclined to exercise his discretion to impose a lower overall sentence. In our reviews of § 924(c) sentences imposed before Dean was decided, we have looked in the district court records for reliable signals as to whether the sentences were constrained by the Roberson rule. If it was clear that the sentence was not constrained by Roberson, we have simply affirmed the sen tence. United States v. Wheeler, 857 F.3d 742, 745 (7th Cir. 2017) (“inconceivable” that judge who imposed sentence above guideline range for predicate crime did so because of Rob erson); United States v. Starwalt, 701 Fed. App’x 508 (7th Cir. 2017) (same where sentence for predicate crime was in middle of guideline range). If the sentence for the predicate crime was at the bottom of the guideline range, we have remanded for full resentencing, usually with the agreement of the govern ment. United States v. Garner, — F.3d —, 2017 WL 4791084 (7th Cir. 2017); United States v. Fox, 878 F.3d 574 (7th Cir. 2017); United States v. Allen, 702 Fed. App’x 457 (7th Cir. 2017). If the Nos. 15 3575 & 15 3581 3 picture was cloudier, we have used a Paladino remand to en sure that if the Roberson rule affected the sentence, the district judge would have an opportunity to exercise discretion. United States v. Anderson, No. 16 3112, — F.3d —, —, 2018 WL 663089 (7th Cir. Feb. 2, 2018). The signals here fit into the cloudy category. Cureton was originally convicted of attempted extortion, interstate com munication of a ransom demand, two counts of possessing a firearm during a crime of violence, and three counts of dis tributing crack cocaine near a school. He was first sentenced to a total of 744 months (62 years) in prison. In the first appeal, we held that Cureton should have been sentenced for only one § 924(c) offense, and on remand his sentence was reduced by 300 months (the mandatory minimum for the second § 924(c) offense) to 444 months (37 years). Cureton appealed again, and we remanded because of issues raised about con ditions of supervised release. On remand, the district court imposed the same total sentence of 444 months, leading to the present appeals. That total sentence used the bottom of the guideline range for the crack cocaine charges and the mandatory minimum 84 months on the § 924(c) charge. Yet each round of sentencing has included the statutory maximum 240 months for the ran som demand, signaling that the judges were not inclined to reduce the sentence for that predicate crime. Also, the 360 months of non 924(c) sentences take into account several very serious crimes. Finally, in the course of all three sentencings, including the opportunity to reduce the sentence after the in itial remand, neither the original sentencing judge nor the judge on remand has given any sign that he felt constrained 4 Nos. 15 3575 & 15 3581 by Roberson or believed that the reduced total sentence of 444 months was too severe. Under these circumstances, a limited Paladino remand should suffice. We order a limited remand so that the district court can determine whether it would have imposed the same sentence on Cureton, knowing that in light of Dean, it may consider the mandatory sentence under § 924(c) when decid ing the sentences for other crimes, or whether the court wishes to have a new opportunity to exercise its discretion and judgment in a complete resentencing. We shall retain ju risdiction over these appeals pending the district court’s re sponse. SO ORDERED.
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