United States v. Gutierrez, No. 15-2762 (7th Cir. 2016)

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Justia Opinion Summary

High‐ranking Latin Kings gang members pleaded guilty to racketeering conspiracy and extortion (Zamora) and (Gutierrez) to racketeering conspiracy and to possessing an illegal drug with intent to distribute it. The judge credited Zamora with acceptance of responsibility, but failed to indicate Zamora’s guidelines range, and imposed a 240-month prison term plus supervised release with special conditions, requiring Zamora to participate in job‐training and to perform community service if unemployed. The judge refused to credit Gutierrez with acceptance of responsibility, stating that he had fallen “substantially short of accepting responsibility,” then sentenced Gutierrez at the bottom of a calculated 210-262-month range, plus supervised release with special conditions requiring a mental‐health evaluation, mental‐health treatment, working to obtain a GED, and, if unemployed, community service. The Seventh Circuit vacated. On remand the judge commended Zamora for good behavior; calculated a range of 168-210 months; imposed a sentence of 200 months; and reimposed supervised release. After questioning Gutierrez, the judge, not calculating a guidelines range, reduced his sentence, with “all other aspects of the [original] judgment ... [to] remain in effect.” The Seventh Circuit again vacated. The judge failed to give advance notice that he was considering discretionary conditions; imposed conditions that have been previously deemed invalid; and failed to determine the compatibility of those conditions with 18 U.S.C. 3553(a) factors. The judge failed to calculate Gutierrez’s guidelines range and did not indicate how the issue of acceptance of responsibility was resolved.

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In the United States Court of Appeals For the Seventh Circuit ____________________ Nos. 15 2193, 2762 UNITED STATES OF AMERICA, Plaintiff Appellee, v. FELIPE ZAMORA and SAMUEL GUTIERREZ, Defendants Appellants. ____________________ Appeals from the United States District Court for the Northern District of Illinois, Eastern Division. Nos. 08 CR 746 10, 18 — Charles R. Norgle, Judge. ____________________ SUBMITTED AUGUST 18, 2016 — DECIDED AUGUST 26, 2016 ____________________ Before POSNER, EASTERBROOK, and SYKES, Circuit Judges. POSNER, Circuit Judge. In 2009 the defendants, Zamora and Gutierrez, high ranking members of the Latin Kings street gang, were charged with a variety of federal crimes. Zamora pleaded guilty to participating in both a racketeer ing conspiracy and a conspiracy to extort money from “mi queros,” who specialize in providing identification docu ments to unauthorized aliens. Gutierrez pleaded guilty to participating in the racketeering conspiracy and to pos 2 Nos. 15 2193, 2762 sessing an illegal drug with intent to distribute it. At sen tencing the district judge credited Zamora with acceptance of responsibility, but in sentencing him to 240 months in prison failed to indicate what Zamora’s guidelines range was. The court imposed a 3 year term of supervised release with all the standard conditions of supervised release plus two special conditions, one requiring Zamora to participate in an approved job skill training program and the other re quiring him to perform at least 20 hours of community ser vice weekly if he was unemployed. At Gutierrez’s sentencing, which took place a month af ter Zamora’s, the judge refused to credit him with ac ceptance of responsibility, on the ground that unlike his codefendant he had fallen “substantially short of accepting responsibility factually for what occurred: what he did and what was foreseeable to him, and which was part of the dai ly activities, as it were, of this—of the gang itself.” His ac ceptance of responsibility, the judge said, was directed “to his family and friends” and “totally ignores the other victims of the activities carried out” by the Latin Kings. The judge calculated Gutierrez’s guidelines range at 210 to 262 months, and sentenced him at the bottom of the range, while also imposing a 4 year term of supervised release with all the standard conditions plus special conditions requiring Gutierrez to undergo a mental health evaluation, participate in a mental health treatment program, take steps to obtain a GED, and if unemployed perform community service. The defendants appealed, and in United States v. Garcia, 754 F.3d 460, 483–87 (7th Cir. 2014), we vacated their sen tences—Zamora’s for the judge’s failure to calculate his guidelines range or justify what appeared to be an above Nos. 15 2193, 2762 3 guidelines sentence, Gutierrez’s for lack of an adequate ex planation by the judge for deciding to deny Gutierrez ac ceptance of responsibility; and so we remanded for resen tencing of both defendants. On remand the district judge commended Zamora for good behavior in prison and for showing genuine remorse for his activities as a high ranking Latin King; calculated a guidelines imprisonment range of 168 to 210 months; im posed a prison sentence of 200 months; and reimposed the term and conditions of supervised release that he had im posed before. Gutierrez in his sentencing memorandum ex plained that he d tried to “better himself” in prison by, for example, completing “numerous classes and programs,” working as a cook in the prison kitchen, participating in vo cational training as a cabinetmaker, and helping to train oth er inmates in masonry and carpentry. At his resentencing hearing he again apologized for belonging to the Latin Kings, but this time his apology was “to the Court,” his family, and “also to the community.” On the basis of his statement, the government recommended that he receive credit for acceptance of responsibility, which would reduce his guidelines range from 210 to 262 months to 151 to 188 months. After questioning Gutierrez at length concerning his activities as a Latin King, the judge, while not calculating a guidelines range, did reduce his sentence from 210 to 188 months, with “all other aspects of the [original] judgment ... [to] remain in effect.” The defendants have again appealed. Both challenge the conditions of supervised release, pointing out that the judge failed to give advance notice that he was considering impos ing (as he did) discretionary conditions (that is, conditions 4 Nos. 15 2193, 2762 other than the standard and special conditions that the judge also imposed), that some of the conditions he did impose we have deemed overbroad and overly vague in previous deci sions, and that he failed to determine the compatibility of the conditions he was imposing with the statutory sentencing factors in 18 U.S.C. § 3553(a), or to state the conditions orally. All these were errors, which have persuaded the govern ment—and persuade us—that the sentences of the defend ants must again be vacated and the cases again remanded for the full resentencing that the defendants should have re ceived after our previous remand but did not. See, e.g., Unit ed States v. Poulin, 809 F.3d 924, 931–34 (7th Cir. 2016); United States v. Harper, 805 F.3d 818, 822 (7th Cir. 2015); United States v. Sandidge, 784 F.3d 1055, 1067–69 (7th Cir. 2015); Unit ed States v. Kappes, 782 F.3d 828, 842–52, 862–63 (7th Cir. 2015); United States v. Thompson, 777 F.3d 368, 373, 375–77, 379–81 (7th Cir. 2015). As explained in United States v. Mobley, No. 15 2255, 2016 WL 4275821 (7th Cir. Aug. 15, 2016), at *3, “Because a crimi nal sentence is normally a package that includes several component parts (term of imprisonment, fine, restitution, special assessment, supervised release), when one part of the package is disturbed, we prefer to give the district court the opportunity to reconsider the sentence as a whole so as to ‘effectuate its sentencing intent.’ Pepper v. United States, 562 U.S. 476, 507 (2011). Vacating the sentence and returning the case to the district court for imposition of a new sentence al lows the district court to ‘reconfigure the sentencing plan’ so as to ‘satisfy the sentencing factors in 18 U.S.C. § 3553(a).’ Id.” See also United States v. Barnes, 660 F.3d 1000, 1007 (7th Cir. 2011), where we explained that a full resentencing al Nos. 15 2193, 2762 5 lows the district court to “unbundle the sentencing pack age.” With regard to Gutierrez the judge committed an addi tional error by failing to calculate his guidelines range (one of the errors, the reader will recall, that caused us to order Zamora resentenced). Furthermore, though we instructed the judge to reconsider on remand his ruling that Gutierrez had not accepted responsibility for the crimes he’d pleaded guilty to, we can’t tell from the sentencing transcript how the issue of acceptance of responsibility was resolved. It is true that Gutierrez’s new sentence—188 months—would be the top of the guidelines range recommended by the defense and the government, reflecting the deduction of three of fense levels for acceptance of responsibility. But the judge’s extended colloquy concerning Gutierrez’s activities as a member of the Latin Kings and apparent dissatisfaction with Gutierrez’s answers are consistent with the judge’s having reduced his sentence not because he’d accepted responsibil ity for his crime but because like Zamora he’d behaved well in prison. Pepper v. United States, supra, 562 U.S. at 490–93. But that s just a guess; for in contrast to his treatment of Za mora, the judge did not mention Gutierrez’s good behavior in prison, did not mention any of the section 3553(a) sentenc ing factors, and did not explain why, assuming he was sub silentio crediting Gutierrez with accepting responsibility, he nevertheless thought that unlike Zamora Gutierrez deserved to be sentenced at the high end of the applicable guidelines range. (This assumes that the judge agreed with the litigants’ guidelines calculation.) Given that both defendants were entitled to a full resen tencing after their successful first appeals, 18 U.S.C. 6 Nos. 15 2193, 2762 § 3742(g), and instead received cursory treatment by the judge, and that the government does not contest Gutierrez’s request that a different judge conduct his sentencing hearing on remand, we order that Gutierrez’s third sentencing hear ing be conducted before a different judge. See 7th Cir. R. 36. The defendants’ sentences are vacated and both cases are remanded for resentencing.

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