United States v. Thomas Luczak ( 2022 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
Nos. 20-1105, 20-1484 & 20-3477 *
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
MICHAEL BRAVO, THOMAS LUCZAK, and RICARDO DENAVA,
Defendants-Appellants.
____________________
Appeals from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 16 CR 463-30, -22, -34 — Virginia M. Kendall, Judge.
____________________
ARGUED SEPTEMBER 23, 2021— DECIDED FEBRUARY 11, 2022
____________________
Before KANNE, ROVNER, and WOOD, Circuit Judges.
WOOD, Circuit Judge. These consolidated appeals come to
us from three defendants, Michael Bravo, Thomas Luczak,
and Ricardo Denava, each of whom challenges his sentence in
connection with his involvement in the Latin Kings street
*The court granted a motion to waive oral argument in No. 20-3477,
United States v. Denava. This appeal is being decided on the briefs and rec-
ord.
2 Nos. 20-1105, 20-1484 & 20-3477
gang. The operative indictments alleged that the Latin Kings
had been involved in multiple acts of murder, arson, robbery,
extortion, witness tampering, and the illegal distribution of
narcotics. All three defendants were charged in 2018 with
racketeering conspiracy in violation of 18 U.S.C. § 1962(d).
Bravo and Denava pleaded guilty in November 2018, while
Luczak was convicted in April 2019 after a six-week jury trial.
Although the factual background is roughly the same for
all three, the legal issues they raise on appeal differ. Bravo ar-
gues that the district court erred by adding criminal history
points for two misdemeanor convictions he had under the Il-
linois “streetgang contact” statute. Luczak contends that the
district court should not have included, as part of his criminal
history, points for a murder he allegedly committed. The
problem is a familiar one: at trial, the jury acquitted him of
that offense, using the reasonable-doubt standard, but the
court found at sentencing that his responsibility for the mur-
der was established by a preponderance of the evidence. And
Denava claims that the district court failed adequately to con-
sider several mitigating factors under 18 U.S.C. § 3553(a) and
therefore abused its discretion.
Because the district court erred in counting Bravo’s two
misdemeanor offenses toward his criminal history, and that
error may have affected his ultimate sentence, we reverse and
remand Bravo’s case for resentencing. But we see no error in
Luczak’s and Denava’s sentences, and therefore affirm them.
We take each defendant’s case in turn.
Nos. 20-1105, 20-1484 & 20-3477 3
I. Bravo (No. 20-1105)
A
In July 2009, Bravo aided and abetted a drive-by shooting
orchestrated by the Bush Chapter of the Latin Kings. For that
offense, he was prosecuted in state court and received a sen-
tence of five years’ imprisonment. He was paroled in January
2014. A few months later, Bravo and a group of Latin Kings
were driving around together in a car, when a Chicago police
officer stopped the car for a minor traffic violation. Bravo was
arrested for a violation of 720 ILCS § 5/25-5 (since amended),
which at the time made it illegal to have “direct or indirect
contact with a streetgang member” while on parole. He
pleaded guilty and was released from jail the next day, with a
sentence of two days’ time served. Not long after, in Septem-
ber 2014, Bravo was again arrested and charged with
streetgang contact after the police observed him drinking al-
cohol in an alley with other members of the Latin Kings. For
the second time, he pleaded guilty to streetgang contact, was
released the next day, and received another sentence of two
days’ time served.
In the first superseding indictment pertinent to the present
case, Bravo was charged with (among other things) racketeer-
ing conspiracy under 18 U.S.C. § 1962(d). He pleaded guilty
in November 2018 and was sentenced in January 2020 to 108
months’ imprisonment and three years of supervised release.
At sentencing, the district court added two points to Bravo’s
criminal history in light of the 2014 misdemeanor convictions;
that adjustment bumped him from criminal history category
III to category IV. Coupled with his adjusted offense level of
30, he faced an advisory guidelines range of 135 to 168
months. Without the extra points attributable to the
4 Nos. 20-1105, 20-1484 & 20-3477
misdemeanors, his advisory range would have been 121 to
151 months. Bravo’s only argument on appeal is that the court
committed reversible legal error by counting the misde-
meanor offenses in his criminal history.
B
The pivotal question is whether the district court miscal-
culated Bravo’s criminal history score. This is an issue that we
consider de novo. United States v. Wallace, 991 F.3d 810, 814 (7th
Cir. 2021). Under the guidelines, all felonies and misdemean-
ors are presumptively counted in a defendant’s score. But
there are exceptions:
(1) Sentences for the following prior offenses and
offenses similar to them, by whatever name
they are known, are counted only if (A) the sen-
tence was a term of probation of more than one
year or a term of imprisonment of at least thirty
days, or (B) the prior offense was similar to an
instant offense. … [enumerated offenses fol-
low].
Guidelines § 4A1.2(c)(1). Each of Bravo’s sentences entailed
only two days’ time served—well under thirty days—and is
thus eligible for exclusion. The parties agree that “disorderly
conduct or disturbing the peace” is the enumerated exclusion
that most closely resembles Illinois’s streetgang-contact
offense, and so we need not examine the other identified
offenses. The question is whether the resemblance between
this enumerated offense and Bravo’s 2014 misdemeanors is
close enough to require their exclusion.
We begin with Application Note 12(A), which we treat as
“part of the Guidelines themselves,” not just “commentary on
Nos. 20-1105, 20-1484 & 20-3477 5
them.” United States v. Kohl, 910 F.3d 978, 980 (7th Cir. 2018).
Note 12(A) calls for a “common sense approach” to determin-
ing similarity between enumerated and unenumerated of-
fenses. It offers five relevant factors to consider:
(i) a comparison of punishments imposed for
the listed and unlisted offenses; (ii) the per-
ceived seriousness of the offense as indicated by
the level of punishment; (iii) the elements of the
offense; (iv) the level of culpability involved;
and (v) the degree to which the commission of
the offense indicates a likelihood of recurring
criminal conduct.
Guidelines § 4A1.2, cmt. 12(A). Some of these suggest a cate-
gorical or abstract approach to the comparison, while others
refer to the actual offense conduct involved in a given case.
Following this roadmap, we first compare the
punishments for streetgang contact and disorderly conduct
under Illinois law. Streetgang contact is a Class A
misdemeanor offense, see 720 ILCS § 5/25-5(b), carrying a
maximum imprisonment length of less than one year and a
fine range of $75 to $2,500 per offense, see 730 ILCS § 5/5-4.5-
55(a), (e). Disorderly conduct, in contrast, takes a number of
forms, ranging from a Class C misdemeanor to a Class 3
felony. See 720 ILCS § 5/26-1. For instance, an act done “in
such unreasonable manner as to alarm or disturb another and
to provoke a breach of the peace,” the catch-all provision and
least serious form, is a Class C misdemeanor punishable by a
maximum of thirty days’ imprisonment and at most a $1,500
fine per offense. See 730 ILCS § 5/5-4.5-65. But more specific
and serious forms of disorderly conduct include Class A
misdemeanors such as “enter[ing] upon the property of
6 Nos. 20-1105, 20-1484 & 20-3477
another” to “deliberately look[] into a dwelling,” Class 4
felonies such as false fire alarms, or the Class 3 felony of
making a false bomb threat. See 720 ILCS § 5/26-1. Because
section 4A1.2(c) says that “sentences for all felony offenses are
counted” toward criminal history, we need not consider
further the felony variety of disorderly conduct.
The question thus is which misdemeanor (the Class C,
Class B, or Class A variant) is the relevant point of
comparison? If we look to the Class C disorderly-conduct
misdemeanor and compare it to streetgang contact, we might
conclude that the streetgang offense is slightly more severe,
though the difference is not overwhelming. On the other
hand, lenity principles might counsel us to take the opposite
approach and assume that the most serious disorderly-
conduct misdemeanor—here, Class A—provides the better
point of comparison. Without deciding this question, we will
assume (favorably to the government) that the Class C
misdemeanor provides the correct point of comparison. The
other four considerations nevertheless support a finding that
Bravo’s offenses are substantially equivalent to the
disorderly-conduct offense described in section 4A1.2(c)(1).
The second consideration pertains to the relative serious-
ness of streetgang contact compared to disorderly conduct “as
indicated by the level of punishment.” Guidelines § 4A1.2,
cmt. 12(A). Rather than looking only at the possible punish-
ments available under state law, which would render this
consideration redundant of the first, we believe that the
guidelines call on us to look at the actual punishment imposed
for the streetgang contacts. The guideline refers not to the po-
tential or statutory term, but instead to the “sentence” itself.
See § 4A1.2(c)(1)(A); see also United States v. Garrett, 528 F.3d
Nos. 20-1105, 20-1484 & 20-3477 7
525, 529 (7th Cir. 2008) (considering both the punishments
available under the relevant statutes as well as the sentencing
court’s decision to impose a fine rather than jail time); United
States v. Burge, 683 F.3d 829, 835 (7th Cir. 2012) (same). Other
circuits have also looked to the sentence that was imposed.
See, e.g., United States v. DeJesus-Concepcion, 607 F.3d 303, 305
(2d Cir. 2010) (per curiam) (describing how a district court
may consider “the actual conduct involved and the actual
penalty imposed”); United States v. Reyes-Maya, 305 F.3d 362,
367 (5th Cir. 2002) (“More important than the statutory range
of punishments is the actual punishment given, as the level of
punishment imposed for a particular offense serves as a rea-
sonable proxy for the perceived severity of the crime.”);
United States v. Grob, 625 F.3d 1209, 1216 (9th Cir. 2010)
(“agree[ing] with the Fifth Circuit’s observation” in Reyes-
Maya and looking to the plaintiff’s “actual punishment”).
Here, both times Bravo was arrested, released from jail the
following day, and received a sentence of two days’ time
served. This indicates lack of severity.
We next compare the elements of streetgang contact to
those of disorderly conduct. The district court did not
squarely address this consideration, nor have we previously
had occasion to elaborate on it. The government suggests that
the sheer number of elements reflects the complexity of an of-
fense, which in turn tracks an offense’s overall severity. But
complexity and severity are imperfectly related, at best. A
cold-blooded murder might not be complex, but it is certainly
severe, while a clumsy Ponzi scheme may be highly complex
but end up inflicting only minimal damage. The better ap-
proach is to compare the core conduct of each offense as indi-
cated by its constituent elements. This offers a better gauge of
an offense’s severity, and it favors Bravo.
8 Nos. 20-1105, 20-1484 & 20-3477
The Class C disorderly-conduct offense has three
elements: “a person must engage in conduct that: (1) is
unreasonable; (2) alarms or disturbs another; and (3)
threatens to provoke or provokes a breach of the peace.” Reher
v. Vivo, 656 F.3d 772, 775 (7th Cir. 2011) (defining the elements
for 720 ILCS § 5/26-1(a)(1)). The 2014 version of the
streetgang-contact statute required only two elements. First,
a person had to “knowingly ha[ve] direct or indirect contact
with a streetgang member.” 720 ILCS § 5/25-5(a) (2014). And
second, one of a group of listed predicate conditions had to be
met: either that the defendant was sentenced to probation,
released on bond, or released from prison with the stipulation
that he or she refrain from contact with gang members, or that
the defendant was ordered by a judge in a non-criminal
proceeding to refrain from contact. Id. § 5/25-5(a)(1)-(4).
Whether we describe those elements concisely, or we
subdivide each part, the underlying substance remains the
same. And it is that which matters for present purposes. The
comparison of elements helps to indicate the relative severity
of the conduct generally associated with each offense. While
the streetgang-contact offense as of 2014 required only that a
parolee be in the presence of a streetgang member, thus
bearing the hallmarks of a passive status offense, disorderly
conduct requires that a person undertake an action that
alarms or disturbs. We are not persuaded that the former is
categorically more serious than the latter.
This is also why the fourth consideration—"the level of
culpability involved”—cuts in Bravo’s favor. We have some-
times viewed this culpability determination through the lens
of comparative severity. See United States v. Hagen, 911 F.3d
891, 896 (7th Cir. 2019) (“Refusing to support a child strikes
Nos. 20-1105, 20-1484 & 20-3477 9
us as a more severe offense than allowing truancy. … We
think that one who deserts a child or fails to provide for the
child’s basic necessities is more culpable than one who per-
mits a child to skip school.”). Like the second consideration’s
contemplation of the actual punishment imposed, the fourth
calls on us to evaluate the actual conduct involved in the case.
When we do so, we see that neither of Bravo’s streetgang con-
tacts appears to be more severe or blameworthy than a typical
act of disorderly conduct. On the first occasion, Bravo was just
a passenger in a vehicle with gang members when a minor
traffic violation was committed. On the second, he was drink-
ing alcohol in an alley with a few gang members. Neither in-
stance involved weapons or drugs, or accusations of disturb-
ing or otherwise harming others.
The last point of comparison Note 12(A) recommends is
“the degree to which the commission of the offense indicates
a likelihood of future criminal conduct.” The district court de-
cided this in favor of the government, emphasizing the factual
similarities between being in a car with gang members and
Bravo’s July 2009 predicate federal conviction involving a
drive-by shooting. But the fact that both offenses took place in
a car seems at best a superficial connection, especially given
the fact that no weapons or drugs were present during the
streetgang-contact arrest. The district court reasonably noted
that because streetgang contact involves the violation of an
express condition of parole, it indicates some likelihood to re-
cidivate. But this is a comparative inquiry. We must ask
whether riding in a car or drinking alcohol with gang mem-
bers after being ordered not to do so indicates a higher likeli-
hood of future criminal wrongdoing than does the hazardous
or threatening behavior often involved in disorderly conduct.
10 Nos. 20-1105, 20-1484 & 20-3477
This is a close call, though one that may marginally favor the
government.
But for purposes of the guideline, ties go to the defendant.
In order to overcome the exemption for disorderly conduct,
Bravo’s streetgang contact must be more severe than disorderly
conduct. Our review of the considerations identified by Note
12(A) convinces us that Bravo has demonstrated the required
equivalence between the two offenses involved in his case. We
therefore find that the court erred in adding those two crimi-
nal history points, which in turn resulted in a guidelines
range of 135 to 168 months.
Although we do not rely on later changes in the relevant
Illinois statutes, it is notable that the streetgang contact statute
was amended in 2018 in a manner that might even render
Bravo’s streetgang contacts non-criminal today. When Bravo
was convicted in 2014, the statute criminalized “unlawful
contact with streetgang members.” The amended version of
the statute criminalizes “unlawful participation in streetgang
related activity” that involves “knowingly commit[ting] any
act in furtherance of streetgang related activity.” 720 ILCS § 5/25-
5(a) (effective Jan. 1, 2018) (emphasis added). Association or
contact alone, without active participation in a designated
gang-related activity, is no longer criminalized.
C
Bravo cannot prevail solely on the fact that the district
court miscalculated the guidelines range. We must also decide
whether the error was prejudicial or harmless. United States v.
Shelton, 905 F.3d 1026, 1031 (7th Cir. 2018). As we said in
United States v. Corner, 967 F.3d 662 (7th Cir. 2020), a “proce-
dural error (such as a miscalculation of the applicable
Nos. 20-1105, 20-1484 & 20-3477 11
guideline range) is not reversible if it’s clear that the court did
not rely on it when selecting the sentence.” Id. at 666. But this
is a high bar. See Rosales-Mireles v. United States, 138 S. Ct.
1887, 1907 (2018) (emphasis added) (“When a defendant is
sentenced under an incorrect Guidelines range—whether or
not the defendant’s ultimate sentence falls within the correct
range—the error itself can, and most often will, be sufficient to
show a reasonable probability of a different outcome absent
the error.”).
Often a district court will make a statement indicating that
its resolution of a disputed guidelines issue ultimately does
not affect its choice of a sentence; instead, the judge may say,
its sentence results from the entire process of selecting the
correct advisory range before weighing the factors identified
by section 3553(a). There are benefits from such a statement,
and also a few risks. On the benefit side, it can avert the need
for resentencing, even if the judge’s resolution of the
guidelines issue was not correct. On the risk side, the ability
simply to say at the end nothing more than “my sentence
would be the same no matter how I approach the guidelines”
threatens to make the guidelines irrelevant. That would be
impermissible, as we know from 18 U.S.C. § 3553(a)(4), as well
as Supreme Court decisions such as Gall v. United States, 552
U.S. 38 (2007). The Court repeatedly has held that “a district
court should begin all sentencing proceedings by correctly
calculating the applicable Guidelines range.” Id. at 49; see also
Rosales-Mireles, 138 S. Ct. at 1904; Molina-Martinez v. United
States, 578 U.S. 189, 193 (2016); Peugh v. United States, 569 U.S.
530, 536 (2013).
Judges are, however, entitled to adopt their own sentenc-
ing philosophy based in the considerations of section 3553(a),
12 Nos. 20-1105, 20-1484 & 20-3477
and so they are not compelled to accept the advice that the
guidelines offer. See Pepper v. United States, 562 U.S. 476, 490
(2011) (citing Kimbrough v. United States, 552 U.S. 85, 101
(2007)). In a particular case, for example, a judge might con-
clude that a relatively low drug quantity for the offense of
conviction should not drive the result, if that defendant has
an especially high criminal history level. Yet if there is a sig-
nificant dispute about drug quantity, the Gall line of cases re-
quires the judge to resolve it. Only then should the judge ex-
plain that even if that resolution were different, other consid-
erations have taken precedence for this defendant’s sentence.
When the judge goes beyond a flat statement that the guide-
lines were irrelevant and offers a specific reason why a dis-
pute under the guidelines did not affect the sentence, we are
free to accept that explanation. Such an alternative explana-
tion must, however, be tied to the decisions the court made
and why they did or did not affect the ultimate outcome.
This is just what the court did in United States v. Abbas, 560
F.3d 660 (7th Cir. 2009). There, the judge “expressly stated that
she would have imposed the same sentence even if § 2C1.1 [of
the guidelines] did not apply to the defendant’s sentence.” Id.
at 667. The issue was clear, and the judge gave “a detailed
explanation of the basis for the parallel result; … not just a
conclusory comment tossed in for good measure.” Id. That in
turn provided a sound basis for a finding of harmless error.
We cannot say the same about this case. It is not clear to us
whether, had the two misdemeanors not been included in
Bravo’s criminal history, the district court would have im-
posed 108 months’ imprisonment. The court’s sentence was
firmly anchored in the range recommended by the guidelines.
After evaluating the section 3553(a) factors, including the
Nos. 20-1105, 20-1484 & 20-3477 13
seriousness of the offense, general and specific deterrence,
and Bravo’s rehabilitation thus far, the court explained its sen-
tence as follows:
I’m going to do a few things. I’m going to start
with—if we’re looking at the guideline range of
135 to 168, if I go from the 168, I’m going to give
him the four years for the RICO time he served
for the predicate, which brings you down to the
120 sentence [i.e., 168–48=120]. And then beyond
that, I’m going to give you 12 months for your
rehabilitation efforts, which leaves you with a
sentence of [108] months, which is nine years.
(The court initially misspoke and said 109 months at that
point, but it quickly corrected itself.)
After taking a brief recess and advising Bravo of the
conditions of his supervised release, the court offered the
following coda upon which the government now relies for its
harmless-error argument:
Now, a few things I want to say at the end as
well. The two points for criminal history that I
added, I would have imposed the same sen-
tence of 108, regardless of what criminal history
category. As you know, it’s below both the IV
and the III categ[ory] level anyways.
This statement, however, tells us nothing about the way in
which the court was evaluating Bravo’s criminal history, or
why a sentence so tied to one guidelines range would have
come out the same way with a different starting point. The
court seemed to treat the aggravating factors (seriousness of
the offense and the need for future deterrence) as the reason
14 Nos. 20-1105, 20-1484 & 20-3477
to begin with the top end of whatever range was assumed. But
that antecedent choice influenced each subsequent step in the
arithmetic. Had the court anchored itself in the 121-to-151
range, it may well have begun with the top end of 151 months,
subtracted 60 months (4 years for time served and 12 months
for rehabilitation), and arrived at a sentence of 91 months. The
fact that 108 months is below the 121-to-151 revised guide-
lines range is neither here nor there. It does not obviate the
need for an explanation of why the court found the contested
aspect of Bravo’s criminal history to be irrelevant.
To be clear, we are not saying that the court could not land
on 108 months as the proper sentence; it is just that we cannot
tell on this record whether it would have done so had it cor-
rectly recognized that Bravo was in criminal history category
III, not IV. We conclude, therefore, that Bravo is entitled to re-
sentencing.
II. Luczak (No. 20-1484)
A
Thomas Luczak was charged with racketeering conspiracy
in the second superseding indictment. The government also
filed a Notice of Special Findings alleging that Luczak had
murdered a rival gang member named Juan Serratos on June
11, 2000. Luczak, along with three co-defendants who are not
involved in this appeal, proceeded to trial before a jury in
March 2019.
The jury heard extensive testimony related to the Serratos
murder. Alexander Vargas testified that Luczak once
admitted to him that he shot Serratos. Jose Zambrano testified
that Vargas had told him in 2004 that Luczak had committed
the murder. Paulino Salazar testified that he gave Luczak the
Nos. 20-1105, 20-1484 & 20-3477 15
gun to shoot Serratos on the night of the murder, and that he
heard Luczak announce later that night that he shot Serratos
in the chest. And Francisco Barajas and Isidro Mendez—two
purported eyewitnesses to the shooting—each testified to
have been standing next to Serratos when he was shot. Barajas
claimed to have heard several gunshots but could not make
out the shooter, while Mendez claimed to have seen the
silhouette of the shooter in the distance. In his closing
argument, Luczak argued that Salazar’s testimony, which
formed the crux of the prosecution’s case, was not credible or
corroborated. The jury ultimately found Luczak guilty of
racketeering conspiracy but not guilty of the Serratos murder.
At the sentencing hearing on March 9, 2020, the govern-
ment argued that the trial testimony, even if not enough to
prove guilt beyond a reasonable doubt, showed by a prepon-
derance that Luczak shot Serratos. On that basis, it argued
that Luczak’s base offense level should be elevated from 33 to
43. It relied principally on Salazar’s trial testimony, along with
a published portion of a February 2015 post-arrest interview
with Salazar, in which Salazar again identified Luczak as the
shooter. The court ultimately found by a preponderance that
Luczak murdered Serratos. Salazar’s testimony, it pointed
out, was consistent with forensic evidence from the crime
scene, including a bullet recovered from the scene that
matched the gun Salazar handed to Luczak, and it stated that
Salazar’s February 2015 interview answers appeared “very
spontaneous” and thus credible.
Luczak sought a two-level reduction for acceptance of
responsibility under section 3E1.1(a) of the guidelines,
arguing that he did not contest his guilt with respect to the
racketeering conspiracy at trial but instead focused
16 Nos. 20-1105, 20-1484 & 20-3477
exclusively on the Serratos murder notice. The district court
rejected this argument. It then analyzed the section 3553(a)
factors, noting Luczak’s strong family ties and likelihood of
desisting from crime at this stage in his life, but also
emphasizing the seriousness of Luczak’s long-term
involvement in the gang and the need to deter others. It
ultimately imposed a below-guidelines sentence of 210
months’ imprisonment.
Luczak now argues that the government failed to prove by
a preponderance of the evidence that he killed Serratos. Re-
latedly, he argues that the use of acquitted conduct in calcu-
lating the guidelines range violated his constitutional rights
and created an unjustified sentencing disparity. Finally, he
complains that the court erred in not awarding the two-point
reduction for acceptance of responsibility.
B
We first consider whether the district court erred in deter-
mining that Luczak murdered Serratos. We review this deci-
sion, which relates to relevant conduct under section 1B1.3 of
the guidelines, for clear error. United States v. King, 910 F.3d
320, 329 (7th Cir. 2018). This is a high hurdle to clear, and
Luczak has not done so.
While Luczak identifies points of tension in the testimony,
such tensions are routine and do not in this case show that the
district court clearly erred in its determination. For instance,
Luczak argues that the eyewitness testimonies of Mendez and
Barajas contradicted Salazar’s testimony, as Mendez and Ba-
rajas claimed that the shooter was some distance away from
Serratos while Salazar reported that Luczak had told him that
the shooting took place at point-blank range. But Salazar may
Nos. 20-1105, 20-1484 & 20-3477 17
have misremembered this detail, or Luczak may have embel-
lished his account of the shooting when describing it to Sala-
zar. To take another example, Luczak argues that Vargas’s
and Zambrano’s stories conflict: Vargas testified that he
“didn’t ask for specifics” when Luczak initially mentioned the
shooting to him, while Zambrano testified that Vargas gave
him a detailed version of the shooting. But this disagreement
strikes us as minor and does not undercut the thrust of Var-
gas’s and Zambrano’s accounts: that Luczak admitted the
shooting to Vargas.
Luczak further argues that Salazar, Vargas, and
Zambrano—all of whom are gang members—had powerful
motivations to lie. But this concern arises every time the
government puts on cooperating witnesses. The judge
evaluates that factor in the course of assessing witness
credibility—an issue on which the district court is owed
significant deference. See United States v. Morales, 655 F.3d
608, 646–47 (7th Cir. 2011). Finally, Luczak argues that
Salazar’s description at trial of how he gave Luczak the gun
used in the shooting (a fact confirmed by ballistics evidence)
was contradicted by the absence of any mention of a gun in
Salazar’s 2015 post-arrest statement. But the absence of a gun
reference does not impeach Salazar’s testimony or render the
two statements irreconcilable. It is not as if the 2015 statement
affirmatively contradicted the later testimony (say, if the 2015
statement claimed that the gun was handed to someone other
than Luczak). We therefore see no reversible error in the
district court’s finding.
Luczak also argues that the court’s consideration of ac-
quitted conduct at sentencing violated his constitutional
rights. He is free to do so, as long as he realizes that all we can
18 Nos. 20-1105, 20-1484 & 20-3477
do is confirm that he has preserved this point for further con-
sideration in the Supreme Court or Congress. We are bound
by the Court’s decision in United States v. Watts, 519 U.S. 148,
157 (1997), which found no such problem.
Next Luczak contends that the district court created an un-
warranted sentencing disparity by announcing that it would
have imposed the same 210-month sentence even without the
preponderance finding. But that is not all that the court did.
Had it excluded the murder as relevant conduct, the revised
guidelines range would have been 168 to 210 months’ impris-
onment. Acknowledging this counterfactual possibility, the
district court stated the following: “I actually think the 210,
that is the high end of the range … without a supervisory role
and without the murder, I actually think that’s the appropri-
ate place for you.” This is closer to the kind of specific com-
ment on a guidelines argument that we found lacking earlier.
And in any event, we have found no error in the court’s cal-
culation of Luczak’s advisory guidelines range, and so the
court’s additional comment is of no moment here.
Finally, Luczak argues that the district court erred in re-
fusing to adjust his offense conduct for acceptance of respon-
sibility under section 3E1.1 of the guidelines. The decision to
take a case to trial does not automatically disqualify a defend-
ant from this adjustment, Guidelines § 3D1.1 cmt. 2, and
Luczak contends that he took the case to trial only to challenge
the special finding about the Serratos murder—a point on
which he prevailed at the guilt phase. Nonetheless, we give
great deference to a trial judge’s denial of an acceptance of
responsibility reduction, which is “only to be reversed if this
Court is left with the definite and firm conviction that a mis-
take has been committed.” United States v. Collins, 796 F.3d
Nos. 20-1105, 20-1484 & 20-3477 19
829, 835 (7th Cir. 2015). Here we see no such mistake. While
Luczak may not have contested the racketeering conspiracy
charge as such, his denials of the related murder allegation—
denials the district court ultimately determined to be untrue,
albeit under a preponderance standard—provide a sufficient
basis for finding that this is not a “rare situation[]” where a
case brought to trial still warrants the reduction. Guidelines
§ 3E1.1, cmt. 2.
The district court did not clearly err in attributing the Ser-
ratos murder to Luczak and in refusing to grant him an ad-
justment for acceptance of responsibility, and so we affirm his
sentence.
III. Denava (No. 20-3477)
A
Ricardo Denava was charged in the first superseding in-
dictment with one count of racketeering conspiracy, to which
he pleaded guilty in November 2018. The court held a sen-
tencing hearing in November 2020. The Pre-Sentence Report
set his offense level at 37 and his criminal history at Category
III, which resulted in a preliminary sentencing range of 262 to
327 months’ imprisonment. The court then lowered the range
to a point—240 months—in light of the statutory maximum.
At sentencing, Denava argued that the maximum
240-month sentence was excessive in light of mitigating
considerations, including the fact that he was abandoned by
his parents and fell under the sway of his uncle, who was a
high-ranking Latin King, that he struggles with anxiety and
depression and would benefit from drug treatment, that he
had a strong employment history, and that he had complied
with his pretrial release conditions and accepted
20 Nos. 20-1105, 20-1484 & 20-3477
responsibility for his role in the gang. After listening to
Denava’s arguments, the court acknowledged his struggles
with alcoholism and the sincerity of his familial support, but
emphasized the need to deter others away from entering gang
life. It then sentenced Denava to a below-guidelines sentence
of 200 months’ imprisonment.
On appeal, Denava argues that the 200-month sentence
was substantively unreasonable because the court did not af-
ford sufficient weight to his arguments for mitigation. The
first of those arguments concerned two misdemeanor mariju-
ana convictions, which Denava says should have been disre-
garded in his criminal history; the second related to his posi-
tive employment history while on bond for this case; and the
third accused the court of placing too much weight on his
leadership role in the gang.
B
We review the substantive reasonableness of a sentence
for abuse of discretion. United States v. Bridgewater, 950 F.3d
928, 933 (7th Cir. 2020). This is a high bar, particularly when a
below-guidelines sentence is imposed. See United States v. De
La Torre, 940 F.3d 938, 954 (7th Cir. 2019) (“A below-
Guidelines sentence will almost never be unreasonable … .”).
We see no error, let alone anything unreasonable, in the
district court’s consideration of Denava’s mitigation
arguments. Nor did the court commit an obvious oversight
when it found that the aggravating considerations—namely,
Denava’s extensive participation in gang activity and
leadership—outweighed any positive factors. The court
highlighted Denava’s leadership stints in the gang, first as
“Inca” and later as “Regional Enforcer” of the 97th Street
Nos. 20-1105, 20-1484 & 20-3477 21
chapter of the Latin Kings. It noted the violent character of the
gang. And while his criminal history score incorporated two
points for nonviolent misdemeanor marijuana offenses, the
sentencing record does not indicate that the court placed
undue weight on criminal history. Deducting those two
points would have produced a guidelines range of 210 to 262
months, which is still greater than the 200 months ultimately
imposed. The court indicated its awareness of other
mitigation considerations, including Denava’s acceptance of
responsibility, complicated childhood, and ongoing
commitment to supporting his family.
While Denava is to be commended for his decision to take
responsibility for his involvement in the gang, and for his dil-
igence in securing employment and attempting to provide for
his family through legitimate work, it is not our role to re-
weigh the section 3553(a) factors. We therefore find that the
district court did not abuse its discretion and affirm Denava’s
sentence.
IV
For the foregoing reasons, we REVERSE the judgment of the
district court with respect to Michael Bravo and REMAND his
case for resentencing. We AFFIRM the judgments with respect
to Thomas Luczak and Ricardo Denava.