United States v. Ross, Thomas , 375 F. App'x 595 ( 2010 )

NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued April 7, 2010
Decided April 30, 2010
Before
DIANE P. WOOD, Circuit Judge
TERENCE T. EVANS, Circuit Judge
DIANE S. SYKES, Circuit Judge
Nos. 08-1714, 08-1715, 08-1716,
08-1717, 08-1718 & 08-1719
Appeals from the
UNITED STATES OF AMERICA, United States District Court
Plaintiff-Appellee, for the Northern District
of Illinois, Eastern Division.
v.
No. 99 CR 469
THOMAS ROSS, JUAN HERNANDEZ,
JOSE RODRIGUEZ, FIDELMAR CORTES, Robert W. Gettleman,
MARLON REGALADO, and Judge.
GERALD PITTMAN,
Defendants-Appellants.
ORDER
This dispute is now, regrettably, in its third decade. It concerns a huge drug
distribution conspiracy involving members of the Maniac Latin Disciples gang to peddle
marijuana, cocaine, and crack in Chicago. The gang drug dealing activities took place in
the 1990's. Seventeen gang members were indicted in May of 2000 on 50 counts alleging
drug and firearm offenses. Ten were convicted (others pled guilty) after a 2001 jury trial
Nos. 08-1714, 08-1715, et al. Page 2
that lasted several months. Sentencing proceedings were strung out while the parties
disputed the application of the guidelines, which at that time were mandatory. Ultimately,
nine of ten defendants convicted in the trial appealed, and we affirmed their convictions in
2005. United States v. Medina, 430 F.3d 869 (7th Cir. 2005). Because by then, however, United
States v. Booker, 543 U.S. 220 (2005), had reduced the guidelines to advisory status, we
ordered that the case as to three defendants be returned to the district court for
re-sentencing. Three other defendants also won full re-sentencing proceedings following
limited remands pursuant to the procedure we outlined in United States v. Paladino,
401 F.3d 471 (7th Cir. 2005).
The six defendants were re-sentenced in 2008. And now they are back here in 2010
challenging the new sentences they received. The six defendants and their old and new
sentences are:
Defendant Original Sentence Sentence After Remand
Thomas Ross Life 360 months
Juan Hernandez 360 months 360 months
Jose Rodriguez 292 months 235 months
Fidelmar Cortes 235 months 200 months
Marlon Regalado 324 months 240 months
Gerald Pittman Life 360 months
The defendants, in a joint brief, and Hernandez, in an individual brief, raise numerous
issues to contest their new sentences. Almost all of the claims (things like drug type and
drug quantity) are off the table at this point—a couple were waived, others lack merit.
However, one issue deserves our attention. The defendants argue that the district court
failed to consider whether the sentencing disparity between crack and powder cocaine was
warranted in their cases in light of Kimbrough v. United States, 552 U.S. 85 (2007).
Whether the district court followed the proper sentencing procedures is a question
of law subject to de novo review. United States v. Mendoza, 510 F.3d 749, 754 (7th Cir. 2007).
We must ensure that the district court did not commit procedural error by, for example,
failing to properly calculate the guidelines range or by failing to consider the sentencing
factors noted in 18 U.S.C. § 3553(a). United States v. Pape, 2010 WL 1488521, at *2 (7th Cir.
Apr. 15, 2010) (citing Gall v. United States, 552 U.S. 38, 51 (2007)). While the district court is
Nos. 08-1714, 08-1715, et al. Page 3
not required to address every claim a defendant makes, it must consider arguments that
are strong enough to merit discussion. See United States v. Villegas-Miranda, 579 F.3d 798,
801 (7th Cir. 2009).
Kimbrough was decided a few months before the defendants were re-sentenced.
Although the defendants filed a joint memorandum concerning the case, the district court
never directly addressed it during the re-sentencing proceedings. Moreover, the district
judge made comments that suggest he felt constrained by the crack/powder disparity. He
said he was “bound by the law as it stands now” while re-sentencing Ross and “the law is
the law” while re-sentencing Pittman. In re-sentencing Hernandez, the district judge spoke
as if he harbored the very concern Kimbrough sought to address: “[Y]ou talk about the
disparity of crack and coke, and I agree that there is, I think that something should be
done . . . . I hope that the nation wakes up to that. But right now the law is the law, and
I’m enforcing it the way it is written, and that’s a sad decision I have to make.”
Consequently, we’re not sure the judge appreciated the wiggle room Kimbrough provides,
and we believe a remand is warranted on this limited issue.
Therefore, we VACATE the sentences and REMAND to the district court for further
proceedings in light of Kimbrough.1 We do not, however, believe that a full-blown do-over
of the proceedings, with defendants physically produced in Chicago, is necessary to fairly
wrap up this case.
1
The government argues that Kimbrough does not apply to Hernandez because he was
sentenced as a career offender, relying on United States v. Millbrook, 553 F.3d 1057 (7th Cir. 2009).
However, the holding in Millbrook was overruled by United States v. Corner, 598 F.3d 411 (7th Cir.
2010).