United States v. Acosta, Andrew , 314 F. App'x 863 ( 2008 )

NONPRECEDENTIAL DISPOSITION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
Submitted June 11, 2007
Decided January 4, 2008
Before
Hon. KENNETH F. RIPPLE, Circuit Judge
Hon. ILANA DIAMOND ROVNER, Circuit Judge
Hon. DIANE S. SYKES, Circuit Judge
No. 06-3777
UNITED STATES OF AMERICA, Appeal from the United States
Plaintiff-Appellee, District Court for the Eastern
District of Wisconsin,
v. No. 98 CR 104
ANDREW ACOSTA, also known Lynn Adelman,
as BK, Judge.
Defendant-Appellant.
ORDER
Andrew Acosta appealed his conviction and sentence for racketeering and
drug conspiracy charges. We affirmed his conviction, United States v. Olson, 450
F.3d 655 (7th Cir. 2006), but we vacated his sentence, which had been imposed
under the mandatory guidelines scheme that existed before the Supreme Court’s
decision in United States v. Booker, 543 U.S. 220 (2005). Acosta had preserved a
Booker-type objection, and we therefore remanded for re-sentencing. See United
States v. Schlifer, 403 F.3d 849, 853-54 (7th Cir. 2005). The district court
subsequently re-sentenced Acosta to life in prison. Acosta’s attorney has concluded
that there is no non-frivolous ground for an appeal, and has moved to withdraw as
No. 06-3777 Page 2
counsel pursuant to Anders v. California, 386 U.S. 738 (1967). Acosta was notified
of his attorney’s motion under Circuit Rule 51(b) and was granted until July 11,
2007 to file a response, but did not do so. We therefore confine our review to the
potential issue identified in counsel’s facially adequate brief. See United States v.
Tabb, 125 F.3d 583, 584 (7th Cir. 1997). Because we agree that the only potential
issue identified is frivolous, we grant counsel’s motion and dismiss the appeal.
A jury convicted Acosta of racketeering, conspiracy to engage in a pattern of
racketeering activity, conspiracy to possess with intent to deliver controlled
substances, and possession with intent to deliver controlled substances. The
predicate acts alleged in the charge of racketeering included conspiracy to murder
Angelique Morales, the murder of Angelique Morales, the attempted murder of
Jennifer Burzynski, and possession with intent to distribute marijuana. Acosta was
the trigger man in the attack that resulted in the death of Angelique Morales and
the injury of Jennifer Burzynski. The facts of these horrendous crimes are included
in our original opinion and we will not repeat them here. The guidelines calculation
set Acosta’s offense level at 47, with a criminal history category of IV. As was the
case with three of Acosta’s co-defendants, this combination is literally off the chart.
That is, the relevant guidelines chart ends at level 43 with a sentencing range of life
for criminal history category IV. Acosta did not object to this calculation but
instead argued that a sentence of less than life would satisfy the criteria of 18
U.S.C. § 3553(a).
The district court carefully considered the factors set forth in section 3553(a).
In assessing the nature and circumstances of the offense, the court noted that “this
is the most serious type of crime that a court confronts. The defendant murdered a
young woman and wounded her friend because he felt that she had disrespected his
gang. It was a brutal killing.” R. 2414, Tr. at 31-32.1 The court found that there
was no possible justification for this “horrific crime.” Tr. at 32. The court also
considered Acosta’s participation in drug distribution and enforcement for his gang.
The court then commented on Acosta’s character, noting that he had an extensive
record of criminal activity extending from his youth until approximately age 30,
including crimes he committed while in custody. Tr. at 32-33. Acknowledging that
Acosta had made positive changes in his behavior and attitude in the two years
prior to his re-sentencing, the court nonetheless found that a life sentence was
necessary to reflect the serious nature of a murder committed over a slight to a
gang. Tr. at 33-36. The court further concluded that a life sentence was necessary
for deterrence and to protect the public from Acosta, who remained violent after his
conviction. The court noted that, given the impact of Acosta’s crimes on his victims
1
Record item 2414 is the “Transcript of Sentencing Hearing” held on
September 25, 2006. For the sake of brevity, we will refer to it as “Tr.”
No. 06-3777 Page 3
and on the community, “to not impose the strongest sentence that’s possible I think
does cause people to question the nature of justice.” Tr. at 34. We note that the
court made findings on every factor of section 3553(a), and we have summarized
only the most relevant points. The court clearly was aware that it was not confined
to the guidelines sentence but could consider any sentence it found appropriate.
The court then sentenced Acosta to life in prison on the two racketeering counts,
and sixty months’ imprisonment on each of the drug counts, to run concurrently for
a total sentence of life. The court also sentenced Acosta to five years of supervised
release, ordered him to pay restitution in the amount of $1517.99, and entered a
special assessment of $400 against him.
After Booker, we review a sentence for reasonableness, and sentences that
are within the properly calculated guidelines range are entitled to a rebuttable
presumption of reasonableness. United States v. Rita, 127 S. Ct. 2456, 2462 (2007);
United States v. Rodriguez-Alvarez, 425 F.3d 1041, 1045 (7th Cir. 2005), cert.
denied, 127 S. Ct. 3040 (2007); United States v. Mykytiuk, 415 F.3d 606, 608 (7th
Cir. 2005). Acosta’s sentence is within the guidelines range of life and is therefore
entitled to a presumption of reasonableness. Counsel notes that the only factor
favoring a sentence of less than life is Acosta’s recent efforts towards rehabilitation,
which reflect on his character. The district court was clearly aware of those efforts
but found that, in considering all of the section 3553(a) factors together, a life
sentence was appropriate. Without any reason to challenge the reasonableness of
that determination, we agree with counsel that there are no non-frivolous issues for
appeal. Therefore, the Anders motion is GRANTED and the appeal is DISMISSED.