United States v. Avila, Everado , 465 F.3d 796 ( 2006 )

In the
United States Court of Appeals
For the Seventh Circuit
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No. 05-1894
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
EVERADO AVILA,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Northern District of Indiana, Fort Wayne Division.
No. 1:03–CR–00057—Theresa L. Springmann, Judge.
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ARGUED SEPTEMBER 22, 2006—DECIDED OCTOBER 13, 2006
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Before POSNER, ROVNER, and EVANS, Circuit Judges.
POSNER, Circuit Judge. The defendant was indicted
along with a number of others for conspiracy to dis-
tribute cocaine and marijuana and for possession of mari-
juana with intent to distribute it. The first charge carried a
statutory maximum prison sentence of 20 years and the
second of 5 years. Just before the trial began, the defendant
pleaded guilty to the second charge pursuant to an informal
agreement with the government that it would drop the first
charge. The judge imposed the statutory maximum of 5
years and the defendant appeals on the ground that the
judge misapplied the sentencing guidelines.
2 No. 05-1894
In the course of an investigation of the 148th Street Latin
Kings, a criminal gang in Hammond, Indiana, the police
discovered in defendant Avila’s home marijuana along with
two hats marked with the Latin Kings’ symbol (a crown,
naturally) and letters written to Avila by members of the
Latin Kings. It was the marijuana found in the search that
Avila was convicted of possessing with intent to distribute.
If that were all there was to this case, the guidelines range
for Avila’s crime would have been zero to six months. But
the probation service reported that Avila had—though there
is no indication of when—been given cocaine by one of his
codefendants to be cooked into crack, and that Avila did
cook it, and in addition that six months before the marijuana
was found in his home he had fired a gun at members of
another gang (that is, not the Latin Kings), apparently in
retaliation for his brother’s having been murdered by
members of that gang. The crack and gun episodes, treated
by the judge as relevant conduct (though without explana-
tion beyond reference to the presentence investigation
report), jacked up the guidelines sentencing range for
Avila’s possession of marijuana with intent to distribute it
from zero to six months to 87 to 108 months, but the judge
could not go above 60 months because that was the statu-
tory ceiling.
Avila contends that the crack and gun episodes were
not relevant conduct. To count as relevant conduct and thus
influence the guidelines range, conduct must be “part of the
same course of conduct or common scheme or plan as the
offense of conviction.” U.S.S.G. § 1B1.3(a)(2). The govern-
ment argues that Avila was a member of the Latin Kings
and that his marijuana, crack, and gun offenses were all part
of the gang’s activities. There are three problems. The first
is that there is negligible evidence that Avila was a member
of the Latin Kings. Other people lived in the house besides
No. 05-1894 3
himself, and there is no indication of where in the house the
two hats were found. The letters from the Latin Kings did
not identify him as a member or discuss criminal activities.
Nothing of the abundant evidence obtained in the police
investigation of the gang, whch included address books,
surveillance photos, and taped conversations, mentioned
Avila. He had some association with members of the gang,
plainly; but guilt by association is not a permissible basis for
a sentence enhancement. United States v. Irvin, 87 F.3d 860,
866 (7th Cir. 1996).
Even if Avila was a member of the Latin Kings, it does not
follow that his cooking cocaine given him by another
member (for his codefendants were members of the gang)
or his shooting at members of a rival gang were acts done
on behalf of the gang, rather than being purely personal. We
have no idea when the cooking occurred; and he had
a purely personal motive for shooting at members of
another gang who had murdered his brother.
And even if he was a member of the gang and it was part
of his work as a member to cook cocaine, it does not follow
that the cooking, let alone the shooting, was part of the same
course of conduct, or scheme, or pursuant to the same plan,
as selling maijuana. The government has confused gang
membership with membership in a conspiracy, forgetting
that “to join a conspiracy…is to join an agreement, rather
than a group.” United States v. Townsend, 924 F.2d 1385, 1390
(7th Cir. 1991); see also United States v. Gibbs, 182 F.3d 408,
430 (6th Cir. 1999); United States v. Garcia, 151 F.3d 1243,
1246 (9th Cir. 1998); United States v. Robinson, 978 F.2d 1554,
1563 (10th Cir. 1992). One might join a golf club because it
had a nice dining room and swimming pool, yet never play
golf. And one might join a gang to feel like a big shot or to
obtain immunity from being beaten up by gang members,
4 No. 05-1894
without participating in the gang’s criminal activities. The
Latin Kings who were charged with Avila, and with whom
he would have been tried had he not pleaded guilty, were
convicted of conspiring to sell drugs, including crack, but
there is no evidence that Avila was a member of that
conspiracy; for that matter, there is no evidence that the
Latin Kings conspired to retaliate against the murderer
of Avila’s brother.
One can of course plan to commit a series of separate
crimes without having to join a conspiracy, which requires
concerted action by at least two people. United States v.
Scarbrough, 990 F.2d 296, 298 (7th Cir. 1993). Avila might
have had a plan to sell marijuana, cook crack, and shoot
his brother’s murderers. That is pretty implausible, how-
ever, and there is no evidence of it—no evidence of when he
cooked the crack and no connection shown between his
selling marijuana and his attempt to revenge the murder
of his brother. So far as appears, his three acts, two of which
were used as relevant conduct to jack up his sentence for the
third, were wholly unrelated to each other.
The guidelines range really was just zero to six months,
and so the sentence must be vacated and the case remanded
for resentencing—which is not to say that the district judge
cannot give him a longer sentence than six months. The
guidelines are merely advisory, and a sentence above or
below the applicable guidelines range will be affirmed
(provided it is within the statutory limits) if reasonable. The
judge could well conclude that Avila’s other criminal
activities (besides possession of marijuana with intent to sell
it), though they were not relevant conduct and hence did
not affect the guidelines range, warranted a heavier punish-
ment. But the sentencing judge is required to consider the
guidelines before picking a sentence, United States v. Booker,
No. 05-1894 5
543 U.S. 220, 264 (2005); United States v. Gonzalez, 2006 WL
2588951, at *1 (7th Cir. Sept. 11, 2006), and this entails a
correct understanding of their application to the defendant’s
conduct.
REVERSED AND REMANDED.
A true Copy:
Teste:
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—10-13-06