United States v. Arroyo, Ruben , 191 F. App'x 444 ( 2006 )

UNPUBLISHED ORDER
Not to be cited per Circuit Rule 53
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted July 21, 2006
Decided August 1, 2006
Before
Hon. Joel M. Flaum, Chief Judge
Hon. Daniel A. Manion, Circuit Judge
Hon. Terence T. Evans, Circuit Judge
No. 03-3113
United States of America, Appeal from the United States District
Plaintiff-Appellee, Court for the Northern District
of Illinois, Eastern Division
v.
No. 99 CR 559
Ruben Arroyo,
Defendant-Appellant. Wayne R. Andersen,
Judge.
ORDER
Defendant-appellant Ruben Arroyo was convicted by jury of possession with
intent to distribute heroin and conspiracy to possess with intent to distribute heroin
in violation of 21 U.S.C. §§ 841 and 846. At Arroyo’s sentencing hearing, the
government presented evidence that Arroyo had also distributed large quantities of
cocaine. The district court considered both the heroin and cocaine transactions in
applying the federal sentencing guidelines, and arrived at a sentence of 360 months’
imprisonment and five years of supervised release. Arroyo appealed his conviction and
sentence. In United States v. Arroyo, 406 F.3d 881 (7th Cir. 2005), we affirmed
Arroyo’s conviction, but ordered a limited remand pursuant to the procedures set forth
in United States v. Paladino, 401 F.3d 471 (7th Cir. 2005), to permit the district court
to determine if it would have imposed the same sentence had it known at the time of
sentencing that the guidelines were advisory.
No. 03-3113 Page 2
On remand, the district court determined that it likely would not impose the
same sentence under an advisory guidelines regime. Instead, the district court
“probably would impose a sentence that is modestly under the guideline range.” The
district court properly noted that, pursuant to 18 U.S.C. § 3553(a), a sentence should
be “‘sufficient but not greater than necessary,’ taking into account the circumstances
of the offense, the history and characteristics of the defendant, and the need for the
sentence imposed to reflect the seriousness of the offense, to afford adequate deterrence
to criminal conduct and to protect the public from further crimes by the defendant.”
The district court determined that, given the defendant’s age of 42 years old and his
criminal history, there is a “greatly reduced” chance that defendant would engage in
further criminal activity upon release from prison. The district court also concluded
that a modestly reduced sentence would adequately reflect the seriousness of the crime
and provide deterrence to criminal activity.
In response to the district court’s order on remand, the government filed a
position statement indicating that it does not object to a full remand for a new
sentencing proceeding. Accordingly, we VACATE Arroyo’s original sentence and
REMAND this matter to the district court for resentencing.