United States v. Luis Garcia

In the
United States Court of Appeals
For the Seventh Circuit
____________________
Nos. 11-3179, 11-3410, 11-3493, 11-3615,
11-3874, 11-3886, 12-1141, 12-1804, & 13-1370
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
LUIS GARCIA, et al.,
Defendants-Appellants.
____________________
Appeals from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 08 CR 746 — Charles R. Norgle, Judge.
____________________
ARGUED DECEMBER 5, 2013 — DECIDED JUNE 13, 2014
____________________
Before WOOD, Chief Judge, and SYKES and TINDER, Circuit
Judges.
WOOD, Chief Judge. This extensive criminal prosecution
arises out of the operations of the Latin Kings street gang in
Chicago from 2000 to 2008. Fifteen highly placed gang lead-
ers were charged with violations of the Racketeer Influenced
and Corrupt Organizations (RICO) statute, as well as the
commission of other crimes. Nine of those defendants have
2 Nos. 11-3179 et al.
joined in the present appeals: Luis Garcia, Felipe Zamora,
Fernando King, Samuel Gutierrez, Javier Ramirez, Jose
Guzman, Augustin Zambrano, Alfonso Chavez, and Vicente
Garcia. We find no reversible error in either the convictions
or the sentences for defendants Luis Garcia, King, Ramirez,
Guzman, Zambrano, Chavez, and Vicente Garcia. Nor do we
find any error in the convictions of Zamora and Gutierrez;
the sentences for the latter two defendants, however, must
be revisited.
I
A
The Almighty Latin Kings Nation is a notorious street
gang in Chicago. During the time covered by the indictment,
the Latin Kings carried out a racketeering conspiracy involv-
ing murder, attempted murder, aggravated assault, extor-
tion, and drug trafficking. This particular case focuses on the
gang’s activities in Chicago’s Little Village neighborhood.
The gang operated under a constitution that set forth an
elaborate governing hierarchy. At the summit stood La Co-
rona (The Crown), the title the Latin Kings chose for their
highest ranking officers nationwide. According to the consti-
tution, Coronas ensured that officers complied with gang
rules, administered the gang’s rules when needed, and gave
final approval to all such rules. Defendant Zambrano occu-
pied the post of Corona during the years 2000 to 2008. Ac-
cording to the government, Zambrano was the only active
Corona in the gang nationwide during that period.
Immediately below the Corona were the Supreme Re-
gional Incas. Each Supreme Regional Inca oversaw opera-
tions in all regions within his designated geographic area,
Nos. 11-3179 et al. 3
implemented gang rules, ensured punishment when the
rules were violated, and ordered retaliatory strikes against
rival gangs. Defendant King was a Supreme Regional Inca
from 2007 to 2008, and defendant Vicente Garcia took over
King’s post in 2008.
Under the Supreme Regional Inca were a series of Re-
gional Incas, who managed operations in smaller territories.
Defendants Zamora, Vicente Garcia, King, and cooperating
witness Milton Shanna all held at one time or another the
rank of Regional Inca. Each region was further divided into a
number of sections; each section was under the control of
someone called the Section Inca or just the Inca. The Region-
al Incas formed a crucial link between the gang’s top leaders
and its street-level managers and foot-soldiers. Shanna, for
example, was responsible for distributing cocaine to and lat-
er collecting the sales proceeds from the Section Incas in his
region, under the orders of then-Supreme Regional Inca Vi-
cente Garcia. Section Incas provided a steady flow of infor-
mation to the Regional Incas; that information then made its
way up the gang’s chain of command. The Regional Incas
also set rules for their areas. For example, while serving as a
Regional Inca, King wrote what came to be known as the Lit-
tle Village Rules, which, among other things, required the
Latin Kings to maintain an armed presence (“mandatory
bust-out”) every Thursday through Sunday from 10 p.m. to
3 a.m.
Other gang officers, called the Regional Enforcers, re-
ported to the Regional Incas. Defendant Guzman and coop-
erating witnesses Ruben Caquias and Shanna spent some
time as Regional Enforcers. As the title suggests, Regional
Enforcers ensured compliance with gang rules and meted
4 Nos. 11-3179 et al.
out punishment against rule-breakers. For example, they pa-
trolled gang territory during mandatory bust-outs and ad-
ministered timed beatings (known as violations) when gang
rules were broken. If another gang member was assigned to
inflict the “violation” on someone, the Regional Enforcers
watched to be sure that the beating was conducted properly.
The Section Incas (or simply Incas) were leaders of street
sections, also called “branches” or “chapters.” Defendants
Chavez (after October 2007), Luis Garcia, Gutierrez, and
Ramirez, along with cooperating witnesses Caquias and
Shanna, held this position for at least part of the relevant pe-
riod. Sections were relatively small: most contained about 25
members. Incas carried out directives from those above them
in the hierarchy. They ensured that the proper armed pres-
ence was maintained when required; they remitted about
$200 per week from the gang’s cocaine business to their su-
periors; and they carried out mandatory retaliatory shoot-
ings within 48 hours whenever a Latin King in a nearby
neighborhood was shot by a rival. The Inca had a sectional
“Casique” who served as second-in-command and as the lo-
cal enforcer. Under gang rules, an Inca was fully responsible
for the actions of his subordinates and would be “violated”
along with the offender if one of his street-level subordinates
broke the rules.
B
Although it would be impossible in a reasonable space to
recount all of the gang’s activities from 2000 to 2008, that is
fortunately unnecessary. At trial, the government focused on
a number of specific incidents, which we summarize here.
We include further details where necessary below, as we dis-
cuss the individual defendants’ appeals. Broadly speaking,
Nos. 11-3179 et al. 5
the criminal activities fell into four categories: murder (in-
cluding attempted murder and indiscriminate shootings);
drug distribution; extortion; and violent punishments of dis-
obedient gang members. Examples of each will suffice.
Murders and Attempted Murders. Testimony at the trial re-
vealed that Latin Kings regularly shot rival gang members
on the orders of gang superiors; they used the terms “burns”
and “missions” to describe these incidents. In the early
2000s, Vicente Garcia ordered Shanna to shoot a suspected
member of the rival Two-Six gang who had been seen in a
bar frequented by Latin Kings. The order was carried out:
Latin Kings shot the man in the chest about five times.
Around the same time, King ordered Shanna (then an Inca)
to have one of his soldiers shoot other Two-Six gang mem-
bers; once again, the subordinates completed the mission.
The fall of 2007 was a particularly violent period. That
September, the Latin Kings carried out retaliatory drive-by
shootings against members of two rival gangs, the Two-Sixes
and the Latin Disciples, after defendant Gutierrez was shot.
Shanna testified that Guzman ordered the five sections near-
est Gutierrez’s to carry out the attacks. The jury heard a re-
cording of Guzman discussing this “burn” with Shanna;
Zambrano and Vicente Garcia were present when Guzman
gave the order. In October 2007, soldiers under Ramirez’s
command shot and killed Oberia Pierce and wounded his
companion Keith Morgan. The two victims apparently had
come to Little Village to buy drugs. In a recorded conversa-
tion, Ramirez told Shanna that “some pimp” was “smoked”
by his guys, and that Ramirez was hiding the shooter. Then,
in November of the same year, unidentified Latin Kings shot
at an SUV carrying members of a band who were trying to
6 Nos. 11-3179 et al.
park in the Kings’ territory. In a recorded conversation, Inca
Chavez explained that the Kings shot at the car because it
was speeding in Little Village. Shanna testified at the trial
that the gang had standing instructions to fire at traffic viola-
tors, as they were thought to indicate a threat to the gang.
The violence continued in 2008. In January, the Latin
Kings retaliated viciously after Shanna was shot by a Two-
Six gang member. The victim, Jaime Galvan, was shot multi-
ple times, once “in the dome” as the local Inca later boasted
in a recorded conversation. Two other Latin Kings proceed-
ed to beat Galvan after he was shot; he survived and testified
at the trial, even though the bullet remains lodged in his
head.
Drug Distribution. One way the Latin Kings made money
was by selling cocaine. Evidence at the trial illustrated sever-
al occasions in 2007 and 2008 when gang leaders distributed
cocaine to Incas, who were expected to sell it on the street.
Vicente Garcia organized weekly distributions of seven
grams of cocaine to each of the 24 Incas in Little Village; they
were all supposed to return $200 from the proceeds of these
sales to the gang’s treasury (known as The Box) within a few
days. Guzman also met with each distributing Inca. Chavez
was one of the Incas who took the cocaine and later returned
the required cash. Similar transactions took place through-
out early 2008.
Extortion. Another source of the gang’s funds was extor-
tion of a group known as the “Miqueros.” The Miqueros
were in the business of selling fraudulent identification doc-
uments at several locations in the Latin Kings’ 26th Street
Region. The Latin Kings required the Miqueros to pay a sub-
stantial “street tax” of about $2,000 to $2,500 every month for
Nos. 11-3179 et al. 7
“protection.” In return for the tax, the Latin Kings agreed
that they would not start their own phony-document busi-
ness, a commitment codified in the Little Village Rules. The
evidence showed that this practice had been going on since
at least 1996.
Shanna testified that as long as the Miqueros paid the tax
and complied with certain restrictions, the Latin Kings re-
frained from harassing or punishing them. The consequenc-
es for disobeying the Latin Kings, however, were severe. In
January 1998, for example, after some Miqueros failed to
comply with the Latin Kings’ terms, Shanna and other Latin
Kings were ordered to “beat the heck out of them.” After the
beating, it appears that the Miqueros never again dared defy
the Latin Kings.
Shanna testified that the money was collected at the be-
hest of Vicente Garcia and Zambrano. Other evidence indi-
cated that Zamora also collected money from the Miqueros
on King’s orders. The money collected from the Miqueros
went directly to the gang’s coffers; it was devoted to expens-
es such as gang member funerals and gun purchases.
Violations (Punishments). The word “violation” was used
by the Latin Kings to denote the prescribed punishment
(usually brutal) for failure to abide by gang rules. A gang
member who was “violated” was, euphemisms aside, beaten
severely for a set number of minutes, normally under the
supervision of the Regional Enforcer. For instance, when one
person left the gang for a time, he was beaten from head to
toe for three minutes; the punishment left him with a broken
rib. Sometimes the “violation” administrators used only
their legs and fists, but other times they used devices such as
lead pipes, hammers, or crowbars. Gang members who
8 Nos. 11-3179 et al.
failed to carry out a violation with sufficient viciousness
were themselves violated.
A variety of offenses could lead to a violation: leaving the
gang; failing to repay a debt owed to a fellow gang member;
failing to pay dues; refusing to participate in mandatory
bust-outs (in other words, not helping the section maintain
an armed street presence during specified hours); and refus-
ing to carry out a retaliatory shooting. But the reason was
not always so specific. On one occasion, Vicente Garcia or-
dered violations for people that he “deemed not worthy of
being a Latin King anymore.”
A vivid example comes from February 2006, when Vicen-
te Garcia settled a fight between two sections in Little Village
by ordering the violation of a man named Chongo and the
murder of a member of the rival Latin Counts gang. Testi-
mony at trial indicated that Chongo failed to carry out a re-
taliatory shooting. This led to the violation of Nedal Issa, the
Inca of Chongo’s section, whose leadership position made
him responsible for Chongo’s insubordination. Issa suffered
two black eyes, fractured ribs, and bruises all over his body.
Chongo was also violated; his ordeal was captured on a vid-
eo that the jury viewed. Eventually, other Latin Kings from
Issa’s section carried out the retaliatory murder of the rival
gang member.
In April 2008, Zambrano ordered gang members to break
the hands of Latin Kings Rodolfo Salazar and Enrique En-
riquez. Salazar had been dealing cocaine with a woman
named Maria, who was Zambrano’s girlfriend at the time.
Salazar had the bad judgment to try to steal drugs and mon-
ey from Maria. Zambrano passed the word along to Salazar
that he had two choices: leave Maria alone or Zambrano
Nos. 11-3179 et al. 9
would “have somebody bring him and whoop his ass.” After
Salazar and Enriquez were caught stealing from Maria, Sala-
zar chose option two, but it was their hands rather than their
backsides that suffered. On Zambrano’s orders, gang mem-
ber Caquias used a hammer and a landscaping brick to
smash Salazar’s and Enriquez’s hands as a violation. After
hearing that the hand-smashings had been carried out,
Zambrano mused that Salazar “did that to himself.” Shanna
later explained that Salazar “was warned, and he still
messed up, and he suffered the consequences.”
The record contains many additional examples of viola-
tions, but this is enough to give a flavor of what they were
and how they were used to enforce strict discipline within
the gang. The Latin Kings also had a well-elaborated gov-
ernance structure, reflected in the gang’s manifesto, its con-
stitution, and rules specific to the Little Village region. The
manifesto set forth the Kings’ national emblem, colors, flag,
prayer, and salute. It included a code that governed every
member. The constitution provided details about positions,
ranks, leadership hierarchy, voting procedures, the adoption
of new laws, and certain trial procedures. At the regional
level, Little Village had a set of 25 rules, all of which had
been approved by Zambrano. A couple of rules highlighted
the proper use of guns; another described the mandatory
bust-outs; and some rules underscored the life-and-death
character of gang membership. All gang members were re-
quired to be familiar with the gang’s literature.
II
A brief overview of the charges provides helpful context
as we turn to the individual appeals. In an 80-count super-
seding indictment returned on September 30, 2009, all nine
10 Nos. 11-3179 et al.
appellants—as well as several others not involved in this ap-
peal—were charged with participating in a RICO conspiracy
in violation of 18 U.S.C. § 1962(d). Zambrano, Vicente Gar-
cia, King, Gutierrez, and Zamora were also charged with
conspiring to commit extortion in violation of 18 U.S.C. §
1951, and Zambrano, Vicente Garcia, and Guzman with
committing assault with a dangerous weapon in aid of rack-
eteering in violation of 18 U.S.C. § 1959(a)(3). Vicente Garcia
and Guzman were charged with using and carrying a fire-
arm during an assault in violation of 18 U.S.C. § 924(c). Fi-
nally, the indictment charged Vicente Garcia, Guzman, Luis
Garcia, Gutierrez, Ramirez, and Chavez with conspiring to
distribute cocaine in violation of 21 U.S.C. § 846, and it ac-
cused Vicente Garcia, Chavez, Gutierrez, Ramirez, and Luis
Garcia of possession with intent to distribute cocaine in vio-
lation of 21 U.S.C. § 841(a)(1).
A jury found Zambrano, Vicente Garcia, Guzman, and
Chavez guilty on all counts. The other five defendants
pleaded guilty. The district court sentenced all nine to sub-
stantial terms in prison. Although some of the points on ap-
peal are common to more than one appellant, for ease of ex-
position we address each person’s arguments individually.
III
A. Augustin Zambrano
Four of Zambrano’s arguments on appeal pertain to his
conviction, and five attack his sentence. In addition, he raises
several points that we can treat more summarily. With re-
spect to his conviction, Zambrano maintains that the evi-
dence was insufficient on the charge of conspiracy to commit
extortion; that the admission of another defendant’s post-
Nos. 11-3179 et al. 11
arrest statement violated Zambrano’s Sixth Amendment
rights; that the evidence was insufficient to support the con-
viction for assault in aid of racketeering; and that the jury
instructions on assault improperly had the effect of construc-
tively amending the indictment. With respect to the sen-
tence, Zambrano argues that the court exceeded the statuto-
ry maximum for each offense; that his convictions and sen-
tences for both RICO and extortion conspiracies violated the
Double Jeopardy Clause; that the sentence was based on
facts not found by the jury; that the district court applied the
wrong standard of proof at sentencing; and that the district
court improperly applied the sentencing guidelines. Zam-
brano also complains (referring to Pinkerton v. United States,
328 U.S. 640 (1946)) that what he calls the judge’s half-
Pinkerton instruction violated his rights; that there is an un-
warranted disparity between his sentence and those of his
co-defendants; and that cumulative errors deprived him of a
fair trial. We address these points in turn.
Sufficiency of the Evidence on Extortion and Constructive
Amendment of Extortion Charge. Count Ten of the indictment
charged that Zambrano participated in the conspiracy
“[f]rom sometime in at least 2000 and continuing until at
least September 2008.” This charge referred to the Latin
Kings’ regular shake-downs of the Miqueros. Zambrano
seizes on the fact that the direct evidence of force or threat-
ened force comes only from before 2000, the start of the con-
spiracy alleged in the indictment. (He also hints at argu-
ments based on a variance in the indictment and some kind
of Fifth Amendment violation, but in substance he is really
attacking the sufficiency of the evidence, an argument he
preserved through a motion under Federal Rule of Criminal
Procedure 29.) Former Latin King and cooperating witness
12 Nos. 11-3179 et al.
Shanna testified that in 1998 or thereabouts he was twice
sent to beat up some Miqueros who were not complying
with their arrangement with the Latin Kings. Although
Zambrano does not dispute the fact that the Miqueros made
monthly payments to the Latin Kings beginning in 1997 and
continuing throughout the period covered by the indictment,
he insists that there is no evidence that these payments were
the result of “wrongful use of actual or threatened force, vio-
lence, or fear.” See 18 U.S.C. § 1951(b)(2).
The standard of review for such a challenge is highly
deferential to the jury’s verdict. We assess a challenge to the
sufficiency of the evidence in the light most favorable to the
government and will reverse a conviction “only if no rational
trier of fact could have agreed with the jury.” Cavazos v.
Smith, 132 S. Ct. 2, 3–4 (2011) (per curiam) (citing Jackson v.
Virginia, 443 U.S. 307 (1979)). Zambrano has not cleared that
high bar, because some evidence supports the finding that it
was the use of actual or threatened force that inspired the
Miqueros to pay the Latin Kings, not some other motivation.
The evidence is circumstantial, but there is nothing wrong
with circumstantial evidence. The government’s evidence
showed that the Miqueros made monthly payments of
$2,000 to $2,500 in exchange for protection and that Latin
Kings beat up non-compliant Miqueros twice in 1998. In
light of the earlier beatings, the jury was entitled to conclude
that the group from whom the Miqueros needed protection
was the Latin Kings themselves. Zambrano suggests that the
payments ensured protection from renegade Latin Kings
members, but the jury could have credited the evidence
showing that the gang strictly disciplined its own members
(recall Salazar’s and Enriquez’s smashed hands). Renegade
Nos. 11-3179 et al. 13
behavior, the jury might have thought, would not last long,
certainly not for the full period between 2000 and 2008.
It is of no moment that one of the cases on which the
government relies, United States v. Sturman, 49 F.3d 1275 (7th
Cir. 1995), involved express threats while here we have only
implied threats. An implied threat can be the basis for an ex-
tortion conviction. See, e.g., United States v. Kuta, 518 F.2d
947, 951 (7th Cir. 1975); United States v. Crowley, 504 F.2d 992,
998 (7th Cir. 1974); United States v. DeMet, 486 F.2d 816, 820
(7th Cir. 1973). The jury heard ample evidence from which it
could conclude that the Miqueros paid the Latin Kings un-
der an implied threat of violence for the period alleged in the
indictment. After seeing the consequences of noncompliance,
the Miqueros made sizable monthly payments for a decade
without interruption. That is enough to support the jury’s
verdict under the generous standard for evaluating the suffi-
ciency of the evidence.
It is also enough to reject Zambrano’s claim that the gov-
ernment constructively broadened the indictment by ex-
panding the time it covered. He asserts that the jury convict-
ed him for conduct undertaken in 1997, three years before
the alleged conspiracy began. But that is the wrong way to
look at it. Whatever the government may have shown about
1997, standing alone, does not matter. What does matter is
that it presented evidence of a standing threat, and that evi-
dence permitted a rational jury to conclude that the charged
conspiracy to commit extortion existed, and that it lasted
from 2000 to 2008.
Confrontation Clause. At trial, FBI Special Agent Christo-
pher Weismantel testified about certain statements that
Zambrano’s co-defendant Guzman made after he was arrest-
14 Nos. 11-3179 et al.
ed. Guzman admitted his role in the Latin Kings and de-
scribed his participation in several criminal acts ordered by
the gang’s leadership. The district court allowed the testimo-
ny, but it required redactions of Guzman’s statement to pro-
tect the rights of the other defendants in accordance with
Bruton v. United States, 391 U.S. 123 (1968). Later, the court
told the jury that it could “not consider [Guzman’s] state-
ment as evidence against any defendant other than defend-
ant Jose Guzman.” Elsewhere in the charge, however, the
court instructed the jury that all conspirators were criminally
liable for the acts of co-conspirators under the Pinkerton doc-
trine.
Zambrano argues that these two instructions, taken to-
gether, probably confused the jury in a way that violated his
rights under the Confrontation Clause of the Sixth Amend-
ment. Applying the Pinkerton doctrine, which as a substan-
tive matter makes each co-conspirator responsible for the
reasonably foreseeable acts of others who have joined the
conspiracy, he argues that the jury might indirectly have
based his conviction on Guzman’s statement. (Presumably
Zambrano is saying that the court’s instruction permitted the
jury to base Guzman’s own conviction on his statement and
then, once Guzman had been properly linked to the conspir-
acy, Guzman’s actions became Zambrano’s.)
Before addressing this, we must say a word about the
standard of review. Typically, we review de novo a complaint
that the admission of a co-conspirator’s statement violated
the defendant’s constitutional rights under the Confrontation
Clause. United States v. Green, 648 F.3d 569, 574 (7th Cir.
2011); United States v. Burgos, 539 F.3d 641, 643 (7th Cir. 2008).
(This is in contrast to the clear error standard of review that
Nos. 11-3179 et al. 15
applies to preliminary questions affecting admissibility, such
as whether a conspiracy existed or if an act was within the
scope of the conspiracy. See United States v. Martinez de Ortiz,
907 F.2d 629, 632 (7th Cir. 1990) (en banc).) In this case, how-
ever, the government contends that Zambrano waived or
forfeited his argument because he did not object to the re-
dacted version of Guzman’s statement that was used at trial.
The failure to object normally results only in forfeiture, not
in waiver, and we think that forfeiture is the better way to
characterize what happened here. Forfeited issues are re-
viewed for plain error. Puckett v. United States, 556 U.S. 129,
135 (2009); United States v. Olano, 507 U.S. 725, 732 (1993).
If Guzman’s statement were the only evidence—or even
particularly compelling evidence—offered to show the nec-
essary overt act for Zambrano’s RICO charge, we would
have a closer case. But it is neither. A RICO conspiracy
charge requires proof of two predicate acts, or an agreement
to commit those acts, in furtherance of the conspiracy. See
United States v. Tello, 687 F.3d 785, 792–93 (7th Cir. 2012).
Even without anything Guzman said, the record contains
overwhelming evidence that Zambrano agreed to the com-
mission of far more than two such acts. He was involved
with cocaine distribution; he issued standing orders for re-
taliatory shootings; and he supervised some violations for
member misconduct. Those facts were well supported by
testimony from five former gang members, audio recordings
of conversations discussing retaliatory shootings, video evi-
dence of violations, and documentary evidence of the gang’s
rules. The two central predicate acts alleged against Zam-
brano—the extortion of the Miqueros and the hand-
smashing—are not even mentioned in Guzman’s statement.
If there was error at all in the admission of the statement or
16 Nos. 11-3179 et al.
the instructions that addressed it, any such error was harm-
less.
Sufficiency of the Evidence for Assault in Aid of Racketeering.
This part of Zambrano’s appeal relates to the charge of as-
sault with a dangerous weapon “for the purpose of main-
taining and increasing [his] position in the Latin Kings,” in
violation of 18 U.S.C. § 1959(a)(3). The assault at issue was
the smashing of Salazar’s and Enriquez’s hands we described
earlier. Shanna and Caquias testified that Zambrano in-
structed Shanna to threaten Salazar, and that even though
Zambrano was not present while the violations were admin-
istered, he approved them after the fact. Zambrano contends
that the evidence did not show that he ordered the assaults
and that even if he did, his motivation was not gang disci-
pline—it was love and revenge.
It is hard to take the latter argument seriously. We are
confident that a rational jury could find that the assaults
were committed at Zambrano’s command, that they were
not for love or personal revenge, and that he was enforcing
gang rules. Shanna and Caquias said exactly this in their tes-
timony, which the jury was entitled to credit. The fact that
the recorded conversations captured Zambrano ordering
Shanna to “’whoop’ [Salazar’s] ass” rather than break his
hands does nothing to undermine the jury’s finding. At best,
the recording would impeach one of the details of Shanna’s
testimony. The key point is that the evidence shows that
Zambrano ordered an assault of the sort described by § 1959,
which a person violates if he “murders, kidnaps, maims, as-
saults with a dangerous weapon, commits assault resulting
in serious bodily injury upon, or threatens to commit a crime
of violence against any individual” for the purpose of
Nos. 11-3179 et al. 17
“maintaining or increasing position in an enterprise engaged
in racketeering activity.” 18 U.S.C. § 1959(a)(3); see also Unit-
ed States v. DeSilva, 505 F.3d 711, 715 (7th Cir. 2007); United
States v. Concepcion, 983 F.2d 369, 381 (2d Cir. 1992). This is
not a case like United States v. Thai, 29 F.3d 785 (2d Cir. 1994),
in which there was “no evidence from which the jury could
conclude that [defendant’s] motive … was other than purely
mercenary,” id. at 818. Zambrano’s order went through the
Latin Kings’ chain of command; it was implemented by sub-
ordinates; the victims were Latin Kings members who had
defied express orders and broken gang rules; and the as-
saults followed the ritualistic pattern used for “violations.”
Tellingly, the victims acquiesced in their own brutal pun-
ishment. This was more than sufficient to support the jury’s
verdict.
Constructive Amendment of Indictment: Assault Charge. At
trial, Zambrano objected to proposed jury instruction 54,
which stated that the government did not have to prove that
the defendant’s only motive for the crime of violence was to
maintain or increase his position in the enterprise. “It is suf-
ficient,” the instruction went on, “if the defendant commit-
ted the crime of violence because he knew it was expected of
him by reasons of his membership in the enterprise, or be-
cause he committed it in furtherance of that membership.”
Zambrano complains that the quoted language permitted
the jury to convict him without finding that his motive was
to maintain or improve his stature in the gang.
This argument, like Zambrano’s other constructive
amendment assertion, is really nothing more than a com-
plaint about the jury instruction. Zambrano has not identi-
fied anything wrong with this count of the indictment. Nor,
18 Nos. 11-3179 et al.
for that matter, has he pointed to anything wrong with the
jury instruction. It correctly states that the jury did not need
to find that Zambrano’s sole or principal motive was to
maintain his position in the gang. See DeSilva, 505 F.3d at715–16; Concepcion, 983 F.2d at 381; United States v. Carson,
455 F.3d 336, 371 (D.C. Cir. 2006); United States v. Tse, 135 F.3d
200, 206 (1st Cir. 1998). DeSilva recognized that “[t]he motive
requirement of the offense … is met if the jury could proper-
ly infer that the defendant committed his violent crime be-
cause he knew it was expected of him by reason of his mem-
bership in the enterprise or that he committed it in further-
ance of that membership.” 505 F.3d at 715 (internal quotation
marks omitted).
Zambrano next complains that the district court failed to
instruct the jury on the appropriate standard of proof. He
did not raise this point at trial, but even if he had, we would
reject it. The jury was instructed several times that it needed
to find all facts beyond a reasonable doubt. The court re-
minded the jury of this duty immediately before instructing
it on the § 1959 count. Short of repeating this admonition in
every paragraph of the instructions, we do not see what
more the court could have done.
Sentence in Excess of Statutory Maximum. Zambrano was
convicted of three offenses (RICO conspiracy, assault, and
extortion), each of which carries a statutory maximum sen-
tence of 20 years. In computing his recommended sentence
under the guidelines, the district court used “the offense lev-
el applicable to the underlying racketeering activity,” as sen-
tencing guideline § 2E1.1(a)(2) directs. That took the court to
the guideline for first-degree murder, § 2A1.1, which calls
for a base offense level of 43. After appropriate adjustments,
Nos. 11-3179 et al. 19
that was Zambrano’s final offense level. It calls for life im-
prisonment, but that sentence would have exceeded the
statutory maxima for Zambrano’s crimes of conviction. Ap-
plying the guidelines for sentencing on multiple counts of
conviction under § 5G1.2, the court decided to impose three
consecutive 20-year sentences in order to achieve the maxi-
mum possible punishment of 60 years’ imprisonment. See 18
U.S.C. § 3584(a).
The court was well within its authority to do so. The im-
position of consecutive sentences on separate counts of con-
viction does not have the effect of pushing a sentence on any
one count above the statutory maximum for a single count of
conviction. See United States v. Thompson, 523 F.3d 806, 814
(7th Cir. 2008); United States v. Veysey, 334 F.3d 600, 602 (7th
Cir. 2003). The court was entitled to find the facts by a pre-
ponderance of the evidence, so long as those facts did not
affect either the statutory maximum, Apprendi v. New Jersey,
530 U.S. 466 (2000), or the statutory minimum, Alleyne v.
United States, 133 S.Ct. 2151, 2155 (2013). The district court’s
finding that Zambrano should be held accountable for the
murders and attempted murders attributable to the Latin
Kings did nothing more than inform its decision on the advi-
sory guideline range and its ultimate choice of a reasonable
sentence in light of the factors identified in 18 U.S.C.
§ 3553(a).
Finally, the fact that a man of Zambrano’s age is likely to
perish in prison before the 60-year term expires does not au-
tomatically convert his overall sentence, as a matter of law,
into an unreasonable one. See United States v. Johnson, 685
F.3d 660, 663 (7th Cir. 2012) (collecting cases) (defendant’s
likelihood of living out sentence is just one consideration for
20 Nos. 11-3179 et al.
the district court to weigh). We have said that “death in pris-
on is not to be ordered lightly, and the probability that a
convict will not live out his sentence should certainly give
pause to a sentencing court.” United States v. Wurzinger, 467
F.3d 649, 652 (7th Cir. 2006). We have also been wary of a de
facto life sentence when it was imposed without any explana-
tion despite the district court’s rejection of an actual life sen-
tence. United States v. Patrick, 707 F.3d 815, 820 (7th Cir. 2013)
(vacating and remanding sentence for further explanation).
Zambrano’s life sentence, however, was neither inconsistent
with the district court’s sentencing determinations nor im-
posed lightly. After hearing Zambrano’s argument, the dis-
trict court recounted his lengthy criminal history and recidi-
vism, as well as the instrumental role he played in the gang
as its highest-ranking member and the importance of impos-
ing a sentence that deters future criminals. The court gave
serious consideration to, and sufficient explanation for, its
sentence, and that sentence was reasonable.
Double Jeopardy. Next, Zambrano argues that his dual
convictions for RICO conspiracy and the predicate act of
conspiracy to commit extortion exposed him to double jeop-
ardy in violation of the Fifth Amendment. He did not raise
this issue before the district court, and so our review is for
plain error.
The type of double-jeopardy argument Zambrano is
making deals with cumulative punishment, not with succes-
sive prosecutions. The Supreme Court has held that “[w]ith
respect to cumulative sentences imposed in a single trial, the
Double Jeopardy Clause does no more than prevent the sen-
tencing court from prescribing greater punishment than the
legislature intended.” Missouri v. Hunter, 459 U.S. 359, 365
Nos. 11-3179 et al. 21
(1983); see also Grady v. Corbin, 495 U.S. 508, 516–17 (1990),
overruled on other grounds by United States v. Dixon, 509 U.S.
688 (1993). The only question before us is thus “whether
Congress, in making the predicate RICO acts relevant to sen-
tence determination via the Sentencing Guidelines, intended
to allow defendants to receive consecutive sentences for both
the predicate acts and the RICO offense.” United States v.
Morgano, 39 F.3d 1358, 1366 (7th Cir. 1994). We held in Mor-
gano that Congress intended exactly this, and every other
circuit to consider the question has agreed with this view.
See id. at 1367–68 (collecting cases). Zambrano offers no rea-
son for us to change course. We thus conclude that this ar-
gument has no merit, no matter what the standard of review.
Other Arguments. Lastly, Zambrano raises a number of
points that we will discuss in greater detail in connection
with his co-defendants’ appeals. He argues, for instance, that
the district court should not have used the preponderance of
the evidence standard of proof at the sentencing phase; that
sentencing for conspiracies under § 1B1.2(d) must use the
reasonable-doubt standard; that there is an unwarranted
disparity between his sentence and those of his co-
defendants; and that his trial was so riddled with errors cu-
mulatively that his due-process rights were violated. We find
no merit in any of these points. We therefore affirm the
judgment in Zambrano’s case in its entirety.
B. Vicente Garcia
In April 2008, Vicente Garcia (whom we will call Vicente
to differentiate him from co-defendant Luis Garcia) became
the Supreme Regional Inca, the gang’s second-highest-
ranking member. The jury convicted him on all counts. He
was sentenced to 360 months’ imprisonment for possession
22 Nos. 11-3179 et al.
with intent to distribute a controlled substance; 240 months
each for count 1 (RICO conspiracy), counts 2 and 9 (commis-
sion of violent crime in aid of racketeering), count 10 (extor-
tion), and count 14 (possession with intent to distribute a
controlled substance); and 60 months each for counts 11 and
13 (possession with intent to distribute). The court ordered
these sentences to run concurrently. In addition, it imposed a
consecutive sentence of 120 months on count 3 (use of a fire-
arm in relation to a crime of violence). All told, Vicente re-
ceived a total sentence of 480 months in prison.
Vicente raises eight arguments in his brief: (1) the “half-
Pinkerton” instruction violated his rights; (2) his convictions
for violent crimes in aid of racketeering violated his Double
Jeopardy rights; (3) his mandatory minimum sentence for
use of a firearm violated the Supreme Court’s rule in Alleyne;
(4) his conviction on count 9 for a violent crime in aid of
racketeering should be set aside for insufficient evidence; (5)
the evidence on his extortion conviction was insufficient; (6)
the court erred by refusing to grant a mistrial after the jury
saw some of the defendants being escorted by U.S. marshals;
(7) the court applied the wrong standard of proof at sentenc-
ing; and (8) the court improperly applied the sentencing
guidelines.
Our discussion of arguments 7 (standard of proof at sen-
tencing) and 8 (application of the guidelines) in Zambrano’s
appeal suffices to show why we reject them here as well. The
complaint about the “half-Pinkerton” instruction also has no
merit. Like Zambrano’s, Vicente’s conviction did not depend
on Pinkerton liability. Instead, the jury found beyond a rea-
sonable doubt that Vicente was directly responsible for sev-
eral predicate acts. Even if the Pinkerton instruction was er-
Nos. 11-3179 et al. 23
roneous (for the sake of argument only), any such error was
harmless.
We can also reject argument 2 (Double Jeopardy) for sim-
ilar reasons to those we gave in our discussion of Zambra-
no’s appeal, although Vicente’s point is slightly different.
Whereas Zambrano argued that he could not be convicted
for both a RICO conspiracy and the underlying predicate
acts, Vicente asserts that it was unconstitutional to convict
him of assault with a dangerous weapon in furtherance of a
racketeering enterprise (in violation of 18 U.S.C. § 1959(a)(3))
and use of a firearm in relation to a crime of violence (in vio-
lation of 18 U.S.C. § 924(c)), when the crime of violence is the
same assault with a dangerous weapon. As we noted before,
however, Congress may provide for multiple punishments
for the same act without violating the Double Jeopardy
clause if the statute demonstrates the clear intent to do so,
and we have held that Congress intended to impose such
“stacked” punishments when it passed § 924(c). See United
States v. Seawood, 172 F.3d 986, 989 (7th Cir. 1999). Indeed,
§ 924(c)(1) explicitly prescribes that a sentence under that
statute must be imposed “in addition to” the punishment for
the underlying crime of violence. Assault in furtherance of
racketeering enterprise is just the sort of “crime of violence”
that Congress wanted to include within § 924(c)’s ambit, and
so Vicente’s argument fails.
Mandatory Minimum and Alleyne. Vicente received a 10-
year sentence for carrying a firearm during a crime of vio-
lence, in violation of 18 U.S.C. § 924(c). That statute pre-
scribes that a defendant who has discharged the firearm
must be given a prison term of not less than ten years. See id.§ 924(c)(1)(A)(iii). Vicente argues that the district court erred
24 Nos. 11-3179 et al.
insofar as it believed that the 10-year mandatory minimum
applied, because he believes that Alleyne requires a jury find-
ing beyond a reasonable doubt that he discharged the fire-
arm, and that there was no such finding.
That might be a good argument if the record supported
it, but it does not. The same underlying conduct gave rise to
counts 2 and 3 in the indictment. For count 2, the court in-
structed the jury as follows:
For the purposes of Count 2, the indictment
charges that defendant Vicente Garcia know-
ingly and intentionally committed an assault
with a dangerous weapon upon Victim A in vi-
olation of the laws of the State of Illinois. …
Under Illinois law a person commits the of-
fense … when he … by means of discharging a
firearm, knowingly and intentionally causes in-
jury to another person.
Because the jury convicted Vicente on count 2, it necessarily
found beyond a reasonable doubt that he “discharged” a
firearm. The district court therefore did not run afoul of the
Alleyne rule when it applied the mandatory minimum sen-
tence of 10 years to him.
Sufficiency of Evidence: Assault in Aid of Racketeering. Vi-
cente has little to add to Zambrano’s arguments on this
point. He asserts that personal animus, not a desire to main-
tain or improve status in the gang, lay behind the hand-
smashings of Salazar and Enriquez. That argument is no bet-
ter than the one that Zambrano advanced. Vicente also dis-
putes Zambrano’s contention that he (Vicente) was the one
who ordered the smashings; the responsible person, he says,
Nos. 11-3179 et al. 25
was Zambrano. Perhaps a jury could have assigned all the
blame to Zambrano, but this jury did not, and we have no
reason to second-guess its determination.
Other Arguments. Each of Vicente’s other arguments
tracks points made by various co-defendants. (The court is
grateful for counsel’s efforts to coordinate in this way.) He
contends that the evidence of extortion was insufficient, but
we explained in the section on Zambrano why there was
enough in the record to support the jury’s finding in this re-
spect. We discuss the incident in which some jurors allegedly
saw several of the defendants (perhaps including Vicente)
being escorted by the U.S. marshals from the holding cell in-
to the courtroom when we turn to Guzman’s appeal. In brief,
we find no reversible error in the court’s decision not to or-
der a mistrial on this basis.
C. Jose Guzman
Next we address the appeal of Regional Enforcer Jose
Guzman. Evidence at the trial showed that Guzman extract-
ed fines from gang members and oversaw at least one viola-
tion. FBI Agent Weismantel, who arrested Guzman, identi-
fied the latter’s tattoos as being associated with the Latin
Kings. Shanna testified that Guzman worked as a first-level
distributor of cocaine for the Latin Kings’ drug operations.
Guzman was convicted after a jury trial and sentenced to 240
months on the RICO count and 180 months on the drug con-
spiracy count, to run consecutively (thus 420 months in all).
He too raises quite a few issues on appeal, but we focus here
on three of them: his challenge to the sufficiency of the evi-
dence linking him to the RICO enterprise; his motion for a
mistrial based on the jury’s alleged view of him and several
co-defendants being moved from the holding cell to the
26 Nos. 11-3179 et al.
courtroom; and his contention that the jury instructions on
the RICO predicate acts were faulty.
Rule 29 Motion: RICO count. At trial, Guzman moved for a
judgment of acquittal on the RICO conspiracy count under
Federal Rule of Criminal Procedure 29. We review the denial
of a Rule 29 motion de novo; when the motion is based on in-
sufficiency of the evidence, the only question before us is
whether the district court erred in its determination that
there was enough evidence to reach the jury. See United
States v. Johns, 686 F.3d 438, 446 (7th Cir. 2012). That determi-
nation, as we noted in connection with Zambrano’s appeal, is
governed by the rigorous Jackson v. Virginia standard.
There are several ways in which the government may
prove participation in a RICO conspiracy, but the one perti-
nent to Guzman comes from 18 U.S.C. § 1962(c). That part of
the statute forbids a person to “conduct or participate, di-
rectly or indirectly,” in the enterprise’s pattern of racketeer-
ing activities. The government thus had to prove that Guz-
man conspired to participate (in the way defined by
§ 1962(c)) in the Latin Kings’ racketeering operations.
Guzman’s first argument—that the government failed to
introduce sufficient evidence that he was personally in-
volved in two predicate acts—requires little comment. This
was a conspiracy charge, not a substantive § 1962(c) charge.
All the government had to show was that another member of
the enterprise committed the two predicate acts and that
Guzman “knew about and agreed to facilitate the scheme.”
Salinas v. United States, 522 U.S. 52, 66 (1997). Guzman can
prevail only if no rational juror could have found that he was
part of, or agreed to facilitate, the activities of the Latin
Kings. But the record contains ample evidence supporting
Nos. 11-3179 et al. 27
the jury’s verdict. Shanna, for instance, testified that Guzman
was a Regional Enforcer for the Latin Kings in December
2007 and that he oversaw violations in that capacity. The jury
also heard testimony that Guzman distributed drugs for the
gang. And these are just two examples of many we could
cite. The district court properly denied Guzman’s Rule 29
motion.
Mistrial. We alluded to this argument in our discussion of
Vicente Garcia’s appeal, but we now discuss more fully the
incident that prompted motions for a mistrial from several
defendants. Guzman’s counsel moved for a mistrial after he
learned that the jurors allegedly saw Guzman and his co-
defendants being escorted from the holding cell to their seats
in the courtroom. Relying on Estelle v. Williams, 425 U.S. 501(1976), Guzman contends that the presumption of innocence
to which he was entitled was undermined when the jurors
spotted him, as he put it, being “paraded into the courtroom
with U.S. marshals as guards.”
In Williams, the Supreme Court held that it violates the
Fourteenth Amendment to force a defendant to wear prison
garb during his jury trial. Id. at 504–05. We have held that
Williams extends to the right not to appear before the jury in
shackles, unless they are necessary to control contumacious
conduct. Harrell v. Israel, 672 F.2d 632, 635 (7th Cir. 1982) (cit-
ing Illinois v. Allen, 397 U.S. 337, 344 (1970)). But Williams and
Harrell deal with a continuing, outward sign to the jury that
might undermine the presumption of innocence. The Court
did not hold that everything that might remind the jury of
the accusation is impermissible; indeed, that would be im-
possible, since the jury is obviously aware of who the de-
fendants are and the nature of the charges.
28 Nos. 11-3179 et al.
Here we have only an isolated glimpse, assuming for the
sake of argument that the jurors actually saw what hap-
pened. (That is unclear, but we do not need to resolve the
question.) The district court decided that any prejudice was
de minimis, maybe nonexistent, because the jurors could not
have known that the defendants were coming from the
“tank” and they might not have seen anything at all. We
share the district judge’s impression that this alleged inci-
dent was too minor to have made any difference, and we
would not be inclined in any event to second-guess the trial
judge’s assessment of the situation.
Jury Instructions: Predicate Acts. Guzman argues that the
court erred by refusing to instruct the jury that it had to
agree on which predicate acts the government proved be-
yond a reasonable doubt before it could convict on the RICO
count. In our view, he forfeited this objection at the trial.
Guzman did object to Instruction 27, which said, “An offense
may be committed by more than one person. A defendant’s
guilt may be established without proof that the defendant
personally performed every act constituting the crime
charged.” Guzman’s counsel had this to say about the in-
struction:
I don’t specifically object to the instruction
being given, but I’d ask that the language be
put in there of some sort that says that guilt
still has to be proven beyond a reasonable
doubt. …
[W]hat this says, Judge, is the defense may
be submitted [sic] by more than one person.
The defendant’s guilt may be established with-
out proof that the defendant personally per-
Nos. 11-3179 et al. 29
formed every act. And in the elements instruc-
tion now they are saying someone else may
have performed the acts and still be found
guilty.
Nothing in that objection alerted the district court to the fact
that the defendant believed that there must be an instruction
telling the jury that it had to agree unanimously on the pred-
icate acts supporting the RICO conspiracy.
Proceeding under plain error review, we see no reversible
error. Both sides refer us to United States v. Campione, 942
F.2d 429 (7th Cir. 1991), which held that even if defendants
agree to different predicate acts, it is enough if each defend-
ant agrees to two predicate acts in furtherance of the con-
spiracy. Id. at 436. In other words, the government need not
prove which two predicate acts occurred; it must show only
that each defendant agreed to two predicate acts (not neces-
sarily the same) in furtherance of the conspiracy. Campione,
however, does not answer the question whether a jury needs
to agree unanimously on which two predicate acts a single
defendant committed in furtherance of the RICO conspiracy.
Cf. Richardson v. United States, 526 U.S. 813, 816 (1999) (jury in
a continuing criminal enterprise case, 21 U.S.C. § 848, must
agree unanimously on the specific violations that make up
that continuing series).
Had Guzman properly raised the point, we would ex-
plore it further. But he did not. The instruction to which he
objected did not invite the jurors to find Guzman guilty
without a unanimous finding on the particular predicate acts
he committed; it said nothing about that point. Particularly
in light of the remainder of the jury’s verdict (under which
Guzman was found guilty of conspiring to distribute co-
30 Nos. 11-3179 et al.
caine) and the evidence showing his deep involvement with
the Latin Kings, this is not a situation in which we are pre-
pared to find plain error.
Other Arguments. Guzman raises a mélange of additional
arguments, but we find no reversible error on any of these
grounds:
• Lack of a buyer-seller instruction on the drug dis-
tribution count (see Chavez’s appeal, infra at 32).
• Use of the preponderance-of-the-evidence stand-
ard for facts found at the sentencing phase (see
King’s appeal, infra at 36).
• Use of the preponderance standard for setting the
baseline offense level for the RICO conspiracy
(see King’s appeal, infra at 37).
• Insufficient evidence to prove conspiracy to
commit murder (see Chavez’s appeal, infra at 35).
• Violation of Double Jeopardy to count drug con-
spiracy separately from RICO conspiracy (see
Zambrano’s appeal, supra at 20).
• Sentence for the drug conspiracy violates the
Eighth Amendment because it is disproportion-
ately long. See generally Harmelin v. Michigan, 501
U.S. 957 (1991) (upholding sentence of life with-
out parole for drug-distribution offense).
In summary, we find no grounds for reversing either Guz-
man’s conviction or his sentence.
D. Alfonso Chavez
Nos. 11-3179 et al. 31
Chavez, Inca of the 31st and Drake chapter of the Latin
Kings’ Little Village region, is the last of the appellants con-
victed following the joint trial. The indictment charged him
with the RICO conspiracy, the drug-trafficking conspiracy,
and possession of cocaine with intent to distribute. After the
jury convicted him on all three counts, the court sentenced
him to the maximum allowable sentence of 240 months on
the RICO count and 360 months on each of the drug counts,
all to run concurrently. We address here his arguments about
the sufficiency of the evidence on his two drug counts, the
lack of a buyer-seller instruction, the “half-Pinkerton” in-
struction, and his link (for sentencing purposes) to the gang’s
murders and attempted murders. As before, we summarize
additional arguments that do not require extended discus-
sion.
Sufficiency of the Evidence: Drug Counts. Chavez challenges
the evidence supporting his convictions for conspiring to
distribute drugs and for possession with intent to distribute
cocaine. Like his co-appellants, he can succeed only if no ra-
tional jury could have found that the government met its
burden to prove guilt beyond a reasonable doubt.
Unfortunately for Chavez, juries are entitled to decide
whom to believe and whose testimony to reject. This jury
credited Shanna’s testimony and several audio recordings
that Shanna secretly taped. This evidence showed that Shan-
na passed along to Chavez about seven grams of cocaine on
three occasions within a three-week period. Each time,
Chavez promised to pay Shanna $200 within the next week.
On the first occasion, Chavez informed Shanna that he
(Chavez) was the new Inca on Drake. Shanna told Chavez
that he was using the “process that we take with all the In-
32 Nos. 11-3179 et al.
cas.” Another Latin King told Chavez that he had “like about
a week … to get rid of it [the cocaine] … [and] give us back
two bills [$200].” Shanna also noted that “the collections are
gonna be on … Mondays and Fridays.” Chavez returned, as
ordered, with the money a week later. On a later occasion,
after commenting that he had “24 people doing this,” Shan-
na asked Chavez whether “you guys alright with this?”
Chavez replied, “I mean, bro, we’re all for uh, well, um, I’m
up for helping yous out.”
Chavez has little with which to defuse this evidence. He
argues that he was purchasing the cocaine for his own use,
not for distribution or as part of a distribution conspiracy. In
support of that position, he notes the relatively small quanti-
ties involved in each transaction, Shanna’s admission that
Chavez might have been taking the cocaine for personal use,
Shanna’s observation that as long as Chavez paid the $200 no
one cared what he did with the drugs, and Chavez’s ques-
tion to Shanna about how long the sales were likely to go on.
But there is nothing that compelled the jury to see the evi-
dence in that light, even if Chavez’s interpretation is possi-
ble. Viewed from the proper perspective, the evidence on
both of Chavez’s drug charges was sufficient to support the
verdict.
Buyer-Seller. As we recognized in United States v. Brown,
726 F.3d 993 (7th Cir. 2013), the question whether a buyer-
seller instruction should be given to a jury that is consider-
ing conspiracy charges is a difficult one. Our cases distin-
guish between buyer-seller relationships (which obviously
involve a simple agreement) and conspiracies, which are also
based on agreement. Id. at 997. We have held that the sub-
stantive crime of drug distribution—that is, the sale itself—
Nos. 11-3179 et al. 33
cannot also count as the agreement needed to find conspira-
cy. United States v. Lechuga, 994 F.2d 346, 349 (7th Cir. 1993)
(en banc) (lead opinion of Posner, J.). Instead, a majority of
the court agreed that “[w]hat is necessary and sufficient [to
prove a conspiracy] is proof of an agreement to commit a
crime other than the crime that consists of the sale itself.” Id.
at 347. In Brown, we confirmed this rule when we held that
“conspiracy to traffic drugs requires an agreement to ad-
vance further distribution.” 726 F.3d at 998.
Chavez’s effort to show that the district court erred when
it decided not to give a buyer-seller instruction runs into a
number of obstacles. First, he failed to raise this argument in
the district court, and so our review is only for plain error.
See Puckett and Olano, supra. Had that not been the case, we
would have considered this a closer question. Chavez’s short
tenure with the Latin Kings might have persuaded a jury
that he was just a buyer. When the evidence of conspiracy is
weak, we have urged courts to give a buyer-seller instruction
on their own initiative. See United States v. Gee, 226 F.3d 885,
895 (7th Cir. 2000). But the evidence of conspiracy in the pre-
sent case was strong; indeed, Chavez admitted that a drug
conspiracy existed. The only remaining question was wheth-
er he was party to that conspiracy.
The evidence showing that Chavez bought seven grams
of cocaine (about a quarter ounce, or two “eight balls”)
might have supported a finding by the jury that this was a
personal-use transaction. But there was a great deal of evi-
dence that pointed in the conspiracy direction. Apart from
the admitted agreement, Chavez’s role in the Latin Kings
was undisputed, and the audio recordings and Shanna’s tes-
timony were damning. Even if the district court erred by fail-
34 Nos. 11-3179 et al.
ing to give the buyer-seller instruction (and it seems to us
that the more prudent course would have been to do so), the
mistake was harmless on this record.
Half-Pinkerton. Chavez argues that the district court
erred by giving only what he calls a half-Pinkerton instruc-
tion—one that failed to remind the jurors that they had to
find beyond a reasonable doubt that at the time the co-
conspirator’s acts were undertaken, the defendant was (1) a
member of the conspiracy and (2) the act was in furtherance
of the conspiracy. See United States v. Elizondo, 920 F.2d 1308,
1317 (7th Cir. 1990); United States v. Manzella, 791 F.2d 1263,
1268 (7th Cir. 1986). In particular, the instruction here did not
remind the jury that the government had to prove all ele-
ments of the Pinkerton doctrine beyond a reasonable doubt.
Once again, because Chavez and the others did not raise
this argument before the district court, we review only for
plain error. Failure to include the second half of the Pinkerton
instruction may have been erroneous. No reason appears in
the record for the district court’s decision to omit the relevant
passages from the Seventh Circuit’s pattern jury instructions,
which it had been following. See 7TH CIR. PATTERN
INSTRUCTION 5.09. Even if the omission was wrong, however,
the question remains whether this error affected Chavez’s
substantial rights and whether it brings disrepute on the le-
gal system. See Olano, 507 U.S. at 736–37.
In Neder v. United States, the Supreme Court held that on-
ly a small set of errors “defy analysis by harmless error
standards.” 527 U.S. 1, 7 (1999) (quotation marks omitted).
The Court’s list includes the complete denial of counsel, a
biased trial judge, racial discrimination in the selection of the
grand jury, denial of self-representation at trial, denial of a
Nos. 11-3179 et al. 35
public trial, and a defective reasonable-doubt instruction. Id.
at 8. The last of those might seem useful to Chavez, but a
closer look persuades us that it is not. Chavez is not com-
plaining about a defective reasonable-doubt instruction. He
points to the district court’s failure to remind the jury about
the reasonable-doubt standard within the Pinkerton instruc-
tion. The court had, elsewhere in the instructions, told the
jury that the government had to prove its case beyond a rea-
sonable doubt.
We conclude that the harmless-error principle applies
here, and that any error that resulted from the incomplete
instruction did not affect Chavez’s substantial rights. The
district court read the correct reasonable doubt standard to
the jury several times during the jury instructions, and there
was no indication that the Pinkerton issue was to be governed
by a different standard. Moreover, the government’s case did
not rely solely on the Pinkerton doctrine of vicarious liability
among co-conspirators. The jury’s other findings of guilt es-
tablished the predicate acts necessary to convict all of the
appellants who went to trial, except Chavez, without resort
to Pinkerton. It convicted each one on multiple substantive
counts, and those counts could have formed the basis for the
RICO conspiracy convictions. The jury also found beyond a
reasonable doubt that Chavez agreed to join the conspiracy.
There were no facts suggesting that Chavez or his co-
defendants were acting as rogues or mercenaries when they
carried out their substantive offenses. To the contrary, the
evidence overwhelmingly showed that they were acting as
gang members, for the gang.
Murders and Attempted Murders. The district court sen-
tenced Chavez in part based on its conclusion that he was
36 Nos. 11-3179 et al.
responsible for at least some of the gang’s murders and at-
tempted murders. Chavez contests this finding because, as
he understands Illinois law, the crime of conspiracy to com-
mit murder requires an agreement to kill a specific person;
his agreement cannot be assumed, he continues, just because
he was part of the Latin Kings gang. His argument, however,
does not fit the facts. The district court did not hold him re-
sponsible for murder of a non-specific person or because of
his gang membership. Audio recordings reveal Chavez
boasting to Shanna that “some dude went speeding down
the block, and well you know how that goes. Dude got it[.]”
He also remarked that “my guys were on their stuff, you
know? And they, boom, you know? Dude got it.” These
comments related to the shooting of Jorge Camargo as he
drove through Chavez’s turf. In other words, Chavez was
doing just what he was supposed to do as the Inca of his sec-
tion. The district court did not abuse its discretion when it
took Camargo’s attempted murder into account when de-
termining Chavez’s sentence.
Other Arguments. Chavez also argues that the district
court violated his Fifth and Sixth Amendment rights when it
found the facts at sentencing using the preponderance-of-
the-evidence standard. We have repeatedly rejected this ar-
gument, and we do so again here for the reasons provided in
King’s appeal. Similarly, we reject the argument that sentenc-
ing guideline § 1B1.2(d) applies here, and that it requires the
government to prove predicate RICO acts beyond a reasona-
ble doubt. King makes the same argument, which we discuss
below.
E. Fernando King
Nos. 11-3179 et al. 37
King was for a time the Supreme Regional Inca, just one
step below the Corona in the gang’s chain of command. He
entered a guilty plea to the charges of RICO conspiracy and
the drug-distribution conspiracy, without any plea bargain.
His arguments pertain only to his sentence.
We need say very little about these arguments, because
we understand all of them to be raised in this court primari-
ly for the purpose of preserving them for further review.
King argues that the district court violated his rights under
the Fifth and Sixth Amendments and sentencing guideline
§ 1B1.2(d) when it found facts using a preponderance stand-
ard, instead of the reasonable-doubt standard. We have re-
jected the argument that a heightened standard is required.
E.g. United States v. Johnson, 342 F.3d 731, 735–36 (7th Cir.
2003); cf. United States v. Heckel, 570 F.3d 791, 797 & n.3 (7th
Cir. 2009). More importantly, the Supreme Court thus far has
adhered to the rule that “[s]entencing factors … can be
proved to a judge at sentencing by a preponderance of the
evidence.” United States v. O’Brien, 560 U.S. 218, 224 (2010).
King also argues that sentencing guideline § 1B1.2(d)
represents a special case in which supporting findings must
be made beyond a reasonable doubt. That provision reads:
“A conviction on a count charging a conspiracy to commit
more than one offense shall be treated as if the defendant
had been convicted on a separate count of conspiracy for
each offense that the defendant conspired to commit.”
U.S.S.G. § 1B1.2(d). The note explains that when a guilty
verdict or plea does not establish the object of a conspiracy, a
defendant should be sentenced based on an offense that was
the object of the conspiracy “if the court, were it sitting as a
trier of fact, would convict the defendant of conspiring to
38 Nos. 11-3179 et al.
commit that object offense.” Id. at n.4. The Eleventh Circuit
has applied this provision to require proof of RICO predicate
acts beyond a reasonable doubt, see United States v. Nguyen,
255 F.3d 1335, 1342 (11th Cir. 2001), but every other circuit to
consider the question has held that § 1B1.2(d) does not apply
to RICO conspiracies. See United States v. Massino, 546 F.3d
123, 135 (2d Cir. 2008); United States v. Corrado, 227 F.3d 528,
541–42 (6th Cir. 2000); United States v. Carrozza, 4 F.3d 70, 79–
80 (1st Cir. 1993). The latter circuits reason that RICO con-
spiracies are of the single-object variety, with the object being
to engage in racketeering. The predicate racketeering acts are
not, in themselves, conspiratorial objects.
We have understood RICO conspiracies in the same way
as the majority of our sister circuits—that is, as arrangements
devoted to a single objective. See United States v. Tello, 687
F.3d 785, 794 (7th Cir. 2012); United States v. Campione, 942
F.2d 429, 437 (7th Cir. 1991); United States v. Ashman, 979 F.2d
469, 485 (7th Cir. 1992) (“The goal of a RICO conspiracy is a
violation of RICO.”). Consistently with that view, we now
hold that § 1B1.2(d) does not apply to RICO conspiracies. We
note that this position has the virtue of fitting better with the
RICO guideline, § 2E1.1(a)(2), which calls for replacing the
RICO baseline of 19 with the level applicable to the most se-
rious underlying conduct if that offense level would be
higher. That would make little sense if the underlying con-
duct had to be treated as separate counts.
F. Felipe Zamora
Because he pleaded guilty, Zamora’s appeal also is re-
stricted to his sentence. We look first to ensure that the sen-
tence is free from procedural error and, if it is, we then ask
Nos. 11-3179 et al. 39
whether it is substantively reasonable. United States v. An-
noreno, 713 F.3d 352, 356–57 (7th Cir. 2013).
A district court must begin the sentencing proceeding
“by correctly calculating the applicable Guidelines range.”
Gall v. United States, 552 U.S. 38, 49 (2007). Once it has done
so, it must then “consider all of the § 3553(a) factors to de-
termine whether they support the sentence requested by a
party.” Id. at 49–50. If the court decides to impose a sentence
outside the guidelines range, it is free to do so, but it “must
consider the extent of the deviation and ensure that the justi-
fication is sufficiently compelling to support the degree of
the variance.” Id. at 50; see also United States v. Cunningham,
429 F.3d 673, 675–76 (7th Cir. 2005) (emphasizing need to ex-
plain choice of sentence even within guidelines range).
At sentencing, Zamora admitted the factual conclusions
of the Presentence Report (PSR) and withdrew his objections
to the report. He asked for an offense-level reduction based
on acceptance of responsibility, see U.S.S.G. § 3E1.1, and he
proposed a guidelines range of 168–210 months. The gov-
ernment opposed the acceptance adjustment and argued for
a range of 235–293 months, with the actual sentence to be
capped at the 240-month statutory maximum. The district
court granted Zamora’s acceptance of responsibility request,
but it sentenced him to concurrent sentences of 240 months
per count.
This is a confusing outcome, at best. The court made no
mention of its final calculated guidelines range, even though
that is a critical step in sentencing. See United States v. Robin-
son, 435 F.3d 699, 700–01 (7th Cir. 2006). The government
suggests that the court probably adopted Zamora’s recom-
mendation of 168–210 months, because it granted his request
40 Nos. 11-3179 et al.
for acceptance of responsibility. The judgment order partial-
ly reflects this, insofar as it records an offense level of 33 and
a criminal history of III—a combination that leads to a range
of 168–210 months. But the judgment reports a different final
range: 168–235 months. There is no such range in the sen-
tencing guidelines, and so this must be an error. For criminal
history III, this range looks like a blend of offense levels 33
and 34, but the court never explained it that way, nor did the
court justify its deviation from the guidelines, as required by
Gall.
The court did, however, move on to Gall’s second step
and considered the § 3553(a) factors. It commented on the
“nature and circumstances of this offense” and Zamora’s
“history and [his] characteristics as a defendant.” It also
briefly mentioned the seriousness of the offense, the need for
deterrence, and the need to protect the public. Other than
listing these factors, the court said nothing about why they
were served (or not served) by the sentence it chose. It also
did not explain why it picked a sentence 30 months above
the top of the guidelines range, assuming that the court
meant to start with the 168–210 month guidelines calcula-
tion. (In fact, the sentence was also above the range that the
court recorded, but only by five months.) Either way, there
was no explanation for this choice.
With the record in this condition, we conclude that we
must vacate Zamora’s sentence and send it back to the dis-
trict court for re-calculation. Gall does not permit a district
court to skip the process of ascertaining the recommended
guidelines range. Here, we do not have that critical piece of
data. We also have no explanation from the district court of
how much time above the range it thought was proper, and
Nos. 11-3179 et al. 41
why. We cannot ignore these procedural problems and jump
right to the substantive reasonableness of the sentence. See
Peugh v. United States, 133 S. Ct. 2072, 2080 (2013) (reviewing
the procedures that the district court must follow). Our re-
view of the reasonableness of a sentence is deferential, but in
this instance we do not have enough information from the
district court to be confident that its choice was made based
on accurate information. We thus have nothing to which we
can defer.
Zamora’s other attack on his sentence does not persuade
us, but we do not need to say much about it given our deci-
sion to remand for resentencing. He asserts that his sentence
is substantively unreasonable because it differs from sen-
tences imposed on several of his co-defendants. All we will
say is that § 3553(a)(6) forbids only unwarranted disparities.
There are many differences between Zamora and his co-
defendants, and so there is no reason to expect identical sen-
tences for them. We are confident that the district court will
keep this in mind as it conducts the proceedings on remand.
G. Luis Garcia
Luis Garcia (whom we call Luis to differentiate him from
Vicente Garcia) was another Inca. He pleaded guilty without
a plea bargain to one count of participating in the RICO con-
spiracy and one count of conspiring to distribute cocaine; he
was sentenced to concurrent terms of 240 months on the
RICO count and 60 months on the drug count, to be fol-
lowed by four years’ supervised release. On appeal, he raises
a number of challenges to this sentence.
Use of Conspiracy To Commit Murder Guideline. As we have
noted, the guideline applicable to RICO is § 2E1.1. It sets a
42 Nos. 11-3179 et al.
base offense level of either 19 or the level applicable to the
underlying racketeering activity. Luis contends that the
highest base offense level that can apply to him is the one
found in § 2D1.1, the guideline governing a drug distribu-
tion conspiracy; the government argued that the proper ref-
erent was § 2A1.5, covering conspiracy to commit murder.
The district court adopted the government’s position. It
found that the use of murder as a tool to maintain the gang’s
reputation, protect its territory, and further its drug trade
was foreseeable to Luis when he joined the conspiracy.
Luis now argues that there was insufficient evidence to
show that he either directly participated in acts of murder or
violence, or that he could foresee that other Latin Kings
would do such things. When he pleaded guilty, he admitted
only to drug dealing as a factual basis for the plea. To be
held accountable for the conduct of others at sentencing,
“that conduct must have been both in furtherance of the
jointly undertaken criminal activity and reasonably foresee-
able in connection with that criminal activity.” United States
v. Edwards, 115 F.3d 1322, 1327 (7th Cir. 1997) (citing U.S.S.G.
§ 1B1.3 n.2).
Luis was an active participant in the Latin Kings’ activi-
ties, both as a drug distributor and as an Inca. The questions
are thus whether the conspiracy to commit murder was in
furtherance of the activities jointly undertaken by gang
members, and whether it was foreseeable to him. The district
court had ample evidence pointing to affirmative answers.
The Latin Kings’ constitution and the Little Village Rules ex-
pressly contemplated violence, up to and including homi-
cide. During the trial of the other defendants, witnesses testi-
fied that the rules meant that Latin Kings members would
Nos. 11-3179 et al. 43
“kill you, bottom line” if you entered their territory. Traffic
violators—especially speeders—were to be shot as they
drove through. Luis’s duties as an Inca included protecting
his territory, and that protection foreseeably led to acts of at-
tempted or actual murder. It does not matter that there was
no evidence that he pulled a trigger.
Manager or Supervisor. Luis received a three-level increase
in his offense level pursuant to § 3B1.1(b) for being a super-
visor or manager (but not an organizer or leader) of the
criminal activity. The district court did not clearly err in so
characterizing his role. As we have noted, the key question is
whether the defendant holds a managerial or supervisory
position in a hierarchical organization; the labels do not mat-
ter. United States v. Figueroa, 682 F.3d 694, 697 (7th Cir. 2012).
The Latin Kings constitution and the various rules spell out
the role of the Incas; Luis was an Inca and thus led a chapter.
That is enough in our view to support the district court’s
finding.
Conditional Discharge. The district court added two crimi-
nal history points to Luis’s score when it was calculating his
guidelines range because he was on conditional discharge
when he committed the offense of conviction. See U.S.S.G.
§ 4A1.1(d). He had pleaded guilty to state charges of battery
and served a term of supervised release between July 12,
2001 and July 12, 2003. On the assumption (not indulged by
the district court) that his association with the Latin Kings
began in 2007, Luis argues that it was error to make this ad-
justment.
In fact, other evidence in the record showed that Luis’s
history with the Latin Kings long predated the years covered
by the federal indictment. Luis himself told the probation
44 Nos. 11-3179 et al.
officer who prepared his PSR that he was “beaten in” to the
Latin Kings in 1995. The indictment charged that the RICO
conspiracy began in January 2000. The government used
Luis’s admission to show that he was a member of that con-
spiracy before July 2003, when his conditional discharge
ended. The fact that he may have joined the drug distribu-
tion conspiracy later does not undermine the district court’s
use of this adjustment.
Luis presented a number of other arguments. They in-
clude the same complaints as King makes about the con-
sistency of judicial factfinding by a preponderance of the ev-
idence with the Fifth and Sixth Amendments, and objections
to the use of the preponderance standard to find facts rele-
vant to the guidelines calculations, the disparity between his
sentence and those of some of his codefendants, and the dis-
trict court’s refusal to grant him a three-point reduction in
his offense level for acceptance of responsibility. We find no
merit in any of these points: they are barred either by the
law, or by the fact that the district court’s decisions were not
clearly erroneous.
H. Samuel Gutierrez
Gutierrez was another Inca. He too pleaded guilty to the
RICO conspiracy count and the drug conspiracy count. At
his plea hearing, Gutierrez admitted to participating in drug
distribution and extortion as predicate acts to the RICO con-
spiracy. He conceded that he participated in four instances
of receiving cocaine to sell and that he was involved with
extorting the Miqueros from December 2006 to December
2007. He was sentenced to 210 months on the RICO count
and 60 months on the drug count, to run concurrently.
Nos. 11-3179 et al. 45
The only argument on appeal that Gutierrez advances is
that the district court erroneously denied him credit for ac-
ceptance of responsibility under sentencing guideline
§ 3E1.1. The district court rejected his request because, alt-
hough Gutierrez admitted to drug dealing, extortion, and
acts of violence, and through counsel admitted to participat-
ing in the planning stages of murder, it found “hardly any
reference to what he did over this extended period of time
[a]nd certainly there is no acknowledgment, from his lips in
any event, that this conspiracy involved murder.” The court
recognized that Gutierrez admitted that the RICO conspira-
cy involved “numerous weapons and violent actions,” but it
found that his apology “totally ignores the … victims of the
activities” other than his family and friends. Gutierrez, the
court concluded, had gone only “half the distance” needed
to accept true responsibility for what the Latin Kings had
done.
In order to qualify for the acceptance reduction, a de-
fendant must “(1) demonstrate sincere remorse or contrition,
(2) truthfully admit the conduct comprising the offense, and
(3) neither falsely deny nor frivolously contest relevant con-
duct.” United States v. Eschman, 227 F.3d 886, 891 (7th Cir.
2000). In Eschman, we found clear error in the district court’s
decision to deny any discount for acceptance of responsibil-
ity. The defendant there had demonstrated his acceptance
promptly and consistently, shown remorse, and did not ac-
tively deny any relevant conduct, although he did contest
the manner in which the government had calculated the
amount of drugs underlying his offense. Id. We agreed with
the defendant’s position on the drug-quantity point. Because
it appeared that the district court based its denial primarily
on the defendant’s objection to the calculation of quantity,
46 Nos. 11-3179 et al.
which had been made in good faith, was non-frivolous, and
did not negate his acceptance, we remanded for re-
sentencing. Id. at 891–92.
The district court’s explanation for its decision on
Gutierrez’s request for the adjustment is hard to follow. It
appeared to find that Gutierrez was sincerely remorseful,
saying that “there is no doubt that he is sorry and that he
would apologize.” There is no indication that the court
thought that Gutierrez was being untruthful about the of-
fense conduct. Instead, the court appeared to be troubled
that Gutierrez’s admissions did not go far enough: (1) he did
not, the court thought, explicitly admit participation in the
conspiracy insofar as it involved murder; (2) on a more gen-
eral level, the court thought that he did not “accept true re-
sponsibility” for the full scope of the gang’s activities; (3) the
court understood his apology to extend only to his family
and friends, not to the entire community; and (4) the court
was reluctant to find acceptance for someone who was a
leader in such a bad organization. None of these reasons, we
conclude, holds up under examination.
The court’s concern with the scope of Gutierrez’s factual
admissions (reason 1) must be assessed in light of what
Gutierrez actually said at sentencing. It appears that
Gutierrez’s proficiency in English was limited, and so the
statement is somewhat uneven. Gutierrez openly stated that
“[w]e used violence to get what I get what we want.” The
transcript also reflects that he said that he knew violence
“surely happens and I knew that would happen” in the Latin
Kings. But there is more evidence: a transcript of the note
from which he was reading when he made that statement
reveals that he meant to say “I knew … that shootings hap-
Nos. 11-3179 et al. 47
pened and would happen.” Even if the court had heard him
the same way the court reporter did, his admissions placed
no limitation on the kind of violence that the gang was pre-
pared to use. The court’s insistence on something “from his
lips” was somewhat unrealistic, given his language difficul-
ties. More importantly, Gutierrez was not charged directly
with conspiracy to commit murder; that offense was just rel-
evant conduct for sentencing. The guidelines require only
that a defendant “truthfully admit[] the conduct comprising
the offense(s) of conviction, and truthfully admit[] or not
falsely deny[] any additional relevant conduct for which the
defendant is accountable under § 1B1.3 (Relevant Conduct).”
U.S.S.G. § 3E1.1 cmt. n.1(A). If there had been any doubt,
Gutierrez’s attorney removed it when he said that Gutierrez
“admits that in pleading guilty to the racketeering conspira-
cy that murder conspiracy was a reasonably foreseeable con-
sequence.” Finally, unlike Luis Garcia, Gutierrez did not
contest the application of the guideline for conspiracy to
commit murder, § 2A1.5. All told, the district court’s first
reason for denying the acceptance-of-responsibility adjust-
ment does not withstand scrutiny.
The second reason—that Gutierrez did not accept true re-
sponsibility for the full scope of the gang’s activities—fares
no better. The problem here is that there is no evidence to
back up this conclusion; we cannot tell what the district
court thought was missing from Gutierrez’s statement.
Gutierrez admitted all of the particular details of his offense.
Perhaps he could have said more about what an awful
group the Latin Kings were and how sorry he was to have
participated in the gang for so long, but that relates more to
remorse than particular acts, and the court seemed to be sat-
isfied that he was remorseful. We have the same concern
48 Nos. 11-3179 et al.
about the court’s third reason—that the apology did not
mention the community at large. And we are not sure what
the court was getting at with its fourth point. It is unlikely
that it meant that acceptance of responsibility is unavailable
to leaders of large RICO and drug conspiracies; that would
be wrong as a matter of law, but we would not infer that
kind of error on the district court’s part. Perhaps the court
did not mean to place separate weight on the fourth point,
and was just editorializing. We cannot be sure.
We do not mean to imply that Gutierrez was entitled to
this adjustment as a matter of law. A district court, exercis-
ing its discretion, could go either way. But the court’s expla-
nation for its decision to deny the reduction is insufficient.
We therefore will vacate Gutierrez’s sentence and remand
for resentencing.
I. Javier Ramirez
The last defendant whose appeal we must resolve is
Ramirez. He too was an Inca, and like several others, he
pleaded guilty to participating in the RICO conspiracy and
the drug conspiracy. He was sentenced to 180 months for the
former and 60 months for the latter, to run consecutively.
Thus, his total sentence was 240 months.
Ramirez adopted by reference two of the claims that King
raised: that his Fifth and Sixth Amendment rights were vio-
lated by the court’s use of a preponderance of the evidence
standard rather than a reasonable-doubt standard at sen-
tencing to find that Oberia Pierce’s murder was a predicate
act of the RICO conspiracy; and that the court violated sen-
tencing guideline § 2A1.1 by relying on Pierce’s murder in
calculating his guidelines range. For the same reasons we
Nos. 11-3179 et al. 49
offered in our discussion of King’s appeal, we reject these
arguments.
Ramirez also raises several factual arguments about his
sentence; our review of these points is for clear error only.
First, he asserts that the facts did not show that he was in-
volved with the Pierce murder. The PSR had calculated an
offense level of 37 for him, which it reached by adding the
base level of 33 provided by § 2A1.5 and a four-level en-
hancement because the murder was undertaken for pecuni-
ary gain. The court, however, decided to rely on § 2A1.1,
which is the first-degree murder guideline, and this had the
effect of raising his base offense level to 43. It did so because
undisputed evidence from the Zambrano trial showed that
Pierce was murdered.
The jury heard evidence that Ramirez discussed the
shooting three days later with Shanna. During that conversa-
tion, Ramirez said that Pierce was shot by “some of [his]
guys” because Milton and Pierce “tr[ied] to grow balls and
sh** one time.” The next time Ramirez’s underlings saw Mil-
ton and Pierce in the neighborhood, Ramirez noted that the
gang members shot them. Ramirez also said that he was hid-
ing the shooter near his house.
Ramirez concedes that these events took place and that
he was at least an accessory after-the-fact to the murder. He
argues, however, that he should not be liable for these ac-
tions of his co-conspirators. During his plea colloquy, he ar-
gued that the Latin Kings had “concrete goals” and thus not
all criminal activity in Little Village was in furtherance of the
Latin Kings’ conspiracy. In particular, he contended that the
Pierce murder was outside the scope of the conspiracy that
he joined. He suggested that there is no evidence indicating
50 Nos. 11-3179 et al.
why Pierce and Morgan were shot at, nor anything to show
who actually pulled the trigger.
Ramirez’s characterization of the evidence is not entirely
accurate. The government presented evidence about why
Pierce was shot; it also introduced evidence connecting the
shooter to Ramirez in his capacity as a Latin King. Most
damning are Ramirez’s own admissions, summarized in part
above. Ramirez’s argument also suffers from a legal misun-
derstanding. There is no heightened standard of proof that
applies to his sentencing proceeding. Nor did the court
commit clear error when it found that the government
proved by a preponderance of the evidence that the homi-
cide was foreseeable to Ramirez, that it was done to further
the conspiracy’s goals, and that it could be attributed to
Ramirez under Pinkerton. See United States v. Morales, 655
F.3d 608, 638 (7th Cir. 2011) (attributing co-conspirators’ vio-
lent acts to defendants at sentencing under similar circum-
stances); see also United States v. Curtis, 324 F.3d 501, 506 (7th
Cir. 2003) (even if defendant was a fringe member of the
conspiracy, so long as he joined it and the violent acts were
reasonably foreseeable to him, murder committed by a co-
conspirator could be attributed to him). Given our deference
to the district court’s findings of fact, we see no reversible
error in Ramirez’s sentence.
IV
After all is said and done, most of this complex and
important criminal trial will remain undisturbed. We AFFIRM
the convictions and sentences of Augustin Zambrano,
Vicente Garcia, Jose Guzman, and Alfonso Chavez. We also
AFFIRM the sentences of Fernando King, Luis Garcia, and
Javier Ramirez. We VACATE the sentences of Felipe Zamora
Nos. 11-3179 et al. 51
and Samuel Gutierrez and REMAND those two cases to the
district court for further proceedings consistent with this
opinion.