United States v. Duran, Leonel

NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued and Submitted February 22, 2007
Decided March 26, 2007
Before
Hon. WILLIAM J. BAUER, Circuit Judge
Hon. TERENCE T. EVANS, Circuit Judge
Hon. DIANE S. SYKES, Circuit Judge
Nos. 06-2326 & 06-2434
UNITED STATES OF AMERICA, Appeals from the United States District
Plaintiff-Appellee, Court for the Northern District of Illinois,
Eastern Division.
v.
Nos. 01 CR 1115-3 & 01 CR 1115-6
ALFREDO LONGORIA and
LEONEL DURAN, Milton I. Shadur,
Defendants-Appellants. Judge.
ORDER
Alfredo Longoria and Leonel Duran were indicted in 2002 on multiple counts
of operating a PCP-distribution conspiracy that operated throughout the
Chicagoland area. See 18 U.S.C. §§ 924(c), 2; 21 U.S.C. §§ 846, 841(a)(1). A jury
convicted Longoria of the counts alleged against him; Duran, on the other hand,
pleaded guilty. Both men received sentences within the calculated guidelines
ranges: Longoria was sentenced to life imprisonment and Duran received 360
months. They appealed, arguing that the district court applied their guidelines
ranges as mandatory in violation of United States v. Booker, 543 U.S. 220 (2005).
We agreed and, because only plain-error review was available, remanded the cases
under United States v. Paladino, 401 F.3d 471, 483-84 (7th Cir. 2005), to allow the
district court to state whether it would have imposed the same sentences had it
known that the guidelines were advisory. See United States v. Longoria & Duran,
Nos. 06-2326 & 06-2434 Page 2
Nos. 03-1454 & 03-2615, slip. op. at 3-4 (7th Cir. June 20, 2005) (unpublished
order). After the district court replied that it was “uncertain,” see United States v.
Longoria & Duran, No. 01 CR 1115, slip. op. at 1-2 (N.D. Ill. July 21, 2005)
(unpublished order), we concluded that plain error had been established, vacated
Longoria’s and Duran’s sentences, and remanded the case for resentencing, see
United States v. Longoria & Duran, 143 F. App’x 715, 716 (7th Cir. 2005)
(unpublished order). The district court then held separate resentencing hearings
and imposed sentences below its earlier guidelines-range calculations: Longoria
was sentenced to 50 years imprisonment, and Duran received 300 months.
Both men filed notices of appeal to challenge their new sentences, but
Duran’s appointed counsel moves to withdraw under Anders v. California, 386 U.S.
738, 744-45 (1967). We affirm Longoria’s sentence. We also grant Duran’s counsel’s
motion and dismiss Duran’s appeal.
We first address Longoria’s appeal. Since he raises three challenges to his
50-year sentence that he failed to raise at the resentencing hearing, our review is
for plain error. See United States v. White, 443 F.3d 582, 592 (7th Cir. 2006).
First, Longoria argues that the district court erred by allowing the
government to present at resentencing the testimony of Longoria’s coconspirator,
Miguel Perez, who recounted how Longoria shot him twice. According to Longoria,
the government was barred from introducing Perez’s testimony because it did not
“raise [the shooting] at his first sentencing hearing.” Moreover, Longoria continues,
the district court “exceeded the scope” of our mandate by allowing Perez to testify
because his case was remanded under Paladino, which meant that the parties were
prohibited from “expanding the record with new evidence.”
Longoria’s arguments misrepresent the procedural history of his case.
Contrary to his assertion, the shooting of Perez was not “new” evidence; the
government raised it in the sentencing memorandum it submitted to the district
court before the first sentencing hearing. The presentence report (“PSR”) prepared
before the first hearing also referenced the shooting, and by adopting the probation
officer’s findings in the PSR, the district court relied on the shooting to calculate
Longoria’s guidelines range. Moreover, Longoria’s resentencing did not occur on the
limited Paladino remand but at full resentencing. See Longoria, 143 F. App’x at
716. Thus, the district court was free to consider de novo any open issues related to
sentencing. See United States v. Angle, No. 05-2486, 2007 U.S. App. LEXIS 2350, at
12-14 (7th Cir. Jan. 25, 2007); United States v. Polland, 56 F.3d 776, 779 (7th Cir.
1995). That included Perez’s testimony, which spoke directly to the 18 U.S.C.
§ 3553(a) sentencing factors: it revealed Longoria’s violent character and criminal
history as a “very, very serious drug dealer,” see 18 U.S.C. § 3553(a)(1), as well as
the seriousness of his “attempted murder” of Perez, see id. § 3553(a)(2)(A).
Nos. 06-2326 & 06-2434 Page 3
Therefore, the government was not barred from introducing Perez’s testimony, nor
did the district court exceed our mandate by allowing Perez to testify. See Angle,
2007 U.S. App. LEXIS 2350, at *12-14; Polland, 56 F.3d at 779; see also Monge v.
California, 524 U.S. 721, 730-34 (1998).
Longoria next argues that the government engaged in vindictive prosecution
by raising the shooting for the first time on remand. As relevant here, prosecution
is vindictive when it is pursued in retaliation for challenging a sentence on appeal,
and a presumption of vindictiveness arises when the government seeks a higher
sentence after a defendant succeeds in obtaining a reversal. See United States v.
Cooper, 461 F.3d 850, 856 (7th Cir. 2006); see also North Carolina v. Pearce, 395
U.S. 711, 725 (1969). But again Longoria incorrectly asserts that the government
did not address the shooting at the first sentencing hearing--it did. And because the
government did not seek a higher sentence on remand--it asked the district court to
reimpose Longoria’s life sentence--Longoria’s claim of vindictive prosecution fails.
Finally, Longoria argues that his 50-year sentence is unconstitutional. He
contends that the district court violated the Supreme Court’s holding in
Cunningham v. California, 127 S. Ct. 856 (2007), by making a PCP-quantity
determination that increased his guidelines range. But this argument ignores the
remedial opinion in Booker, in which the Court held that judicial factual findings
that raise a guidelines range do not violate the Sixth Amendment as long as the
sentencing court recognizes that the range is advisory. See 543 U.S. at 246-49;
United States v. Owens, 441 F.3d 486, 490 (7th Cir. 2006); United States v.
Robinson, 435 F.3d 699, 701-02 (7th Cir. 2006). Longoria cannot show that the
district court considered the guidelines range of life imprisonment to be mandatory
because it sentenced him below that range. Therefore, his Sixth Amendment
challenge fails. See Owens, 441 F.3d at 490; Robinson, 435 F.3d at 701-02.
Longoria goes on to argue that, in any event, his sentence is unreasonable.
But “[i]t is hard to conceive of below-range sentences that would be unreasonably
high,” United States v. George, 403 F.3d 470, 473 (7th Cir. 2005); see also United
States v. Gama-Gonzalez, 469 F.3d 1109, 1111 (7th Cir. 2006), and the district
court’s application of the § 3553(a) factors shows that Longoria’s sentence is no
exception. At resentencing, the district court heard from the government regarding
the seriousness of Longoria’s crimes, his shooting of Perez, and his substantial
criminal history. Longoria then addressed the court to state that he shot Perez only
in self-defense. He also asked for leniency so he can have “a second chance” to be
with his family and stated that he “learned [his] lesson” while imprisoned. The
court considered all these arguments in light of the § 3553(a) factors, examining, in
particular, whether the “nature and circumstances” of Longoria’s offense warranted
a life sentence, see 18 U.S.C. § 3553(a)(1), and whether the sentence would “reflect[
] the seriousness of the offense” and “promote respect for the law,” see id.Nos. 06-2326 & 06-2434 Page 4
§ 3553(a)(2). The court concluded that although the reimposition of a life sentence
was certainly warranted, the “imposition of a very long term of [50] years . . . would
meet the test of being sufficient but not greater than necessary.” The court was not
required to apply the § 3553(a) factors in a “checklist fashion,” see United States v.
Dean, 414 F.3d 725, 729 (7th Cir. 2005), and it did not ignore Longoria’s arguments
for a lower sentence, see Cunningham, 429 F.3d at 676, 678. Longoria’s sentence
thus is reasonable.
We turn now to Duran’s appointed counsel’s motion to withdraw. Counsel
claims that he cannot discern a nonfrivolous basis for appeal, see Anders, 386 U.S.
at 744-45, a conclusion that Duran challenges in his response to counsel’s
submission, see Cir. R. 51(b). Our examination is confined to those potential issues
identified in counsel’s facially adequate brief and Duran’s response. See United
States v. Tabb, 125 F.3d 583, 584 (7th Cir. 1997) (per curiam).
Counsel first examines whether Duran could argue that the district court
violated his Sixth Amendment rights by finding facts that increased his total
offense level, and concludes that it would be frivolous for Duran to so argue. Duran,
however, disagrees with this conclusion. He contends that the district court’s
finding that the conspiracy involved 10 to 30 kilograms of PCP impermissibly raised
his total offense level because he admitted only that “1.2 kilograms” were involved.
Duran also argues that because he never admitted to being a leader of the drug
conspiracy, the district court was wrong to raise his offense level on that ground.
It would be frivolous for Duran to mount a Sixth Amendment challenge to the
district court’s findings. A sentencing court is allowed to raise an offense level
based on facts not admitted by the defendant (or otherwise proven beyond a
reasonable doubt) as long as the court recognizes that the resulting guidelines
range is advisory. See Owens, 441 F.3d at 490; Robinson, 435 F.3d at 701-02. And
Duran cannot show that the district court applied the guidelines in a mandatory
manner because his 300-month sentence was 60 months below the guidelines range.
Counsel next inquires whether Duran could argue that the district court
erred by not reducing his criminal history category on the basis that it over-
represented the seriousness of his past crimes. More generally, counsel considers
whether Duran could argue that the district court erred by refusing to recalculate
the guidelines range on the ground that the calculation was the law of the case.
We would review de novo whether an issue is law of the case. See Moore v.
Anderson, 222 F.3d 280, 283 (7th Cir. 2000). The law-of-the-case doctrine requires
a district court to confine its discussion to the issues remanded, see United States v.
Morris, 259 F.3d 894, 898 (7th Cir. 2001), and bars the district court from
addressing issues that could have been raised on appeal, but were not, see United
Nos. 06-2326 & 06-2434 Page 5
States v. Husband, 312 F.3d 247, 251 n.4 (7th Cir. 2002). Duran did not argue on
his first appeal that the district court erred by not granting a downward adjustment
to account for his criminal history, nor did he otherwise challenge the guidelines
range calculation. Because we did not address the issues on Duran’s first appeal,
see Longoria, Nos. 03-1454, slip. op. at 1-4, we did not include them in our remand,
see Husband, 312 F.3d at 251 n.4; Morris, 259 F.3d at 898. Duran’s guidelines
calculation was accordingly the law of the case, see Husband, 312 F.3d at 251 n.4,
and it would be frivolous for him to argue that the court should have recalculated it.
Finally, counsel considers whether Duran could argue that the district court
failed to consider the § 3553(a) sentencing factors adequately. At resentencing the
court heard the government describe the seriousness of Duran’s crimes and his
substantial criminal history; Duran himself addressed the court, expressing
remorse for his actions and explaining that his crimes were the result of having
been “taken in” as a child “by an unlawful environment.” The court then
methodically considered Duran’s case in light of each § 3553(a) factor, paying close
attention to whether a sentence within the guidelines range would be “sufficient but
not greater than necessary,” 18 U.S.C. § 3553(a), while also serving as an “adequate
deterrent to criminal conduct,” id. § 3553(a)(2)(B). Based on this examination, the
court concluded that a sentence below the guidelines range would satisfy the
§ 3553(a) factors, and imposed a 300-month sentence. Given the court’s thorough
examination, see, e.g., Dean, 414 F.3d at 729, it would be frivolous for Duran to
argue that the district failed to apply the § 3553(a) factors properly.
We accordingly AFFIRM Longoria’s 50-year sentence. We also GRANT
Duran’s counsel’s motion to withdraw, and DISMISS Duran’s appeal.