from the United States District Court for the Southern
District of Illinois. Nos. 10-CR-30106 & 10-CR-30200 -
David R. Herndon, Judge.
Remand from the Supreme Court of the United States
Easterbrook, Kanne, and Hamilton, Circuit Judges.
third round of appeals, we affirmed defendant Cureton's
convictions and sentences for using a firearm during a crime
of violence and related crimes. 845 F.3d 323 (7th Cir. 2017).
The Supreme Court granted certiorari, vacated, and remanded
for reconsideration in light of Dean v. United
States, 581 U.S.__, 137 S.Ct. 1170 (2017), which
disapproved our circuit precedents such as United States
v. Roberson, 474 F.3d 432 (7th Cir. 2007), barring
judges sentencing defendants under 18 U.S.C. § 924(c)
and other crimes from considering the mandatory minimum
sentence under § 924(c) when deciding the sentences for
other crimes. The Dean issue had not been raised in
any of Cureton's three sentencings, in his two earlier
appeals, or in his briefs to this court in these appeals.
statement under Circuit Rule 54, Cureton urges full
resentencing on a theory of plain error. The government
argues for either affirmance or a limited remand along the
lines of United States v. Paladino, 401 F.3d 471
(7th Cir. 2005), to allow the district judge to decide
whether he would be inclined to exercise his discretion to
impose a lower overall sentence.
reviews of § 924(c) sentences imposed before
Dean was decided, we have looked in the district
court records for reliable signals as to whether the
sentences were constrained by the Roberson rule. If
it was clear that the sentence was not constrained by
Roberson, we have simply affirmed the sentence.
United States v. Wheeler, 857 F.3d 742, 745 (7th
Cir. 2017) ("inconceivable" that judge who imposed
sentence above guideline range for predicate crime did so
because of Roberson); United States v. Starwalt, 701
Fed.App'x 508 (7th Cir. 2017) (same where sentence for
predicate crime was in middle of guideline range). If the
sentence for the predicate crime was at the bottom of the
guideline range, we have remanded for full resentencing,
usually with the agreement of the government. United
States v. Garner, __F.3d__, 2017 WL 4791084 (7th Cir.
2017); United States v. Fox, 878 F.3d 574 (7th Cir.
2017); United States v. Allen, 702 Fed.App'x 457
(7th Cir. 2017). If the picture was cloudier, we have used a
Paladino remand to ensure that if the
Roberson rule affected the sentence, the district
judge would have an opportunity to exercise discretion.
United States v. Anderson, No. 16-3112, __F.3d__,
__, 2018 WL 663089 (7th Cir. Feb. 2, 2018).
signals here fit into the cloudy category. Cureton was
originally convicted of attempted extortion, interstate
communication of a ransom demand, two counts of possessing a
firearm during a crime of violence, and three counts of
distributing crack cocaine near a school. He was first
sentenced to a total of 744 months (62 years) in prison. In
the first appeal, we held that Cureton should have been
sentenced for only one § 924(c) offense, and on remand
his sentence was reduced by 300 months (the mandatory minimum
for the second § 924(c) offense) to 444 months (37
years). Cureton appealed again, and we remanded because of
issues raised about conditions of supervised release. On
remand, the district court imposed the same total sentence of
444 months, leading to the present appeals.
total sentence used the bottom of the guideline range for the
crack cocaine charges and the mandatory minimum 84 months on
the § 924(c) charge. Yet each round of sentencing has
included the statutory maximum 240 months for the ransom
demand, signaling that the judges were not inclined to reduce
the sentence for that predicate crime. Also, the 360 months
of non-924(c) sentences take into account several very
serious crimes. Finally, in the course of all three
sentencings, including the opportunity to reduce the sentence
after the initial remand, neither the original sentencing
judge nor the judge on remand has given any sign that he felt
constrained by Roberson or believed that the reduced
total sentence of 444 months was too severe.
these circumstances, a limited Paladino remand
should suffice. We order a limited remand so that the
district court can determine whether it would have imposed
the same sentence on Cureton, knowing that in light of
Dean, it may consider the mandatory sentence under
§ 924(c) when deciding the sentences for other crimes,
or whether the court wishes to have a new opportunity to
exercise its discretion and judgment ...