February 23, 2018
from the United States District Court for the Northern
District of Illinois, Eastern Division. No. 16 CR 462-4 -
Rebecca R. Pallmeyer, Judge.
Flaum, Sykes, and Hamilton, Circuit Judges.
HAMILTON, CIRCUIT JUDGE.
the time he was a young adolescent, defendant Ulises De La
Cruz was a member of the Latin Kings gang. De La Cruz was one
of many Latin Kings swept up in a federal prosecution
charging the gang with operating a racketeering conspiracy in
the Chicago area. He pleaded guilty to the conspiracy charge
and argued at sentencing that the district judge should
reduce his sentence by the amount of time he had already
served in prison on charges related to conduct that was part
of the ongoing racketeering conspiracy. He was partially
successful. The district judge, in recognition of a prison
sentence De La Cruz was still serving, imposed a 210-month
sentence. That term was the bottom of the range recommended
by the U.S. Sentencing Guidelines. De La Cruz appeals this
sentence. He contends that the Guidelines entitle him to a
greater reduction due to another prior prison sentence he
served in full. His argument misreads the discretionary
nature of the Guidelines relating to downward departures for
discharged prison sentences. The district judge did not abuse
that discretion, so we affirm.
January 2016, a grand jury indicted De La Cruz and fourteen
other members of the Latin Kings for participating in a
racketeering conspiracy in violation of 18 U.S.C. §
1962(d). De La Cruz pleaded guilty to the racketeering
charge, preserving his right to appeal the sentence. At no
time did he dispute the factual allegations in the
presentence investigation report prepared by the U.S.
Probation Office. That report provides the facts summarized
below that detail his role in the Latin Kings and the many
factors relevant to his sentence.
Cruz joined the Latin Kings in 1999 when he was not yet a
teenager. He rose through the ranks of the Maywood, Illinois
section of the gang, becoming the Chief Enforcer of that unit
by 2008 and eventually its second in command, or Cacique. In
this leadership role, De La Cruz inflicted physical
punishment on members of the gang who violated its rules and
the orders of its leadership. For example, on one occasion in
2013, De La Cruz participated in a meeting where his section
beat a member for accusing another member of cooperating with
law enforcement without sufficient evidence. The beating
victim suffered severe injuries that required medical care.
At that same meeting, De La Cruz ordered others to shoot
rival gang members and former Latin Kings, threatening
beatings if they failed to comply.
his time as a Latin King, De La Cruz racked up ten
convictions and more arrests for a variety of offenses. His
convictions ranged from criminal damage to property and
canna-bis possession to aggravated unlawful use of a weapon
and aggravated discharge of a firearm. Several of these
convictions might count as part of the underlying
racketeering conduct, but because De La Cruz was convicted of
these offenses "prior to the last overt act" in
furtherance of the racketeering conspiracy, the Guidelines
treat these offenses as part of the defendant's criminal
history. See U.S.S.G. § 2E1.1 cmt. 4. Only the two
weapons offenses from 2008 and 2014 are relevant to this
November 2008, police responded to a report of shots fired.
Officers saw De La Cruz toss a semi-automatic handgun out of
a vehicle that fled the scene. De La Cruz was convicted of
violating an Illinois statute for the aggravated unlawful use
of a weapon and sentenced to two years in prison. He served
his prison sentence and, with credit for good behavior in
prison, was released on parole in July 2009. The case was
closed the following year.
March 2014, De La Cruz fired two shots into a second-floor
window of a rival gang member's residence and four shots
into a car outside the residence. He was arrested,
incarcerated, and convicted of aggravated discharge of a
firearm. The state court sentenced him to five years in
prison for the offense. From the time of his indictment in
this federal case through his federal sentencing, De La Cruz
remained in prison for the 2014 offense. The probation
officer believed that this offense was likely part of the
underlying racketeering activity. Because telephone
recordings showed that De La Cruz continued to act in
furtherance of the conspiracy while in prison on this charge,
the probation officer counted this offense toward his
criminal history score and not toward the score for his
underlying offense in accordance with the Guidelines. See
U.S.S.G. § 2E1.1 cmt. 4.
recorded statements supported the conclusion that De La Cruz
continued to participate in the conspiracy. For example, in
December 2014, he told another gang member while in jail that
he "put his freedom off" for the gang and was
"in it for the long run." In January 2015, he said
that once released from jail, he would be "right back
like I never left." More ominously, De La Cruz responded
to news that his fellow members had shot and severely injured
a former member by expressing approval. He said that if the
victim wound up in jail, that would be "the worst thing
for him." On another occasion, he said that if
allegations that some Latin Kings in custody were cooperating
with law enforcement were true, he would have those persons
attacked or killed.
sentencing, De La Cruz argued that he should receive credit
for time served in Illinois prisons for crimes he committed
in furtherance of the Latin Kings criminal conspiracy. The
main justification for his proposed adjustment centered on
the inequity of De La Cruz serving more time than his
codefend-ants in the case who previously escaped prison
terms, despite ongoing participation in the scheme. After
all, De La Cruz claimed, he was already serving time in
Illinois prison for a charge related to the federal
conspiracy when he was indicted in this federal case.
U.S. Probation Office calculated De La Cruz's sentencing
range as 210 to 240 months using the 2016 Guidelines Manual.
The district judge said that she was "sensitive to the
fact that" De La Cruz "has already served
significant time on another offense in state court." To
account for this fact and to avoid the "need to subtract
or add anything to make this [sentence] work," the judge
imposed a sentence at the bottom of the guideline range, 210
months, and ordered that it be served concurrently with the
remainder of De La Cruz's state sentence.
appeal, De La Cruz argues that the district judge committed
procedural error by failing to give him more credit toward
his federal sentence for time served in state prison for
offenses that formed part of the underlying racketeering
activity. We review de novo claims of procedural
errors in sentencing, such as a district court's
interpretations of the Guidelines. United States v.
Hoffman, 847 F.3d 878, 881 (7th Cir. 2017). We review
the district court's substantive sentencing
determinations for abuse of discretion. Gall v. United
States, 552 U.S. 38, 41 (2007). De La ...