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United States v. Cruz

United States Court of Appeals, Seventh Circuit

July 30, 2018

United States of America, Plaintiff-Appellee,
v.
Ulises De La Cruz, Defendant-Appellant.

          Argued February 23, 2018

          Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 16 CR 462-4 - Rebecca R. Pallmeyer, Judge.

          Before Flaum, Sykes, and Hamilton, Circuit Judges.

          HAMILTON, CIRCUIT JUDGE.

         From 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.

         In 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.

         De La 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.

         During 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 appeal.

         In 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.[1]

          In 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.

         Several 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.

         At 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.

         The 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.

         On 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 ...


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