NONPRECEDENTIAL DISPOSITION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
Submitted February 6, 2014
Decided February 6, 2014
Before
DIANE P. WOOD, Chief Judge
MICHAEL S. KANNE, Circuit Judge
JOHN DANIEL TINDER, Circuit Judge
No. 12‐3835
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff‐Appellee, Court for the Southern District of Illinois.
v. No. 4:09CR40037‐001‐JPG
RAYMOND M. MARTIN, J. Phil Gilbert,
Defendant‐Appellant. Judge.
O R D E R
Raymond Martin was convicted in 2010 on 15 counts including marijuana
distribution, possession of a firearm during a drug trafficking crime, conspiracy to
distribute marijuana, witness tampering, conspiracy to tamper with witnesses, and
attempted structuring of financial transactions. All of these crimes were committed
while he served as the elected sheriff of Gallatin County, Illinois. The district court
calculated an imprisonment range of 97 to 121 months for all counts except Counts 4
and 5, both for possessing a firearm during a drug trafficking crime. On those counts,
the court calculated a range of 60 months to life for Count 4, and a range of 300 months
to life for Count 5. The court sentenced Martin to 120 months’ imprisonment for Counts
7 to 14 and 60 months for Counts 1 to 3, 6, and 15, with all of those terms running
No. 12‐3835 Page 2
concurrently. On Counts 4 and 5, the firearm charges, the court imposed life sentences
running consecutively to each other and the other counts.
Martin appealed his overall sentence, arguing in part that the district court
plainly erred in calculating his guidelines range for Counts 4 and 5. We concluded that
the court had misunderstood the guidelines sentences for Counts 4 and 5 when it
determined that the ranges were 60 months to life and 300 months to life. See United
States v. Martin, 692 F.3d 760, 766–67 (7th Cir. 2012). Possessing a firearm during a drug
trafficking crime carries a 60‐month statutory minimum for a defendant’s first offense
and a 300‐month statutory minimum for a second offense. 18 U.S.C. § 924(c). And
because the statute does not specify a maximum sentence, courts may impose any
sentence from the statutory minimum up to life in prison. United States v. Lucas, 670 F.3d
784, 795–796 (7th Cir. 2012); United States v. Sandoval, 241 F.3d 549, 551 (7th Cir. 2001).
But the guidelines sentence for § 924(c) offenses is the statutory minimum, which must
run consecutively to any other term of imprisonment. U.S.S.G. § 2K2.4(b); 18 U.S.C.
§ 924(c)(1)(D)(ii). Consequently, the guidelines sentences for Counts 4 and 5 were 60
months and 300 months, 18 U.S.C. § 924(c)(1)(A)(i), (c)(1)(C)(i), and we remanded to the
district court for resentencing using the proper guidelines recommendations. Martin,
692 F.3d at 767.
At resentencing in 2012, the district court imposed the same sentences on
Counts 1 to 3 and 6 to 15. On Counts 4 and 5, the district court noted the corrected
guidelines sentences—60 and 300 months—but again imposed consecutive life
sentences with the explanation that it did not “believe anything less than a life
imprisonment is appropriate.”
Martin once again has filed a notice of appeal, but his appointed attorney asserts
that the appeal is frivolous and seeks to withdraw. See Anders v. California, 386 U.S. 738
(1967). We confine our review to the potential issues discussed in counsel’s facially
adequate brief. See United States v. Schuh, 289 F.3d 968, 973–74 (7th Cir. 2002). In her
motion to withdraw, counsel correctly notes that any possible issue that could have
been raised in the first appeal may not be raised now in this second appeal. See United
States v. Peel, 668 F.3d 506, 507 (7th Cir. 2012); United States v. Parker, 101 F.3d 527, 528
(7th Cir. 1996). With that in mind, counsel addresses whether Martin could argue that at
resentencing the district court committed an ex post facto violation by reimposing,
without objection, a 2‐level upward adjustment that did not exist in the version of the
guidelines in effect at the time of Martin’s crimes. He received this increase under
U.S.S.G. § 2D1.1(b)(14)(B)(iv) and (D) for recruiting an individual who was particularly
No. 12‐3835 Page 3
susceptible to criminal conduct and for engaging in witness intimidation. After
resentencing, the Supreme Court decided Peugh v. United States, 133 S. Ct. 2072 (2013),
which holds that applying current guidelines yielding a higher imprisonment range
than the guidelines in effect at the time of the offense violates the Ex Post Facto Clause.
Id. at 2078.
Under Peugh, the district court imposed a sentence that violates the Ex Post Facto
Clause. The 2‐level adjustment under § 2D1.1(b)(14) was not in force at the time of
Martin’s 2009 offenses. See U.S.S.G. app. C, amend. 748. The upward adjustment led to a
guidelines range on Counts 1 to 3 and 6 to 15 of 97 to 121 months, whereas the 2009
version of the guidelines, with no adjustment, yields an imprisonment range of 78 to 97
months. But whether Martin serves a total of 120 months in prison on these counts, as
the district court imposed, or serves a lower sentence based on the lower guidelines
range, the result is the same: Martin will spend the rest of his life in prison given the
consecutive life sentences he must serve on Counts 4 and 5. Thus it would be frivolous
to argue that the violation constituted plain error. See United States v. Currie,
No. 12‐1666, — F.3d —, 2014 WL 47017, at *4 (7th Cir. Jan. 7, 2014).
The appropriate issue for consideration, thus, is whether the consecutive life
sentences for the firearm counts are reasonable. We will uphold as reasonable an above‐
guidelines sentence so long as the district court considered the factors in 18 U.S.C.
§ 3553(a) and adequately explained its reasons for imposing the sentence. See United
States v. Hill, 645 F.3d 900, 911 (7th Cir. 2011); United States v. Courtland, 642 F.3d 545,
550 (7th Cir. 2011). And “[a]n above‐guidelines sentence is more likely to be reasonable
if it is based on factors sufficiently particularized to the individual circumstances of the
case rather than factors common to offenders with like crimes.” United States v. Stinefast,
724 F.3d 925, 932–33 (7th Cir. 2013) (quotation marks and citation omitted).
At resentencing the district judge offered an exhaustive explanation for the life
sentences, connecting the factors under 18 U.S.C. § 3553(a) to the need to impose harsh
punishment. The court began by acknowledging Martin’s difficult upbringing and lack
of parental supervision as a child. But in considering the nature and circumstances of
Martin’s crimes, see id. § 3553(a)(1), the court noted that Martin’s case was one of the
“most severe” it had ever seen and explained that, as a sheriff, Martin’s “betrayal of the
public trust and the people that [he] was elected to serve . . . was unforgivable.” To
reiterate the seriousness of Martin’s actions, see id. § 3553(a)(2)(A), the judge discussed
the numerous aggravating circumstances involved in the case: Martin had engaged in
similar drug distribution between 1999 and 2003; he knowingly allowed a dealer to
No. 12‐3835 Page 4
continue selling methamphetamine so long as the dealer did not encroach on Martin’s
marijuana business; he solicited campaign contributions from that drug dealer; he
encouraged the submission of illegal absentee ballots for the sheriff election; he
submitted fraudulent receipts to the county for reimbursement; he used county money
to fund personal purchases for himself and his family including 4‐wheelers, a trailer,
night vision goggles, propane, groceries, cell phones, and a camera; he stole at least one
firearm from the county evidence room as well as the marijuana that he sold; his crimes
forced the county to dismiss at least three drug‐related cases; and he involved his wife
and son in his witness‐tampering offenses. Only sentences significantly above the
guidelines recommendations, the court reasoned, would force Martin to realize the
severity of his offenses and deter him from future criminal conduct. See id.
§ 3553(a)(2)(A), (B).
Additionally, the court noted Martin’s lack of remorse and refusal to accept
responsibility for his crimes, as evidenced by his plotting to have witnesses murdered.
See 18 U.S.C. § 3553(a)(2)(A). Further, citing Martin’s postsentencing
conduct—smuggling prescription medication into the jail—the court concluded that
Martin has no respect for the law and poses a significant threat to the public.
See id. § 3553(a)(2)(C); Pepper v. United States, 131 S. Ct. 1229, 1249 (2011) (recognizing
that district court may justify increased sentence by identifying relevant conduct that
occurred after original sentencing hearing); Wasman v. United States, 468 U.S. 559, 572
(1984) (same). Martin’s life sentences are “firmly anchored” in the considerations
required under 18 U.S.C. § 3553(a), as shown by the court’s thorough application of the
statutory factors to the circumstances in Martin’s case. See United States v. Padilla, 618
F.3d 643, 646 (7th Cir. 2010). The court’s extensive discussion of the numerous
aggravating factors provides substantial justification for the life sentences, and any
argument to the contrary would be frivolous.
Counsel last considers whether Martin could successfully claim that he received
ineffective assistance of counsel at resentencing. But if Martin wishes to make an
ineffective assistance claim, a request for collateral relief under 28 U.S.C. § 2255 is the
preferred method. See Massaro v. United States, 538 U.S. 500, 504 (2003); United States v.
Harris, 394 F.3d 543, 558 (7th Cir. 2005).
The motion to withdraw is GRANTED, and the appeal is DISMISSED.