In the
United States Court of Appeals
For the Seventh Circuit
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Nos. 15‐2193, ‐2762
UNITED STATES OF AMERICA,
Plaintiff‐Appellee,
v.
FELIPE ZAMORA and SAMUEL GUTIERREZ,
Defendants‐Appellants.
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Appeals from the United States District Court for the
Northern District of Illinois, Eastern Division.
Nos. 08 CR 746‐10, ‐18 — Charles R. Norgle, Judge.
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SUBMITTED AUGUST 18, 2016 — DECIDED AUGUST 26, 2016
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Before POSNER, EASTERBROOK, and SYKES, Circuit Judges.
POSNER, Circuit Judge. In 2009 the defendants, Zamora
and Gutierrez, high‐ranking members of the Latin Kings
street gang, were charged with a variety of federal crimes.
Zamora pleaded guilty to participating in both a racketeer‐
ing conspiracy and a conspiracy to extort money from “mi‐
queros,” who specialize in providing identification docu‐
ments to unauthorized aliens. Gutierrez pleaded guilty to
participating in the racketeering conspiracy and to pos‐
2 Nos. 15‐2193, ‐2762
sessing an illegal drug with intent to distribute it. At sen‐
tencing the district judge credited Zamora with acceptance
of responsibility, but in sentencing him to 240 months in
prison failed to indicate what Zamora’s guidelines range
was. The court imposed a 3‐year term of supervised release
with all the standard conditions of supervised release plus
two special conditions, one requiring Zamora to participate
in an approved job‐skill training program and the other re‐
quiring him to perform at least 20 hours of community ser‐
vice weekly if he was unemployed.
At Gutierrez’s sentencing, which took place a month af‐
ter Zamora’s, the judge refused to credit him with ac‐
ceptance of responsibility, on the ground that unlike his
codefendant he had fallen “substantially short of accepting
responsibility factually for what occurred: what he did and
what was foreseeable to him, and which was part of the dai‐
ly activities, as it were, of this—of the gang itself.” His ac‐
ceptance of responsibility, the judge said, was directed “to
his family and friends” and “totally ignores the other victims
of the activities carried out” by the Latin Kings. The judge
calculated Gutierrez’s guidelines range at 210 to 262 months,
and sentenced him at the bottom of the range, while also
imposing a 4‐year term of supervised release with all the
standard conditions plus special conditions requiring
Gutierrez to undergo a mental‐health evaluation, participate
in a mental‐health treatment program, take steps to obtain a
GED, and if unemployed perform community service.
The defendants appealed, and in United States v. Garcia,
754 F.3d 460, 483–87 (7th Cir. 2014), we vacated their sen‐
tences—Zamora’s for the judge’s failure to calculate his
guidelines range or justify what appeared to be an above‐
Nos. 15‐2193, ‐2762 3
guidelines sentence, Gutierrez’s for lack of an adequate ex‐
planation by the judge for deciding to deny Gutierrez ac‐
ceptance of responsibility; and so we remanded for resen‐
tencing of both defendants.
On remand the district judge commended Zamora for
good behavior in prison and for showing genuine remorse
for his activities as a high‐ranking Latin King; calculated a
guidelines imprisonment range of 168 to 210 months; im‐
posed a prison sentence of 200 months; and reimposed the
term and conditions of supervised release that he had im‐
posed before. Gutierrez in his sentencing memorandum ex‐
plained that heʹd tried to “better himself” in prison by, for
example, completing “numerous classes and programs,”
working as a cook in the prison kitchen, participating in vo‐
cational training as a cabinetmaker, and helping to train oth‐
er inmates in masonry and carpentry. At his resentencing
hearing he again apologized for belonging to the Latin
Kings, but this time his apology was “to the Court,” his
family, and “also to the community.” On the basis of his
statement, the government recommended that he receive
credit for acceptance of responsibility, which would reduce
his guidelines range from 210 to 262 months to 151 to 188
months. After questioning Gutierrez at length concerning his
activities as a Latin King, the judge, while not calculating a
guidelines range, did reduce his sentence from 210 to 188
months, with “all other aspects of the [original] judgment ...
[to] remain in effect.”
The defendants have again appealed. Both challenge the
conditions of supervised release, pointing out that the judge
failed to give advance notice that he was considering impos‐
ing (as he did) discretionary conditions (that is, conditions
4 Nos. 15‐2193, ‐2762
other than the standard and special conditions that the judge
also imposed), that some of the conditions he did impose we
have deemed overbroad and overly vague in previous deci‐
sions, and that he failed to determine the compatibility of the
conditions he was imposing with the statutory sentencing
factors in 18 U.S.C. § 3553(a), or to state the conditions orally.
All these were errors, which have persuaded the govern‐
ment—and persuade us—that the sentences of the defend‐
ants must again be vacated and the cases again remanded
for the full resentencing that the defendants should have re‐
ceived after our previous remand but did not. See, e.g., Unit‐
ed States v. Poulin, 809 F.3d 924, 931–34 (7th Cir. 2016); United
States v. Harper, 805 F.3d 818, 822 (7th Cir. 2015); United States
v. Sandidge, 784 F.3d 1055, 1067–69 (7th Cir. 2015); Unit‐
ed States v. Kappes, 782 F.3d 828, 842–52, 862–63 (7th Cir.
2015); United States v. Thompson, 777 F.3d 368, 373, 375–77,
379–81 (7th Cir. 2015).
As explained in United States v. Mobley, No. 15‐2255, 2016
WL 4275821 (7th Cir. Aug. 15, 2016), at *3, “Because a crimi‐
nal sentence is normally a package that includes several
component parts (term of imprisonment, fine, restitution,
special assessment, supervised release), when one part of the
package is disturbed, we prefer to give the district court the
opportunity to reconsider the sentence as a whole so as to
‘effectuate its sentencing intent.’ Pepper v. United States, 562
U.S. 476, 507 (2011). Vacating the sentence and returning the
case to the district court for imposition of a new sentence al‐
lows the district court to ‘reconfigure the sentencing plan’ so
as to ‘satisfy the sentencing factors in 18 U.S.C. § 3553(a).’
Id.” See also United States v. Barnes, 660 F.3d 1000, 1007 (7th
Cir. 2011), where we explained that a full resentencing al‐
Nos. 15‐2193, ‐2762 5
lows the district court to “unbundle the sentencing pack‐
age.”
With regard to Gutierrez the judge committed an addi‐
tional error by failing to calculate his guidelines range (one
of the errors, the reader will recall, that caused us to order
Zamora resentenced). Furthermore, though we instructed
the judge to reconsider on remand his ruling that Gutierrez
had not accepted responsibility for the crimes he’d pleaded
guilty to, we can’t tell from the sentencing transcript how the
issue of acceptance of responsibility was resolved. It is true
that Gutierrez’s new sentence—188 months—would be the
top of the guidelines range recommended by the defense
and the government, reflecting the deduction of three of‐
fense levels for acceptance of responsibility. But the judge’s
extended colloquy concerning Gutierrez’s activities as a
member of the Latin Kings and apparent dissatisfaction with
Gutierrez’s answers are consistent with the judge’s having
reduced his sentence not because he’d accepted responsibil‐
ity for his crime but because like Zamora he’d behaved well
in prison. Pepper v. United States, supra, 562 U.S. at 490–93.
But thatʹs just a guess; for in contrast to his treatment of Za‐
mora, the judge did not mention Gutierrez’s good behavior
in prison, did not mention any of the section 3553(a) sentenc‐
ing factors, and did not explain why, assuming he was sub
silentio crediting Gutierrez with accepting responsibility, he
nevertheless thought that unlike Zamora Gutierrez deserved
to be sentenced at the high end of the applicable guidelines
range. (This assumes that the judge agreed with the litigants’
guidelines calculation.)
Given that both defendants were entitled to a full resen‐
tencing after their successful first appeals, 18 U.S.C.
6 Nos. 15‐2193, ‐2762
§ 3742(g), and instead received cursory treatment by the
judge, and that the government does not contest Gutierrez’s
request that a different judge conduct his sentencing hearing
on remand, we order that Gutierrez’s third sentencing hear‐
ing be conducted before a different judge. See 7th Cir. R. 36.
The defendants’ sentences are vacated and both cases are
remanded for resentencing.