In the
United States Court of Appeals
For the Seventh Circuit
____________________
Nos. 15‐3575 & 15‐3581
UNITED STATES OF AMERICA,
Plaintiff‐Appellee,
v.
THOMAS CURETON,
Defendant‐Appellant.
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Appeals from the United States District Court for the
Southern District of Illinois.
Nos. 10‐CR‐30106 & 10‐CR‐30200 — David R. Herndon, Judge.
____________________
ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES
DECIDED FEBRUARY 16, 2018
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Before EASTERBROOK, KANNE, and HAMILTON, Circuit
Judges.
PER CURIAM. In his third round of appeals, we affirmed de‐
fendant Cureton’s convictions and sentences for using a fire‐
arm during a crime of violence and related crimes. 845 F.3d
323 (7th Cir. 2017). The Supreme Court granted certiorari, va‐
cated, and remanded for reconsideration in light of Dean v.
2 Nos. 15‐3575 & 15‐3581
United States, 581 U.S. —, 137 S. Ct. 1170 (2017), which disap‐
proved our circuit precedents such as United States v. Roberson,
474 F.3d 432 (7th Cir. 2007), barring judges sentencing defend‐
ants under 18 U.S.C. § 924(c) and other crimes from consider‐
ing 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 ap‐
peals.
In his statement under Circuit Rule 54, Cureton urges full
resentencing on a theory of plain error. The government ar‐
gues for either affirmance or a limited remand along the lines
of United States v. Paladino, 401 F.3d 471 (7th Cir. 2005), to al‐
low the district judge to decide whether he would be inclined
to exercise his discretion to impose a lower overall sentence.
In our 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 sen‐
tence. 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 Rob‐
erson); 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 govern‐
ment. 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
Nos. 15‐3575 & 15‐3581 3
picture was cloudier, we have used a Paladino remand to en‐
sure 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).
The signals here fit into the cloudy category. Cureton was
originally convicted of attempted extortion, interstate com‐
munication of a ransom demand, two counts of possessing a
firearm during a crime of violence, and three counts of dis‐
tributing 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 con‐
ditions of supervised release. On remand, the district court
imposed the same total sentence of 444 months, leading to the
present appeals.
That 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 ran‐
som 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 in‐
itial remand, neither the original sentencing judge nor the
judge on remand has given any sign that he felt constrained
4 Nos. 15‐3575 & 15‐3581
by Roberson or believed that the reduced total sentence of 444
months was too severe.
Under 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 decid‐
ing the sentences for other crimes, or whether the court
wishes to have a new opportunity to exercise its discretion
and judgment in a complete resentencing. We shall retain ju‐
risdiction over these appeals pending the district court’s re‐
sponse.
SO ORDERED.