United States v. Ladonta Gill , 889 F.3d 373 ( 2018 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 17-1186
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
LADONTA GILL,
Defendant-Appellant.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 10 CR 673 — Matthew F. Kennelly, Judge.
____________________
ARGUED FEBRUARY 16, 2018 — DECIDED MAY 3, 2018
____________________
Before WOOD, Chief Judge, and KANNE and ROVNER, Circuit
Judges.
KANNE, Circuit Judge. This is Gill’s third time appealing his
sentence after he pled guilty in 2011 to one count of conspir-
acy to possess heroin with intent to distribute. Twice before,
we have remanded his case for resentencing.
In this appeal, Gill argues he is entitled to yet another re-
sentencing for two reasons. First, he contends that the district
2 No. 17-1186
court should have reduced his sentencing guidelines offense
level because he accepted responsibility. But the district court
did not clearly err when it denied Gill the reduction. Second,
Gill insists that the district court created unwarranted sen-
tence disparities between himself and his codefendants. But
the district court sufficiently addressed the sentence dispari-
ties and explained why Gill was receiving a higher sentence
than most of his codefendants. Accordingly, we affirm.
I. BACKGROUND
The facts relevant to Gill’s current conviction are detailed
in our two prior opinions, United States v. Adams, 746 F.3d 734(7th Cir. 2014), and United States v. Gill, 824 F.3d 653 (7th Cir.
2016). We briefly summarize them here.
Gill was a high-level member of a large heroin distribution
operation that was led by Dana Bostic. After Bostic was shot
and Bostic’s brother was murdered, Gill participated in a re-
taliatory shooting. In November 2008, in Illinois state court,
Gill pled guilty to a charge of aggravated unlawful use of a
weapon in connection with that shooting. He was sentenced
to three years’ imprisonment.
In the fall of 2009, the Chicago Police Department and the
Drug Enforcement Administration launched an investigation
into Bostic’s organization that led to a federal indictment
against Gill and a number of the organization’s other mem-
bers. After that indictment, on December 21, 2011, Gill pled
guilty to one count of conspiracy to possess heroin with intent
to distribute.
At Gill’s initial sentencing, the district court calculated
Gill’s offense level to be 40 and assigned him a criminal his-
tory score of III. It sentenced him to a below-guidelines term
No. 17-1186 3
of 329 months’ imprisonment and ten years’ supervised re-
lease. Gill appealed, challenging only the district court’s ap-
plication to his offense level of a 2-level enhancement for
maintaining a drug premises. We agreed that the enhance-
ment was improper in light of intervening authority and re-
manded the case. See Adams, 746 F.3d at 743–45.
On remand, the district court recalculated Gill’s guidelines
offense level, removing the 2-level drug premises enhance-
ment and proactively removing another 2-level enhancement
in anticipation of a retroactive amendment to the Guidelines.
His new offense level was 36. The district court concluded
that Gill’s criminal history score should remain the same as it
was in his first sentencing—III—and Gill did not object. The
score was based in part on Gill’s prior state conviction for ag-
gravated unlawful use of a weapon. The district court im-
posed a within-guidelines sentence of 280 months’ imprison-
ment and 10 years’ supervised release.
Gill then appealed his second sentence, challenging the
district court’s use of his prior state conviction to calculate his
criminal history score and the district court’s failure to make
adequate findings when imposing supervised release condi-
tions. We accepted both of his arguments and issued a full re-
mand for resentencing. See Gill, 824 F.3d at 659–63.
On the second remand, the district court reduced Gill’s
criminal history score by removing his prior state conviction
for aggravated unlawful use of a weapon. Gill also asked the
court to further reduce his offense level because he had ac-
cepted responsibility, but the district court denied the reduc-
tion because Gill did not turn himself in for ten months after
his arrest warrant issued. (Gill had asked for the reduction in
his first sentencing hearing, and the district court denied it
4 No. 17-1186
then, too.) The court concluded that Gill’s offense level should
be the same as it was when he was sentenced the second time.
With a new criminal history score of I, an offense level of
36, and a mandatory minimum term of twenty years’ impris-
onment, Gill’s guidelines prison range was exactly 240
months. The district court then sentenced Gill to an
above-guidelines prison term of 264 months and imposed 10
years’ supervised release. Gill’s appeal from this sentence—
his third—is before us now.
II. ANALYSIS
Gill raises two issues in his current appeal. First, he argues
that he is entitled to the acceptance of responsibility reduction
to his guidelines offense level. Second, he believes that the dis-
trict court created unwarranted sentence disparities between
himself and his codefendants.
The government contends that Gill has waived or, at the
very least, forfeited both of these issues. 1 We disagree. Follow-
ing a full remand, the district court permitted Gill to raise
both issues and addressed them, as it had the discretion to do.
1 The government does not raise the law-of-the-case doctrine in this
case, though it may have been a more appropriate argument than waiver
or forfeiture in circumstances like these. See United States v. Sumner, 325
F.3d 884, 891 (7th Cir. 2003) (“[C]hanges in litigation position on succes-
sive appeals are barred except where justified by … changed circum-
stances.”). But even if it had (and assuming that the doctrine applies to
appeals following a full remand), there appears to be a changed circum-
stance here: at Gill’s third sentencing hearing, he received an above-guide-
lines prison term for the first time. Moreover, the law-of-the-case doctrine
is not a limit on our power to hear an appeal. Christianson v. Colt Indus.
Operating Corp., 486 U.S. 800, 817 (1988).
No. 17-1186 5
United States v. Lewis, 842 F.3d 467, 473–74 (7th Cir. 2016). Nei-
ther waiver nor forfeiture principles apply when a party ap-
peals an issue that was properly raised and addressed below.
Accordingly, we turn now to the merits of the issues Gill
has raised in this appeal, beginning with the acceptance of re-
sponsibility reduction.
A. The district court did not clearly err in denying Gill the ac-
ceptance of responsibility reduction.
The Sentencing Guidelines permit a two-level decrease in
a defendant’s offense level “[i]f the defendant clearly demon-
strates acceptance of responsibility for his offense.” U.S.S.G.
§ 3E1.1(a). The trial court is tasked with determining whether
a defendant has clearly accepted responsibility, United States
v. Collins, 796 F.3d 829, 835 (7th Cir. 2015), and its determina-
tion “is entitled to ‘great deference’” because the sentencing
judge “is uniquely positioned to evaluate a defendant’s ac-
ceptance of responsibility,” id. at 835–36 (quoting United States
v. Dachman, 743 F.3d 260 (7th Cir. 2014)).
Here, Gill argues that he was entitled to the reduction “in
light of his plea of guilty and extensive disclosures to the gov-
ernment.” (Appellant’s Br. at 13.) The district court rejected
the reduction, though, because Gill did not turn himself in for
ten months after his indictment. We review that determina-
tion for clear error, Collins, 796 F.3d at 835, and we find none.
A defendant is not entitled to an acceptance of responsibil-
ity adjustment simply because he enters a timely guilty plea
and truthfully admits the offense of conviction. Id.; United
States v. Sellers, 595 F.3d 791, 793 (7th Cir. 2010). Instead, evi-
dence bearing on a defendant’s acceptance of responsibility,
6 No. 17-1186
like entering a guilty plea, “may be outweighed by other in-
compatible acts or statements,” Sellers, 595 F.3d at 793, like a
defendant’s failure to surrender voluntarily to authorities
promptly after commission of the offense. U.S.S.G. § 3E1.1,
cmt. n.1(D), n.3. Here, Gill did not surrender voluntarily to
authorities for nearly a year after his arrest warrant issued.
Nonetheless, Gill contends that the district court clearly
erred in denying him the reduction, because the court re-
duced a codefendant’s offense level for accepting responsibil-
ity. Indeed, that codefendant similarly avoided authorities for
nearly a year, but he also entered into a plea agreement with
the government in which he admitted his fugitive status and
other relevant conduct (for less severe offenses than the one
Gill pled guilty to). Gill, on the other hand, pled guilty by a
written plea declaration in which he omitted some relevant
information, including the fact of his prior fugitive status. In
short, Gill’s offense was more severe than his codefendant’s,
and his written plea declaration was less forthcoming.
The district court was uniquely positioned to determine
whether Gill had clearly demonstrated that he accepted re-
sponsibility. We are not left with a definite and firm convic-
tion that the district court mistakenly concluded that he had
not. Thus, Gill is not entitled to be resentenced on this first
basis. We turn now to the second.
B. The district court adequately explained why it was imposing
a sentence on Gill that was higher than his guidelines range
and higher than most of his codefendants’.
The district court correctly calculated Gill’s third guide-
lines range to be exactly 240 months’ imprisonment given his
mandatory minimum term of twenty years. The district court
No. 17-1186 7
then sentenced Gill to 264 months’ imprisonment, an upward
departure of 24 months.
Gill argues that his 264-month prison term was dispropor-
tionately severe compared to that of his codefendants. Indeed,
only Bostic received a greater prison term than Gill (360
months). It’s unclear whether Gill believes that the district
court procedurally erred by not considering sentence dispar-
ities or that it substantively erred by imposing an unreasona-
bly high sentence when compared to those of his codefend-
ants. No matter how we construe his argument, though, he
cannot prevail.
We review whether a district court procedurally erred
during sentencing de novo. United States v. Brown, 880 F.3d 399,
404 (7th Cir. 2018). A district court might commit procedural
error if it fails to consider “the need to avoid unwarranted
sentence disparities among defendants with similar records
who have been found guilty of similar conduct,” 18 U.S.C.
§ 3553(a)(6). See United States v. Prado, 743 F.3d 248, 251–52 (7th
Cir. 2014). But the district court here considered the need to
avoid unwarranted sentence disparities. A review of the sen-
tencing transcript reveals that Gill raised his disparity argu-
ment to the court and the court spent time addressing it. (See
R. 1009 at 24, 40–43.) Thus, we find no procedural error.
We review the substantive reasonableness of a sentence
for an abuse of discretion, considering “the sentencing court’s
explanation of its reasons for imposing a particular sentence.”
United States v. Carter, 538 F.3d 784, 789 (7th Cir. 2008). We up-
hold an above-guidelines sentence if “the district court of-
fered an adequate statement of its reasons, consistent with 18
U.S.C. § 3553(a), for imposing [the] sentence.” United States v.
Aldridge, 642 F.3d 537, 544 (7th Cir. 2011). As noted above, the
8 No. 17-1186
district court addressed each of the issues Gill believed cre-
ated unwarranted sentence disparities. 2 Moreover, when it
handed down its sentence, the district court indicated why it
was imposing an above-guidelines sentence: Gill’s history of
crime, violence, gun possession, and recidivism. (R. 1009 at
51.) The district court provided a more than adequate state-
ment of its reasons when imposing Gill’s sentence. “[T]he fact
that the district court imposed a lesser sentence on his co-de-
fendant[s] does not negate the reasonableness of the sentence
the court imposed on [Gill].” United States v. Hill, 683 F.3d 867,
871 (7th Cir. 2012).
III. CONCLUSION
Given that the district court did not clearly err in denying
Gill a reduction for accepting responsibility, and that it ade-
quately explained why Gill was receiving an above-guide-
lines sentence in the face of lower sentences for many of his
codefendants, the judgment of the district court is
AFFIRMED.
2 To the extent that Gill believes the presence of a Section 851 enhance-
ment in his case created an unwarranted disparity because the govern-
ment dismissed it for other defendants but not for Gill, that disparity was
created by the prosecutor, not the court. Cf. United States v. Scott, 631 F.3d
401, 404–06 (7th Cir. 2011) (noting that the government’s decision to dis-
miss all charges against a coconspirator did not create a sentence disparity
issue that the court needed to consider).