United States v. Rashad Anchando ( 2019 )

NONPRECEDENTIAL DISPOSITION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
Argued June 12, 2019
Decided June 19, 2019
Before
DIANE P. WOOD, Chief Judge
AMY C. BARRETT, Circuit Judge
AMY J. ST. EVE, Circuit Judge
No. 18‐2763
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff‐Appellee, Court for the Northern District of Illinois,
Eastern Division.
v. No. 1:17‐CR‐00371(2)
RASHAD ANCHANDO, John J. Tharp, Jr.,
Defendant‐Appellant. Judge.
ORDER
After crashing a stolen Jeep into the storefront of a firearms retailer, Rashad
Anchando and his co‐defendants stole 20 guns. Anchando pleaded guilty to stealing
firearms from a federally licensed gun dealer, 18 U.S.C. § 922(u), and the district court
sentenced him to 60 months’ incarceration, consecutive to a sentence that he is serving
for an unrelated state conviction. On appeal, Anchando argues that his consecutive,
above‐Guidelines sentence is unreasonable. Because the district court did not abuse its
discretion, we affirm the sentence.
No. 18‐2763 Page 2
Background
After Anchando and his co‐defendants stole a Jeep from the parking lot of a gun
store in Spring Valley, Illinois, they discovered that it contained 700 to 800 rounds of
ammunition. They then decided to rob South Post Guns, a federally licensed firearms
business in Streator, Illinois. A co‐conspirator drove the stolen Jeep through the
storefront, and Anchando and others then entered the store, broke glass casings, and
stole 20 firearms. Later, the group recorded a video of themselves pointing the stolen
weapons, with the tags still attached, at the camera; the video was posted on Facebook.
The group then divided the firearms among themselves. Anchando admits that he
believed that his accomplices would bring the guns to Chicago and distribute them to
persons who did not intend to use or dispose of them lawfully.
Two weeks later, Streator police officers arrested Anchando for the delivery of
heroin and possession of a stolen firearm. While in detention, he also was charged with
battery against a fellow inmate. He pleaded guilty to all three charges in Illinois state
court and was sentenced to six years’ imprisonment.
While Anchando was incarcerated, a federal grand jury indicted him on three
charges in connection with the gun‐store robbery: conspiring to steal from a federally
licensed gun dealer, 18 U.S.C. § 371, stealing from a federally licensed gun dealer,
id. § 922(u), and possessing stolen firearms, id. § 922(j). Anchando entered into a written
plea agreement and pleaded guilty to the second count.
At the sentencing hearing, the court calculated a Guidelines range of 41 to 51
months’ imprisonment. The government requested a sentence of 51 months, beginning
after his state sentence. Anchando argued that the sentence should not be consecutive
because he had not committed the federal offense while serving his state sentence.
See U.S.S.G. § 5G1.3(a). The district court determined, however, that it had discretion to
impose the sentence wholly concurrent with, partially concurrent with, or consecutive
to Anchando’s state sentence.
Ultimately, the court sentenced Anchando to a fully consecutive 60 months in
prison. In reaching its conclusion, the court discussed each of the factors in 18 U.S.C.
§ 3553(a). Among these factors, the court assessed the nature and circumstances
surrounding the offense, including the fact that Anchando and his co‐defendants posted
a video bragging about the crime and advertising the guns for distribution, “in effect
volunteering to throw gas on the fire that is the problem of gun violence in [Chicago].”
No. 18‐2763 Page 3
The court also emphasized the seriousness of the offense, the need to protect the public
from similar crimes, and the objective of general deterrence “to make absolutely clear
that this is conduct [that society] won’t tolerate.”
Anchando appealed. His attorney, however, filed a motion to withdraw and an
Anders brief. See Anders v. California, 386 U.S. 738 (1967). We twice found the brief
procedurally deficient. After counsel filed the brief a third time, we struck the brief
because he had not ordered a transcript of the change‐of‐plea hearing and had not
discussed in the brief whether he had complied with his obligations under United States
v. Konczak, 683 F.3d 348, 349 (7th Cir. 2012), and United States v. Knox, 287 F.3d 667, 671
(7th Cir. 2002). These cases require counsel to advise his client about the risks and
benefits of trying to withdraw the guilty plea and specifically to confirm whether his
client wishes to do so. See Konczak, 683 F.3d at 349. We directed counsel to order the
hearing transcript and, after following the procedures in Konczak and Knox, to file either
a compliant Anders brief or a merits brief. Counsel ultimately filed a brief discussing the
merits.
Analysis
Anchando first questions whether the district court erred in sentencing him
above the Guidelines range and in relying on the need for general deterrence and the
fact of increased gun violence in Chicago to do so. We review the substantive
reasonableness of a sentence for an abuse of discretion—regardless whether that
sentence is inside or outside the Guidelines range—and will uphold an
above‐Guidelines sentence so long as the district court applied the factors in 18 U.S.C.
§ 3553(a) and adequately explained why the penalty is appropriate. United States v. Hill,
645 F.3d 900, 911 (7th Cir. 2011).
Here, the transcript of the sentencing hearing precludes any conclusion of error.
As the government notes, Anchando acknowledges that the court provided a “step by
step methodical analysis” of its reasoning, pointed to specific reasons why Anchando’s
crime was particularly egregious, and thoroughly analyzed the factors in § 3553(a).
Further, the law requires sentencing courts to reckon with deterrence, see 18 U.S.C.
§ 3553(a)(2)(B), so the court did not abuse its discretion in considering deterrence with
other factors. See United States v. Sunmola, 887 F.3d 830, 841–42 (7th Cir. 2018). As for the
mention of gun violence in Chicago, courts may contemplate community‐based factors;
indeed, “the need … to protect the public” is another required consideration. 18 U.S.C.
§ 3553(a)(2)(C); accord United States v. Hatch, 909 F.3d 872, 875 (7th Cir. 2018). The district
No. 18‐2763 Page 4
court did not abuse its discretion in weighing, among all other factors, the specific
impact of Anchando’s conduct on the community.
Anchando also questions whether the district court erred in ordering his
sentence to be served consecutive to his undischarged state sentence. “Multiple terms of
imprisonment imposed at different times run consecutively,” though courts have
discretion to order otherwise. 18 U.S.C. § 3584(a); see also Setser v. United States, 566 U.S.
231, 236 (2012). In deciding whether to impose a consecutive or concurrent sentence, the
district court must consider the factors in § 3553(a). 18 U.S.C. § 3584(b). (The Sentencing
Guidelines do not provide guidance on this question because Anchando’s federal
offense did not involve conduct related to his state offense. See U.S.S.G. § 5G1.3(d).)
Because the district court conducted a reasoned and exhaustive analysis of the § 3553(a)
factors, its decision to impose a consecutive sentence was not an abuse of its discretion.
See United States v. Padilla, 618 F.3d 643, 647 (7th Cir. 2010).
AFFIRMED