United States v. Gordon, Mario L. , 189 F. App'x 544 ( 2006 )

UNPUBLISHED ORDER
Not to be cited per Circuit Rule 53
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
July 21, 2006
Before
Hon. KENNETH F. RIPPLE, Circuit Judge
Hon. DANIEL A. MANION, Circuit Judge
Hon. DIANE S. SYKES, Circuit Judge
No. 04-2186
Appeal from the United States
UNITED STATES OF AMERICA, District Court for the
Plaintiff-Appellee, Southern District of Illinois
v. No. 02 CR 40004
MARIO L. GORDON, William D. Stiehl,
Defendant-Appellant. Judge.
ORDER
Mario Gordon was found guilty of possession with the intent to distribute five
grams or more of crack cocaine and was sentenced to a total of 360 months’
imprisonment. He filed an opening brief on appeal arguing that his sentence should
be vacated and remanded for resentencing in light of the Supreme Court’s decision
in Blakely v. Washington, 542 U.S. 296 (2004). Following the decision in United
States v. Booker, 543 U.S. 220 (2005), we ordered a limited remand under the terms
set forth in United States v. Paladino, 401 F.3d 471 (7th Cir. 2005), for a
determination whether the district court would have imposed the same sentence
had it understood that the guidelines were advisory. The district court concluded
that it would have imposed the same sentence under an advisory guidelines system.
We invited the parties to file arguments concerning the reasonableness of the
sentence, and counsel for the appellant has responded. The government did not file
No. 04-2186 2
an argument but filed a motion asking the court to strike the appellant’s response.
In his response, Mr. Gordon asks this court to issue a full remand for the
district court to consider whether he should have been sentenced as a career
offender. Mr. Gordon attempted to introduce evidence during the limited remand
that had not been presented at the time of sentencing regarding the two state court
convictions for armed robbery used to qualify him for career offender status.
Although he argued at the original sentencing that the two robberies should be
counted as only one offense, Mr. Gordon’s attorney did not submit any evidence in
support. The district court rejected the argument and concluded that Mr. Gordon
was a career offender based on the two convictions. During the limited remand
proceedings, Mr. Gordon’s new counsel attempted to introduce the docket sheet
from one of the state court armed robbery cases and two transcripts from the state
court proceedings. The district court granted the government’s motion to strike the
state court documents. It further rejected Mr. Gordon’s argument that his prior
robbery convictions should count as one offense for purposes of calculating his
criminal history category, noting that it remained persuaded that it had properly
determined the two robberies were not related and should be considered separate
offenses for sentencing purposes.
The district court properly limited its review during the Paladino remand to
the record at the time of sentencing. United States v. Welch, 429 F.3d 702, 705 (7th
Cir. 2005). The cases Mr. Gordon cites in support of his assertion that there is no
limitation to the evidence that can be presented to the district court on remand are
inapposite. In each of the cases he cites, this court had issued a full remand to the
district court for resentencing. See, e.g, United States v. White, 406 F.3d 831 (7th
Cir. 2005); United States v. Sumner, 325 F.3d 884 (7th Cir. 2003). The inquiry on a
Paladino limited remand must look to conduct or circumstances in existence at the
time the original sentence was imposed See United States v. Re, 419 F.3d 582, 584
(7th Cir. 2005). In Paladino, the court explained that a claim that requires
extrinsic evidence is premature on direct appeal and must be made in a motion
under 28 U.S.C. § 2255. 401 F.3d at 479. It is well-established that this court may
not consider factual material outside the record which was never presented to the
district court. United States v. Noble, 299 F.3d 907, 911 (7th Cir. 2002); United
States v. Elizalde-Adams, 262 F.3d 637, 640-41 (7th Cir. 2001) (“The purpose of
[Federal Rule of Appellate Procedure] 10(e) is to ensure that the record on appeal
accurately reflects the proceedings in the trial court . . ., not to enable the losing
party to add new material to the record in order to collaterally attack the trial
court’s judgment.”). The district court therefore was correct in striking the
additional state court documents that Mr. Gordon sought to present for the first
time during the limited remand from this court.
In his opening brief filed in this appeal, Gordon argued only that the prior
convictions which were used to qualify him as a career offender should have been
No. 04-2186 3
alleged in the indictment and proven beyond a reasonable doubt. He acknowledged
that the Supreme Court rejected this argument in Almendarez-Torres v. United
States, 523 U.S. 224 (1998), but he raised it in order to preserve it for argument in
case the Supreme Court decides to reconsider that holding. See also United
States v. Henton, 374 F.3d 467 (7th Cir. 2004) (explaining this court has repeatedly
rejected this argument); United States v. Skidmore, 254 F.3d 635 (7th Cir. 2001).
Mr. Gordon did not make the argument that the two robberies should have counted
as one offense for purposes of the career offender guideline at sentencing in his
opening brief. The detailed argument Mr. Gordon now makes in his argument
following the Paladino remand regarding why the offenses were related relies on
information contained in the state court records and apparently obtained from the
Assistant State’s Attorney who prosecuted the two robberies. The government’s
motion to strike Mr. Gordon’s argument following the Paladino remand therefore is
GRANTED to the extent that the attached state court transcripts and state court
docket sheet and the arguments based on these documents are STRICKEN. These
documents were not before the district court at sentencing and may not be
considered by this court for the first time on appeal.
In Paladino, we held that if a district court responds to a limited remand
with a statement that it would reimpose the same sentence, “we will affirm the
original sentence against a plain-error challenge provided that the sentence is
reasonable.” 401 F.3d at 484. Mr. Gordon’s sentence is within the properly
calculated guidelines range and therefore presumptively reasonable. See United
States v. Mykytiuk, 415 F.3d 606, 608 (7th Cir. 2005). Mr. Gordon’s attempts to
rebut that presumption with evidence not before the sentencing court are
unavailing. Accordingly, we AFFIRM the judgment of the district court.