In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 22-1289
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
ELVIN SALDANA-GONZALEZ,
Defendant-Appellant.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 21 CR 122 — John F. Kness, Judge.
____________________
ARGUED JANUARY 11, 2023 — DECIDED JUNE 14, 2023
____________________
Before WOOD, BRENNAN, and SCUDDER, Circuit Judges.
WOOD, Circuit Judge. Elvin Saldana-Gonzalez was con-
victed of unlawful possession of a firearm in violation of
18
U.S.C. § 922(g)(1). The district court sentenced him to an
above-guidelines term of 78 months in prison. On appeal, Sal-
dana-Gonzalez challenges the sentence on procedural and
substantive grounds. We affirm.
2 No. 22-1289
I
Saldana-Gonzalez did not have an easy upbringing. Born
in Puerto Rico and raised by his blind mother, he was placed
in foster care when he was five. His foster family abused him,
which forced him to move back with his mother. At age 10, he
lost his childhood memories after a car accident left him with
amnesia. His mother then sent him to Milwaukee to live with
an alcoholic uncle, who neglected him. Attempting to extri-
cate himself from that situation, he moved to Chicago to live
with his uncle’s friend, whom he barely knew. Perhaps un-
surprisingly, Saldana-Gonzalez joined a street gang as a teen-
ager. By the time he was 18 years old, he had been convicted
twice of unlawful possession of firearms. At age 19, he shot
and killed one member of a rival gang and injured another. A
state court convicted him of murder and attempted murder
and sentenced him to 38 years in prison.
After spending 18 years behind bars, Saldana-Gonzalez
was released on parole. But a year and a half later, he was back
in trouble. In May 2019, he was driving his car in Chicago
when police officers conducted a traffic stop. Saldana-Gonza-
lez pulled over, jumped out of the vehicle, and fled while
holding a semi-automatic stolen pistol loaded with 14 rounds
of ammunition. Although he discarded the weapon in a
dumpster, the officers eventually apprehended him and re-
covered the firearm.
Saldana-Gonzalez pleaded guilty to one count of unlawful
possession of a firearm by a felon in violation of
18 U.S.C.
§ 922(g)(1). At the sentencing hearing, the parties and the dis-
trict court agreed that the applicable sentencing-guidelines
range was 37 to 46 months. Arguing in favor of a 37-month
sentence, Saldana-Gonzalez accepted responsibility for his
No. 22-1289 3
actions, underscored how his childhood traumas had affected
him, and explained that he had been carrying a weapon for
protection given his gang-related past. Emphasizing Saldana-
Gonzalez’s extensive criminal history, the government rec-
ommended a high-end, 46-month sentence.
At the end of the hearing, the district court stated that it
needed additional time to ponder the correct sentence. Eight
days later, the court orally announced its decision, which it
supported with a detailed discussion spanning 20 pages of the
hearing transcript. It began by explaining the penological
goals and factors of sentencing outlined in
18 U.S.C. § 3553(a).
The court then addressed Saldana-Gonzalez’s traumatic up-
bringing and his acceptance of responsibility, acknowledging
that they were mitigating factors. But Saldana-Gonzalez’s of-
fense, criminal history, and recidivism deeply troubled the
court. After remarking that he had committed “two of the
most serious crimes a person can commit,” the court observed
that it could not “think of anything that’s a whole lot more
concerning than a previously convicted murderer running
from the police with a gun in his hand. It is extremely aggra-
vating.”
The district court concluded its pronouncement with the
following statement:
When I look at your criminal history, your criminal
history is entirely firearm-centric. And if you didn’t
feel compelled not to go around with a gun—I don’t
care how much danger you feel you were in; I feel in
danger every single day when I drive on the express-
way. I do. And I’m sorry, sir, it’s because of people like
you. It really is. It’s because of people like you who
have absolutely no respect for the law.
4 No. 22-1289
…
And this city is—it’s as bad as it has been for as far back
as I can remember, and I’ve lived here my entire life.
We have shootings going on everywhere. There was a
shooting last week a mile from where I grew up in a
fairly lower-middle class but otherwise quiet south-
west suburb. We never had shootings when I grew up.
Ever. And yet a pregnant woman was shot on Route 83
in the middle of the day.
The district court sentenced Saldana-Gonzalez to an
above-guidelines term of 78 months in prison. On appeal, Sal-
dana-Gonzalez contends that the sentence was procedurally
and substantively unreasonable.
II
A district court must adequately explain its sentence in
reference to the criteria set out in
18 U.S.C. § 3553(a). See
United States v. Robinson,
829 F.3d 878, 880 (7th Cir. 2016) (cit-
ing Gall v. United States,
552 U.S. 38, 50 (2007)). The court’s
explanation must be sufficient “to allow for meaningful ap-
pellate review and to promote the perception of fair sentenc-
ing.” Gall,
552 U.S. at 50. We address de novo any alleged pro-
cedural errors at sentencing. United States v. Jerry,
55 F.4th
1124, 1130 (7th Cir. 2022).
A
Saldana-Gonzalez first argues that the court procedurally
erred by relying on its personal fears and laying blame for
Chicago’s general gun-violence problem at his feet. Sentenc-
ing courts should avoid “extraneous and inflammatory com-
ments” that may “cast doubt on the validity of the sentence.”
United States v. Figueroa,
622 F.3d 739, 741 (7th Cir. 2010).
No. 22-1289 5
Nonetheless, courts may situate a defendant’s firearm offense
“against the backdrop of statistics and observations about
widespread gun violence in [the area].” United States v. Hatch,
909 F.3d 872, 875 (7th Cir. 2018). At the same time, “it is inap-
propriate to blame [a defendant] for issues of broad local, na-
tional, and international scope that only tangentially relate to
his underlying conduct.” United States v. Smith,
400 F. App’x
96, 99 (7th Cir. 2010) (citing Figueroa,
622 F.3d at 743–44).
The district court trod on dangerous ground when it at-
tributed a personal fear of driving on the expressway to “peo-
ple like [Saldana-Gonzalez].” Saldana-Gonzalez was con-
victed of a non-violent offense of unlawful possession of a
firearm, not a drive-by shooting. Though the court was enti-
tled to discuss Saldana-Gonzalez’s offense in the broad con-
text of gun violence in Chicago, the remark is questionable
because it implies that the court partly blamed Saldana-Gon-
zalez for issues that “only tangentially relate to his underlying
conduct.” See
id. Nothing in the sentencing process should
give the impression that individual defendants may serve as
scapegoats for judges’ frustrations with a particular city’s so-
cial ills.
Although the district court walked a fine line, we are sat-
isfied on this record that its observation did not cross over to
the type of “extraneous and inflammatory” comments that
would require remand. See Figueroa,
622 F.3d at 741. We have
found error only in circumstances far more egregious. For in-
stance, the sentencing court in United States v. Robinson en-
gaged in “several wide-ranging soliloquies on urban decay,
the changing nature of [the defendant]’s neighborhood, the
‘pathology’ of certain neighborhoods, and the connection be-
tween Milwaukee’s 1967 riots and [then-]recent protests in
6 No. 22-1289
Baltimore, Maryland.”
829 F.3d at 880. And in United States v.
Figueroa, the sentencing court unleashed a tirade on illegal im-
migration and drug trafficking in Mexico, Colombia, and
Venezuela, sprinkling its speech with references to Hugo
Chavez, Iranian terrorists, and Hitler’s dog.
622 F.3d at 743.
The district court’s comments here do not come close to those
in Robinson or Figueroa.
Saldana-Gonzalez further argues that the district court
demonstrated a personal grudge against him when it made
the comments quoted above about its old neighborhood and
a recent shooting. Saldana-Gonzalez relies on United States v.
Wilson, where the sentencing judge noted that the location of
the defendant’s crime “[was] particularly poignant … because
that’s the neighborhood [the judge] grew up in.”
383 F. App’x
554, 557 (7th Cir. 2010). We explained that the judge’s digres-
sion was “troublesome” because “it can be understood as a
personal grudge that the judge bore against [the defendant]
for dealing drugs in his old neighborhood.”
Id.
Although it would have been better for the court to refrain
from such personal comments, we are satisfied that there was
no reversible error here. Unlike in Wilson, the district court
mentioned its personal experience only to illustrate Chicago’s
gun violence, using an example that was unrelated to Sal-
dana-Gonzalez’s crime. See id.; see also United States v. Austin,
760 F. App’x 456, 458 (7th Cir. 2019) (affirming sentence where
sentencing judge relied on personal experience by stating,
“hardly a day goes by without reading about another shoot-
ing in the city caused by the proliferation of handguns”);
United States v. Autullo, No. 95-1020,
1995 WL 417577, at *3
(7th Cir. Jul. 12, 1995) (holding sentencing judge’s personal
considerations “did not demonstrate personal animus but
No. 22-1289 7
were [a permissible] expression of outrage at the great harm
and tragic results” of defendant’s crimes).
In fact, Saldana-Gonzalez’s reliance on Wilson may cut
against him. Although we highlighted the troublesome na-
ture of the Wilson court’s digressions—which also included
irrelevant comments about President Obama’s visit to Mexico
and the Revolutionary Armed Forces of Colombia (also
known as “FARC”)—we emphasized that “it would be a mis-
take to take that one passage in isolation.” 383 F. App’x at 557.
Instead, we affirmed because “[t]aken as a whole, the sentenc-
ing transcript demonstrate[d] that the court based its sentence
on considerations authorized by the law.” Id.; see also Autullo,
1995 WL 417577, at *1 (refusing to “disturb a district court’s
sentence because of inclusion of an improper factor if other
justifiable considerations support the sentence”).
The record here similarly demonstrates that the district
court addressed the section 3553(a) factors and sentenced Sal-
dana-Gonzalez based on “considerations authorized by the
law.” See Wilson, 383 F. App’x at 557. The court carefully con-
sidered Saldana-Gonzalez’s upbringing and personal history.
Recognizing that Saldana-Gonzalez “was not dealt a good
hand in life,” the court stated, “I can empathize with you that
that led to the path you’re on now and that led you to this spot
here today. I think that is mitigating.” Because of his back-
ground, the retributive punishment aspect of the sentence
“[did not] motivate [the court] so much in this case.” Instead,
the court underscored the need to “protect the public from
[Saldana-Gonzalez’s] future crimes.” It reasonably saw his
decision to flee from police officers with a loaded stolen gun
after spending 18 years in prison for murder and attempted
murder as “extremely aggravating.” Thus, acknowledging
8 No. 22-1289
that “[t]here’s debate whether the data backs up general de-
terrence,” the court emphasized that “to the extent that other
people out there get the message that at least one judge in this
district is very concerned about the level of violence … maybe
that will have a deterrent effect on others and help protect our
beleaguered public.”
In light of the court’s detailed explanation and careful bal-
ancing of the section 3553(a) factors, we hold that the sentence
passes muster despite the brief troublesome remarks.
B
Saldana-Gonzalez’s second procedural attack fares no bet-
ter. He argues that the district court’s starting point was the
statutory maximum of 120 months, and that it discounted
from that starting point to arrive at the 78-month sentence. In
doing so, he continues, the court improperly disregarded the
guidelines range. We see its process differently.
The guidelines “suppl[y] ‘the starting point and the initial
benchmark,’ but nothing more.” United States v. Warner,
792
F.3d 847, 855 (7th Cir. 2015) (quoting Gall,
552 U.S. at 49).
Courts should “make an individualized assessment based on
the facts presented” and consider the section 3553(a) factors
to determine the appropriateness of the sentence. Gall,
552
U.S. at 50. “If [the district judge] decides that an outside-
Guidelines sentence is warranted, he must consider the extent
of the deviation and ensure that the justification is sufficiently
compelling to support the degree of the variance.”
Id.
The district court stated that it was “mindful of the Su-
preme Court’s admonition in Gall.” It knew that it “needed to
consider [the guidelines range] seriously,” explaining that it
“view[ed] them as an invaluable tool to help [it] avoid
No. 22-1289 9
spitballing when it comes to criminal sentences.” “The farther
I vary,” the court noted, “the more justifications I need to
give.” And as outlined above, that is exactly what the district
court did. At the outset of the sentencing hearing, the court
properly calculated the guidelines. It moved on to the section
3553(a) factors and explained that the “main driving factors”
for the upward variance were “the need to protect the public
from [Saldana-Gonzalez’s] crimes” and the “deterrent effect
[that the sentence may have] on others.” The court’s explana-
tion was sufficient to justify its choice of sentence. See
id.
III
Finally, Saldana-Gonzalez claims that the district court’s
sentence is substantively unreasonable. We review the sub-
stantive reasonableness of a sentence for abuse of discretion.
United States v. Daoud,
980 F.3d 581, 591 (7th Cir. 2020).
Saldana-Gonzalez contends that the court failed to ad-
dress his offense conduct, juvenile history, and the general
lack of evidence surrounding deterrence. But as we already
explained, the court adequately considered his upbringing
and the context of his offense. Moreover, “[section]
3553(a)(2)(B) specifically permits judges to consider general
deterrence, so the court’s focus on deterring others was rea-
sonable.” United States v. Irving, No. 22-1258,
2022 WL
17576552, at *3 (7th Cir. Dec. 6, 2022) (citing United States v.
Sunmola,
887 F.3d 830, 842 (7th Cir. 2018)). Saldana-Gonza-
lez’s “argument seems to challenge the weight that the court
gave the § 3553(a) factors—a challenge that we have repeat-
edly rejected.” Id. (citing United States v. Dickerson,
42 F.4th
799, 807 (7th Cir. 2022)).
* * *
10 No. 22-1289
We AFFIRM Saldana-Gonzalez’s sentence.
