January 5, 2016
from the United States District Court for the Northern
District of Illinois, Eastern Division. Nos. 10 CR 673-7
& 10 CR 673-1 - Matthew F. Kennelly, Judge.
Wood, Chief Judge, and Kanne and Rovner, Circuit Judges.
Ladonta Gill and Dana Bostic both pled guilty to
participating in a heroin distribution conspiracy. Gill
challenges his sentence as procedurally unsound, disputing
his criminal history point assessment and supervised release
conditions. Bostic challenges his sentence as procedurally
unsound and substantively unreasonable. We vacate and remand
Gill's sentence for complete resentencing, and we affirm
was a high-level member of the New Breeds street gang and
associated large heroin distribution operation controlled by
Bostic. United States v. Adams, 746 F.3d 734,
737–38 (7th Cir. 2014). The Bostic organization's
daily heroin sales totaled between $4, 000 and $10, 000.
Id. at 738.
Bostic organization controlled an area "bordered by
Pulaski, Van Buren, Congress, and Karlov Streets" on the
west side of Chicago. Id. The Bostic organization
maintained control over its territory through the use of
guns, violence, and threats of violence. Id. at
August 2008, Bostic was shot and his brother was murdered.
The Bostic organization retaliated against a rival street
gang who they believed responsible. As part of the resulting
violence, Gill and another Bostic organization member shot at
two men, one of whom suffered gunshot wounds to his legs.
Subsequently, Chicago Police Department officers arrested
Gill. Gill pled guilty to aggravated unlawful use of a weapon
(AUUW), in violation of 720 ILCS 5/24–1.6(a)(1), and on
November 24, 2008, he was sentenced to three years'
Chicago Police Department and Drug Enforcement Agency
launched an investigation into the Bostic organization in the
fall of 2009. The investigation included controlled heroin
purchases, surveillance, interviews of informant and
cooperating witnesses, court-authorized wiretaps, and seizure
of over eight kilograms of heroin and numerous firearms.
Adams, 746 F.3d at 737.
result of this investigation, on November 3, 2010, a federal
grand jury returned a twenty-two count indictment charging
Gill, Bostic, and others with various drug offenses. On
December 21, 2011, Gill pled guilty to conspiracy to possess
with intent to distribute and to distribute controlled
substances, namely 1000 grams of heroin, in violation of 21
U.S.C. §§ 841(a)(1), 846. Bostic pled guilty to one
count of the same offense on February 22, 2012.
first sentencing occurred in July 2012. At sentencing, Gill
challenged the application to his sentence of the 2-level
enhancement for maintaining a drug premises, pursuant to
U.S.S.G. § 2D1.1(b)(12) ("stash house
enhancement"). Gill contended that application of the
stash house enhancement violated the Ex Post Facto
Clause because his offense conspiracy ended on or about
August 10, 2010, but the stash house enhancement was not
effective until November 1, 2010. U.S. Const. art. I, §
10. The district court expressed sympathy but found that the
stash house enhancement applied under then-existing Seventh
district court determined Gill's guideline range was 360
months to life. His criminal history category was III, based
on an assessment of six criminal history points-three points
for his previous AUUW conviction, one point for a juvenile
drug possession conviction, and two points for being on
parole at the time of commission of his AUUW offense. U.S.S.G
§ 4A1.1(a), (c), (d). His adjusted offense level was 40,
which included a 2-level dangerous weapon enhancement and the
2-level stash house enhancement. U.S.S.G. § 2D1.1(b)(1),
(12). The court also made findings of Gill's involvement
in violent activity. With the twenty-year mandatory minimum
in place, the court sentenced Gill to 329 months'
imprisonment and 10 years of supervised release, with
standard conditions. Judgment was entered against Gill on
July 9, 2012.
28, 2012, Gill filed a timely notice of appeal, challenging
only the district court's application of the stash house
enhancement. As Gill's first appeal was pending, on June
10, 2013, the Supreme Court decided Peugh v. United
States, 133 S.Ct. 2072 (2013), which held that the
Ex Post Facto Clause is violated "when a
defendant is sentenced under Guidelines promulgated after he
committed his criminal acts and the new version provides a
higher applicable Guidelines sentencing range than the
version in place at the time of the offense."
Id. at 2078.
Adams, this court vacated and remanded Gill's
first appeal for resentencing in light of Peugh. 746
F.3d at 743. Specifically, the Adams court remanded
Gill's case "for the limited purpose of sentencing
him based on the correct guideline level" but held that
"[t]his limited remand does not, however, limit the
district court's discretion to hold (or not hold) further
proceedings and consider further arguments to determine
Gill's sentence based on the § 3553 factors."
Id. at 744–45.
September 25, 2014, the district court held Gill's second
sentencing, or resentencing, hearing. The court found that
Gill had a criminal history category of III and an adjusted
offense level of 36, after a 2-level reduction for removal of
the stash house enhancement and a further 2-level reduction
in anticipation of Amendment 782 to the sentencing
guidelines, which would take effect on November 1, 2014. With
the statutory twenty-year mandatory minimum in place, the
district court determined that Gill's effective guideline
range was 240 to 293 months' imprisonment. The government
and Gill agreed.
hearing arguments from both sides regarding the §
3553(a) factors, the district court "re-adopt[ed]"
all of its prior findings regarding Gill's involvement in
violent activity. The district court then declared: "I
don't think [Gill] warrants a sentence at the low end of
the guideline range or close to it because of his involvement
in violent activity." (Gill Sent. Tr. 22, Sep. 25,
conclusion, the district court sentenced Gill to 280
months' imprisonment and 10 years of supervised release,
with standard conditions. Judgement was entered against Gill
on September 26, 2014. Gill's second appeal follows.
August 2012, the district court held Bostic's first
sentencing hearing. Bostic challenged the application of the
2-level stash house enhancement, arguing violation of the
Ex Post Facto Clause because his offense conspiracy
ended on or about August 10, 2010, but the stash house
enhancement was not effective until November 1, 2010. As with
Gill, the district court expressed sympathy but found that
the stash house enhancement applied under then-existing
Seventh Circuit precedent.
district court then determined that Bostic's guideline
range was 360 months to life, based on a criminal history
category of II and an adjusted offense level of 42, which
included the 2-level stash house enhancement. The court
sentenced Bostic to 456 months' imprisonment and 10 years
of supervised release, with standard conditions. The court
entered judgement against him on August 13, 2012.
August 27, 2012, Bostic filed a timely notice of appeal. In
Bostic's first appeal, he raised three challenges. First,
he argued that his guilty plea was not knowing and voluntary.
Second, Bostic contended the district court committed
procedural error when it held him responsible for some of the
violence undertaken by the New Breed gang without identifying
the specific violent acts. Third, Bostic claimed that
application of the stash house enhancement was an ex post
facto violation. As Bostic's first appeal was
pending, the Supreme Court decided Peugh.
Adams, this court decided Bostic's first appeal.
The Adams court began by rejecting Bostic's
first two claims, holding that Bostic's guilty plea was
valid and no procedural error had occurred at his sentencing.
Adams, 746 F.3d at 745– 49. However, in light
of Peugh, this court vacated and remanded
Bostic's case for resentencing based on his third claim
against application of the stash house enhancement.
Id. at 749. As with Gill, the Adams court
remanded Bostic's sentence for "the limited purpose
of correcting the sentencing range" but "d[id] not
limit the district court's discretion to hold (or not
hold) further proceedings and consider further arguments
based on the § 3553 factors." Id.
January 14, 2015, the district court held Bostic's second
sentencing, or resentencing, hearing. Consistent with the
first sentencing, the court found that Bostic had a criminal
history category of II and offense level of 38, after a
2-level reduction for removal of the stash house enhancement
and a further 2-level reduction in anticipation of Amendment
782. With the statutory twenty-year mandatory minimum in
place, the district court determined that Bostic's
guideline range was 262 to 327 months' imprisonment. The
government and Bostic agreed.
hearing arguments from both sides regarding the §
3553(a) factors, the district court incorporated most of its
comments from Bostic's first sentencing, including those
regarding Bostic's conduct and involvement in violent
acts. The court then explained that at the first sentencing,
it had accounted for the ex post facto nature of the
stash house enhancement and therefore had considered Bostic
to have an effective guidelines range of 324 to 405 months.
The court further explicated that at the first sentencing, it
had imposed a sentence of 456 months' imprisonment, an
effective above-guidelines sentence, because the effective
guidelines range did not capture the full range of
Bostic's conduct and involvement in violent acts.
Applying this same reasoning, the resentencing court imposed
an above-guidelines sentence of 360 months' imprisonment
because the guidelines did not capture the full range of
Bostic's involvement in violent acts. The court entered
judgment against Bostic on January 26, 2015. Bostic's
second appeal follows here.
Gill and Bostic challenge their respective sentences. We
begin with Gill's appeal, which disputes the district
court's determination of his criminal history score and
imposition of conditions of supervised release. Then, we
address Bostic's appeal, which challenges the procedural
soundness and substantive reasonableness of his sentence.
reviewing a criminal sentence for procedural error, we apply
de novo review." United States v. Bour, 804 F.