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United States v. Gill

United States Court of Appeals, Seventh Circuit

May 31, 2016

United States of America, Plaintiff-Appellee,
v.
Ladonta Gill and Dana Bostic, Defendants-Appellants.

          Argued January 5, 2016

         Appeals 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.

          Before Wood, Chief Judge, and Kanne and Rovner, Circuit Judges.

          Kanne, Circuit Judge.

         Defendants-Appellants 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 Bostic's sentence.

         I. Background

         Gill 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.

         The 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 748–49.

         In 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' imprisonment.

         The 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.

         As a 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.

         A. Gill

         Gill's 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 Circuit precedent.

         The 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.

         On July 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.

         In 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.

         On 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.

         After 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, 2014).

         In 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.

         B. Bostic

         In 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.

         The 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.

         On 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.

         In 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.

         On 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.

         After 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.

         II. Analysis

         Both 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.

          A. Gill

         "When reviewing a criminal sentence for procedural error, we apply de novo review." United States v. Bour, 804 F. ...


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