United States of America v. Joshua Vidal

In the
United States Court of Appeals
For the Seventh Circuit
No. 11-3873
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
JOSHUA VIDAL,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 10 CR 618-1—Amy J. St. Eve, Judge.
ARGUED DECEMBER 12, 2012—DECIDED JANUARY 31, 2013
Before POSNER, ROVNER, and WOOD, Circuit Judges.
WOOD, Circuit Judge. Joshua Vidal was a member of a
gang that was active in the cocaine business. He made
the mistake of working with an undercover FBI officer
in a scheme to rob a “stash house.” In time, he was
charged with and pleaded guilty to four counts related
to that planned crime. This appeal concerns only his
sentence, which was within the range recommended by
the Sentencing Guidelines. The district court erred, he

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2 No. 11-3873
asserts, by failing adequately to consider his primary
argument under 18 U.S.C. § 3553(a)—his psychiatric
history. Although we recognize that the district court
may yet come to the same conclusion after taking a
closer look at this argument and providing an explana-
tion that is sufficient for appellate review, it is also
possible that it may not. We cannot base our review on
speculation. We thus remand for further proceedings.
I
Vidal, a member of the Two-Six street gang, was
arrested in July 2010 after an FBI informant recruited
him to rob a cocaine stash house. Vidal took the lead
in planning the robbery, assembling a team of four
coconspirators and assuring the undercover FBI officer
that he had completed similar robberies in the past and
could easily sell all of the cocaine that the crew expected
to recover. On the day of the planned robbery, Vidal and
his crew assembled in a parking lot with three loaded
pistols and a roll of packing tape. They were arrested
as they left the parking lot.
Vidal was eventually charged with, and pleaded guilty
to, the following four counts: (1) conspiracy to possess
with intent to distribute five kilograms or more of
cocaine, in violation of 21 U.S.C. § 846; (2) attempt to
possess with intent to distribute five kilograms or more
of cocaine, in violation of 21 U.S.C. § 846; (3) a Hobbs
Act violation committed by attempting to rob the house
and steal the cocaine and cocaine proceeds, see 18 U.S.C.
§ 1951(a); and (4) possession of a firearm in furtherance

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No. 11-3873 3
of a crime of violence and drug trafficking crime, prohib-
ited by 18 U.S.C. § 924(c)(1)(A).
The probation officer who prepared the presentence
report (PSR) calculated an offense level of 35, based on
the 30 kilograms of cocaine that Vidal believed were
involved in the conspiracy (the amount to be used in the
sting was apparently selected by the FBI agent), see
U.S.S.G. § 2D1.1(a)(5), a four-point upward adjustment
for his leadership role in the offense, see id. § 3B1.1(a),
and a three-point reduction for his timely plea and ac-
ceptance of responsibility, see id. § 3E1.1. Combined with
Vidal’s category III criminal history, this offense level
yielded an advisory sentence of 210 to 262 months’ impris-
onment on counts I through III. The PSR also noted
that Vidal had a history of mental illness and had previ-
ously received counseling for bipolar disorder and de-
pression, but that he had declined to continue treatment
for either disorder.
Vidal did not object to the PSR, but he sought a 180-
month sentence (the mandatory minimum), which he
argued was warranted by his difficult childhood and
psychological problems. Dr. Susan Pearlson, a forensic
psychiatrist, evaluated Vidal before sentencing and
diagnosed him with posttraumatic stress disorder,
bipolar spectrum disorder, claustrophobia, and drug
and alcohol abuse. Dr. Pearlson opined that these
disorders impaired Vidal’s ability to make rational deci-
sions. While Vidal was being evaluated by Dr. Pearlson,
he took his prescribed medications and felt more peace-
ful. Dr. Pearlson stated that “the combination of sobriety

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4 No. 11-3873
and psychotropic medication over an extended period
of time and the absence of an antisocial personal-
ity disorder” placed Vidal at a lower likelihood of re-
offending upon his release from prison.
The district court adopted the probation officer’s guide-
lines calculations and sentenced Vidal to concurrent
terms of 210 months on counts I through III, and a con-
secutive term of 60 months on count IV (the mandatory
minimum for that offense). The court discussed Vidal’s
behavior extensively, but all it had to say about his psy-
chological problems was this: “I also note the mental
health issues that you appear to struggle with. Certainly
your drug abuse problem does not go well with your
mental health issues.” Otherwise, the court emphasized
Vidal’s lengthy criminal record, his history of violence,
and the fact that he apparently had been undeterred by
the time he already had spent in jail.
II
On appeal, Vidal argues only that the district court
erred by failing adequately to consider his argument that
his psychiatric issues warranted a below-guidelines
sentence. At sentencing, Vidal had highlighted Dr. Pearl-
son’s view that the combination of enforced sobriety,
psychotropic medication, and the absence of antisocial
personality disorder indicated a decreased likelihood
that he would reoffend upon his release from prison.
The district court made no reference to any of this in
its fleeting comment about Vidal’s “mental health is-
sues,” and thus, he argues, there is no way to know

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No. 11-3873 5
whether the court adequately considered this ground
of mitigation.
A sentencing judge must address a defendant’s
principal arguments in mitigation. See United States v.
Chapman, 694 F.3d 908, 913-14 (7th Cir. 2012). Even so, “the
judge’s failure to discuss an immaterial or insubstantial
dispute relating to the proper sentence would be at
worst a harmless error.” United States v. Cunningham, 429
F.3d 673, 679 (7th Cir. 2005). Although the district court
“need not raise every conceivable issue on its own initia-
tive, . . . the court must acknowledge and respond to
any properly presented sentencing argument which
has colorable legal merit and a factual basis.” United
States v. Begin, 696 F.3d 405, 411 (3d Cir. 2012). In United
States v. Miranda, 505 F.3d 785 (7th Cir. 2007), this court
applied that principle when it remanded for resen-
tencing in a case where the district court had not
addressed the defendant’s mental-illness argument. Id.
at 792. We have required resentencing both when the
district court is silent about the defendant’s principal
argument in mitigation, see United States v. Robertson,
662 F.3d 871, 879-80 (7th Cir. 2011); United States v.
Villegas-Miranda, 579 F.3d 798, 801 (7th Cir. 2009);
Cunningham, 429 F.3d at 679, and when the district court’s
discussion is so cursory that we are unable to discern
the court’s reasons for rejecting the argument, see United
States v. Schroeder, 536 F.3d 746, 755-56 (7th Cir. 2008);
Miranda, 505 F.3d at 792.
The only question here is on what side of the line
the district court’s statement falls. Although it acknowl-

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6 No. 11-3873
edged that Vidal had mental-health issues, its statement
gives us no insight into the judge’s evaluation of that
condition. Indeed, one could infer simply from the par-
ticipation of Dr. Pearlson, a forensic psychiatrist, that
the court was aware that mental illness might need to
be considered. But more than that is needed: The
mention of a word is not the same thing as a discussion
or an explanation. Particularly because Dr. Pearlson’s
report went beyond describing Vidal’s mental disorders
and predicted that he is less likely than the average
person to recidivate, there was a need for the district
court to explain why it thought that the latter point did
not justify a lighter sentence. In short, this is not a case
in which the record makes clear the court’s reasons for
rejecting the proffered argument, see Rita v. United
States, 551 U.S. 338, 357-58 (2007); Schroeder, 536 F.3d at
755; Miranda, 505 F.3d at 792.
It would also have been helpful for the court to ex-
plain why Vidal’s particular mental-health history did
not temper some of the court’s (valid) concerns with
specific and general deterrence. Vidal grew up in a
violent, drug-infested environment, bouncing between
his mother and his grandmother. At times he witnessed
his mother being beaten, and at times he was subject
to violent abuse himself. His alcoholic stepfather beat
him regularly and threatened him with death. When
he was 14, he was beaten up by a rival gang member,
and in 2001 he attempted to commit suicide by over-
dosing on Tylenol. His mother found him in time, he
was taken to a hospital, and ultimately admitted to an
inpatient mental-health facility, where he was diagnosed

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No. 11-3873 7
with depression and prescribed medication. He stayed
there only a week, however. He has attempted suicide
on two additional occasions, once in 2003 and once in
2008. He has also experienced racing thoughts, mood
instability, an inability to concentrate, and similar symp-
toms. He hears voices, has claustrophobia, and sees
things on the wall move.
Records from the various institutions and mental-
health professionals who have treated Vidal were avail-
able to Dr. Pearlson and to the court. The court had
also been told about his positive response to treatment.
Vidal’s argument in mitigation was thus a serious and
well-documented one that required the court’s specific
attention.
Vidal’s sentence is therefore VACATED and the case
is REMANDED to the district court for further proceedings
consistent with this opinion.
1-31-13

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