United States of America v. Ulises D Ela Cruz

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 17-2263
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
U LISES D E LA C RUZ ,
Defendant-Appellant.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 16 CR 462-4 — Rebecca R. Pallmeyer, Judge.
____________________
A RGUED F EBRUARY 23, 2018 — DECIDED J ULY 30, 2018
____________________
Before F LAUM , S YKES, and HAMILTON , Circuit Judges.
HAMILTON , Circuit Judge. From the time he was a young
adolescent, defendant Ulises De La Cruz was a member of the
Latin Kings gang. De La Cruz was one of many Latin Kings
swept up in a federal prosecution charging the gang with op-
erating a racketeering conspiracy in the Chicago area. He
pleaded guilty to the conspiracy charge and argued at sen-
tencing that the district judge should reduce his sentence by
the amount of time he had already served in prison on charges

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2 No. 17-2263
related to conduct that was part of the ongoing racketeering
conspiracy. He was partially successful. The district judge, in
recognition of a prison sentence De La Cruz was still serving,
imposed a 210-month sentence. That term was the bottom of
the range recommended by the U.S. Sentencing Guidelines.
De La Cruz appeals this sentence. He contends that the
Guidelines entitle him to a greater reduction due to another
prior prison sentence he served in full. His argument mis-
reads the discretionary nature of the Guidelines relating to
downward departures for discharged prison sentences. The
district judge did not abuse that discretion, so we affirm.
In January 2016, a grand jury indicted De La Cruz and
fourteen other members of the Latin Kings for participating
in a racketeering conspiracy in violation of 18 U.S.C.
§ 1962(d). De La Cruz pleaded guilty to the racketeering
charge, preserving his right to appeal the sentence. At no time
did he dispute the factual allegations in the presentence in-
vestigation report prepared by the U.S. Probation Office. That
report provides the facts summarized below that detail his
role in the Latin Kings and the many factors relevant to his
sentence.
De La Cruz joined the Latin Kings in 1999 when he was
not yet a teenager. He rose through the ranks of the Maywood,
Illinois section of the gang, becoming the Chief Enforcer of
that unit by 2008 and eventually its second in command, or
Cacique. In this leadership role, De La Cruz inflicted physical
punishment on members of the gang who violated its rules
and the orders of its leadership. For example, on one occasion
in 2013, De La Cruz participated in a meeting where his sec-
tion beat a member for accusing another member of cooperat-
ing with law enforcement without sufficient evidence. The

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No. 17-2263 3
beating victim suffered severe injuries that required medical
care. At that same meeting, De La Cruz ordered others to
shoot rival gang members and former Latin Kings, threaten-
ing beatings if they failed to comply.
During his time as a Latin King, De La Cruz racked up ten
convictions and more arrests for a variety of offenses. His con-
victions ranged from criminal damage to property and canna-
bis possession to aggravated unlawful use of a weapon and
aggravated discharge of a firearm. Several of these convic-
tions might count as part of the underlying racketeering con-
duct, but because De La Cruz was convicted of these offenses
“prior to the last overt act” in furtherance of the racketeering
conspiracy, the Guidelines treat these offenses as part of the
defendant’s criminal history. See U.S.S.G. § 2E1.1 cmt. 4. Only
the two weapons offenses from 2008 and 2014 are relevant to
this appeal.
In November 2008, police responded to a report of shots
fired. Officers saw De La Cruz toss a semi-automatic handgun
out of a vehicle that fled the scene. De La Cruz was convicted
of violating an Illinois statute for the aggravated unlawful use
of a weapon and sentenced to two years in prison. He served
his prison sentence and, with credit for good behavior in
prison, was released on parole in July 2009. The case was
closed the following year.1
1 After De La Cruz’s case was closed, this court and the Illinois Su-
preme Court invalidated that statute as contrary to the Second Amend-
ment. See Moore v. Madigan, 702 F.3d 933, 942 (7th Cir. 2012), rehearing en
banc denied, 708 F.3d 901 (7th Cir. 2013); People v. Aguilar, 2 N.E.3d 321, 328
(Ill. 2013). Because of the statute’s invalidation, De La Cruz received no
criminal history points for this conviction in his federal sentencing for the
racketeering conspiracy.

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4 No. 17-2263
In March 2014, De La Cruz fired two shots into a second-
floor window of a rival gang member’s residence and four
shots into a car outside the residence. He was arrested, incar-
cerated, and convicted of aggravated discharge of a firearm.
The state court sentenced him to five years in prison for the
offense. From the time of his indictment in this federal case
through his federal sentencing, De La Cruz remained in
prison for the 2014 offense. The probation officer believed that
this offense was likely part of the underlying racketeering ac-
tivity. Because telephone recordings showed that De La Cruz
continued to act in furtherance of the conspiracy while in
prison on this charge, the probation officer counted this of-
fense toward his criminal history score and not toward the
score for his underlying offense in accordance with the Guide-
lines. See U.S.S.G. § 2E1.1 cmt. 4.
Several recorded statements supported the conclusion
that De La Cruz continued to participate in the conspiracy. For
example, in December 2014, he told another gang member
while in jail that he “put his freedom off” for the gang and
was “in it for the long run.” In January 2015, he said that once
released from jail, he would be “right back like I never left.”
More ominously, De La Cruz responded to news that his fel-
low members had shot and severely injured a former member
by expressing approval. He said that if the victim wound up
in jail, that would be “the worst thing for him.” On another
occasion, he said that if allegations that some Latin Kings in
custody were cooperating with law enforcement were true, he
would have those persons attacked or killed.
At sentencing, De La Cruz argued that he should receive
credit for time served in Illinois prisons for crimes he commit-
ted in furtherance of the Latin Kings criminal conspiracy. The

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No. 17-2263 5
main justification for his proposed adjustment centered on the
inequity of De La Cruz serving more time than his codefend-
ants in the case who previously escaped prison terms, despite
ongoing participation in the scheme. After all, De La Cruz
claimed, he was already serving time in Illinois prison for a
charge related to the federal conspiracy when he was indicted
in this federal case.
The U.S. Probation Office calculated De La Cruz’s sentenc-
ing range as 210 to 240 months using the 2016 Guidelines
Manual. The district judge said that she was “sensitive to the
fact that” De La Cruz “has already served significant time on
another offense in state court.” To account for this fact and to
avoid the “need to subtract or add anything to make this [sen-
tence] work,” the judge imposed a sentence at the bottom of
the guideline range, 210 months, and ordered that it be served
concurrently with the remainder of De La Cruz’s state sen-
tence.
On appeal, De La Cruz argues that the district judge com-
mitted procedural error by failing to give him more credit to-
ward his federal sentence for time served in state prison for
offenses that formed part of the underlying racketeering ac-
tivity. We review de novo claims of procedural errors in sen-
tencing, such as a district court’s interpretations of the Guide-
lines. United States v. Hoffman, 847 F.3d 878, 881 (7th Cir. 2017).
We review the district court’s substantive sentencing determi-
nations for abuse of discretion. Gall v. United States, 552 U.S.
38, 41 (2007). De La Cruz’s arguments on appeal focus largely
on specific Guidelines that are explicitly discretionary, so we
consider whether the district judge abused that discretion.

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6 No. 17-2263
The Guidelines provide detailed and complex directions
for determining their advice. The Guidelines also include ap-
plication notes that attempt to remove ambiguity or confusion
that might arise in applying a specific guideline to the facts in
a specific case. The 2016 Guidelines devote 572 pages to this
goal, not counting appendices and introductory materials.
Despite these painstaking efforts to promote more uniform
sentencing by guiding sentencing judges’ discretion, some
Guidelines and application notes recognize that particular
cases require judges to just use their—wait for it!—judgment.
Cf. Kate Stith and Jose A. Cabranes, Fear of Judging (1998)
(criticizing mandatory federal Sentencing Guidelines for of-
ten preventing exercise of judgment in sentencing).
Racketeering offenses such as De La Cruz’s are compli-
cated and trigger these highly discretionary Guidelines. Rack-
eteering conspiracies involve long-term, ongoing criminal en-
terprises in which individual conspirators may commit many
individual crimes. The Racketeer Influenced Corrupt Organi-
zations Act, 18 U.S.C. § 1961 et seq., was intended to give
prosecutors powerful new tools to go after organized crime,
where the ongoing, organized nature of the crimes added to
the harm to society, beyond the harm caused by the individual
crimes. Particularly successful racketeering organizations like
the Latin Kings succeed in part because of their ability to keep
members loyal and committed to criminal activity despite
prison sentences.
In a racketeering case, the sentencing judge must deter-
mine how to punish a person based on his participation in an
ongoing criminal enterprise when he has already been pun-
ished for ingredients that form the enterprise. The Guidelines

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No. 17-2263 7
recognize the difficult and individualized nature of this in-
quiry. In some cases, the defendant’s continued criminal ac-
tivity might reasonably be deemed an aggravating factor, call-
ing for a stiffer sentence. In others, earlier sentences imposed
by other courts might reasonably be deemed a mitigating fac-
tor. The Guidelines provide sentencing judges wide latitude
to give defendants some credit for time served, or not.
On appeal, De La Cruz has sharpened considerably the ar-
gument he made in the district court. He challenges only one
determination of the district judge. According to De La Cruz,
the judge erred by not discounting his sentence by the time he
served for his 2008 aggravated unlawful use of a weapon. He
claims this decision lay outside the district judge’s discretion
because the Guidelines make this discount mandatory. He
identifies this mandate in U.S.S.G. § 5G1.3(b). It provides that
when a defendant received a prison sentence for an “offense
that is relevant conduct to the instant offense of conviction,”
the sentencing “court shall adjust the sentence for any period
of imprisonment already served on the undischarged term of
imprisonment,” U.S.S.G. § 5G1.3(b)(1), and “the sentence for
the instant offense shall be imposed to run concurrently to the
remainder of the undischarged term of imprisonment,”
U.S.S.G. § 5G1.3(b)(2).
De La Cruz’s 2008 weapon offense was an “offense that is
relevant conduct to the instant offense” of racketeering, but
§ 5G1.3(b) does not apply to that conviction because no por-
tion of that sentence remained “undischarged” at the time of
sentencing, as that provision requires. United States v. Pietkie-
wicz, 712 F.3d 1057, 1060 (7th Cir. 2013); United States v. Black-
well, 49 F.3d 1232, 1241 (7th Cir. 1995). As the presentence in-
vestigation report makes plain, Illinois released De La Cruz

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8 No. 17-2263
on parole in July 2009 and closed that weapons case in July
2010. De La Cruz’s prison term was not “undischarged” when
he shot into the car and apartment of a rival gang member in
March 2014 or committed any of the other four crimes de-
tailed in the report between his release from prison in 2009
and his return to custody in 2014. De La Cruz also relies on
Application Note 4 to § 5G1.3, but that note also applies only
to an “undischarged term of imprisonment.” U.S.S.G.
§ 5G1.3(d) & cmt. 4. Those provisions simply did not apply
because, at the time of his federal sentencing, De La Cruz had
completed his sentence for the 2008 offense.
It appears, however, De La Cruz’s counsel cited an older
version of the Guidelines Manual not used in this case and
probably meant instead to cite Application Note 5 to § 5G1.3.
In previous editions of the Guidelines Manual, Application
Note 5—which refers to discharged prison terms—appeared
as Application Note 4. See U.S.S.G. § 5G1.3 cmt. 4 (2013).
What is now Application Note 5 makes clear that the judge’s
treatment of already-discharged prison terms is discretionary.
Note 5 advises that in “the case of a discharged term of im-
prisonment, a downward departure is not prohibited” in cer-
tain circumstances. U.S.S.G. § 5G1.3 cmt. 5 (2016) (emphasis
added). This note operates essentially as a cross-reference to
§ 5K2.23, which applies to already-discharged sentences. By
guiding the sentencing court to “See §5K2.23,” the note ad-
vises that the Guidelines do not compel sentencing judges to
ignore a defendant’s discharged prison terms if § 5K2.23 ap-
plies. Id. We now turn to that provision.
As we read his brief, De La Cruz also constructed an argu-
ment around § 5K2.23. Unlike § 5G1.3(b), which applies only
to undischarged sentences, § 5K2.23 provides the district

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No. 17-2263 9
court with discretion to adjust a defendant’s sentence down-
ward for discharged sentences. Also, unlike the mandatory
credit required by § 5G1.3(b)—though the notion of a manda-
tory term in the advisory Guidelines requires a little extra in-
tellectual flexibility—any adjustment under § 5K2.23 is en-
tirely discretionary. Employing a belt-and-suspenders ap-
proach, that provision makes clear in its opening clause and
concluding sentence that any adjustment for discharged sen-
tences is up to the sound discretion of the district court:
A downward departure may be appropriate if the
defendant (1) has completed serving a term of
imprisonment; and (2) subsection (b) of §5G1.3
… would have provided an adjustment had that
completed term of imprisonment been undis-
charged at the time of sentencing for the instant
offense. Any such departure should be fashioned
to achieve a reasonable punishment for the instant
offense.
U.S.S.G. § 5K2.23 (emphases added). De La Cruz has not ex-
plained why the district judge’s decision not to apply § 5K2.23
was an abuse of her discretion, and we find no abuse of dis-
cretion here.
As a final matter, De La Cruz asserts that the district judge
“did not address” the 2008 weapons offense at sentencing. We
have said that “whenever a district judge is required to make
a discretionary ruling that is subject to appellate review, we
have to satisfy ourselves … that [s]he exercised [her] discre-
tion, that is, that [s]he considered the factors relevant to that
exercise.” United States v. Cunningham, 429 F.3d 673, 679 (7th
Cir. 2005), citing Carr v. O’Leary, 167 F.3d 1124, 1127 (7th Cir.
1999), and additional cases. The problem with De La Cruz’s

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10 No. 17-2263
argument is that when arguing before the district judge for
downward adjustments, he bundled together his 2008 and
2014 offenses. In his sentencing memorandum, he added up
all the time he served on his multiple convictions related to
his federal racketeering charge and asked for a reduction of
more than five years. He also failed to cite § 5K2.23 or any
Guideline in his sentencing memorandum when arguing for
an adjustment. At the sentencing hearing, De La Cruz’s attor-
ney again combined these separate offenses in his oral argu-
ment. Since he presented these convictions as one issue at sen-
tencing, the district court surely did not err by treating his
prior offenses the same way and focusing on the 2014 convic-
tion.
The judgment of the district court is
AFFIRMED.

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