United States of America v. Lajuan Fitzpatrick

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 21-1286
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
LAJUAN F ITZPATRICK,
Defendant-Appellant.
____________________
Appeal from the United States District Court for the
Northern District of Indiana, Hammond Division.
No. 16-cr-00166 — Phillip P. Simon, Judge.
____________________
A RGUED J ANUARY 12, 2022 — DECIDED A PRIL 27, 2022
____________________
Before F LAUM , EASTERBROOK, and W OOD, Circuit Judges.
F LAUM , Circuit Judge. After a home invasion robbery went
violently awry, a jury convicted Lajuan Fitzpatrick of two
crimes: (1) conspiring to possess with the intent to distribute
a controlled substance and (2) murder resulting from the use
and carrying of a firearm during and in relation to a drug traf-
ficking crime. On appeal, Fitzpatrick challenges the suffi-
ciency of the evidence underpinning his convictions and the

-- 1 of 16 --

2 No. 21-1286
reasonableness of his sentence. For the following reasons, we
affirm Fitzpatrick’s conviction and sentence.
I. Background
A. Summary of Events and Indictment
As presented through testimony at trial, after Robert Nieto
(known as Cowboy), a leader of the Black Oak Latin Kings
gang in Gary, Indiana, learned that a local drug dealer, An-
thony Martinez, had “some pounds” of marijuana at his
home, he devised a plan to rob Martinez’s home. Leading up
to the deadly encounter at the center of this case, Nieto re-
cruited Bruce Hendry (known as Casper), another Latin Kings
gang member, and Hendry then reached out to Mark Cherry,
a former member of the Black P. Stone gang, who also agreed
to participate. Cherry in turn looped his roommate, Fitzpat-
rick, into the scheme. Fitzpatrick was also a member of the
Black P. Stones, a gang known to be non-adversarial (at least
to some degree) with the Latin Kings.
On or about December 1, 2013, Cherry told Fitzpatrick that
Hendry “had a lick”—also known as a “sting” or a robbery.
Cherry then picked up an assault rifle and a handgun from
the home he shared with Fitzpatrick. Cherry informed Fitz-
patrick they needed the guns for the robbery and told Fitzpat-
rick there were drugs—specifically marijuana—in the target
house. Hendry, Cherry, and Fitzpatrick drove together to
Nieto’s house. While Fitzpatrick stayed in the car, Hendry
and Cherry went in to talk with Nieto about their plans. Nieto
told them that it would be an “easy” robbery to score “a cou-
ple pounds” of marijuana. The three men—Nieto, Cherry,
and Hendry—planned to smoke some of the marijuana and

-- 2 of 16 --

No. 21-1286 3
resell the rest. Hendry and Cherry planned to carry out the
robbery while Nieto listened on the police scanner.
Shortly thereafter—sometime around midnight—the crew
put the plan into action. Cherry and Hendry rejoined Fitzpat-
rick before the trio switched cars and were driven a short, ap-
proximately two-minute distance to the intended robbery lo-
cation by a fourth person. They exited the car upon arriving
at Martinez’s home—carrying firearms and obscuring their
faces with masks and black hoodies.
Martinez, the target of this drug-focused robbery, esti-
mated that he was selling roughly “[a] couple hundred bucks,
if that,” worth of marijuana per month at the time of the inci-
dent. That night, Martinez was watching television with his
fiancée and two friends when he heard a knock on his front
door. Suspicious because that door was not normally used,
Martinez walked out the back door to investigate and was
promptly hit in the head with a pistol as he turned the corner
to the front of his house. Martinez’s assailant then “threw [his]
sweater over [his] face and walked [Martinez] through the
back door” into his home. Once inside, one of his attackers—
later identified as Cherry—repeatedly asked where the mari-
juana was kept. Martinez indicated that at the time of the
home invasion there was “[z]ero marijuana” in the home.
Martinez’s brother, who lived next door, entered the
kitchen, and a fight ensued. The brothers eventually subdued
the assailants, but not before Martinez shot Cherry at least
twice in the abdomen. After hearing “rapid fire” shots aimed
at the house, the brothers took cover in the kitchen, using the
refrigerator as a shield. The scene around the house was de-
scribed as a “war zone” amid copious amounts of gunfire. In
the chaos, an uninvolved friend of the Martinez brothers was

-- 3 of 16 --

4 No. 21-1286
fatally shot by the ongoing gunfire while his toddler-aged
daughter looked on.
After sustaining serious gunshot wounds, Cherry was
dragged from the home into the car in which he arrived, all
while Fitzpatrick continued to spray fire from the street. After
getting Cherry into the car, the group of robbers drove less
than a block to Nieto’s house, where a nearby police officer
arrested Cherry and the driver. Hendry and Fitzpatrick ran.
After fleeing to a friend’s house, attempting to clean himself
up with bleach, and telling a Latin King gang member present
that he “just laid a [expletive] down,” Fitzpatrick placed his
bloody clothes into a steel drum and set them on fire.
The grand jury returned a two-count indictment against
Fitzpatrick, charging him with (1) conspiracy to possess with
intent to distribute marijuana, in violation of 21 U.S.C.
§§ 841(a)(1) and 846, and (2) carrying, using, and discharging
a firearm in relation to a drug trafficking crime resulting in
killing defined as murder, in violation of 18 U.S.C.
§§ 924(c)(1)(A), (j). Fitzpatrick denied committing these of-
fenses and pleaded not guilty.
B. Trial, Post-Trial Motions, and Sentencing
After the government rested its case, Fitzpatrick made a
motion for acquittal. He renewed his motion for a directed
finding of acquittal once jury deliberations were underway.
The court promptly denied both oral motions. The jury con-
victed Fitzpatrick on both counts. Fitzpatrick filed a written
post-trial motion for judgment of acquittal and motion for
new trial, both of which were denied.
The district court proceeded to sentence Fitzpatrick. Look-
ing to Fitzpatrick’s presentence investigation report (“PSR”),

-- 4 of 16 --

No. 21-1286 5
his base offense level was 43 and his criminal history category
was III. For Count 1, the probation office recommended one
day of imprisonment. For Count 2, the statutory provision
was ten years to life, the Guideline provision was life, and the
recommended sentence was 240 months’ imprisonment. In
reaching its below-Guidelines recommendation, the proba-
tion office noted significant mitigating factors in the PSR, in-
cluding the details of a challenging childhood, a severe learn-
ing disability (Fitzpatrick could not read or write), and bully-
ing.
The district court adopted the PSR’s Guidelines calcula-
tions. Defense counsel requested a 240-month (twenty-year)
sentence, aligning with the probation office’s recommenda-
tion. The defense pointed to Hendry’s 360-month (thirty-year)
sentence as an unequal comparator, given that Hendry’s role
in organizing the crime was much more significant and that
Fitzpatrick’s minimal criminal history paled in comparison to
Hendry’s long history of gang-related criminal activity. The
government asked for a life sentence.
The court sentenced Fitzpatrick to 432 months (thirty-six
years) of imprisonment on Count 2 and one day on Count 1,
to run concurrently, as well as three years of supervised re-
lease. Leading up to this sentence, the district court acknowl-
edged the extreme difficulties faced by Fitzpatrick growing
up, noting, “[i]t really takes my breath away this environment
in which you were raised.”
In paying special attention to the need to avoid unwar-
ranted sentencing disparities among similarly situated de-
fendants, the district judge acknowledged that he was “trou-
bled” that “the co-defendants in this case have received a va-
riety of sentences.” The court found Nieto, who received a life

-- 5 of 16 --

6 No. 21-1286
sentence, more culpable than Fitzpatrick, given his role as
ringleader of this crime and history of extensive gang-related
criminal activity. Hendry’s sentence of thirty years was a no-
table discussion point for the court. The district judge stated:
Hendry received a sentence of 30 years. I wasn’t
born yesterday. I understand the circumstances.
I mean, the government cut a deal with him.
You had a bird in the hand. Even though he sent
them on, sort of, a wild goose chase here that
ended up requiring the government—they actu-
ally charged somebody and then had to back-
track because they no longer could believe Mr.
Hendry…. The government could have moved
to withdraw his plea agreement because he was
violating its terms.
The government decided instead to simply put
it in Judge Moody’s capable hands and let him
decide what the appropriate sentence would be
for him. And he gave him the maximum that he
could have given him under the terms of the
plea agreement, which was 30 years. It’s worth
noting that Mr. Hendry had substantially more
criminal history than Mr. Fitzpatrick did, and
so, you know, that fact is not lost on me either.
The district court went on to dismiss any comparison to
Cherry or Landrum as not compelling. Cherry, who received
188 months (over fifteen years), “cooperated, testified, [and]
put himself at risk,” making his sentence “entirely defensi-
ble.” Landrum, the driver of the car, “played a really passing
role in this case, literally driving these guys, like, around the

-- 6 of 16 --

No. 21-1286 7
block.” Even so, he received a 168-month (fourteen-year) sen-
tence.
Finally, when choosing Fitzpatrick’s sentence, the district
court emphasized the “extreme” and “frightening” level of vi-
olence that Fitzpatrick engaged in, acting like he was “in some
war movie where you’re firing protective shots to keep your
cohorts safe.” The district court also factored in the death of
the “terrific young man” and “good father” caused by this
crime. The district court concluded that a 432-month (thirty-
six-year) sentence of incarceration was “sufficient but not
greater than necessary to achieve all of the statutory goals of
sentencing.”
Fitzpatrick now appeals.
II. Discussion
On appeal, Fitzpatrick raises two challenges. He argues
the government failed to present evidence sufficient to sup-
port his conviction; in the alternative, he challenges his sen-
tence as substantively unreasonable. We address each argu-
ment in turn.
A. Challenge to Sufficiency of the Evidence
Fitzpatrick first challenges the sufficiency of the evidence
supporting his conviction on Count 1, which charged Fitzpat-
rick with joining a conspiracy to possess with intent to distrib-
ute marijuana. Notably, proof of guilt on Count 1 was, itself,
an element of Count 2. Because he stayed in the car while the
others discussed the plan, Fitzpatrick argues that “there was
no evidence whatsoever presented at trial that [he] was aware
of any plan, or joined any agreement, to resell marijuana that
was apparently the object of the robbery.”

-- 7 of 16 --

8 No. 21-1286
“De novo review applies to the denial of a motion for judg-
ment of acquittal; practically speaking, however, the standard
of review is that for sufficiency of the evidence.” United States
v. Peterson, 823 F.3d 1113, 1120 (7th Cir. 2016). “In a suffi-
ciency-of-the-evidence challenge after a jury verdict, we re-
view the evidence presented at trial in the light most favora-
ble to the government and draw all reasonable inferences in
its favor.” United States v. Anderson, 988 F.3d 420, 424 (7th Cir.
2021). “We will overturn a conviction only if, after reviewing
the record in this light, we determine that no rational trier of
fact could have found the essential elements of the offense be-
yond a reasonable doubt.” Id. This burden is a high one—one
we have described as “nearly insurmountable.” Id. (quoting
United States v. Faulkner, 885 F.3d 488, 492 (7th Cir. 2018)).
Turning to the essential elements for Count 1, “[a] conspir-
acy requires a showing that (1) two or more people entered
into an agreement to distribute drugs, and (2) the defendant
knowingly and intentionally joined in the agreement.” United
States v. Pulgar, 789 F.3d 807, 813 (7th Cir. 2015). For this of-
fense, the government must prove that the co-conspirators
had the joint criminal objective of distributing drugs. United
States v. Colon, 549 F.3d 565, 569–70 (7th Cir. 2008). Nonethe-
less, as long as a defendant “knew the essential nature and
scope of the charged conspiracy,” he “need not [have] join[ed]
a conspiracy at its inception or participate[d] in all of the un-
lawful acts in furtherance of the conspiracy to be convicted.”
United States v. Orlando, 819 F.3d 1016, 1022 (7th Cir. 2016).
The government may rely on circumstantial evidence to
prove these elements, but “the Supreme Court has warned
that ‘[i]n some cases reliance on [circumstantial] evidence per-
haps has tended to obscure the basic fact that the agreement is

-- 8 of 16 --

No. 21-1286 9
the essential evil at which the crime of conspiracy is di-
rected.’” United States v. Cruse, 805 F.3d 795, 811 (7th Cir. 2015)
(alterations in original) (quoting Iannelli v. United States, 420
U.S. 770, 777 n.10 (1975)). Circumstantial or not, “[w]hether
the evidence establishes a conspiratorial agreement must ul-
timately be determined by the totality of the circumstances,
and we conduct a ‘holistic assessment of whether the jury
reached a reasonable verdict.’” Id. (quoting United States v.
Brown, 726 F.3d 993, 1002 (7th Cir. 2013)).
In summary, Fitzpatrick contends that “the government
fell far short of” introducing substantial evidence that he (1)
knew of the illegal objective of the conspiracy (here, drug dis-
tribution) and (2) that he agreed to participate, as necessary to
convict him on Count 1. See United States v. Corson, 579 F.3d
804, 810 (7th Cir. 2009). The district court explained its rejec-
tion of this argument in a written opinion after the jury
handed down its verdict:
In reviewing the evidence, a reasonable jury
could find that Fitzpatrick was part of a plot to
steal and later distribute marijuana. Cherry ex-
plained to Fitzpatrick that the robbery involved
stealing marijuana from a known drug dealer,
consuming a portion of it, and selling the rest.
Cherry intended to share his portion of the pro-
ceeds with Fitzpatrick. Fitzpatrick went with
Cherry to the drug dealer’s house and was
given an assault rifle. After being involved in a
shoot out and loading his friend who had been
shot into the car, he showed up at a friend’s
house with blood on him…. This is sufficient ev-
idence for a reasonable jury to find that

-- 9 of 16 --

10 No. 21-1286
Fitzpatrick was involved in the conspiracy to
rob a drug dealer with intent to possess and
later distribute marijuana, as charged in
Count 1.
Fitzpatrick claims the court’s recollection of the testimony
was incorrect; specifically, he contends that there was no di-
rect evidence that Fitzpatrick was told the home invasion rob-
bery was, at least in part, for the resale of the drugs. But even
if the record does not directly demonstrate Fitzpatrick was
privy to the discussion on plans to resell, Seventh Circuit
precedent establishes the appropriate role of circumstantial
evidence in establishing intent to distribute.
In United States v. Lewis, 641 F.3d 773 (7th Cir. 2011), the
defendants were convicted of conspiracy to possess cocaine
with intent to distribute in violation of 21 U.S.C. § 846 and
carrying and possessing a firearm during and in relation to a
drug trafficking offense in violation of 18 U.S.C. § 924(c). Id.
at 776. In that case, defendants planned an armed robbery of
a cocaine stash house, intending to surprise the occupants, tie
them up, steal the drugs and weapons, and later sell the
drugs. Id. at 777–78. The stash house, however, turned out to
be a fictitious part of an undercover police investigation. Id. at
777. Like Fitzpatrick, one of the defendants in Lewis argued
on appeal that “although he may have been part of a conspir-
acy, this was just a conspiracy to rob a stash house for drugs,
and there was no evidence of his intent to distribute or
knowledge that his co-conspirators were intending to distrib-
ute.” Id. at 782. We rejected that argument in Lewis, conclud-
ing that “[a] jury could reasonably believe that [defendant] …
was aware that such a large amount of [drugs] was optimal

-- 10 of 16 --

No. 21-1286 11
for distribution.” Id. Even more convincingly, the Court rea-
soned:
A jury could equally reasonably believe that no
sane person would rob a stash house guarded
by armed gang members to score some recrea-
tional drugs for personal use. For a jury to reach
such a conclusion hardly requires the impermis-
sible piling of inference upon inference, but ra-
ther is the sort of rational result from circum-
stantial evidence we ask juries to determine
every day.
Id.
The same logic applies in this case. It was reasonable for
the jury to find it unlikely that Fitzpatrick or his co-conspira-
tors would have endeavored to carry out this dangerous op-
eration requiring armament if the reward was merely mariju-
ana for recreational use. See Lewis, 641 F.3d at 782; see also
United States v. Garrett, 903 F.2d 1105, 1113 & n.11 (7th Cir.
1990) (holding presence of weapons may point in the direc-
tion of distribution).
Even factoring in any learning disability, Fitzpatrick was
savvy enough to provide coverage fire while his co-conspira-
tor was being pulled out of the house, to avoid capture at
Nieto’s, and to wash off and burn away traces of the crime.
Nothing on the record precludes the jury from reasonably
concluding Fitzpatrick was capable of understanding that the
goal of the robbery was at least, in part, to acquire drugs for
resale as opposed to purely recreational use. From our stand-
point on review, proving that no jury could reasonably be-
lieve Fitzpatrick could make this connection is a formidable

-- 11 of 16 --

12 No. 21-1286
hurdle. See United States v. Kindle, 698 F.3d 401, 405 (7th Cir.
2012), vacated on other grounds on reh’g en banc sub nom. United
States v. Mayfield, 771 F.3d 417 (7th Cir. 2014). “Overturning a
guilty verdict for lack of evidence is serious business; we are
essentially asked to take the case out of the jury’s hands,
something we will do only if the record contains no evidence,
regardless of how it is weighed, from which the jury could find
guilt beyond a reasonable doubt.” Id. at 406 (citation and in-
ternal quotation marks omitted). With this in mind, we see no
evidentiary deficiency. There is evidence, namely the fact that
Fitzpatrick armed himself with an assault rifle to steal drugs,
that the jury could have relied on to find guilt beyond a rea-
sonable doubt. Thus, we affirm Fitzpatrick’s conviction.
B. Challenge to Reasonableness of the Sentence
Fitzpatrick next challenges his thirty-six-year sentence as
unreasonably high. “In reviewing sentences for substantive
reasonableness, we do not substitute our judgment for that of
a district judge, who is better situated to make individualized
sentencing decisions.” United States v. Porraz, 943 F.3d 1099,
1104 (7th Cir. 2019). We review a sentence’s reasonableness
for abuse of discretion, and we will “uphold a sentence so
long as the judge offers an adequate statement of his reasons
consistent with the sentencing factors enumerated in 18
U.S.C. § 3553(a).” Id. Sentences within a properly calculated
Sentencing Guidelines range are presumptively—although
not conclusively—reasonable. United States v. Boscarino, 437
F.3d 634, 637 (7th Cir. 2006). This presumption of reasonable-
ness also extends to below-Guidelines sentences. United States
v. Harris, 791 F.3d 772, 782 (7th Cir. 2015).
As Fitzpatrick acknowledges in his brief, “the district
court’s sentence was technically below the guidelines ‘range’

-- 12 of 16 --

No. 21-1286 13
of life imprisonment,” so we begin our analysis from a pre-
sumption of reasonableness. See id. The first argument Fitz-
patrick raises is that his 432-month term of incarceration is an
“effective life sentence.” Fitzpatrick was twenty-nine years
old when sentenced, and his life expectancy of 64.5 years, as
calculated in part by his age and race, is less than his projected
age upon release (after thirty-six years’ incarceration, Fitzpat-
rick would be sixty-five). Fitzpatrick notes that this sentence
will “all but ensure[] that [he] will spend the remainder of his
life incarcerated.”
Fitzpatrick cites to United States v. Wurzinger, 467 F.3d 649,
652 (7th Cir. 2006), for the proposition that “the probability
that a convict will not live out his sentence should certainly
give pause to a sentencing court.” Wurzinger, however, is fac-
tually distinguishable from the case before us. In taking a
close look at Wurzinger and the cases it relies on, the above-
cited rationale applies specifically to defendants who pre-
sented evidence at sentencing about extenuating medical con-
ditions, rather than to defendants grappling with life expec-
tancy calculations more generally. See id. at 651–52 (discuss-
ing the impact of diabetes on life expectancy); United States v.
Gigante, 989 F. Supp. 436, 442 (E.D.N.Y. 1998) (employing life
expectancy predictions in the context of defendant’s history
of cardiac surgery).
Although not mentioned by either party, United States v.
Patrick, 707 F.3d 815, 820 (7th Cir. 2013), is instructive:
Most worrisome is our inability to discern
whether the court appreciated the severity of
the sentence it imposed, and in particular its
equivalence to the life sentence that it had pur-
portedly rejected. Perhaps a 360-month

-- 13 of 16 --

14 No. 21-1286
sentence concurrent to [defendant’s] 20-year
state sentence would not have been problem-
atic, but a 360-month consecutive sentence in
[defendant’s] case is effectively a life sentence.
[Defendant’s] sentence runs until he is 86, and
the average life expectancy for a male of [his]
age and race is approximately 72 years.
We have, however, subsequently stated that “Patrick does
not stand for the proposition that, every time a district court
imposes a sentence that exceeds the defendant’s life expec-
tancy, the court must explicitly recognize that fact.” United
States v. Cheek, 740 F.3d 440, 454 (7th Cir. 2014). If the district
court never states that it wishes to give a defendant something
less than a life sentence, the court’s failure to explicitly ad-
dress life expectancy concerns is less problematic. See id.
(“And Patrick is distinguishable from [this] case because here
the district court never stated that he wished to give [defend-
ant] something less than a life sentence.”).
Although the parties went back and forth at sentencing
about the appropriateness of a life sentence here, the district
court did not explicitly articulate a wish to give Fitzpatrick
something less than a life sentence. First, in talking about Fitz-
patrick, the district court stated:
I don’t believe you [Fitzpatrick] were the organ-
izer. I don’t believe you at all played that role.
Of course, the guidelines don’t reflect that, but
it’s certainly worth pointing out. It does seem
like you were kind of an add-on person into this
scheme, but you did what you did, and it’s ex-
tremely violent and very disturbing.

-- 14 of 16 --

No. 21-1286 15
Next, in talking about Nieto (who received a life sentence),
the district court stated:
Mr. Nieto received a life sentence, but this hom-
icide, for which he was held accountable, be-
cause he was kind of the ring leader who put
this together, was really just one of many, many,
many things that Mr. Nieto did in his role as a
leader of the Latin Kings.
Even if what we glean from the sentencing transcript hints
at an intent by the district court to give less than a life sen-
tence, Fitzpatrick’s sentence is nevertheless reasonable for
two reasons. First, Fitzpatrick’s projected release date as cal-
culated by the Federal Bureau of Prisons—July 30, 2048—
comes just shy of his 57th birthday. See Find an Inmate, Fed.
Bureau of Prisons, www.bop.gov/inmateloc (last visited April
12, 2022) (search for “Lajuan Fitzpatrick”). Although a slight
variation from the calculations relied on in Cheek and Patrick,
the projected release date calculations at play here assuage
concerns “that the sentence amounted to a de facto life sen-
tence.” Cheek, 740 F.3d at 454. Practically speaking, this sen-
tence is not in excess of the projected life expectancy raised on
appeal. Second, “even if we assume that [Fitzpatrick’s] sen-
tence is effectively a life sentence, the district court adequately
explained his sentence in a manner consistent with the
§ 3553(a) factors, which is all that was required.” United States
v. McDonald, 981 F.3d 579, 581–82 (7th Cir. 2020). “[W]e have
upheld a de facto life sentence where the sentencing court de-
termined that the defendant showed a risk of recidivism and
lack of respect for the law and the court appreciated the se-
verity of the sentence.” Id. (citation and internal quotation

-- 15 of 16 --

16 No. 21-1286
marks omitted). For either of these reasons, the district court
did not abuse its discretion in sentencing.
The second argument Fitzpatrick raises under the um-
brella of sentence reasonableness is that his sentence was un-
reasonable considering his co-conspirators’ sentences. The
Sentencing Reform Act requires a judge to consider “the need
to avoid unwarranted sentence disparities among defendants
with similar records who have been found guilty of similar
conduct.” 18 U.S.C. § 3553(a)(6). Notably, “a sentencing differ-
ence is not a forbidden ‘disparity’ if it is justified by legitimate
considerations, such as rewards for cooperation.” Boscarino,
437 F.3d at 637–38. Here, Hendry cooperated and cut a deal
(although the government certainly could have revoked it),
and Cherry cooperated. Those qualify as reasonable sentenc-
ing differences based on rewards for cooperation. Fitzpatrick
also argues that his de facto life sentence was unreasonable be-
cause it was effectively the same as Nieto’s, yet Nieto had a
far worse criminal history. Nieto, however, received a real life
sentence, not a de facto one. And the record is far from clear
that Fitzpatrick would never leave prison, as we can see from
his projected release date. …There was thus no unwarranted
sentencing disparity between the two.
We uphold a sentence so long as the judge offers an ade-
quate statement of his reasons consistent with the sentencing
factors enumerated in 18 U.S.C. § 3553(a). In this instance, we
hold the district judge fulfilled that duty and accordingly af-
firm Fitzpatrick’s sentence.
III. Conclusion
For these reasons, we AFFIRM Fitzpatrick’s conviction and
sentence.

-- 16 of 16 --