United States of America v. Carlos Escobar Alzamora

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued March 5, 2024
Decided March 28, 2024
Before
DIANE S. SYKES, Chief Judge
JOHN Z. LEE, Circuit Judge
JOSHUA P. KOLAR, Circuit Judge
No. 23-2445
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
CARLOS ESCOBAR ALZAMORA,
Defendant-Appellant.
Appeal from the United States
District Court for the Northern District
of Illinois, Western Division.
No. 3:22-CR-50043(1)
Phillip G. Reinhard,
Judge.
O R D E R
Carlos Escobar Alzamora pleaded guilty to possessing a machine gun. He was
sentenced to 84 months in prison, 13 months above the advisory range under the
Sentencing Guidelines. He challenges his sentence, arguing that the district judge
committed a “double counting” error by relying on the same offense conduct to support
a Guidelines enhancement and an above-Guidelines sentence. He also challenges the
sentence as substantively unreasonable. We affirm.
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with FED. R. A PP. P. 32.1

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I. Background
In March 2022 Winnebago County sheriff’s deputies stopped Escobar for traffic
violations in Rockford, Illinois. (At his plea hearing, Escobar stated that he prefers to be
referred to by his first surname.) During the traffic stop, the officers smelled marijuana
and asked Escobar to step out of his car. As Escobar complied, the officers noticed that
he kept his right hand on his right hip. Escobar immediately took off running,
continuing to grip his right waistband as he ran. The officers pursued him on foot and
saw him reach his right hand into his waistband multiple times. As Escobar turned a
corner, the officers heard a gunshot. Escobar briefly fell to the ground, then discarded a
gun and an extended magazine as he resumed his flight through a parking lot. The
officers soon caught up with him. After subduing and arresting him, the officers noted a
hole in his right front pants pocket consistent with a bullet hole.
The officers then returned to the parking lot and found a loaded pistol and an
extended magazine with 21 rounds of ammunition. The firearm was an unserialized
and privately manufactured “ghost gun,” modified with a “Glock switch” to be fully
automatic.
Escobar was charged with possessing a machine gun, 18 U.S.C. § 922(o), and
possessing ammunition as a felon, id. § 922(g)(1). He pleaded guilty to the machine-gun
charge pursuant to a written plea agreement in which he acknowledged that he fired
his gun during the foot chase. He also agreed that the discharge of the firearm justified
a two-level increase in his offense level under the Guidelines for creating a substantial
risk of death or bodily injury. See U.S.S.G. § 3C1.2.
To calculate the advisory sentencing range, the probation office started with a
base offense level of 20 because Escobar possessed a machine gun and extended
magazine, see id. § 2K2.1(a)(4)(B), then added the agreed-upon two-level enhancement
for creating a substantial risk of death or bodily injury. After applying a three-level
reduction for timely acceptance of responsibility, see id. § 3E1(a)–(b), the presentence
report (“PSR”) arrived at a total offense level of 19. That level, together with Escobar’s
criminal history category of V, produced an advisory Guidelines range of 57–71 months
in prison. See id. § 5A.
Both parties submitted sentencing memoranda, but neither objected to the PSR’s
Guidelines calculations. The government urged a sentence at the top of the Guidelines
range because of Escobar’s long criminal history, the dangerousness of the firearm he

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No. 23-2445 Page 3
possessed, and the lack of any deterrent effect from prior terms of probation and parole.
Escobar requested a below-Guidelines sentence based on his desire to be with his family
and the impact his absence would have on his children, along with his acceptance of
responsibility. After receiving the parties’ sentencing memoranda, the judge issued a
minute order stating: “The attorneys are to be prepared to discuss at the sentencing
hearing a sentence of imprisonment above the guideline range determination.”
At the sentencing hearing, the judge adopted the PSR in full after confirming that
neither side objected to it. Both the government and Escobar largely reiterated the
arguments from their sentencing memoranda, with the government continuing to
request a 71-month (top-of-range) sentence and Escobar now asking for a sentence
within “the low part of the guidelines.” Escobar spoke on his own behalf, detailing the
effect of his actions on his family and emphasizing his desire to turn over a new leaf for
the sake of his children. He also spoke about the rehabilitative services he hoped to use
while in prison and expressed his understanding of and responsibility for his actions.
The judge imposed an above-Guidelines sentence of 84 months in prison. He
gave a detailed analysis of the sentencing factors in 18 U.S.C. § 3553(a), beginning with
the dangerous nature and circumstances of the crime: Not only had Escobar fired his
gun during a police chase, but the gun had been modified to fire continually with an
extended clip, rendering it effectively a machine gun. Rapid refiring was prevented
only when the gun jammed after the first discharge. The judge also reasoned that the
Guidelines range did not account for Escobar’s possession of both an extended
magazine and a machine gun because possessing either one alone would have resulted
in the same base offense level of 20.
The judge considered Escobar’s criminal history—namely, that he had been
convicted of other crimes in the past and had received relatively lenient sentences and
then continued to offend, often while on probation. Finally, the judge discussed
Escobar’s desire to stay with his children, his remorse, and the courses he had
completed while in custody awaiting trial. The judge concluded that the § 3553(a)
factors, especially the mandate to protect the public and the pressing need for specific
deterrence, justified an above-Guidelines sentence and could “easily” support a
sentence as high as the ten-year statutory maximum. After imposing sentence, the judge
granted the government’s motion to dismiss the § 922(g)(1) count of possessing
ammunition as a felon.

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II. Discussion
On appeal Escobar argues that the judge committed procedural error by
imposing what he calls a “double enhancement” by using Escobar’s armed flight from
police to increase the offense level under the Guidelines and as an aggravating factor in
the § 3553(a) analysis. He also contends that the sentence is substantively unreasonable.
We review the former argument de novo and the latter for an abuse of discretion.
United States v. Wood, 31 F.4th 593, 597, 600 (7th Cir. 2022).
There was no procedural error. First, the Guidelines do not prescribe a general
rule against “double counting.” The same conduct can support the application of more
than one Guidelines provision unless specific language in a guideline prohibits it.
United States v. Tinsley, 62 F.4th 376, 390 (7th Cir. 2023); United States v. Prado, 41 F.4th
951, 954 (7th Cir. 2022) (explaining that a double enhancement based on the same
conduct is forbidden only when the Guidelines text says so). Moreover, what the judge
did here is not “double counting” as that term is understood in the context of
calculating a Guidelines sentencing range. Rather, the judge increased Escobar’s offense
level under § 3C1.2 because his discharge of the gun created a substantial risk of death
or bodily harm while fleeing police. The judge then considered that conduct as part of
his § 3553(a) analysis of the nature and seriousness of Escobar’s offense. Judges may—
indeed must—evaluate the defendant’s offense conduct when weighing the § 3553(a)
factors; they are not disabled from doing so when a specific aspect of the offense
conduct played a role in calculating the Guidelines range. United States v. Gonzalez,
3 F.4th 963, 967 (7th Cir. 2021). And here the judge considered a variety of other factors
to justify the above-Guidelines sentence even in the absence of the contested factor. See
id. Though he was not required to state why the Guidelines did not sufficiently account
for the aggravating conduct, see id., the judge in fact explained that the base offense
level did not adequately account for the seriousness of an offense that involved
possession of both an extended ammunition clip and a Glock switch.
The judge’s ample explanation for the above-Guidelines sentence also dooms
Escobar’s argument that the sentence is substantively unreasonable. A judge must
specifically explain an above-Guidelines sentence, but there is no presumption of
unreasonableness for such a sentence. Wood, 31 F.4th at 600. And the judge extensively
explained the sentence by reference to the § 3553(a) factors and the specifics of Escobar’s
crime, criminal history, and personal characteristics. In addition to the concern that the
base offense level understated the seriousness of the offense conduct, the judge
discussed the highly dangerous nature of Escobar’s conduct and the need for the

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sentence to reflect the seriousness of the offense, Escobar’s extensive criminal history,
and the need for specific deterrence. § 3553(a)(1), (2)(A)–(B). That explanation is
sufficient to justify an above-Guidelines sentence. See United States v. Hendrix, 74 F.4th
859, 871–72 (7th Cir. 2023); United States v. Fogle, 825 F.3d 354, 359 (7th Cir. 2016).
Escobar offers no specific argument to the contrary. Instead he asks us to
evaluate his 84-month sentence in light of his remorse, acceptance of responsibility, and
attempt to better himself through classes. But that is not our role. The judge discussed
all those factors and more; we will not reweigh the § 3553(a) factors. See United States v.
Arroyo, 75 F.4th 705, 709 (7th Cir. 2023); Fogle, 825 F.3d at 359.
AFFIRMED

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