United States of America v. Oscar Ortiz

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted January 31, 2024
Decided January 31, 2024
Before
ILANA DIAMOND ROVNER, Circuit Judge
DIANE P. WOOD, Circuit Judge
DAVID F. HAMILTON, Circuit Judge
No. 22-2581
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
OSCAR ORTIZ,
Defendant-Appellant.
Appeal from the United States District
Court for the Northern District of
Illinois, Eastern Division.
No. 1:16-CR-00462(8)
Rebecca R. Pallmeyer,
Chief Judge.
O R D E R
Oscar Ortiz appeals the 18-year sentence imposed on him for crimes he
committed while serving as the chief enforcer of the Latin Kings street gang for a village
just west of Chicago. His appointed lawyer, however, asserts that the appeal is frivolous
and moves to withdraw. See Anders v. California, 386 U.S. 738 (1967). Counsel’s brief
explains the nature of the case and addresses issues that an appeal of this kind might be
expected to involve, and Ortiz has responded. CIR . R. 51(b). Because counsel’s brief
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with FED. R. A PP. P. 32.1

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appears thorough, we limit our review to subjects that counsel and Ortiz discuss.
See United States v. Bey, 748 F.3d 774, 776 (7th Cir. 2014).
Ortiz pleaded guilty to a racketeering conspiracy, 18 U.S.C. § 1962(d), and
discharging a firearm during a crime of violence. 18 U.S.C. § 924(c). The § 924(c)
conviction carried a statutory minimum sentence of 10 years.
The probation officer who prepared the presentence investigation report (PSR)
separated Ortiz’s conduct into ten groups covering the following racketeering activities:
conspiracy to commit murder (Groups 1 and 3); attempted murder (Groups 2, 4, 5, and
6); arson (Group 7); aggravated assault (Groups 8 and 9); and extortion (Group 10).
Whichever group had the highest adjusted offense level would determine the offense
level for the § 1962(d) violation, so long as it was greater than 19. U.S.S.G. § 2E1.1.
The probation officer concluded that Group 2, which involved the attempted
murder of a “runaway” member of the Latin Kings, had the highest adjusted offense
level and therefore guided the offense level for the racketeering conspiracy. The PSR
began with a base offense level of 33 because the completed offense would have
constituted first degree murder, U.S.S.G. § 2A2.1(a)(1), and added a four-point specific
offense characteristic because the victim sustained permanent bodily injury. U.S.S.G.
§ 2A2.1(b)(1)(A). The PSR then assessed a three-point adjustment for Ortiz’s
supervisory role, U.S.S.G. § 3B1.1(b), and a five-point adjustment because some of the
other racketeering activities were of similar seriousness. U.S.S.G. § 3D1.4. The adjusted
offense level of 45 for the attempted murder, by operation of § 2E1.1(a)(2), then became
the offense level for the racketeering conspiracy conviction. Ortiz received a three-point
decrease for timely acceptance of responsibility, § 3E1.1(a)–(b), resulting in a total
offense level of 42 which, when combined with a criminal history category of II, yielded
a guideline range of 360 months to life in prison. But because 18 U.S.C. § 1963 provides
a 240-month statutory maximum for the racketeering conspiracy, the guideline sentence
was capped at 240 months’ imprisonment. U.S.S.G. § 5G1.2(b).
The district court largely adopted these calculations and sentenced Ortiz to 216
months’ imprisonment. It imposed a below-guidelines sentence of 96 months for the
racketeering conviction and the statutory minimum 120 months for the conviction for
discharging a firearm during a crime of violence—served consecutively under 18 U.S.C.
§ 924(c)(1)(D)(ii). The court also imposed concurrent three-year and four-year terms of
supervised release for the § 1962(d) and § 924(c) offenses, respectively.

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Counsel tells us that she advised Ortiz of the risks and benefits of withdrawing
his guilty plea and confirms that he wishes to challenge only his sentence. Counsel
therefore properly refrains from discussing possible challenges to the validity of Ortiz’s
guilty plea. United States v. Konczak, 683 F.3d 348, 349 (7th Cir. 2012); United States v.
Knox, 287 F.3d 667, 671 (7th Cir. 2002).
Counsel first considers whether Ortiz could challenge the base offense level for
the grouping that relates to conspiracy to commit murder (Groups 1 and 3). Ortiz did
not object to any of the Guidelines used for these groups, so our review would be for
plain error. United States v. Hyatt, 28 F.4th 776, 781–82 (7th Cir. 2022). A plain-error
challenge here would be frivolous because the district court applied the correct
Guidelines. The PSR recounts that Ortiz agreed with gang leaders to issue “shoot on
sight” orders for both runaway Latin King and rival gang members. And as chief
enforcer, Ortiz disciplined members for not carrying out such orders. Because the
conduct outlined for Groups 1 and 3 constituted conspiracy to commit murder, the
district court appropriately applied the corresponding Guideline, U.S.S.G. § 2A1.5, to
assign a base offense level of 33 for both groups. See United States v. Porraz, 943 F.3d
1099, 1103 (7th Cir. 2019) (applying § 2A1.5 to Latin Kings gang leader because of his
leadership role and the gang’s activities).
Similarly, counsel explores, but rightly declines, challenging the base offense
levels for the grouping related to Ortiz’s attempted murder offenses (Groups 2, 4, 5, and
6). Regarding Group 2, Ortiz was unsuccessful in trying to drive his truck into a
runaway Latin King member, but he later agreed with gang leaders to issue a “shoot on
sight” order that was carried out. As for Groups 4–6, the PSR reflects that Ortiz assisted
other Latin Kings in several shootings that targeted rival gangs. The district court
correctly applied U.S.S.G. § 2A2.1 to assign a base offense level of 33 to these groups
because the offense conduct constituted attempted murder. See U.S.S.G. § 2A2.1 cmt.
n. 1; 18 U.S.C. § 1111(a) (defining murder).
Counsel next considers challenging the role-in-the-offense adjustment,
see U.S.S.G. § 3B1.1(b), which the district court assessed for nine of the ten offense
groups. But counsel appropriately rejects such a challenge as frivolous because Ortiz’s
leadership role in the overall racketeering enterprise was alone sufficient to trigger the
three-point adjustments. See United States v. Damico, 99 F.3d 1431, 1436–38 (7th Cir.
1996). A district court can also “inoculate” its sentence from reversal by providing a
detailed explanation of the basis for a “parallel result”—that its decision would be the
same even if a defendant could successfully challenge an aspect of the court’s guideline

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calculation. See United States v. Asbury, 27 F.4th 576, 581–82 (7th Cir. 2022) (internal
quotation omitted). And the court here did just that by carefully explaining that Ortiz’s
personal history, not the adjustment, primarily influenced its sentencing decision,
thereby rendering harmless any error in applying the role-in-the-offense adjustments.
Counsel is also correct that it would be futile to challenge the application of the
bodily injury specific offense characteristic, U.S.S.G. § 2A2.1(b)(1)(A), assessed for
Group 2 (one of the attempted murders). The district court committed no plain error
because the victim in that attempted murder recounted having to undergo seven
surgeries after a shooting and suffered permanent colon damage—the sort of bodily
injury presenting a “substantial risk of death” and permanent impairment
contemplated by the enhancement. U.S.S.G. § 1B1.1 cmt. n. 1(K) (defining “permanent
or life-threatening bodily injury”).
Counsel considers but rightly declines challenging the offense levels for
Groups 8 and 9 (aggravated assault) or Group 10 (extortion). We see no error in the
district court’s application of the Guidelines and, even if we did, any error would be
harmless because these groups did not determine the offense level for the racketeering
conviction (by way of § 2E1.1(a)(2)) or play a role in the multiple-count adjustment
because their adjusted offense levels were significantly lower than Group 2 (the group
with the highest offense level). U.S.S.G. § 3D1.4(c).
Counsel also correctly rules out any other procedural or substantive challenge to
Ortiz’s sentence. The court adequately considered the sentencing factors under
18 U.S.C. § 3553(a), emphasizing the seriousness of the offense and thoughtfully
considering Ortiz’s primary arguments in mitigation (particularly his personal history).
Nor did the court rely on clearly erroneous facts, treat the Guidelines as mandatory, or
otherwise fail to adequately explain its chosen sentence. See United States v. Davis,
43 F.4th 683, 687 (7th Cir. 2022) (outlining examples of procedural error). Finally, the
presumption that below-guidelines sentences, like Ortiz’s, are substantively reasonable
is “nearly irrebuttable,” and nothing indicates that Ortiz could make the requisite
showing that his sentence failed to comport with the factors outlined in 18 U.S.C.
§ 3553(a). United States v. Oregon, 58 F.4th 298, 302 (7th Cir. 2023).
Finally, we agree with counsel that any challenge to the length and conditions of
supervised release would be frivolous. Both terms of supervised release are within
statutory limits, and the district court’s justification of Ortiz’s sentence, which was
adequate, necessarily covers the term of supervised release. United States v. Armour,
804 F.3d 859, 867–68 (7th Cir. 2015). Counsel also considers challenging one supervised

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release condition in the written judgment—a bar on Ortiz associating with any Latin
King member—that omitted the court’s clarification at sentencing that the bar applied
only to active, not former members. Counsel assures us, however, that Ortiz does not
wish to raise this issue on appeal, so we need say no more about that.
In his response to counsel’s Anders motion, Ortiz argues that his trial counsel was
ineffective in advising him to plead guilty to the § 924(c) charge, rendering that
conviction invalid. To the extent Ortiz wishes to pursue this claim, it is best saved for
collateral review, where an evidentiary foundation can be fully developed. See Massaro
v. United States, 538 U.S. 500, 503–05 (2003).
Accordingly, we GRANT counsel’s motion to withdraw and DISMISS the appeal.

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