United States of America v. Carey Hinton

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted May 17, 2024
Decided May 22, 2024
Before
THOMAS L. KIRSCH II, Circuit Judge
CANDACE JACKSON-AKIWUMI, Circuit Judge
DORIS L. PRYOR, Circuit Judge
No. 23-1018
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
CAREY HINTON,
Defendant-Appellant.
Appeal from the United States District
Court for the Northern District of
Illinois, Eastern Division.
No. 1:17-CR-00040(8)
John J. Tharp, Jr.,
Judge.
O R D E R
Carey Hinton pleaded guilty to conspiracy to engage in a pattern of racketeering
activity, 18 U.S.C. § 1962(d), and was sentenced to 200 months’ imprisonment and
3 years of supervised release. Hinton appeals, but his appointed counsel asserts that the
appeal is frivolous and moves to withdraw. See Anders v. California, 386 U.S. 738, 744
(1967). Counsel’s brief explains the nature of the case and raises potential issues that we
would expect an appeal like this to involve. Because the analysis appears thorough, and
Hinton has not responded to the motion with additional arguments, see C IR . R. 51(b), we
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with F ED. R. APP . P. 32.1

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limit our review to the subjects that counsel discusses. See United States v. Bey, 748 F.3d
774, 776 (7th Cir. 2014).
Hinton admitted that from about 2008 through 2018, he conspired to participate
in the affairs of the LAFA street gang, which primarily operated on the southeast side of
Chicago. Hinton’s involvement included trafficking controlled substances in Chicago,
Illinois and Duluth, Minnesota. Between 2011 and 2015, members of the conspiracy
distributed at least 137.19 grams of heroin, 46.9 grams of MDMA, 20.746 grams of
methamphetamine, and 35.5 grams of marijuana.
Hinton was indicted in 2018 alongside twelve codefendants. He was charged
with participating in a racketeering conspiracy in violation of 18 U.S.C. § 1962(d) and
possessing controlled substances with intent to distribute in violation of 21 U.S.C.
§ 841(a)(1). The indictment alleged racketeering acts including murder, robbery, drug
trafficking, and obstruction of justice. Pursuant to a written agreement with the
government, Hinton pleaded guilty to the racketeering conspiracy charge.
The corrected presentence investigation report (PSR) used three racketeering acts
to determine Hinton’s offense level under the Sentencing Guidelines. See U.S.S.G.
§ 2E1.1(a)(2), cmt. n.1. The drug trafficking conspiracy had a base offense level of 24,
using the total converted weight of the drugs identified in the plea agreement (minus
6.746 grams of methamphetamine for which Hinton had been convicted in state court
already). The attempted murders of “Victim 12” and “Victim 13” were the second and
third racketeering acts. These occurred when Hinton participated in a drive-by shooting
on July 30, 2015; he fired his weapon at both victims and hit Victim 12 in the shoulder.
The PSR calculated a base offense level of 33 for racketeering act two, id. § 2A2.1(a)(1),
increased by two levels because Victim 12 sustained a serious bodily injury, id.
§ 2A2.1(b)(1)(B). With respect to racketeering act three, the PSR calculated a base and
adjusted offense level of 33. Id. § 2A2.1(a)(1). After the racketeering acts were grouped
and an adjustment for multiple offenses added, see id. §§ 2E1.1, 3D1.4, the PSR removed
three levels for acceptance of responsibility, id. § 3E1.1, resulting in a total offense level
of 34.
The PSR initially calculated a criminal history category of V, which combined
with the offense level produced a guidelines range of 235 to 293 months, capped at 240
months because of the statutory maximum. See 18 U.S.C. § 1963(a). The parties filed
sentencing memoranda with their objections to the calculations and their positions on
the appropriate sentence. Hinton disputed his responsibility for the attempted murders,
and the government objected to Hinton receiving any deduction for acceptance of

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No. 23-1018 Page 3
responsibility. Both parties agreed that Hinton’s criminal history category was IV
instead of V.
At sentencing, the court conducted an evidentiary hearing to determine whether
Hinton could be held accountable for the attempted murders of Victims 12 and 13. After
the court heard testimony from two witnesses and arguments from both parties, it
overruled Hinton’s objections to the PSR, finding by a preponderance of the evidence
that he attempted to kill two people. The court highlighted that Hinton’s fingerprint
and DNA were found in the car used in the drive-by shooting. It also found the
witnesses’ testimony persuasive because they made statements against their own
interest, and their statements were corroborated by video evidence. The court then
adopted the PSR’s calculation of the total offense level for the racketeering acts,
including the three-level deduction for acceptance of responsibility. See U.S.S.G. § 3E1.1.
But it agreed with the parties that Hinton’s criminal history category was IV (not V as
reflected in the PSR). Consequently, the court calculated a guidelines range of 210 to 262
months imprisonment, id. § 5A, reduced to a range of 210 to 240 months because of the
statutory maximum, id. § 5G1.1.
The government argued that Hinton should be sentenced to the maximum of
240 months in prison, emphasizing the seriousness of his offense and his significant
criminal history despite being relatively young. Meanwhile, Hinton requested a
sentence at the low end of the guidelines range, with additional credit for a previous
state sentence for a drug-distribution act encompassed in the racketeering conspiracy.
Subtracting his 40 months in state custody from the low end of the range would yield a
sentence of 170 months. To support this sentence, Hinton highlighted his challenging
youth in a violent neighborhood and his remorse, while arguing that his role in the
racketeering enterprise was minor (running drugs instead of leading the conspiracy).
The court explained that the statutory maximum sentence was warranted but
agreed that, although U.S.S.G. § 5K2.23’s departure provision did not apply, it should
account for the 40-month state sentence under the 18 U.S.C. § 3553(a) factors. It imposed
a sentence of 200 months in prison and 3 years of supervised release. The court
emphasized that racketeering is repeated criminal conduct that Hinton engaged in for
about 10 years, and it highlighted the seriousness of interstate drug trafficking and
attempted murder. Although the court recognized that Hinton took some responsibility
for his actions by pleading guilty and had availed himself of learning opportunities
while incarcerated, the court explained that the 200-month sentence was necessary to
protect the public and promote respect for the law.

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On appeal, counsel first represents that he discussed with Hinton the risks and
benefits of challenging his guilty plea and reports that Hinton wishes to contest only his
sentence. Thus, counsel rightly avoids raising potential arguments about whether the
plea was valid. 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 next properly concludes that Hinton could not raise a nonfrivolous
procedural challenge to the length of his sentence, explaining that it was not imposed in
violation of the law (it is below the statutory maximum) or as a result of an incorrect
application of the Sentencing Guidelines. See 18 U.S.C. § 3742. As counsel explains, it
would be futile to argue that the district court erred in finding Hinton responsible for
two attempted murders in connection with the drive-by shooting. We review a court’s
factual findings at sentencing for clear error, United States v. King, 910 F.3d 320, 329
(7th Cir. 2018), giving “exceptional deference” to its credibility determinations,
United States v. Ranjel, 872 F.3d 815, 821 (7th Cir. 2017). Here, the court acknowledged
inconsistencies in the witnesses’ testimony and addressed impeachment evidence, but it
nevertheless believed the victims’ testimony that Hinton shot at them because they
made statements against their own interest and there was corroborating evidence.
Hinton could not establish a clear error when the judge thoroughly evaluated all the
evidence. See id. Counsel identifies no other arguable procedural errors.
Counsel next considers arguing that the sentence was substantively unreasonable
but concludes that Hinton could not possibly rebut the presumptive reasonableness of a
sentence within a properly calculated guidelines range. United States v. Major, 33 F.4th
370, 384–85 (7th Cir. 2022). Counsel is correct. The district court evaluated the factors
under 18 U.S.C. § 3553(a), carefully considering mitigating arguments (Hinton’s violent
environment and his attempts to better himself) against aggravating factors like the
seriousness of the offense (attempted murder, extensive drug trafficking, and decade-
long involvement) and the need to protect the public and deter Hinton (who had a
significant criminal history already). An argument that the court abused its discretion
by imposing a within-guidelines sentence would be frivolous.
Finally, counsel rightly concludes that Hinton did not preserve any challenges to
the three-year supervised release term or its conditions. At the sentencing hearing,
Hinton did not object to the term of supervised release, and he waived reading of the
conditions after counsel represented that they had already reviewed them together.
Because Hinton had notice of the supervised-release parameters and said nothing when

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given a meaningful opportunity to object, he could not successfully contest this part of
his sentence on appeal. See United States v. Canfield, 2 F.4th 622, 627 (7th Cir. 2021).
Therefore, we GRANT counsel’s motion to withdraw and DISMISS the appeal.

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