By: Derek Hawkins//August 30, 2016//
7th Circuit Court of Appeals
Case Name: United States of America v. Felipe Zamora & Samuel Gutierrez
Case No.: 15-2193; 15-2762
Officials: POSNER, EASTERBROOK, and SYKES, Circuit Judges
Focus: Court Error – Sentencing Guidelines
Judge erred by failing to provide explanation for sentencing conditions and failing to calculate guideline range.
“With regard to Gutierrez the judge committed an addi‐ tional error by failing to calculate his guidelines range (one of the errors, the reader will recall, that caused us to order Zamora resentenced). Furthermore, though we instructed the judge to reconsider on remand his ruling that Gutierrez had not accepted responsibility for the crimes he’d pleaded guilty to, we can’t tell from the sentencing transcript how the issue of acceptance of responsibility was resolved. It is true that Gutierrez’s new sentence—188 months—would be the top of the guidelines range recommended by the defense and the government, reflecting the deduction of three of‐ fense levels for acceptance of responsibility. But the judge’s extended colloquy concerning Gutierrez’s activities as a member of the Latin Kings and apparent dissatisfaction with Gutierrez’s answers are consistent with the judge’s having reduced his sentence not because he’d accepted responsibil‐ ity for his crime but because like Zamora he’d behaved well in prison. Pepper v. United States, supra, 562 U.S. at 490–93. But thatʹs just a guess; for in contrast to his treatment of Za‐ mora, the judge did not mention Gutierrez’s good behavior in prison, did not mention any of the section 3553(a) sentenc‐ ing factors, and did not explain why, assuming he was sub silentio crediting Gutierrez with accepting responsibility, he nevertheless thought that unlike Zamora Gutierrez deserved to be sentenced at the high end of the applicable guidelines range. (This assumes that the judge agreed with the litigants’ guidelines calculation.)”
Vacated and remanded for resentencing