United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

May 9, 2007

Before

Hon. KENNETH F. RIPPLE, Circuit Judge

Hon. ILANA DIAMOND ROVNER, Circuit Judge

Hon. DIANE S. SYKES, Circuit Judge

No. 01-1891

UNITED STATES OF AMERICA, Appeal from the United States

 District Court for the Eastern

District of Wisconsin,

Plaintiff-Appellee,

v. No. 98 CR 104

ANTONIO MENDEZ, also known Lynn Adelman, 

as SPA, Judge.

Defendant-Appellant.

ORDER

Antonio Mendez appealed his conviction and sentence for racketeering and

drug conspiracy charges. We affirmed his conviction, United States v. Olson, 450

F.3d 655 (7th Cir. 2006), and ordered a limited remand to ask whether the district

court would have imposed the same sentence under an advisory regime. United

States v. Paladino, 401 F.3d 471, 483-84 (7th Cir. 2005), cert. denied, 126 S. Ct.

1343 (2006). See also United States v. Booker, 543 U.S. 220 (2005). The district

court has now indicated that it would impose the same sentence knowing that the

guidelines are advisory rather than mandatory. United States v. Mendez, No. 98-

NONPRECEDENTIAL DISPOSITION

To be cited only in accordance with

 Fed. R. App. P. 32.1
No. 01-1891 Page 2

CR-104, 2007 WL 128340 (E.D. Wis. Jan. 11, 2007) (hereafter "Memorandum"). We

invited Mendez and the United States to respond to the district court's

Memorandum. Mendez did not respond. The United States urges us to affirm the

sentence as reasonable given the nature of Mendez's conduct, which included

murder and racketeering. 

In its extraordinarily thorough seventeen-page Memorandum, the district

court accepted the recommendations of the presentence report, which set the

offense level at 45 and the criminal history category at V. As the government notes,

this combination is "literally off the chart." That is, the relevant guidelines chart

ends at level 43 with a sentencing range of life for criminal history category V. The

court thus correctly found that the range for Mendez is life. The court then

carefully considered the factors set forth in 18 U.S.C. § 3553(a), applying each

section to Mendez's particular circumstances. After recounting the facts of

Mendez's crimes, including a brutal murder and several instances of witness

tampering, the court found that Mendez's "crimes were among the most serious and

depraved I have seen, and defendant offers nothing persuasive in mitigation." The

court concluded that a life sentence was necessary to promote just punishment

because Mendez participated in the brutal murder of a teenage girl, displayed total

disregard for human life, and never expressed remorse for his deeds. The court

also found that no term lesser than life would adequately protect the public from

Mendez, and that life imprisonment was necessary to deter Mendez from future

crimes because he continued his involvement in the Latin Kings even after his

imprisonment on an unrelated rape conviction. The court found the sentence

necessary to deter others from committing murders for revenge. The court also

noted that a life sentence for Mendez was in line with the sentences received by

Mendez's co-defendants. The district court carefully considered Mendez's legal and

factual arguments and found none persuasive. The court thus determined that it

would have imposed the same sentence had it known the guidelines were advisory

rather than mandatory.

We have held that a properly calculated guidelines sentence is entitled to a

rebuttable presumption of reasonableness. United States v. Mykytiuk, 415 F.3d

606, 608 (7th Cir. 2005). Mendez has provided no reason to rebut that presumption,

and the district court has given a very thorough analysis of the section 3553(a)

factors in support of that sentence. See United States v. Dean, 414 F.3d 725, 729

(7th Cir. 2005) (holding that the sentencing judge need only provide an adequate

statement of the judge's reasoning, consistent with section 3553(a), for thinking

that the sentence selected is indeed appropriate for the particular defendant). 

Under the law of this circuit, that is enough to affirm the sentence as reasonable. 
No. 01-1891 Page 3

The Supreme Court has issued a writ of certiorari to determine whether

presumptions like the one adopted in Mykytiuk are consistent with United States 

Booker, 543 U.S. 220 (2005). See United States v. Rita, 177 Fed. Appx. 357 (4th Cir.

2006), cert. granted, 127 S. Ct. 551 (2006). We have therefore assessed the

reasonableness of Mendez's sentence without applying any presumptions. See

United States v. Nitch, 477 F. 3d 933, 937-38 (7th Cir. 2007). Without applying the

Mykytiuk presumption, we find that the district court's choice of sentence was

reasonable. The nature of Mendez's crimes, his continued criminal activity in

prison, his lack of remorse, the need for specific and general deterrence, and all of

the other factors detailed in the district court's Memorandum fully support a

sentence of life imprisonment. We therefore affirm that sentence and the judgment

of the district court.

AFFIRMED.