In the

United States Court of Appeals

For the Seventh Circuit

No. 11-3873

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

JOSHUA VIDAL,

Defendant-Appellant.

Appeal from the United States District Court 

for the Northern District of Illinois, Eastern Division.

No. 10 CR 618-1—Amy J. St. Eve, Judge.

ARGUED DECEMBER 12, 2012—DECIDED JANUARY 31, 2013

Before POSNER, ROVNER, and WOOD, Circuit Judges.

WOOD, Circuit Judge. Joshua Vidal was a member of a

gang that was active in the cocaine business. He made

the mistake of working with an undercover FBI officer

in a scheme to rob a “stash house.” In time, he was

charged with and pleaded guilty to four counts related

to that planned crime. This appeal concerns only his

sentence, which was within the range recommended by

the Sentencing Guidelines. The district court erred, he
2 No. 11-3873

asserts, by failing adequately to consider his primary

argument under 18 U.S.C. § 3553(a)—his psychiatric

history. Although we recognize that the district court

may yet come to the same conclusion after taking a

closer look at this argument and providing an explanation that is sufficient for appellate review, it is also

possible that it may not. We cannot base our review on

speculation. We thus remand for further proceedings.

I

Vidal, a member of the Two-Six street gang, was

arrested in July 2010 after an FBI informant recruited

him to rob a cocaine stash house. Vidal took the lead

in planning the robbery, assembling a team of four

coconspirators and assuring the undercover FBI officer

that he had completed similar robberies in the past and

could easily sell all of the cocaine that the crew expected

to recover. On the day of the planned robbery, Vidal and

his crew assembled in a parking lot with three loaded

pistols and a roll of packing tape. They were arrested

as they left the parking lot.

Vidal was eventually charged with, and pleaded guilty

to, the following four counts: (1) conspiracy to possess

with intent to distribute five kilograms or more of

cocaine, in violation of 21 U.S.C. § 846; (2) attempt to

possess with intent to distribute five kilograms or more

of cocaine, in violation of 21 U.S.C. § 846; (3) a Hobbs

Act violation committed by attempting to rob the house

and steal the cocaine and cocaine proceeds, see 18 U.S.C.

§ 1951(a); and (4) possession of a firearm in furtherance
No. 11-3873 3

of a crime of violence and drug trafficking crime, prohibited by 18 U.S.C. § 924(c)(1)(A).

The probation officer who prepared the presentence

report (PSR) calculated an offense level of 35, based on

the 30 kilograms of cocaine that Vidal believed were

involved in the conspiracy (the amount to be used in the

sting was apparently selected by the FBI agent), see

U.S.S.G. § 2D1.1(a)(5), a four-point upward adjustment

for his leadership role in the offense, see id. § 3B1.1(a),

and a three-point reduction for his timely plea and acceptance of responsibility, see id. § 3E1.1. Combined with

Vidal’s category III criminal history, this offense level

yielded an advisory sentence of 210 to 262 months’ imprisonment on counts I through III. The PSR also noted

that Vidal had a history of mental illness and had previously received counseling for bipolar disorder and depression, but that he had declined to continue treatment

for either disorder.

Vidal did not object to the PSR, but he sought a 180-

month sentence (the mandatory minimum), which he

argued was warranted by his difficult childhood and

psychological problems. Dr. Susan Pearlson, a forensic

psychiatrist, evaluated Vidal before sentencing and

diagnosed him with posttraumatic stress disorder,

bipolar spectrum disorder, claustrophobia, and drug

and alcohol abuse. Dr. Pearlson opined that these

disorders impaired Vidal’s ability to make rational decisions. While Vidal was being evaluated by Dr. Pearlson,

he took his prescribed medications and felt more peaceful. Dr. Pearlson stated that “the combination of sobriety
4 No. 11-3873

and psychotropic medication over an extended period

of time and the absence of an antisocial personality disorder” placed Vidal at a lower likelihood of reoffending upon his release from prison.

The district court adopted the probation officer’s guidelines calculations and sentenced Vidal to concurrent

terms of 210 months on counts I through III, and a consecutive term of 60 months on count IV (the mandatory

minimum for that offense). The court discussed Vidal’s

behavior extensively, but all it had to say about his psychological problems was this: “I also note the mental

health issues that you appear to struggle with. Certainly

your drug abuse problem does not go well with your

mental health issues.” Otherwise, the court emphasized

Vidal’s lengthy criminal record, his history of violence,

and the fact that he apparently had been undeterred by

the time he already had spent in jail.

II

On appeal, Vidal argues only that the district court

erred by failing adequately to consider his argument that

his psychiatric issues warranted a below-guidelines

sentence. At sentencing, Vidal had highlighted Dr. Pearlson’s view that the combination of enforced sobriety,

psychotropic medication, and the absence of antisocial

personality disorder indicated a decreased likelihood

that he would reoffend upon his release from prison.

The district court made no reference to any of this in

its fleeting comment about Vidal’s “mental health issues,” and thus, he argues, there is no way to know
No. 11-3873 5

whether the court adequately considered this ground

of mitigation.

A sentencing judge must address a defendant’s

principal arguments in mitigation. See United States v.

Chapman, 694 F.3d 908, 913-14 (7th Cir. 2012). Even so, “the

judge’s failure to discuss an immaterial or insubstantial

dispute relating to the proper sentence would be at

worst a harmless error.” United States v. Cunningham, 429

F.3d 673, 679 (7th Cir. 2005). Although the district court

“need not raise every conceivable issue on its own initiative, . . . the court must acknowledge and respond to

any properly presented sentencing argument which

has colorable legal merit and a factual basis.” United

States v. Begin, 696 F.3d 405, 411 (3d Cir. 2012). In United

States v. Miranda, 505 F.3d 785 (7th Cir. 2007), this court

applied that principle when it remanded for resentencing in a case where the district court had not

addressed the defendant’s mental-illness argument. Id.

at 792. We have required resentencing both when the

district court is silent about the defendant’s principal

argument in mitigation, see United States v. Robertson,

662 F.3d 871, 879-80 (7th Cir. 2011); United States v.

Villegas-Miranda, 579 F.3d 798, 801 (7th Cir. 2009);

Cunningham, 429 F.3d at 679, and when the district court’s

discussion is so cursory that we are unable to discern

the court’s reasons for rejecting the argument, see United

States v. Schroeder, 536 F.3d 746, 755-56 (7th Cir. 2008);

Miranda, 505 F.3d at 792.

The only question here is on what side of the line

the district court’s statement falls. Although it acknowl-
6 No. 11-3873

edged that Vidal had mental-health issues, its statement

gives us no insight into the judge’s evaluation of that

condition. Indeed, one could infer simply from the participation of Dr. Pearlson, a forensic psychiatrist, that

the court was aware that mental illness might need to

be considered. But more than that is needed: The

mention of a word is not the same thing as a discussion

or an explanation. Particularly because Dr. Pearlson’s

report went beyond describing Vidal’s mental disorders

and predicted that he is less likely than the average

person to recidivate, there was a need for the district

court to explain why it thought that the latter point did

not justify a lighter sentence. In short, this is not a case

in which the record makes clear the court’s reasons for

rejecting the proffered argument, see Rita v. United

States, 551 U.S. 338, 357-58 (2007); Schroeder, 536 F.3d at

755; Miranda, 505 F.3d at 792.

It would also have been helpful for the court to explain why Vidal’s particular mental-health history did

not temper some of the court’s (valid) concerns with

specific and general deterrence. Vidal grew up in a

violent, drug-infested environment, bouncing between

his mother and his grandmother. At times he witnessed

his mother being beaten, and at times he was subject

to violent abuse himself. His alcoholic stepfather beat

him regularly and threatened him with death. When

he was 14, he was beaten up by a rival gang member,

and in 2001 he attempted to commit suicide by overdosing on Tylenol. His mother found him in time, he

was taken to a hospital, and ultimately admitted to an

inpatient mental-health facility, where he was diagnosed
No. 11-3873 7

with depression and prescribed medication. He stayed

there only a week, however. He has attempted suicide

on two additional occasions, once in 2003 and once in

2008. He has also experienced racing thoughts, mood

instability, an inability to concentrate, and similar symptoms. He hears voices, has claustrophobia, and sees

things on the wall move.

Records from the various institutions and mentalhealth professionals who have treated Vidal were available to Dr. Pearlson and to the court. The court had

also been told about his positive response to treatment.

Vidal’s argument in mitigation was thus a serious and

well-documented one that required the court’s specific

attention.

Vidal’s sentence is therefore VACATED and the case

is REMANDED to the district court for further proceedings

consistent with this opinion.

1-31-13