United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

Argued April 7, 2010

Decided April 30, 2010

Before

DIANE P. WOOD, Circuit Judge

TERENCE T. EVANS, Circuit Judge

DIANE S. SYKES, Circuit Judge

Nos. 08-1714, 08-1715, 08-1716, 

 08-1717, 08-1718 & 08-1719

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

THOMAS ROSS, JUAN HERNANDEZ,

JOSE RODRIGUEZ, FIDELMAR CORTES,

MARLON REGALADO, and

GERALD PITTMAN,

Defendants-Appellants.

Appeals from the 

United States District Court 

for the Northern District

of Illinois, Eastern Division.

No. 99 CR 469

Robert W. Gettleman, 

Judge.

O R D E R

This dispute is now, regrettably, in its third decade. It concerns a huge drug

distribution conspiracy involving members of the Maniac Latin Disciples gang to peddle

marijuana, cocaine, and crack in Chicago. The gang drug dealing activities took place in

the 1990's. Seventeen gang members were indicted in May of 2000 on 50 counts alleging

drug and firearm offenses. Ten were convicted (others pled guilty) after a 2001 jury trial

NONPRECEDENTIAL DISPOSITION

To be cited only in accordance with Fed. R. App. P. 32.1
Nos. 08-1714, 08-1715, et al. Page 2

that lasted several months. Sentencing proceedings were strung out while the parties

disputed the application of the guidelines, which at that time were mandatory. Ultimately,

nine of ten defendants convicted in the trial appealed, and we affirmed their convictions in

2005. United States v. Medina, 430 F.3d 869 (7th Cir. 2005). Because by then, however, United

States v. Booker, 543 U.S. 220 (2005), had reduced the guidelines to advisory status, we

ordered that the case as to three defendants be returned to the district court for

re-sentencing. Three other defendants also won full re-sentencing proceedings following

limited remands pursuant to the procedure we outlined in United States v. Paladino,

401 F.3d 471 (7th Cir. 2005). 

The six defendants were re-sentenced in 2008. And now they are back here in 2010

challenging the new sentences they received. The six defendants and their old and new

sentences are:

 Defendant Original Sentence Sentence After Remand

Thomas Ross Life 360 months

Juan Hernandez 360 months 360 months

Jose Rodriguez 292 months 235 months

Fidelmar Cortes 235 months 200 months

Marlon Regalado 324 months 240 months

Gerald Pittman Life 360 months

The defendants, in a joint brief, and Hernandez, in an individual brief, raise numerous

issues to contest their new sentences. Almost all of the claims (things like drug type and

drug quantity) are off the table at this point—a couple were waived, others lack merit. 

However, one issue deserves our attention. The defendants argue that the district court

failed to consider whether the sentencing disparity between crack and powder cocaine was

warranted in their cases in light of Kimbrough v. United States, 552 U.S. 85 (2007).

Whether the district court followed the proper sentencing procedures is a question

of law subject to de novo review. United States v. Mendoza, 510 F.3d 749, 754 (7th Cir. 2007). 

We must ensure that the district court did not commit procedural error by, for example,

failing to properly calculate the guidelines range or by failing to consider the sentencing

factors noted in 18 U.S.C. § 3553(a). United States v. Pape, 2010 WL 1488521, at *2 (7th Cir.

Apr. 15, 2010) (citing Gall v. United States, 552 U.S. 38, 51 (2007)). While the district court is
Nos. 08-1714, 08-1715, et al. Page 3

 The government argues that Kimbrough does not apply to Hernandez because he was 1

sentenced as a career offender, relying on United States v. Millbrook, 553 F.3d 1057 (7th Cir. 2009).

However, the holding in Millbrook was overruled by United States v. Corner, 598 F.3d 411 (7th Cir.

2010).

not required to address every claim a defendant makes, it must consider arguments that

are strong enough to merit discussion. See United States v. Villegas-Miranda, 579 F.3d 798,

801 (7th Cir. 2009).

Kimbrough was decided a few months before the defendants were re-sentenced. 

Although the defendants filed a joint memorandum concerning the case, the district court

never directly addressed it during the re-sentencing proceedings. Moreover, the district

judge made comments that suggest he felt constrained by the crack/powder disparity. He

said he was “bound by the law as it stands now” while re-sentencing Ross and “the law is

the law” while re-sentencing Pittman. In re-sentencing Hernandez, the district judge spoke

as if he harbored the very concern Kimbrough sought to address: “[Y]ou talk about the

disparity of crack and coke, and I agree that there is, I think that something should be

done . . . . I hope that the nation wakes up to that. But right now the law is the law, and

I’m enforcing it the way it is written, and that’s a sad decision I have to make.” 

Consequently, we’re not sure the judge appreciated the wiggle room Kimbrough provides,

and we believe a remand is warranted on this limited issue.

Therefore, we VACATE the sentences and REMAND to the district court for further

proceedings in light of Kimbrough. We do not, however, believe that a full-blown do-over

1

of the proceedings, with defendants physically produced in Chicago, is necessary to fairly

wrap up this case.