UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

UNITED STATES OF AMERICA, )

) Case No. 03 CR 0855 (-4)

v. )

) Judge Joan B. Gottschall

GARY ROBERSON. )

SENTENCING MEMORANDUM AND ORDER

Defendant Gary Roberson (“Roberson”) pled guilty to the September 4, 2003 armed

robbery of the Plaza Bank in Chicago and, on October 12, 2005, the court sentenced him to 85

months imprisonment. Specifically, the court imposed the mandatory consecutive 84-month

sentence for violation of 18 U.S.C. § 924(c)(1)(A)(ii) (knowingly possessing a firearm in

furtherance of, and using, carrying, and brandishing a firearm during, and in relation to, a crime

of violence), charged in Count II, and an additional one-month sentence for the bank robbery in

violation of 18 U.S.C. § 2113(a) and (d), charged in Count I. In imposing a sentence for the

bank robbery (Count I) that was below the range of 46-57 months prescribed by the U.S.

Sentencing Commission Guidelines (the “Guidelines”), the court observed that if Roberson had

been charged by the Government with a single count of bank robbery, without the statutory 84-

month mandatory minimum addition for brandishing the firearm, but with the 5 point offense

level Guideline enhancement for the brandished firearm factored into the Guidelines

computation, § 2B3.1(b)(2)(C), Roberson’s final Guidelines range for his real offense conduct

would have been 78-97 months. The court’s imposition of a total sentence of 85 months was

intended both to account for the consecutive mandatory minimum of 84 months and to place the

sentence squarely in the middle of the 78-97 month Guidelines range for the precise real offense
2

conduct involved in this case. This court imposed this sentence because, given the aggravating

and mitigating factors involved in this case, it found the guideline sentence to be both the most

reasonable sentence and the sentence most appropriate to achieve the objectives of § 3553(a). It

chose the middle of the range in order to achieve these objectives consistent with the imposition

of the 84 month mandatory minimum for Count II.

The government appealed and, on January 17, 2007, the Seventh Circuit reversed the

sentence and remanded with instructions to resentence Roberson in conformity with its opinion. 

United States v. Roberson, 474 F.3d 432 (7th Cir. 2007). In its opinion, the Seventh Circuit

found that the sentence of 85 months imposed by this court was unreasonable. Id. at 435-36. 

According to the court of appeals, the court should have “picked a sentence for the bank robbery

without regard for the fact that a gun had been used in it, and then tacked on 84 months [the

mandatory statutory penalty for brandishing a firearm during the robbery].” Id. at 434. The

Seventh Circuit pointed out that the Supreme Court’s decision in United States v. Booker, 543

U.S. 220 (2005), which made the sentencing guidelines advisory, did not authorize the court to

ignore statutory sentencing ranges. Although the sentence was in excess of the 84-month

mandatory minimum, the Seventh Circuit found that by giving only a one-month sentence for the 

count which did not carry a mandatory minimum, this court failed to effectuate the Count II

mandatory minimum. Roberson, 474 F.3d at 434. According to the appellate court, a reasonable

one-month sentence for bank robbery was “conceivable” only in an “extraordinary case,” but the

facts presented in the instant case were so far removed from “extraordinary” that a one-month

sentence could not possibly be reasonable. Id. at 435. Because the Seventh Circuit’s holding

required that the sentence on Count I be evaluated for reasonableness in isolation from the

“tacked on” 84-month mandatory minimum for Count II, it did not find it appropriate to evaluate
1

At least three circuits have followed the Seventh Circuit’s reasoning. See United States v.

Molina, 530 F.3d 326 (5th Cir. 2008); United States v. Hatcher, 501 F.3d 931 (8th Cir. 2007);

United States v. Franklin, 499 F.3d 578 (6th Cir. 2007). The Seventh Circuit’s opinion, and

these decisions, are consistent with the Sentencing Commission’s directive on consecutive

mandatory minimums. U.S.S.G. § 5G1.2(a). But see cases cited at pp. 9-10, infra.

3

the entire sentence for reasonableness. Indeed, the central disagreement between the approach of

this court and that of the court of appeals was that this court sought to impose a reasonable

sentence for both counts of conviction, while the court of appeals required that, in order to

effectuate the government’s decision to charge the case with a count bearing a mandatory

minimum, a reasonable sentence be imposed for the count not bearing a mandatory minimum, to

which the mandatory minimum should then be “tacked on.”1

There are three significant legal questions implicit in this reversal. The first is whether,

if the government can charge the precise real offense conduct in one of two ways (one count

with enhancements yielding a guideline range of 78-97 months, or two counts charging the

offense as one count of simple bank robbery with a second count for brandishing a firearm,

bearing a 7 year mandatory minimum, yielding a guideline sentence of 130-141 months) and

chooses the harsher way, the district court’s discretion to impose a reasonable sentence for the

whole offense is trumped by the government’s exercise of its discretion? Does this render

correct only those Guidelines adopted to reflect the 7-year mandatory minimum (46-57 months

for Count I plus 84 months for Count II: 130-141 months), or may the sentencing court consider

the guidelines applicable if the case had been charged differently (78-97 months)? In other

words, does the government’s exercise of its discretion to charge in the harshest possible way

constrain the district court’s discretion so that it must ignore the Guidelines developed for the

total real offense conduct and choose the alternative Guidelines that reflect the mandatory
4

minimum? The second is whether, when a case is charged in multiple counts, one of which

bears a consecutive mandatory minimum, the district court is permitted to impose a reasonable

sentence for the entire real offense conduct, or must it impose a reasonable sentence for the

count not bearing a mandatory minimum and then “tack on” the mandatory minimum? The

third is whether, when the government has chosen to charge the case in multiple counts, one of

which bears a consecutive mandatory minimum, instead of in one count, relying on the

Guidelines to add enhancements to the offense level to account for the real offense conduct

involved, the Guideline sentence for the single count including enhancements is per se

unreasonable because it “short changes” the mandatory minimum? 

Since the Seventh Circuit handed down its opinion in this case, the United States

Supreme Court has clarified the post-Booker sentencing landscape. In Gall v. United States, 128

S. Ct. 586 (2007), the Court held that, when reviewing a sentence imposed by a district court for

abuse of discretion, an appellate court must first ensure that no procedural error was committed. 

Id. at 597. Upon concluding that there is no procedural error, the appellate court should then

consider the substantive reasonableness of the sentence imposed under an abuse-of-discretion

standard. Id. If the sentence is outside the range of the Sentencing Guidelines, the appellate

court may not apply a presumption of unreasonableness. Id. It may consider the extent of the

deviation, but must give due deference to the district court’s decision that the factors described

in 18 U.S.C. § 3553(a), on the whole, justify the extent of the variance. Id. The fact that the

appellate court might reasonably have concluded that a different sentence was appropriate is

insufficient to justify reversal of the district court. Id.

Furthermore, in Kimbrough v. United States, 128 S. Ct. 558 (2007), the Court held that a

district judge must include the Sentencing Guidelines range in the array of factors warranting
5

consideration in the determination of a reasonable sentence. Id. at 564. The judge may

determine, however, that, in a particular case, a within-Guidelines sentence is “‘greater than

necessary’ to serve the objectives of sentencing” under 18 U.S.C. § 3553(a). Id. Because the

Court’s reasoning in Kimbrough has considerable bearing on the instant case, it is worthwhile

and instructive to examine it in more detail.

In Kimbrough, the defendant pled guilty to conspiracy to distribute crack and powder

cocaine; possession with intent to distribute more than 50 grams of crack cocaine; possession

with intent to distribute powder cocaine; and possession of a firearm in furtherance of a drugtrafficking offense. Id. The district court calculated the sentence, in accordance with the

Sentencing Guidelines, which yielded a sentence of 168 to 210 months for the three drug

offenses. Id. at 565. The Guidelines sentence for the firearm offense was 60 months, the

statutory mandatory minimum. Id. Thus, Kimbrough’s final advisory range under the

Guidelines was 228 to 270 months. Id. A sentence in that range, concluded the court, would

have been greater than necessary to accomplish the purposes of sentencing set forth in § 3553(a). 

The court also commented upon the “disproportionate and unjust effect that crack cocaine

guidelines have in sentencing,” explicitly contrasting the Guidelines range of 228 to 270 months

with the range of 97 to 106 months that would have been applicable, all other circumstances

being equal but inclusive of the 60-month firearm offense, had Kimbrough possessed an

identical amount of powder cocaine. Id. Rejecting the Congressionally-directed crack

guidelines and Congress’ insistence that crack be sentenced 100 times more harshly than powder

cocaine, the district court sentenced Kimbrough to 180 months (120 months for each drug

charge, to run concurrently, plus the mandatory minimum 60-month firearm charge). Id. 

The Fourth Circuit, in an unpublished order, vacated the opinion of the district court,
6

holding that a sentence “outside the [G]uidelines range is per se unreasonable when based on a

disagreement with the sentencing disparity for crack and powder cocaine offenses.” United

States v. Kimbrough, 174 Fed. App’x 798, 799 (4th Cir. 2006). 

The Supreme Court reversed the appellate court, holding that the district court did not

abuse its discretion in imposing a sentence that was 4.5 years below the minimum of the

Guidelines range. The Court noted that the district court properly evaluated the circumstances of

Kimbrough’s particular case and appropriately accorded weight to the Sentencing Commission’s

consistent argument that the 100-to-1 disparity in sentencing between crack and powder cocaine

was at odds with the requirements of § 3553(a). Kimbrough, 128 S. Ct. at 576.

At the center of the Court’s reasoning was the fact that the 100-to-1 disparity between

crack and powder cocaine had its origins, not in the empirical method generally employed by the

Sentencing Commission, but rather in the Anti-Drug Abuse Act of 1986 (the “1986 Act”), 100

Stat. 3207, which was incorporated by the Commission into the Guidelines. Although the

Commission subsequently attempted to amend the Guidelines to reduce the crack-powder

disparity, Congress prevented it from doing so pursuant to 28 U.S.C. § 994(p). See Pub. L. 104-

38, § 1, 109 Stat. 334. The Court therefore found itself addressing the central question of

Kimbrough: whether “a specific policy determinatio[n] that Congress has directed sentencing

courts to observe” is an exception to the “general freedom that sentencing courts have to apply

the [ § 3553(a) ] factors.” 128 S. Ct. at 570.

The Court concluded that it was not. The Court noted that the crack/powder disparity

originated in the mandatory minimum sentences established by the 1986 Act rather than via the

Commission’s usual methods of analyzing empirical data and national experience. Id. Given

this, among other factors, the Court concluded that “it would not be an abuse of discretion for a
7

district court to conclude when sentencing a particular defendant that the crack/powder disparity

yields a sentence ‘greater than necessary’ to achieve § 3553(a)’s purposes, even in a mine-run

case.” Id. at 575. 

In the instant case, there was no specific policy determination that Congress had directed

the courts to observe: Congress had in fact legislated two distinct ways of charging bank robbery

in which a firearm was brandished, only one of which bore a mandatory minimum, thus leaving

to the government’s discretion the choice whether to charge in a way which brought the

mandatory minimum into play. Thus, Kimbrough’s central question–whether “a specific policy

determinatio[n] that Congress has directed sentencing courts to observe” is an exception to the

“general freedom that sentencing courts have to apply the [ § 3553(a) ] factors”–becomes a

different but analogous question: Whether a discretionary determination that the government has

made to include a count bearing a mandatory minimum rather than relying on Guideline

enhancements to account for all the aggravated conduct is an exception to the general freedom

of the sentencing court to apply the §3553(a) factors? The government, by choosing to charge

the case with a count bearing a mandatory minimum, coupled with the court of appeals’ decision

that when the government so chooses, the district court is limited to choosing a reasonable

sentence for the simple bank robbery charged in Count I and then “tacking on” the consecutive

mandatory minimum, has created a not dissimilar sentencing disparity. Roberson, charged with

a single count of bank robbery under 18 U.S.C. § 2113, with an enhancement for brandishing a

firearm, would have faced a sentence based on an advisory Guidelines range of 78-97 months’

imprisonment. However, when charged for precisely the same crime with one count of bank

robbery in violation of 18 U.S.C. § 2113 (without the brandished firearm enhancement) and an

additional count charging a violation of 18 U.S.C. § 924(c) (brandishing a firearm during a crime
8

of violence), the resulting Guidelines range is 130-141 months. Thus, depending upon how a

defendant so situated is charged, the sentencing disparity is at least 65%. Given this wide

disparity of potential sentencing ranges, but consistent with the empirical data underlying the

Guidelines and the required consecutive mandatory minimum, the court imposed a sentence of

85 months: 84 months for the brandishing of a firearm in violation of § 924(c), and one month

for the underlying bank robbery. 

The court’s reason for imposing this sentence was not to minimize the seriousness of

Roberson’s offense (as is obvious from the fact that a sentence in the middle of the Guidelines

range was chosen), nor to undercut the statutory 84-month sentence required for brandishing the

firearm. Rather, its intention was to impose a reasonable sentence for all of the charged conduct

consistent with the objectives of § 3553(a). It did this by choosing a sentence in the middle of

the Guidelines range for the real offense conduct at issue: bank robbery with the Guidelines

enhancement for the brandishing of a firearm. The court reasoned that to impose the 84-month

statutory minimum for violation of § 924(c) and then add to it the Guidelines range of 46-57

months for a fictive unarmed bank robbery both provided an unreasonably punitive sentence

(given both the disproportionality discussed above and the unique facts about this case and about

this defendant) and also defeated the stated purpose of the Guidelines of sentencing Roberson

based upon his “real offense” conduct. Indeed, as an architect of the Guidelines has pointed out:

The compatibility of the guidelines system and mandatory minimums is also in

question. While the Commission has consistently sought to incorporate

mandatory minimums into the guidelines system in an effective and reasonable

manner, in certain fundamental respects, the general approaches of the two

systems are inconsistent. . . . Whereas the guidelines provide for graduated

increases in sentence severity for additional wrongdoing or for prior convictions,

mandatory minimums often result in sharp variations in sentences based on what

are often only minimal differences in criminal conduct or prior record. Finally,

whereas the guidelines incorporate a “real offense” approach to sentencing,
9

mandatory minimums are basically a “charge-specific” approach wherein the

sentence is triggered only if the prosecutor chooses to charge the defendant with a

certain offense or to allege certain facts.

Orrin G. Hatch, The Role of Congress in Sentencing: The United States Sentencing Commission,

Mandatory Minimum Sentences, and the Search for a Certain and Effective Sentencing System,

28 WAKE FOREST L. REV. 185, 194 (1993); see also Neal v. United States, 516 U.S. 284, 292

(1996).

Neither was the court’s reasoning inconsistent with the approach of other district courts. 

Among reported cases, in United States v. Angelos, 345 F. Supp. 2d 1227 (D. Utah 2004), aff’d,

433 F.3d 738 (10th Cir. 2006), the court added a one-day sentence for three drug counts (the

Guidelines range for which was 78-97 months) onto a 55-year sentence mandated by the

statutory requirements of § 924(c). Id. at 1260. In Angelos, Judge Paul Cassell performed a

lengthy and detailed analysis of the extreme disparities in sentencing resulting from a rigid

application of the mandatory minimum sentence mandated by § 924(c) for the use of a firearm in

conjunction with, and as opposed to, the Guidelines sentencing for the underlying offense. 

Judge Cassell emphasized that the expert agency appointed by Congress to evaluate federal

sentences (the Sentencing Commission) had determined what a just and proper sentence for the

drug counts at issue should be, and that these considerations were greatly and unjustly

outweighed by the mandatory statutory term imposed by § 924(c). Significantly, Judge Cassell

observed that a determination of the reasonableness of the sentence required consideration of the

whole sentence: “the court cannot ignore the reality that Mr. Angelos will also be sentenced to

55 years on the § 924(c) counts, far in excess of what is just punishment for all his crimes.” Id.
2

Ezell was affirmed in an unpublished order, appearing at 265 Fed. App’x 90 (3d Cir. 2008).

10

Likewise, in United States v. Ezell, 417 F. Supp. 2d 667 (E.D. Pa. 2006),2

 the court

found that a statutory mandatory minimum sentence of 132 years under § 924(c) was unduly

harsh. The court imposed the statutory minimum sentence, but added a nominal one day

sentence for the additional six robbery counts. Id. at 678. And in United States v. Ciszkowski,

430 F. Supp. 2d 1283 (M.D. Fla. 2006), aff’d, 492 F.3d 1264 (11th Cir. 2007), the court imposed

a nominal sentence of one year each, to be served concurrently, for charges of using a facility of

interstate commerce with the intent to commit a murder-for-hire and drug possession with intent

to distribute, in addition to a mandatory minimum sentence of 30 years under § 924(c) for

possession of a firearm equipped with a silencer (supplied by an undercover agent) in

furtherance of a crime of violence. Id. at 1288. The Ciszkowski court emphasized that when the

mandatory minimum sentence exceeds the Guidelines sentence, the statutory purposes of the

Guidelines sentence are fully accomplished by service of the minimum mandatory term. Id. at

1288. Therefore, the court reasoned, since § 924(c) neither specifies nor implies any particular

duration of the sentence to which the § 924(c) sentence is consecutive, the presence of a

mandatory minimum sentence for one of several counts of conviction is a factor the district court

may consider in determining a sentence for the other counts of conviction and in determining a

reasonable sentence under 18 U.S.C. § 3553(a). Id. at 1286.

In summary, it was the opinion of this court that the disparity in sentences between, on

the one hand, the imposition of the Guidelines’ sentence for a fictive “gun free” bank robbery

plus the “tacking on” of the statutory 84-month sentence under § 924(c) and, on the other hand,

the Guidelines sentence for the real offense conduct, including the Guidelines enhancement for
11

brandishing a firearm, resulted in an unjust and unreasonable sentence with respect to the aims

of § 3553(a) if the former was imposed. The court attempted to address that disparity, as did

Judge Cassell in Angelos, by varying from the Guidelines in order to harmonize the results

between the two, resulting in a sentence, as prescribed by the Guidelines, that was both

consistent with the statutory mandatory minimum and reasonable given Roberson’s real offense

conduct. 

The Seventh Circuit, while acknowledging that the Guidelines and § 924(c) “are not

completely harmonious,” rejected this court’s approach as unreasonable. Roberson, 474 F.3d at

436. Furthermore, in a holding that seems to this court inconsistent with the later-decided

Kimbrough, the appellate court held that a district court is not authorized to second-guess a

prosecutor's decision to charge a particular crime in the harsher of two possible ways unless the

decision is based on an invidious ground. Id. at 434. Finally, the appellate court held that when

a defendant is subject to a mandatory minimum under § 924(c), the district court must calculate

the sentence for the defendant's other offenses without regard to the mandatory minimum. 

Roberson, 474 F.3d at 434. Accord United States v. Duncan, 479 F.3d 924, 930 (7th Cir. 2007). 

Although the Seventh Circuit stated that the sentence as a whole must be reasonable, the

meaning of this statement is not entirely clear. It held unambiguously that the reasonableness of

the sentence on the count not bearing a mandatory minimum must be evaluated independently,

and the length of the consecutive mandatory minimum may not be considered in evaluating the

reasonableness of this sentence. In trying to craft a reasonable sentence for the count not bearing

a mandatory minimum, the district court may not adjust the sentence to reflect.the fact that the

defendant is subject to a consecutive mandatory minimum under § 924(c), as doing so

effectively reduces the mandatory minimum sentence. Roberson, 474 F.3d at 436.
12

The significance of this issue in light of Kimbrough cannot be ignored. Whereas

Kimbrough held that a judicial determination of the reasonableness of a sentence controls over a

specific policy directive of Congress that would require a harsher sentence, the Seventh Circuit

has held that a discretionary charging decision by the executive controls over a judicial

determination of reasonableness.

Although the appellate court’s opinion makes clear that Roberson must be resentenced, 

its conclusion that this court’s review of mitigating factors was unreasonable (“[o]ne might have

expected [the relevant] factors to push his sentence to the top of the guidelines range or even

above it,” 474 F.3d at 435) merits comment. The court carefully considered the mitigating

factors it believed justified some reflection in this sentence. They were stated in the original

order but are reiterated here more clearly and in more detail:

(1) The defendant was 19 years old at the time of the commission of the crime–still a

teenager and barely an adult. He had accumulated his entire criminal history (III) within the

18 months preceding the crime involved here. Until he joined a gang at the age of 16, he did not

live a criminally-oriented lifestyle. Indeed, the evidence before the court was that he had been

an above-average student, who participated in sports, and who had no juvenile arrests. The

defendant joined the Milwaukee Kings street gang at the age of 16, and it appears that he did so

in anger, in the wake of significant problems in his home life. The defendant’s trouble with the

law started only after he became a member of a gang. Of his two prior offenses, one–attempted

armed robbery–was very serious (the other, less so, was a charge of marijuana possession for 

possession of six marijuana blunts arising out of a vehicle stop for traffic infractions), and it was

the probationary sentence he received for the robbery which added two criminal history points to

his score. This represents a lot of criminal history in a very short time, based on one serious
13

prior felony. This court, on reading all the materials presented in connection with the sentencing

and seeing and hearing the people involved, especially the defendant, came to the conclusion

that, considered in conjunction with all the other evidence, the defendant’s history and

characteristics, including his youth and his short, intense involvement with gangs and crime, this

defendant could revert more easily than the typical defendant convicted of bank robbery to his

prior, non-criminal lifestyle and that he wanted to do so. Indeed, the defendant is not a typical

habitual criminal but a young man who, in the company of the wrong people, went seriously

wrong, very quickly but also very briefly.

(2) The defendant did not himself brandish a firearm during this robbery. There is a

dispute as to whether the defendant had a gun (he acted as if he had a gun and a codefendant told

the government he had a gun, but Roberson himself denies it) but there is no dispute that he

never brandished or exhibited any gun. The fact that a codefendant brandished a gun, and the

fact that defendant could have brandished, but did not brandish, a weapon himself, is a factor

suggesting that defendant was not anxious to use a gun or appear trigger-happy, regardless of the

different choice made by his codefendant Villatoro. More typically, the defendant would have

conformed to the more aggravated conduct of Villatoro, but he did not; in the company of

someone acting like a violent gang member, Roberson acted differently. Coupled with evidence

that defendant has never physically harmed anyone, his non-conformity at this critical moment is

another factor which favors Roberson’s prospects for rehabilitation, besides making his moral

culpability somewhat less than that of his codefendant or of the typical armed bank robber.

(3) Defendant turned himself in when he learned the FBI was looking for him. The

Seventh Circuit viewed this as an unimportant detail, noting that one of defendant’s

codefendants had already been arrested and suggesting that at this point, the jig was up. It is true
14

that Shariq Batty, the look-out and one of the getaway drivers, had already been arrested, but two

of the defendants who had not been arrested, Alcantara and Villatoro, fled to another state. The

fact that defendant separated himself from Alcantara and Villatoro and turned himself in while

they fled is another factor indicating a difference between this defendant and the others;

significantly, it reflects this defendant’s atypical decision not to conform to the actions of his

codefendants.

(4) The court was influenced by the defendant’s strong and close relationship to his

grandmother, with whom he lived during the period of his parents’ divorce, and the difficulties

the defendant had dealing with his mother’s successive romantic relationships, following the

divorce. The court was also influenced by the nature of the defendant’s current ties to his

mother and girlfriend, people who, according to the findings of the probation officer in the PSR,

do not have a criminally-oriented lifestyle. The court was influenced by the PSR’s comment that

the defendant’s grandmother commented on his “big heart” and the fact that the defendant had

helped her and his mother care for his brothers and sisters. The court saw this as further

evidence that the defendant had good core values to return to, if (as it appeared he wanted to) he

relinquished the gang and its criminal lifestyle.

(5) The court was influenced by its repeated contacts with Roberson and his manner

during these repeated contacts. Perhaps because Roberson was the oldest child in his family and

had assisted his mother for many years with the care of his siblings, and because he spent a great

deal of time with his grandmother, with whom he had an unusually close relationship, Roberson

was obviously comfortable talking with adults and the court was impressed by its contacts with

him. He appeared more able than most defendants to explain his circumstances (such as his

desire to change counsel at one point) and the details of his personal history, as well as his desire
15

to change the direction of his life. These personal contacts convinced the court of the sincerity

of Roberson’s desire to change his life to a productive and law-abiding one. 

At the resentencing hearing, information about Roberson’s achievements while

incarcerated were brought to the court’s attention and confirmed the court’s beliefs about

Roberson’s desire to reform his life. Specifically, the court learned at the resentencing hearing

that in his first two months in prison, Roberson, who had dropped out of school after the eighth

grade, obtained his GED. Moreover, Roberson was one of only nine inmates at Oxford who

enrolled in an intensive culinary arts course offered by Fox Valley Technical College. He took a

full load of culinary courses during Summer 2006, Fall 2006 and Winter 2007, maintaining all

As and Bs except for one C in an independent study. In the Summer of 2007, Roberson was

enrolled again in a full load of culinary courses, but was forced to drop the courses when he was

moved to another institution, for reasons apparently related to the resentencing ordered in his

case. His mother, Estella Talamantes, gave this testimony at the resentencing hearing:

Q: Since he’s been in prison, have you been in touch with him?

A: Oh, constantly. I mean, well, he became a man in there, and our phone

conversations and letters, I’ve noticed a change. He has matured, I will say. Not

that I like that he has to be there to mature but I have seen a drastic change. We

could laugh. I never thought I would be laughing on the other end of this phone

conversation that he’s in there, because we have great conversations, culinary

school, he would send his menus when he was taking charge that week. Copies of

his menus we would discuss food conversations that I never thought we would

discuss–he has just grown up so much and matured so much in the last few years.

...

They’re all positive attitude, positive conversations. It’s been a drastic change in

our conversations. No more yelling, screaming, disagreements. He matured a lot.

Transcript of August 13, at 7-8.

The Seventh Circuit observed that it believed that the factors that the defendant had once

been a good student and had a supportive family were “two-edged,” id. at 435, and that if the
16

defendant had been a poor student from a broken home “these would have been argued as

mitigating factors.” Id. It stated, “The better off a defendant is, the better chance he has to go

straight when he is released from prison–but the more inexcusable his criminal conduct.” Id. It

is true that almost any factor, considered in isolation, may be made to appear positive or

negative, when employed by a talented rhetorician. But that is ignoring the context, the totality

of the circumstances. The context here did not appear to this court to be anything like what the

court of appeals described, and the court of appeals’ analysis strongly suggests that this court did

an inadequate job of explaining its reasoning. While acknowledging that the factual data, lifted

out of context, could be argued in support of a heavier sentence, this court was influenced by its

access to, and familiarity with, the individual case and the individual defendant before it. See

Rita v. United States, 127 S. Ct. 2456, 2469 (2007). 

This defendant came from an impoverished and broken home. Despite these factors,

which so often lead to school failure and early delinquency, this defendant for many years

succeeded in school, participated in sports, and stayed out of trouble; as the oldest of five

children, he provided invaluable help to his mother and grandmother in caring for his younger

siblings since his mother, a single parent, could not afford daycare for the younger children. 

Only as a teenager, at the age of approximately 16, did he become involved with a gang. The

evidence indicates that strains in his family life contributed to his gang involvement and hence to

his delinquency, but there is also a strong indication that the defendant and his family have

reunited and have come to a common understanding of defendant’s wrong prior path. It is a far

more complicated picture than that of a person with many advantages who unaccountably went

wrong. It is rather a picture of someone who resisted the lure of the streets for most of his youth;

someone who is very young; someone whose criminal involvement–while extremely
3

These factors could be explained in various ways, but certainly refusal to cooperate is one of

them. At the resentencing hearing, the defendant stated that the gang would have retaliated

against his family members if he had cooperated.

17

serious–was extremely brief in duration, when considered in the context of his whole life; where

atypical factors in the commission of the crime at issue suggest that defendant was not fully

committed to a gang or criminal lifestyle such as that at critical points in this case he separated

himself from the conduct of his fellow gang members; and where defendant’s recent conduct is

consistent with his representations to the court that he wants to set his future on a law-abiding

course.

It is true that these factors must be balanced against the seriousness of the offense – the

fact that codefendant Villatoro foreseeably brandished a gun during an armed bank robbery,

threatening and terrifying many innocent people. As the Seventh Circuit observed, the defendant

“refused to cooperate when he was arrested” (by which the court of appeals presumably meant

that the defendant refused to cooperate against his codefendants, since he turned himself in to the

police and pled guilty), and failed “to reveal where he had stashed his share of the proceeds of

the robbery.”3

 Whereas the history and characteristics of the defendant must be considered

under § 3553(a), so should the nature and seriousness of the offense, as well as issues of specific

and general deterrence. 

While the court of appeals has instructed that the firearm part of this crime should be

ignored when the court fashions a reasonable sentence for the robbery charged in Count I, how

should the § 3553(a) factors be assessed if the most threatening aspects of this crime must be

ignored in considering a reasonable sentence for Count I? In trying to imagine the conduct

charged in Count I in isolation from Count II, that is, ignoring Villatoro’s brandishing of a
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firearm during the course of the robbery, can the court ignore the tacked-on mandatory minimum

in considering the issues of general and specific deterrence that § 3553(a) recites? Surely, even

if the court completely ignores the brandished firearm in figuring out a punishment appropriate

to the seriousness of the Count I bank robbery, can the incapacitation of the defendant and the

deterrent effect on others be considered in isolation from the fact that whatever sentence the

defendant receives on the gun-less Count I robbery, he receives an additional 84 months on

Count II? It is possible that the presence of a mandatory minimum on one count should not be

considered at all as part of the sentence for § 3553(a) purposes, that it should be imposed in the

same judge-less, thoughtless way that a special assessment is imposed (i.e., “tacked on”), but it

is not clear that the Seventh Circuit intended to go this far. 

This court, as it is required to do, must attempt to sentence defendant for a bank robbery

as if there were no gun, and the sentence it imposes on this assumption is 36 months. The

resulting sentence, 36 months plus 84 months for a total of 120 months, appears to this court

longer than necessary to achieve the purposes of § 3553(a), but 36 months is the shortest

sentence on Count I that is arguably consistent with the Seventh Circuit’s mandate (“[A]

sentence below the minimum guidelines sentence for the robbery in this case would be difficult,

perhaps impossible, to justify as reasonable.”). Roberson, 474 F.3d at 436. A three-year

sentence for an unarmed bank robbery for a defendant in Criminal History Category III, given

the unique factors present in this case, is not unreasonable. It may be that the intention of the

mandate requires this court to impose a 46-57 months sentence on Count I, but since it appears

that the Seventh Circuit may have misunderstood the factors this court relied on in sentencing

the first time around, and since the Seventh Circuit’s decision preceded Rita, Gall, and

Kimbrough, this court will not leap to that conclusion without clearer guidance. Certainly, if the
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Seventh Circuit says that anything less than 46 months is impossible to justify, rather than

“difficult, perhaps impossible, to justify,” the court will impose 46 months, as it must. 

Thirty-six months is 10 months less than the Count I guidelines, and is imposed to reflect

all the § 3553(a) factors, the factors that make defendant’s blameworthiness somewhat less than

that of the typical defendant, plus this defendant’s greater than ordinary likelihood of redeeming

his life, based on all the factors discussed above, as well as those set out in the court’s original

sentencing order. No consideration is given to Count II. The Count II sentence of 84 months is

“tacked on,” as it must be, as a consecutive mandatory minimum. 

The court still believes that the most reasonable sentence for the offense as a whole is the

guideline sentence (which accounts for all aspects of the real offense), 78-97 months, and that

the sentence for this case as a whole, which bests serves the §3553(a) purposes, is the originallyimposed 85 months. If that sentence is unavailable, and if the court is required to sentence as if 

all there is in this case is an unarmed bank robbery, then 36 months accounts for this simple bank

robbery in light of the mitigating evidence that convinces the court that this defendant’s blame is

somewhat mitigated by his youthful and brief criminal involvement, the other above-described

mitigating factors and that he has a good chance of being rehabilitated.

 ENTER:

 /s/ 

JOAN B. GOTTSCHALL

United States District Judge

DATED: August 25, 2008