### In the



# United States Court of Appeals

For the Seventh Circuit

____________________

Nos. 15

‐ 3575 & 15

‐ 3581

U NITED S TATES OF A MERICA

, Plaintiff

‐ Appellee

,

v.

T HOMAS C URETON

, Defendant

‐ Appellant

.

____________________

Appeals from the United States District Court for the

Southern District of Illinois.

Nos. 10

‐ CR

‐ 30106 & 10

‐ CR

‐ 30200

— David R. Herndon

, Judge

.

____________________

O N R EMAND FROM THE S UPREME C OURT OF THE U NITED S TATES

D ECIDED F EBRUARY 16, 2018

____________________

Before E ASTERBROOK

, K ANNE

, and H AMILTON

, Circuit

Judges

.

P ER C URIAM

. In his third round of appeals, we affirmed de

‐

fendant Cureton’s convictions and sentences for using a fire

‐

arm during a crime of violence and related crimes. 845 F.3d

323 (7th Cir. 2017). The Supreme Court granted certiorari, va

‐

cated, and remanded for reconsideration in light of Dean v.2 Nos. 15

‐ 3575 & 15

‐ 3581

United States

, 581 U.S.

—, 137 S. Ct. 1170 (2017), which disap

‐ proved our circuit precedents such as United States v. Roberson

,

474 F.3d 432 (7th Cir. 2007), barring judges sentencing defend

‐

ants under 18 U.S.C. § 924(c) and other crimes from consider

‐ ing the mandatory minimum sentence under § 924(c) when

deciding the sentences for other crimes. The Dean issue had

not been raised in any of Cureton’s three sentencings, in his

two earlier appeals, or in his briefs to this court in these ap

‐ peals.

In his statement under Circuit Rule 54, Cureton urges full

resentencing on a theory of plain error. The government ar

‐

gues for either affirmance or a limited remand along the lines

of United States v. Paladino

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

‐

low the district judge to decide whether he would be inclined

to exercise his discretion to impose a lower overall sentence.

In our reviews of § 924(c) sentences imposed before Dean

was decided, we have looked in the district court records for

reliable signals as to whether the sentences were constrained

by the Roberson rule. If it was clear that the sentence was not

constrained by Roberson

, we have simply affirmed the sen

‐

tence. United States v. Wheeler

, 857 F.3d 742, 745 (7th Cir. 2017)

(“inconceivable” that judge who imposed sentence above

guideline range for predicate crime did so because of Rob

‐

erson ); United States v. Starwalt

, 701 Fed. App’x 508 (7th Cir.

2017) (same where sentence for predicate crime was in middle

of guideline range). If the sentence for the predicate crime was

at the bottom of the guideline range, we have remanded for

full resentencing, usually with the agreement of the govern

‐

ment. United States v. Garner

, — F.3d

—, 2017 WL 4791084 (7th

Cir. 2017); United States v. Fox

, 878 F.3d 574 (7th Cir. 2017);

United States v. Allen

, 702 Fed. App’x 457 (7th Cir. 2017). If theNos. 15

‐ 3575 & 15

‐ 3581 3

picture was cloudier, we have used a Paladino remand to en

‐

sure that if the Roberson rule affected the sentence, the district

judge would have an opportunity to exercise discretion.

United States v. Anderson

, No. 16

‐ 3112,

— F.3d

—, —, 2018 WL

663089 (7th Cir. Feb. 2, 2018).

The signals here fit into the cloudy category. Cureton was

originally convicted of attempted extortion, interstate com

‐

munication of a ransom demand, two counts of possessing a

firearm during a crime of violence, and three counts of dis

‐ tributing crack cocaine near a school. He was first sentenced

to a total of 744 months (62 years) in prison. In the first appeal,

we held that Cureton should have been sentenced for only

one § 924(c) offense, and on remand his sentence was reduced

by 300 months (the mandatory minimum for the second

§ 924(c) offense) to 444 months (37 years). Cureton appealed

again, and we remanded because of issues raised about con

‐

ditions of supervised release. On remand, the district court

imposed the same total sentence of 444 months, leading to the

present appeals.

That total sentence used the bottom of the guideline range

for the crack cocaine charges and the mandatory minimum 84

months on the § 924(c) charge. Yet each round of sentencing

has included the statutory maximum 240 months for the ran

‐

som demand, signaling that the judges were not inclined to

reduce the sentence for that predicate crime. Also, the 360

months of non

‐ 924(c) sentences take into account several very

serious crimes. Finally, in the course of all three sentencings,

including the opportunity to reduce the sentence after the in

‐

itial remand, neither the original sentencing judge nor the

judge on remand has given any sign that he felt constrained4 Nos. 15

‐ 3575 & 15

‐ 3581

by Roberson or believed that the reduced total sentence of 444

months was too severe.

Under these circumstances, a limited Paladino remand

should suffice. We order a limited remand so that the district

court can determine whether it would have imposed the same

sentence on Cureton, knowing that in light of Dean

, it may

consider the mandatory sentence under § 924(c) when decid

‐ ing the sentences for other crimes, or whether the court

wishes to have a new opportunity to exercise its discretion

and judgment in a complete resentencing. We shall retain ju

‐

risdiction over these appeals pending the district court’s re

‐

sponse.

SO ORDERED.