United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

Argued and Submitted February 22, 2007

Decided March 26, 2007

Before

 Hon. WILLIAM J. BAUER, Circuit Judge

 Hon. TERENCE T. EVANS, Circuit Judge

 Hon. DIANE S. SYKES, Circuit Judge

Nos. 06-2326 & 06-2434 

UNITED STATES OF AMERICA, Appeals from the United States District 

Plaintiff-Appellee, Court for the Northern District of Illinois,

Eastern Division.

v.

Nos. 01 CR 1115-3 & 01 CR 1115-6

ALFREDO LONGORIA and

LEONEL DURAN, Milton I. Shadur,

Defendants-Appellants. Judge.

O R D E R

Alfredo Longoria and Leonel Duran were indicted in 2002 on multiple counts

of operating a PCP-distribution conspiracy that operated throughout the

Chicagoland area. See 18 U.S.C. §§ 924(c), 2; 21 U.S.C. §§ 846, 841(a)(1). A jury

convicted Longoria of the counts alleged against him; Duran, on the other hand,

pleaded guilty. Both men received sentences within the calculated guidelines

ranges: Longoria was sentenced to life imprisonment and Duran received 360

months. They appealed, arguing that the district court applied their guidelines

ranges as mandatory in violation of United States v. Booker, 543 U.S. 220 (2005). 

We agreed and, because only plain-error review was available, remanded the cases

under United States v. Paladino, 401 F.3d 471, 483-84 (7th Cir. 2005), to allow the

district court to state whether it would have imposed the same sentences had it

known that the guidelines were advisory. See United States v. Longoria & Duran,

NONPRECEDENTIAL DISPOSITION

To be cited only in accordance with

Fed. R. App. P. 32.1
Nos. 06-2326 & 06-2434 Page 2

Nos. 03-1454 & 03-2615, slip. op. at 3-4 (7th Cir. June 20, 2005) (unpublished

order). After the district court replied that it was “uncertain,” see United States v.

Longoria & Duran, No. 01 CR 1115, slip. op. at 1-2 (N.D. Ill. July 21, 2005)

(unpublished order), we concluded that plain error had been established, vacated

Longoria’s and Duran’s sentences, and remanded the case for resentencing, see

United States v. Longoria & Duran, 143 F. App’x 715, 716 (7th Cir. 2005)

(unpublished order). The district court then held separate resentencing hearings

and imposed sentences below its earlier guidelines-range calculations: Longoria

was sentenced to 50 years imprisonment, and Duran received 300 months.

Both men filed notices of appeal to challenge their new sentences, but

Duran’s appointed counsel moves to withdraw under Anders v. California, 386 U.S.

738, 744-45 (1967). We affirm Longoria’s sentence. We also grant Duran’s counsel’s

motion and dismiss Duran’s appeal.

We first address Longoria’s appeal. Since he raises three challenges to his

50-year sentence that he failed to raise at the resentencing hearing, our review is

for plain error. See United States v. White, 443 F.3d 582, 592 (7th Cir. 2006).

First, Longoria argues that the district court erred by allowing the

government to present at resentencing the testimony of Longoria’s coconspirator,

Miguel Perez, who recounted how Longoria shot him twice. According to Longoria,

the government was barred from introducing Perez’s testimony because it did not

“raise [the shooting] at his first sentencing hearing.” Moreover, Longoria continues,

the district court “exceeded the scope” of our mandate by allowing Perez to testify

because his case was remanded under Paladino, which meant that the parties were

prohibited from “expanding the record with new evidence.”

Longoria’s arguments misrepresent the procedural history of his case. 

Contrary to his assertion, the shooting of Perez was not “new” evidence; the

government raised it in the sentencing memorandum it submitted to the district

court before the first sentencing hearing. The presentence report (“PSR”) prepared

before the first hearing also referenced the shooting, and by adopting the probation

officer’s findings in the PSR, the district court relied on the shooting to calculate

Longoria’s guidelines range. Moreover, Longoria’s resentencing did not occur on the

limited Paladino remand but at full resentencing. See Longoria, 143 F. App’x at

716. Thus, the district court was free to consider de novo any open issues related to

sentencing. See United States v. Angle, No. 05-2486, 2007 U.S. App. LEXIS 2350, at

12-14 (7th Cir. Jan. 25, 2007); United States v. Polland, 56 F.3d 776, 779 (7th Cir.

1995). That included Perez’s testimony, which spoke directly to the 18 U.S.C.

§ 3553(a) sentencing factors: it revealed Longoria’s violent character and criminal

history as a “very, very serious drug dealer,” see 18 U.S.C. § 3553(a)(1), as well as

the seriousness of his “attempted murder” of Perez, see id. § 3553(a)(2)(A). 
Nos. 06-2326 & 06-2434 Page 3

Therefore, the government was not barred from introducing Perez’s testimony, nor

did the district court exceed our mandate by allowing Perez to testify. See Angle,

2007 U.S. App. LEXIS 2350, at *12-14; Polland, 56 F.3d at 779; see also Monge v.

California, 524 U.S. 721, 730-34 (1998).

Longoria next argues that the government engaged in vindictive prosecution

by raising the shooting for the first time on remand. As relevant here, prosecution

is vindictive when it is pursued in retaliation for challenging a sentence on appeal,

and a presumption of vindictiveness arises when the government seeks a higher

sentence after a defendant succeeds in obtaining a reversal. See United States v.

Cooper, 461 F.3d 850, 856 (7th Cir. 2006); see also North Carolina v. Pearce, 395

U.S. 711, 725 (1969). But again Longoria incorrectly asserts that the government

did not address the shooting at the first sentencing hearing--it did. And because the

government did not seek a higher sentence on remand--it asked the district court to

reimpose Longoria’s life sentence--Longoria’s claim of vindictive prosecution fails.

Finally, Longoria argues that his 50-year sentence is unconstitutional. He

contends that the district court violated the Supreme Court’s holding in

Cunningham v. California, 127 S. Ct. 856 (2007), by making a PCP-quantity

determination that increased his guidelines range. But this argument ignores the

remedial opinion in Booker, in which the Court held that judicial factual findings

that raise a guidelines range do not violate the Sixth Amendment as long as the

sentencing court recognizes that the range is advisory. See 543 U.S. at 246-49;

United States v. Owens, 441 F.3d 486, 490 (7th Cir. 2006); United States v.

Robinson, 435 F.3d 699, 701-02 (7th Cir. 2006). Longoria cannot show that the

district court considered the guidelines range of life imprisonment to be mandatory

because it sentenced him below that range. Therefore, his Sixth Amendment

challenge fails. See Owens, 441 F.3d at 490; Robinson, 435 F.3d at 701-02.

Longoria goes on to argue that, in any event, his sentence is unreasonable. 

But “[i]t is hard to conceive of below-range sentences that would be unreasonably

high,” United States v. George, 403 F.3d 470, 473 (7th Cir. 2005); see also United

States v. Gama-Gonzalez, 469 F.3d 1109, 1111 (7th Cir. 2006), and the district

court’s application of the § 3553(a) factors shows that Longoria’s sentence is no

exception. At resentencing, the district court heard from the government regarding

the seriousness of Longoria’s crimes, his shooting of Perez, and his substantial

criminal history. Longoria then addressed the court to state that he shot Perez only

in self-defense. He also asked for leniency so he can have “a second chance” to be

with his family and stated that he “learned [his] lesson” while imprisoned. The

court considered all these arguments in light of the § 3553(a) factors, examining, in

particular, whether the “nature and circumstances” of Longoria’s offense warranted

a life sentence, see 18 U.S.C. § 3553(a)(1), and whether the sentence would “reflect[

] the seriousness of the offense” and “promote respect for the law,” see id.
Nos. 06-2326 & 06-2434 Page 4

§ 3553(a)(2). The court concluded that although the reimposition of a life sentence

was certainly warranted, the “imposition of a very long term of [50] years . . . would

meet the test of being sufficient but not greater than necessary.” The court was not

required to apply the § 3553(a) factors in a “checklist fashion,” see United States v.

Dean, 414 F.3d 725, 729 (7th Cir. 2005), and it did not ignore Longoria’s arguments

for a lower sentence, see Cunningham, 429 F.3d at 676, 678. Longoria’s sentence

thus is reasonable.

We turn now to Duran’s appointed counsel’s motion to withdraw. Counsel

claims that he cannot discern a nonfrivolous basis for appeal, see Anders, 386 U.S.

at 744-45, a conclusion that Duran challenges in his response to counsel’s

submission, see Cir. R. 51(b). Our examination is confined to those potential issues

identified in counsel’s facially adequate brief and Duran’s response. See United

States v. Tabb, 125 F.3d 583, 584 (7th Cir. 1997) (per curiam).

Counsel first examines whether Duran could argue that the district court

violated his Sixth Amendment rights by finding facts that increased his total

offense level, and concludes that it would be frivolous for Duran to so argue. Duran,

however, disagrees with this conclusion. He contends that the district court’s

finding that the conspiracy involved 10 to 30 kilograms of PCP impermissibly raised

his total offense level because he admitted only that “1.2 kilograms” were involved. 

Duran also argues that because he never admitted to being a leader of the drug

conspiracy, the district court was wrong to raise his offense level on that ground.

It would be frivolous for Duran to mount a Sixth Amendment challenge to the

district court’s findings. A sentencing court is allowed to raise an offense level

based on facts not admitted by the defendant (or otherwise proven beyond a

reasonable doubt) as long as the court recognizes that the resulting guidelines

range is advisory. See Owens, 441 F.3d at 490; Robinson, 435 F.3d at 701-02. And

Duran cannot show that the district court applied the guidelines in a mandatory

manner because his 300-month sentence was 60 months below the guidelines range.

Counsel next inquires whether Duran could argue that the district court

erred by not reducing his criminal history category on the basis that it overrepresented the seriousness of his past crimes. More generally, counsel considers

whether Duran could argue that the district court erred by refusing to recalculate

the guidelines range on the ground that the calculation was the law of the case.

We would review de novo whether an issue is law of the case. See Moore v.

Anderson, 222 F.3d 280, 283 (7th Cir. 2000). The law-of-the-case doctrine requires

a district court to confine its discussion to the issues remanded, see United States v.

Morris, 259 F.3d 894, 898 (7th Cir. 2001), and bars the district court from

addressing issues that could have been raised on appeal, but were not, see United
Nos. 06-2326 & 06-2434 Page 5

States v. Husband, 312 F.3d 247, 251 n.4 (7th Cir. 2002). Duran did not argue on

his first appeal that the district court erred by not granting a downward adjustment

to account for his criminal history, nor did he otherwise challenge the guidelines

range calculation. Because we did not address the issues on Duran’s first appeal,

see Longoria, Nos. 03-1454, slip. op. at 1-4, we did not include them in our remand,

see Husband, 312 F.3d at 251 n.4; Morris, 259 F.3d at 898. Duran’s guidelines

calculation was accordingly the law of the case, see Husband, 312 F.3d at 251 n.4,

and it would be frivolous for him to argue that the court should have recalculated it.

Finally, counsel considers whether Duran could argue that the district court

failed to consider the § 3553(a) sentencing factors adequately. At resentencing the

court heard the government describe the seriousness of Duran’s crimes and his

substantial criminal history; Duran himself addressed the court, expressing

remorse for his actions and explaining that his crimes were the result of having

been “taken in” as a child “by an unlawful environment.” The court then

methodically considered Duran’s case in light of each § 3553(a) factor, paying close

attention to whether a sentence within the guidelines range would be “sufficient but

not greater than necessary,” 18 U.S.C. § 3553(a), while also serving as an “adequate

deterrent to criminal conduct,” id. § 3553(a)(2)(B). Based on this examination, the

court concluded that a sentence below the guidelines range would satisfy the

§ 3553(a) factors, and imposed a 300-month sentence. Given the court’s thorough

examination, see, e.g., Dean, 414 F.3d at 729, it would be frivolous for Duran to

argue that the district failed to apply the § 3553(a) factors properly.

We accordingly AFFIRM Longoria’s 50-year sentence. We also GRANT

Duran’s counsel’s motion to withdraw, and DISMISS Duran’s appeal.