7th Circuit dismisses 3 Latin Kings gang members’ appeals

Because three Latin Kings gang members took plea deals with the government after they were charged with several counts – including conspiracy to participate in racketeering – that limited their ability to appeal, the 7th Circuit Court of Appeals threw out their appeals Friday.

Oscar Gonzalez, Sisto Bernal and Dante Reyes were three of the 23 gang members indicted in the Northern District of Indiana. Their charges included conspiracy involving racketeering and drug offenses. The three agreed to plead guilty; as part of the agreements, they waived their right to appeal on any ground except a claim of ineffective assistance of counsel directly related to the waiver or its negotiation.

Gonzalez was sentenced to 240 months in prison; Bernal received 288 months and Reyes received 262 months.  The three later appealed, with Bernal’s and Gonzalez’s court-appointed counsel moving to withdraw based on the belief their clients’ appeal would be frivolous. Reyes’ attorney argued the District Court failed to have a sufficient colloquy with Reyes before accepting his guilty plea.

The 7th Circuit rejected the attorney’s argument, finding that his proposition that Reyes must engage in a verbose colloquy with the court before it can accept his guilty plea is more than Rule 11 of the Federal Rules of Criminal Procedure or United States v. Frye, 738 F.2d 196, 201 (7th Cir. 1984), require. The appeal waivers in the three defendants’ plea agreements preclude the review of their appeals, the judges held.

The court also reviewed the case of gang member Martin Anaya, the only defendant of the 23 to go to trial. He was charged with conspiracy to participate in racketeering, conspiracy to distribute a controlled substance and two counts associated with the murder of a rival gang member. The jury convicted him of the racketeering and drug charge, but found him not guilty in the rival gang member’s murder. He was sentenced to 360 months on each count, to be served concurrently.

Anaya argued the District Court improperly used the acquitted murder conduct as a sentencing enhancement, but the 7th Circuit pointed out the court could consider his culpability for the woman’s death at the sentencing hearing. There was no error in the amount of drugs attributable to Anaya and his 30-year sentence is reasonable, the judges concluded.

But they remanded his case to correct a technical error in his sentence. The judgment describes the sentence for the convictions as 360 months each, but the maximum sentence for a general racketeering conviction is 20 years. The jury did not find that Anaya was involved in the woman’s murder, and without that finding, his racketeering conviction cannot be enhanced beyond the 240 month maximum sentence.

The 7th Circuit ordered the District Court to correct the judgment to reflect that the racketeering conviction can only be for a maximum of 20 years.

The cases were consolidated into one opinion, United States of America v. Oscar Gonzalez, Martin Anaya, Sisto Bernal and Dante L. Reyes, 13-2169, 13-2189, 13-2892, 13-3177.