USA v. Evarado Avila, 05-1894.  The defendant was indicted along with a number of others for conspiracy to distribute cocaine and marijuana and for possession of marijuana with intent to distribute it.  The judge imposed the statutory maximum of 5 years and the defendant appeals on the ground that the judge misapplied the sentencing guidelines.

The government argues that Avila was a member of the Latin Kings and that his marijuana, crack, and gun offenses were all part of the gang’s activities and thus USSG 1B1.3 Relevant Conduct. 

The 7th Circuit per Judge Posner starts by stating that The government has confused gang membership with membership in a conspiracy, forgetting that "to join a conspiracy is to join an agreement, rather than a group." United States v. Townsend, 924 F.2d 1385, 1390 (7th Cir. 1991).  To count as relevant conduct and thus influence the guidelines range, the defendant’s conduct must be "part of the same course of conduct or common scheme or plan as the offense of conviction." U.S.S.G. § 1B1.3(a)(2).

Even if Avila was a member of the Latin Kings, it does not follow that his cooking cocaine given him by another member (for his co-defendants were members of the gang) or his shooting at members of a rival gang were acts done on behalf of the gang, rather than being purely personal.

"One might join a golf club because it had a nice dining room and swimming pool, yet never play golf. And one might join a gang to feel like a big shot or to obtain immunity from being beaten up by gang members, without participating in the gang’s criminal activities."

One can of course plan to commit a series of separate crimes without having to join a conspiracy, which requires concerted action by at least two people. United States v. Scarbrough, 990 F.2d 296, 298 (7th Cir. 1993).   

In deciding that the Avila’s conduct was not relevant, the 7th Circuit stated that the district court judge could well conclude that Avila’s other criminal activities (besides possession of marijuana with intent to sell it), though they were not relevant conduct and hence did not affect the guidelines range, warranted a heavier punishment. But the sentencing judge is required to consider the guidelines before picking a sentence, United States v. Booker, 543 U.S. 220, 264 (2005).

REVERSED AND REMANDED.

For more about attorney Michael J. Petro, visit www.mjpetro.com .

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