United States v. Porraz
| Decision Date | 27 November 2019 |
| Docket Number | No. 18-3545,18-3545 |
| Citation | 943 F.3d 1099 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Ruben PORRAZ, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Seventh Circuit |
943 F.3d 1099
UNITED STATES of America, Plaintiff-Appellee,
v.
Ruben PORRAZ, Defendant-Appellant.
No. 18-3545
United States Court of Appeals, Seventh Circuit.
Argued September 13, 2019
Decided November 27, 2019
Brian J. Kerwin, Attorney, Office of the United States Attorney, Chicago, IL, for Plaintiff-Appellee.
Gregory T. Mitchell, Attorney, Law Office of Gregory T. Mitchell, P.C., Homewood, IL, for Defendant-Appellant.
Before Bauer, Rovner, and Sykes, Circuit Judges.
Sykes, Circuit Judge.
Ruben Porraz was the leader of a Chicago chapter of the Latin Kings gang for about four years. In 2018 he pleaded guilty to participating in a racketeering conspiracy in violation of the Racketeer Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C. §§ 1961 – 1968. The district judge applied the base offense level for conspiracy to commit murder, factored in Porraz’s criminal history, and sentenced him to 188 months in prison.
Porraz argues that his sentence was procedurally defective because he didn’t kill anyone and murder wasn’t a reasonably foreseeable part of the conspiracy. He also claims his sentence was substantively unreasonable because of unwarranted disparities between his sentence and sentences imposed on other Latin Kings members.
We affirm. Porraz’s admitted conduct defeats his claim that murder was not a
reasonably foreseeable part of his gang activities. And the judge considered and responded to his disparity arguments.
I. Background
The Latin Kings is a hierarchical and multinational violent street gang. The gang distributes cocaine, heroin, and marijuana; and engages in assault, burglary, homicide, identify theft, and money laundering, among other unlawful activities. Members have been prosecuted within this circuit on many occasions. See, e.g. , United States v. Garcia , 754 F.3d 460 (7th Cir. 2014) ; United States v. Tello , 687 F.3d 785 (7th Cir. 2012) ; United States v. King , 627 F.3d 641 (7th Cir. 2010) ; United States v. Olson , 450 F.3d 655 (7th Cir. 2006).
Local groups of the Latin Kings are organized into "tribes" that represent specific neighborhoods and have ranked leaders. Near the top of the tribal hierarchy sits the "Inca"—the president. Ruben Porraz became a member of the 89th Street Chapter when he was only 13 years old. He rose in the ranks from soldier (the entry-level position) to Inca over a nine-year period.
As a soldier Porraz defended the chapter’s territory with violence. He participated in "hood days," during which he stood with other gang members holding guns in order to protect the territory. He also brawled with and shot at rival gang members.
In 2000 Porraz was convicted of possession of a controlled substance and imprisoned for two years. From 2002 through 2011, Porraz had no run-ins with law enforcement. He satisfactorily completed his parole and was regularly employed.
Porraz again became an active member of the Latin Kings sometime between late 2012 and early 2013. At the request of the leadership, he assumed the role of Inca of the 89th Street Chapter. He controlled the chapter’s drug-trafficking activities, ensured that the chapter was well stocked with guns, and required members to participate in hood days. He collected dues and ordered his subordinates to "smash on sight" (beat up) the members who didn’t pay up.
In 2016 Porraz and 19 other defendants were charged with participating in a racketeering conspiracy. Porraz was indicted on a single RICO conspiracy count under 18 U.S.C. § 1962(d). The indictment charged him with participating in the Latin Kings organization, knowing the gang engaged in murder, arson, robbery, extortion, witness tampering, and drug distribution.
Porraz pleaded guilty in 2018. In his plea declaration and at the change-of-plea hearing, Porraz admitted the following:
• He joined the 89th Street Chapter of the Latin Kings in 1993.
• He was expected to participate in and support the gang by fighting, stabbing, shooting, and killing rival gang members.
• He shot at the Latin Dragons, members of a rival gang, on five separate occasions.
• He became Inca of the 89th Street Chapter in either late 2012 or early 2013 at the request of the Latin Kings leadership.
• In his Inca role, he knew where the 89th Street Chapter stored its firearms, was responsible for protecting the neighborhood from incursions by rival gangs, and was responsible for the chapter’s drug operations.
Prior to sentencing, the probation office submitted a presentence report ("PSR") to the district court. Based on the admissions in the plea declaration, the probation office concluded that U.S.S.G. § 2A1.5 —the guideline for conspiracy to commit murder—governed
Porraz’s underlying conduct. This resulted in a base offense level of 33. U.S.S.G. § 2A1.5(a). The PSR recommended that the judge apply a criminal-history category IV, which when combined with an offense level 33 yielded a Guidelines range of 188 to 235 months in prison.
Porraz argued that § 2A1.5 should not have been used to calculate the base offense level. He claimed that murder was not within the scope of the conspiracy because he didn’t kill anyone and couldn’t reasonably foresee that the Latin Kings members would kill people. He emphasized that he directed "smash on sight" orders and contended that the base offense level should be 27 according to U.S.S.G. § 2A2.1(a)(2), which applies to acts of assault with intent to commit murder and attempted murder.
Porraz also argued that he should be sentenced within the range of punishment faced by codefendant Adam Flores and similar to the sentences imposed on other Latin Kings members in an unrelated case, United States v. Zambrano , No. 08 CR 746-1, 2011 WL 4565796 (N.D. Ill. Sept. 25, 2011). Flores pleaded guilty pursuant to a cooperation agreement with the government, and the government agreed to recommend a 71-month sentence. Porraz identified ten defendants from Zambrano whose sentences ranged from 42 to 84 months in prison.
The judge concluded that the scope of Porraz’s conspiracy included conspiracy to commit murder. She found that Porraz’s plea admissions fatally undermined his argument that his participation in the gang’s criminal activities was limited to assaults. The judge observed that it was not necessary to find that Porraz personally committed a murder or ordered a hit in order to find that he was part of a conspiracy to commit murder. As the PSR recommended, she adopted a base offense...
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