Ex-Chicago cop wins resentencing appeal

An ex-Chicago cop serving time for drug-related convictions linked to his connection with the Latin Kings street gang will have an opportunity to have his request for a reduced sentence considered, the 7th Circuit Court of Appeals ruled Tuesday.

Former Chicago police officer Alex Guerrero, who participated in drug trafficking alongside the Latin Kings gang in Chicago and northwest Indiana, was sentenced to 19 years after he pleaded guilty in August 2013. But after Amendment 782 to the United States Sentencing Guidelines – which reduced by two levels the offense levels for most drug trafficking crimes and was retroactive – went into effect in November 2014, Guerrero sought to benefit from the amendment.

In 2015, he sent a letter requesting to be appointed counsel to file a motion for resentencing under the amendment, but the Northern District Court of Indiana denied relief. The late Judge Rudy Lozano found that although Guerrero was eligible for a two-level reduction under Amendment 782, the reduction would make no difference to his ultimate prison sentence.

Guerrero made a second attempt in 2018, adding reliance on the Supreme Court’s decision in Hughes v. United States, 138 S. Ct. 1765 (2018). His request was again denied, with the district court finding that Hughes had no bearing on Guerrero because his plea had been subject to Federal Rule of Criminal Procedure 11(c)(1)(B), and that Guerrero’s motion was barred as an impermissible successive motion under 18 U.S.C. § 3582(c)(2).

But upon consideration of Guerrero’s appeal, the 7th Circuit Court vacated the district court’s decision in United States of America v. Alex Guerrero, 19-1676. The appellate panel agreed with the district court that Hughes does not apply to Guerrero’s case, but ultimately concluded that as a matter of law, the 2015 proceedings should not be counted against Guerrero “as his one chance to seek relief under Amendment 782.”

“We therefore hold that the denial of Guerrero’s counseled motion in 2018 was an error,” Circuit Judge David Hamilton wrote for the panel.

First, the appellate panel found the district court improperly characterized Guerrero’s request for legal counsel as a motion for resentencing under § 3582(c)(2), and that the district court had miscalculated how Amendment 782 would apply to Guerrero’s guideline range.

“Under (USSG) § 1B1.10(b)(2)(B), the district court may use Amendment 782 to impose a new sentence that is ‘comparably’ below the guideline range as amended by Amendment 782. In other words, nothing in § 3582(c)(2), Amendment 782, or § 1B1.10 prohibited the district court from resentencing Guerrero to a term on his non-firearm counts that would be roughly two offense levels below his original sentence,” the 7th Circuit wrote.

Additionally, it disagreed with the government’s argument that it was too late for Guerrero to win relief from the district court’s error in handling his 2015 letter. The 7th Circuit concluded Guerrero’s plea deal was a nonbinding agreement under Rule 11(c)(1)(B) and, for purposes of § 3582(c)(2), was based on the guidelines from the start.

“He has always been legally eligible for relief under § 3582(c)(2) for any retroactive amendments that would affect his original guideline calculation,” the 7th Circuit wrote.

“… Guerrero has not yet had the one bite at the Amendment 782 apple to which he is entitled under § 3582(c)(2). Now, with the assistance of counsel, he should be able to marshal his best arguments so that the district court can benefit from full presentation of the issues,” the court concluded.

The denial of Guerrero’s 2018 motion under § 3582(c)(2) was thus vacated and remanded for proceedings consistent with the opinion. The federal appeals court noted it would “express no view on whether he should receive such a reduction,” leaving the matter up to the district court’s discretion on remand.

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