United States of America v. Juan Prado

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 12‐3762
U NITED STATES OF A MERICA ,
Plaintiff‐Appellee,
v.
J UAN P RADO ,
Defendant‐Appellant.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 10 CR 550 — Samuel Der‐Yeghiayan, Judge.
____________________
A RGUED OCTOBER 4, 2013 — D ECIDED FEBRUARY 18, 2014
____________________
Before EASTERBROOK , R OVNER , and W ILLIAMS, Circuit
Judges.
WILLIAMS, Circuit Judge. Defendant Juan Prado was a po‐
lice officer employed by the Chicago Police Department.
While on duty, Prado funneled towing business to certain
tow truck companies in exchange for bribes. Prado was
eventually arrested and indicted on three counts of attempt‐

-- 1 of 10 --

2 No. 12‐3762
ing to commit extortion. He pled guilty to one count. At sen‐
tencing, Prado asked the court to consider the sentence of
another former Chicago police officer, Officer James
Wodnicki, whom Prado believed was similarly situated to
him. The district court refused to consider Prado’s argument
because it believed it could only consider sentencing dispari‐
ties if they were presented on a nationwide basis. The court
prevented Prado and the prosecutor (who prosecuted both
Wodnicki and Prado) from introducing information related
to Wodnicki’s sentence.
The issue here is whether the district court erred by not
understanding that it had discretion to consider Prado’s ar‐
gument and whether Prado was harmed by that error. We
conclude that the district court committed a procedural error
and its error was not harmless. The district court erred be‐
cause it did not realize that it had the discretion to deviate
from the United States Sentencing Guidelines and could
consider others’ individual sentences when deciding what
sentence to impose on Prado. Moreover, based on the record
before us, it is impossible to determine whether Prado
would have received the same sentence absent the error.
Therefore, we reverse the district court and remand the mat‐
ter for resentencing.
I. BACKGROUND
Juan Prado was a Chicago police officer in the 14th Dis‐
trict of the Chicago Police Department (“CPD”). In 2003, the
FBI began “Operation Tow Scam,” an investigation into the
extortion by, and bribery of, CPD officers in connection with
tow truck companies and their drivers. Prado was charged
with three counts of attempting to commit extortion, in vio‐
lation of 18 U.S.C. § 1951. Prado pled guilty to one count,

-- 2 of 10 --

No. 12‐3762 3
admitting that during the course of his employment he re‐
ceived bribe payments from tow truck operators in exchange
for funneling them business. Prado also admitted that on
approximately 10 occasions, between May and October 2006,
he requested and received bribe payments totaling $3,790.
All told, it is estimated that Prado received $10,015 in bribe
payments.
In anticipation of sentencing, the probation office pre‐
pared a Presentence Investigation Report (“PSR”), which
outlined applicable sentencing guidelines. The PSR also con‐
tained a list of nine other related cases, including that of
CPD officer James Wodnicki. However, the report did not
contain any more information about the related cases. With a
base offense level of 21 and a criminal history category of I,
Prado’s Guideline range was 37 to 46 months. Prado accept‐
ed the PSR’s Guideline calculation, but argued that a num‐
ber of factors, including his upbringing, work history, chari‐
table work, injuries sustained on duty, the nature of the of‐
fense, and his acceptance of responsibility were mitigating
circumstances warranting a reduced sentence under 18
U.S.C. § 3553(a).
At the sentencing hearing on November 29, 2012, Prado
sought probation. The government sought a term of impris‐
onment within the Guideline range. During his presentation,
Prado referred to Wodnicki’s case. He argued that the court
should impose a sentence that would avoid an unwarranted
sentence disparity between himself and Wodnicki, whom he
believed was similarly situated. Wodnicki allegedly received
$30,000 in bribe payments from tow truck companies and
drivers. Prado pointed out that a different district court
judge in the same district sentenced Wodnicki to 24 months’

-- 3 of 10 --

4 No. 12‐3762
imprisonment, despite the fact that his Guideline range was
46 to 57 months. Given the similarity between Prado’s and
Wodnicki’s offense conduct, Prado asked the court to con‐
sider Wodnicki’s case when imposing sentence on him.
When Prado asked the court to consider Wodnicki’s sen‐
tence, he was unable to present the sentencing memoran‐
dum in Wodnicki’s case. He said that he was unable to find
it. His inability to find the sentencing memorandum pre‐
vented him from introducing the mitigating or aggravating
factors in Wodnicki’s case.
The district court refused to consider Wodnicki’s sen‐
tence. The court said, “the Seventh Circuit has stated that
any argument relating to unwarranted sentence disparities
has to be presented on a national basis.” The court then stat‐
ed that it sentenced each individual on the record before it
and based on the factors presented in the case. The prosecu‐
tor in Prado’s case, who was also the prosecutor in
Wodnicki’s case, offered to discuss Wodnicki’s case with the
court, but the court prevented the prosecutor from provid‐
ing information regarding Wodnicki’s circumstances. Be‐
cause Prado had not presented evidence of a potential na‐
tionwide disparity, the court did not allow Prado to present
further information or argument on the issue. Ultimately, the
court determined that Wodnicki’s sentence had no bearing
on Prado’s case.
Before imposing its sentence, the district court explained
its reasoning for imposing a sentence within the Guidelines
and its consideration of the § 3553(a) factors. In addition, the
court reiterated that Prado had not provided any national
information related to unwarranted disparities. The court

-- 4 of 10 --

No. 12‐3762 5
sentenced Prado to a within‐Guidelines term of 42 months’
imprisonment. Prado now appeals.
II. ANALYSIS
Prado contends that the district court erred because it did
not understand that it had discretion to consider Wodnicki’s
case in determining Prado’s sentence and that this misunder‐
standing constituted procedural error. Appellant’s Br. at 12.
He challenges the district court’s assertion that it was only
permitted to address an argument related to unwarranted
sentence disparities if the information was presented on a
national basis.
In order to determine whether Prado’s sentence will be
upheld, we evaluate the issue in two stages. First, we exam‐
ine whether the district court committed a procedural error
because it did not realize that it had the discretion to deviate
from the Sentencing Guidelines and consider individual sen‐
tences. United States v. Hill, 645 F.3d 900, 905 (7th Cir. 2011).
Second, if the court erred, we analyze whether the error was
harmless. United States v. Bennett, 708 F.3d 879, 887 (7th Cir.
2013). We review a district court’s procedural compliance
with 18 U.S.C. § 3553(a) under de novo review. United States
v. Grigsby, 692 F.3d 778, 791 (7th Cir. 2012).
A. The district court erred because it was unaware that
it had discretion to consider disparities among simi‐
larly situated defendants.
At sentencing, Prado argued that when the district court
sentenced him, it should also consider the sentence given to
another officer whom Prado believed was similarly situated.
The district court rejected this argument because it believed
that it could only consider sentence disparities if they were

-- 5 of 10 --

6 No. 12‐3762
presented on a national basis. At the time, Prado did not
challenge the district court’s interpretation of Seventh Cir‐
cuit precedent and alert the court that it had discretion to
consider disparities among defendants. It is only on appeal
that Prado argues that the court erred because it was una‐
ware of its discretion to consider unwarranted disparities.
Although Prado only raises this argument for the first time
on appeal, the government does not argue that he forfeited
that argument.
At first glance, it would appear that Prado’s argument is
forfeited and that we cannot address the matter. However,
because the government does not argue that Prado forfeited
this particular argument, we may still reach the merits of his
case under the “waived waiver” doctrine. See, e.g., United
States v. Angle, 234 F.3d 326, 336 n.11 (7th Cir. 2000) (stating
that although the defendant first raised the argument on ap‐
peal, the court would address the merits of appellant’s chal‐
lenge because the government waived its waiver defense by
not asserting it in its brief or at oral argument). Ultimately,
Prado’s forfeiture is absolved by the government’s failure to
recognize the forfeiture and by responding to Prado’s argu‐
ment. See United States v. Tichenor, 683 F.3d 358, 363 (7th Cir.
2012) (applying the waived waiver doctrine to forfeited
claims).
The government concedes, and we agree, that the district
court committed a procedural error at sentencing. In order to
properly sentence a defendant, a district court needs to con‐
sider factors enumerated in § 3553(a). Gall v. United States,
552 U.S. 38, 51 (2007). One of the factors that the district
court may consider is the need to avoid unwarranted dispar‐
ities between similarly situated defendants. 18 U.S.C.

-- 6 of 10 --

No. 12‐3762 7
§ 3553(a)(6). While a district court does not have to “com‐
prehensively discuss each of the [§ 3553(a)] factors,” United
States v. Villegas–Miranda, 579 F.3d 798, 801 (7th Cir. 2009), it
commits procedural error if it does not give “meaningful
consideration” to the relevant factors in a defendant’s case,
United States v. Paige, 611 F.3d 397, 398 (7th Cir. 2010). With
regard to sentencing disparities, if a district court imposes a
within‐Guideline range sentence, the court implicitly incor‐
porates the United States Sentencing Commission’s concerns
regarding avoiding unwarranted disparities among similarly
situated defendants. See Gall, 552 U.S. at 54.
However, a district court has the discretion to go beyond
the Sentencing Commission’s generalized considerations. See
United States v. Bartlett, 567 F.3d 901, 909 (7th Cir. 2009). A
district court may commit a second type of procedural error
if it is unaware of this additional discretion. See id. In United
States v. Booker, the Supreme Court rendered the Guidelines
scheme advisory. 543 U.S. 220 (2005). The Court held in Kim‐
brough v. United States, 552 U.S. 85 (2007), and reiterated in
Spears v. United States, 555 U.S. 261 (2009), that a judge has
the discretion to depart from the Sentencing Guidelines.
More importantly, the Court held that a district court has
considerable power to adopt its own framework in order to
meet the ends of justice. See Spears, 555 U.S. at 265‐66. We
have explained that, Ҥ 3553 permits a judge to reduce one
defendant’s sentence because of another’s lenient sentence –
not because of § 3553(a)(6), but despite it.” Bartlett, 567 F.3d at
908 (emphasis in original). And we stated in Bartlett that, “if
the district judge thought himself forbidden to take account
of [other defendants’] (relatively) low sentences when decid‐
ing what punishment to impose on [the defendant], he was
mistaken.” Id. at 909.

-- 7 of 10 --

8 No. 12‐3762
We find that the district court committed the second type
of procedural error. The district court’s statements at the
sentencing hearing indicate that the court thought it lacked
the discretion to consider disparities among defendants as a
matter of law. The district court stated that, “the Seventh
Circuit has stated that any argument relating to unwarrant‐
ed sentence disparities has to be presented on a national ba‐
sis.” In this case, the district court was unaware of its discre‐
tionary power and it refused to consider Prado’s proffered
argument regarding disparities between defendants convict‐
ed under the Operation Tow Scam sting operation because it
did not know it could do so. This amounts to a procedural
error. However, this is not the end of our analysis. A signifi‐
cant procedural error committed by a district court at sen‐
tencing can be harmless. Bennett, 708 F.3d at 887.
B. The district court’s error was not harmless.
Normally, we would apply the plain error standard of
review. See United States v. Burge, 683 F.3d 829, 833 (7th Cir.
2012). However, where the government fails to assert that an
argument was forfeited and fails to identify the standard of
review appropriate for such a forfeiture, the issue is treated
as if the objection were raised below and the standard of re‐
view appropriate to such an issue controls. See, e.g., United
States v. Paredes, 87 F.3d 921, 924 (7th Cir. 1996) (“[B]ecause
the government failed to assert that Paredes forfeited her ob‐
jection to the alleged error, the government has waived
Paredes’s forfeiture, and we will review the alleged error as
if she had made a proper objection.”); United States v.
Leichtnam, 948 F.2d 370, 375 (7th Cir. 1991) (noting that issues
not raised in the district court normally would be limited to
plain error review, but that the government’s failure on ap‐

-- 8 of 10 --

No. 12‐3762 9
peal to argue that the defendant waived his argument al‐
lowed the court to “confront the defendant’s argument on
the merits and without the screen of the plain error stand‐
ard”). Because the government failed to argue forfeiture or
the standard of review appropriate to forfeiture, we apply
the harmless error standard as if no forfeiture in fact oc‐
curred. In order to show that a procedural error is harmless,
“the government must be able to show that the … error did
not affect the district court’s selection of the sentence im‐
posed.” Id. (quoting United States v. Abbas, 560 F.3d 660, 667
(7th Cir. 2009)). We will deem an error harmless if we are
convinced that the sentence would have been the same ab‐
sent the error. United States v. Abbas, 560 F.3d 660, 667 (7th
Cir. 2009).
After careful review, we cannot say that the district
court’s error was harmless. The government argues that the
district court committed harmless error because the court
rejected, on independent grounds, Prado’s argument that the
court should take into account another defendantʹs sentence
when deciding what sentence to impose on Prado. Namely,
the government argues that the court rejected Prado’s argu‐
ment because he failed to present sufficient evidence to sup‐
port his claim that a Guideline sentence in this case would
cause an unwarranted disparity. We do not agree with the
government’s argument.
After a district court calculates the Guidelines range, it
must give both parties an opportunity to argue for whatever
sentence they deem appropriate. Gall, 552 U.S. at 49; United
States v. Padilla, 520 F.3d 766, 775 (7th Cir. 2008). A review of
the record shows that the reason Prado failed to present a
sufficient argument that supported his position was because

-- 9 of 10 --

10 No. 12‐3762
the district court prevented him or the prosecution from dis‐
cussing whether Prado could be meaningfully compared
with Wodnicki. The prosecutor in this case would have been
in a position to enlighten the court given that he was the
same prosecutor that prosecuted Wodnicki. Yet, the court
prevented the prosecutor from commenting on the similari‐
ties and differences between the two cases because it errone‐
ously believed that it could only consider such evidence if
the potential disparity was presented on a national basis. Be‐
cause of its incorrect interpretation of the law, the court hin‐
dered its own ability to make a meaningful comparison. Had
Prado or the government been allowed to introduce more
information at the sentencing hearing, the district court
could have determined whether the two defendants were
indeed similarly situated and whether a comparison was
warranted. Because of the district court’s actions, the record
does not indicate what information the prosecutor would
have presented that may have been useful to the district
court.
Moreover, there is nothing in the record to indicate that
had Prado been given the opportunity to present additional
information the court would have given him the same sen‐
tence. Given the record before the court, it is impossible to
determine whether Prado would have received the same
sentence. Therefore, the error was not harmless and this case
is remanded for resentencing.
III. CONCLUSION
We VACATE the judgment of the district court and
R EMAND for resentencing.

-- 10 of 10 --