United States of America v. Mahmoud Shamah

In the
United States Court of Appeals
For the Seventh Circuit
No. 09-2767
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
MAHMOUD SHAMAH,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 06-CR-782-2—Robert W. Gettleman, Judge.
ARGUED MAY 28, 2010—DECIDED OCTOBER 12, 2010
Before MANION, WILLIAMS, and HAMILTON, Circuit Judges.
WILLIAMS, Circuit Judge. Mahmoud “Mike” Shamah
was a Chicago police officer who decided, along with
his partner Richard Doroniuk, that they could supple-
ment their income by shaking down drug dealers.
Using information given to them by an informant, they
identified drug dealers and stole money and drugs from
them. They were caught, and both were charged with
conspiracy in violation of the Racketeer Influenced and

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2 No. 09-2767
Corrupt Organizations Act (“RICO”), 18 U.S.C. § 1962(d),
along with other charges. Doroniuk pleaded guilty, but
Shamah was convicted by a jury.
Shamah appeals, arguing that he cannot be guilty
under RICO because he was not an operator or manager
of the Chicago Police Department and because his agree-
ment with Doroniuk was to commit thefts, not robberies.
Shamah also challenges his sentence, arguing that the
robbery guideline was inapplicable; his sentence enhance-
ments were inappropriate; and his sentence was substan-
tively unreasonable because of the sentencing disparity
between him and his partner.
We reject these arguments. We affirm Shamah’s RICO
conviction because the evidence was more than suf-
ficient to show that Shamah played a daily role in
directing the affairs of the police department and that
the conspiracy between him and his co-conspirator was
to rob drug dealers. We also affirm his sentence, finding
that the district court properly applied the sentencing
guidelines and enhancements, and the disparity in sen-
tencing was not substantively unreasonable.
I. BACKGROUND
Mike Shamah and Richard Doroniuk were corrupt
Chicago police officers. They worked as partners in the
22nd District on a tactical unit and would often patrol
high-crime gang areas. In 2004, they began discussing
the idea of keeping money they seized from suspected
drug dealers during traffic stops and searches of premises.

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No. 09-2767 3
From 2005 through October 2006, the partners put their
scheme into action. If a suspect was unsure about the
exact amount of cash he had on his person, Shamah and
Doroniuk would inventory some of the cash and pocket
the rest. They would take the money on the spot or with-
hold a portion of the money during the booking and
inventory process back at the station. The officers also
took drugs so they could plant them on people if a
future stop or search did not establish probable cause
for an arrest.
In May 2006, Shamah and Doroniuk began to work with
drug dealer Larry Cross. Cross became their personal
informant and guide to drug dealers who could be
counted on to have large amounts of cash or drugs. Cross
also became their go-to “John Doe” informant for
the purposes of obtaining search warrants from state
judges, meaning that he provided the basis for a warrant
without being named. Several warrant searches were
based on false information provided by Cross. During
vehicle stops and premises searches, Shamah and
Doroniuk used guns, handcuffs, and other police powers
to break down doors and restrain suspects. The partners
evenly split any proceeds once they determined if and
in what amount Cross should be paid.
During trial, Doroniuk and Cross testified to their
roles in the conspiracy. In addition to the testimony of
FBI agents and surveillance officers, the government
also introduced testimony of five victims: Cleottis Love,
Brandon Lucas, Titus Bates, Matthew Smith, and Jermaine
Benton. The first incident involved Love. In Decem-

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4 No. 09-2767
ber 2005, an informant provided officers with informa-
tion about drug dealing at Love’s house. Doroniuk and
Shamah entered this house without a warrant, planted
cocaine on Love, arrested him, and kept a portion of the
cash they found in his pockets. In March 2006, the second
incident occurred. Shamah and Doroniuk went to the
“Candy Store,” a well-known drug house. They kicked
in the door and arrested multiple people, including
Lucas, the owner of the Candy Store. He was handcuffed
and had money taken from him. The third incident was
in July 2006, when Cross told the officers that Bates was
dealing crack cocaine from a specific room in a motel.
Shamah and Doroniuk, along with some other Chicago
police officers, rushed into the room while Bates was
opening the door. He was arrested and placed in hand-
cuffs. And the money and drugs he had in his pockets
were stolen by Doroniuk. During the fourth incident, in
August 2006, Shamah and Doroniuk, claiming they be-
lieved a car was stolen, approached it with their guns
drawn. They arrested the passengers in the car, one of
whom was Smith, who also testified about the incident.
In addition, Doroniuk testified that he took Smith’s
cash and a small amount of marijuana at the scene, and
later withheld some of the cash from inventory. Finally,
Benton testified that in September 2006, Shamah and
Doroniuk approached his car with their weapons drawn.
Doroniuk testified that he and Shamah had smelled
marijuana. Benton was arrested, and some of his cash
was withheld from inventory.
Shamah and Doroniuk were eventually the targets of
a Federal Bureau of Investigation (“FBI”) undercover
investigation. As part of that investigation, Cross was

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No. 09-2767 5
told that large amounts of cocaine and money were
being kept in a storage locker unit. Cross passed this
information on to Shamah and Doroniuk. The two
officers took Cross to a state judge, and Cross falsely
testified to his personal knowledge of the contents of the
storage unit. On June 13, 2006, having obtained a search
warrant, Shamah and Doroniuk went with other police
officers to the unit, found a bag that was filled with
$20,000, took it, and never inventoried any of the
money. Approximately two months later, the FBI set up
a similar undercover scheme, and during a search
they again stole money from a storage unit.
Shamah, Doroniuk, and Cross were arrested and
charged with RICO conspiracy and civil rights conspira-
cies, possession of a firearm during and in relation to
a violent crime, conspiracy to steal government funds,
and two counts of theft of government funds. Doroniuk
and Cross both pleaded guilty and testified as govern-
ment witnesses at Shamah’s trial. The jury acquitted
Shamah of possessing a firearm during and in relation to
a violent crime, but it convicted him of the remaining
counts in the indictment. The district court sentenced
Shamah to 232 months’ imprisonment, and he timely
appealed.
II. ANALYSIS
A. Sufficiency of the Evidence Arguments
We review sufficiency of the evidence challenges by
viewing the evidence in the light most favorable to the
government and will reverse only if no reasonable

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6 No. 09-2767
factfinder could find the defendant guilty beyond a
reasonable doubt. United States v. Morris, 576 F.3d 661,
666 (7th Cir. 2009). We have frequently described a de-
fendant posing this challenge as facing a “nearly insur-
mountable hurdle.” Id.; see United States v. Hach, 162
F.3d 937, 942 (7th Cir. 1998) (“Only if the record is
devoid of evidence from which a jury could find guilt
will we reverse.”).
Shamah was convicted of conspiring to violate the
substantive RICO statute. The RICO conspiracy provi-
sion makes it unlawful “to conspire to violate any of
the provisions of subsection (a), (b), or (c)” of the RICO
statute. 18 U.S.C. § 1962(d). Shamah was charged with
conspiring to violate subsection (c), which makes it
“unlawful for any person employed by or associated
with [an] enterprise . . . to conduct or participate, directly
or indirectly, in the conduct of such enterprise’s affairs
through a pattern of racketeering activity of collection
of unlawful debt.” 18 U.S.C. § 1962(c). To prove a viola-
tion of § 1962(c), the government must prove the fol-
lowing elements: (1) conduct (2) of an enterprise
(3) through a pattern of racketeering activity. Brouwer v.
Raffensperger, Hughes & Co., 199 F.3d 961, 963 (7th Cir.
2000). Shamah challenges the sufficiency of the govern-
ment’s proof on the conduct and pattern of racketeering
activity elements.
1. Sufficient Evidence of RICO Enterprise
To be liable under RICO, there must be “operation” of
an “enterprise”. Shamah argues that the government

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No. 09-2767 7
failed to prove that he, a “lowly” police officer, played
any role in directing the affairs of the Chicago Police
Department, the charged enterprise. As an officer, he
argues that he exercised no direction over the depart-
ment because he had no authority to make command
decisions, no supervisory powers over other officers,
and no control over department-wide policies. He also
argues that his actions could not rise to a level of
criminal culpability because he was merely performing
his assigned tasks as a police officer when he deployed
his powers of arrest and seized contraband.
The statutory language of § 1962(c) does not define
what it means “to conduct or participate, directly or
indirectly, in the conduct of such enterprise’s affairs.”
18 U.S.C. § 1962(c). In Reves v. Ernst & Young, the
Supreme Court defined the meaning of “participate” and
“to conduct” for § 1962(c), the substantive offense at
issue here. 507 U.S. 170, 177-79 (1993). The Court held
that although liability was not limited to those in the
“upper management” of an enterprise, it must be shown
that the defendant participated in the “operation or
management” of the enterprise’s affairs. Id. at 184-85;
United States v. Cummings, 395 F.3d 392, 397 (7th Cir.
2005). To show participation, the Court stated that the
person charged must have had “some part in directing
those affairs.” Reves, 507 U.S. at 179 (emphasis in origi-
nal); see Goren v. New Vision Int’l, Inc., 156 F.3d 721, 727
(7th Cir. 1998) (“Mere participation in the activities of
the enterprise is insufficient; the defendant must par-
ticipate in the operation or management of the enter-
prise.”).

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8 No. 09-2767
In arguing that a street officer cannot be an oper-
ator or manager of a police department, Shamah relies
heavily on Cummings, where we reversed a RICO con-
spiracy conviction against a defendant who held a low-
level position in the charged enterprise, the Illinois De-
partment of Employment Security. 395 F.3d at 397-98.
There, the defendant accepted bribes from an outsider
to the enterprise and in return, provided the outsider
with confidential information from an internal database.
Shamah wrongly contends that Cummings turned on
the rank of the employee. Instead, we based our conclu-
sion on the lack of evidence that the defendant operated
or managed any aspect of the enterprise, its database,
or conspired with anyone who did. Id. at 398. The defen-
dant’s access to the enterprise’s computer database was
incidental to her role in the enterprise, she accessed
it infrequently, and had no responsibility to maintain
it. We also focused on the function of the enterprise,
stating that it may have been a different case if the de-
fendant was acting in a way that interfered with the
agency’s primary function of collecting premiums or
paying benefits. Id. at 399. We did not rely on a job
title or official role in the organization and indicated
that evidence of “some de facto control over the
agency’s affairs” would have sufficed to show the de-
fendant was an operator or manager. Id. at 398.
We have previously stated that the “prototypical”
RICO case is one where a person seizes control of
an enterprise and uses it to commit criminal acts he could
not do himself. Fitzgerald v. Chrysler, 116 F.3d 225, 227 (7th
Cir. 1997). Only “a step away” from the prototypical

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No. 09-2767 9
case is one where a criminal uses an enterprise to
engage in criminal activities but is generally “content to
allow it to conduct its normal, lawful business.” Id. That
is the case we have here. And in a pre-Reves case, we
rejected the argument that a police officer’s lack of a
supervisory position precluded his guilt under RICO.
United States v. Ambrose, 740 F.2d 505, 512 (7th Cir. 1984),
abrogated on other grounds by United States v. Pino-Perez,
870 F.2d 1230 (7th Cir. 1989). Our sister circuits have
similarly looked to the core-enterprise affairs and
the actions of the charged defendant in determining
whether the defendant is an operator or manager. In
United States v. Urban, for example, the Third Circuit
emphasized that the key to showing “operation or man-
agement” was a nexus between the person and the
affairs of the enterprise. 404 F.3d 754, 769-70 (3d Cir.
2005). The First Circuit has described the operator or
manager as someone who is “plainly integral” to
carrying out the enterprise’s activities. United States v.
Shifman, 124 F.3d 31, 36 (1st Cir. 1997).
Shamah and his co-defendant Doroniuk were operators
for the purposes of RICO. The heart of a police depart-
ment’s function is to enforce the law, and not to
manage other officers or implement policies. As an
officer, even a “lowly” one, Shamah had the power to
control the department’s affairs and direct its force.
With a substantial amount of discretion, Shamah chose
who to stop on the street, which cars to pull over, and
when to obtain arrest and search warrants. Furthermore,
he acted as a representative for the larger police depart-
ment and the city when he spoke to citizens, created

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10 No. 09-2767
The government also argues that it has proven that Shamah 3
conspired to facilitate the actions of an operator or manager
and that under § 1962(d), a defendant may conspire to violate
§ 1962(c) even if the defendant could not be characterized as
an operator or manager himself. Cf. MCM Partners, Inc. v.
Andrews-Bartlett & Assocs., Inc., 62 F.3d 967, 979 (7th Cir. 1995).
But, this is only true if the defendant knowingly agreed to
facilitate the activities of the operators or managers to whom
§ 1962(c) could apply. United States v. Swan, 250 F.3d 495, 499
(continued...)
public inventory records, and testified to facts that
served as the basis for warrants and indictments. As the
public face of the department, Shamah was given a
great deal of responsibility and trust in operating and
directing its affairs. His manipulation of this power
transformed legitimate police functions into arms of
his illegal endeavors. He usurped the department’s
identity, and turned it into a criminal enterprise hiding
behind a facade of justice.
The government presented ample evidence that
Shamah and Doroniuk were not acting as “mere” law-
abiding police officers when they forced civilians to
part with money and drugs, performed illegal arrests
and stops, and planted evidence on civilians. Given
his discretion and authority as a police officer, and the
way in which he chose to direct his powers, Shamah
operated or managed the integral duties of the police
department’s daily affairs. And the government pre-
sented sufficient evidence for the jury to conclude that
Shamah conducted the affairs of the enterprise.3

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No. 09-2767 11
(...continued) 3
(7th Cir. 2001). In a legal enterprise such as the Chicago
Police Department, Shamah was not acting under the direc-
tion or with the purpose of facilitating any unknowing officer’s
actions, and so, we are dependent on his role as an operator or
manager alone. See Brouwer, 199 F.3d at 967 (stating that
although one does not need to be the operator to be guilty of
conspiracy, “[o]ne must knowingly agree to perform services
of a kind which facilitate the activities of those who are oper-
ating the enterprise in an illegal manner.”) (emphasis added).
2. Sufficient Evidence of Predicate Acts
The government also needed to prove that Shamah
agreed to participate in at least two predicate RICO acts
to establish a pattern of racketeering activity. See 18 U.S.C.
§ 1962(d); Brouwer, 199 F.3d at 966. The racketeering
activity charged was multiple acts of robbery as defined
by Illinois law. Under Illinois law, “[a] person commits
robbery when he . . . takes property . . . from the person
or presence of another by the use of force or by
threatening the imminent use of force.” 720 ILCS 5/18-1.
Shamah argues that the evidence is insufficient to
show that the crimes to which he agreed to participate
were robberies, and not thefts. Specifically, Shamah
claims that he and his partner agreed to a series of thefts,
with the moment of theft occurring back at the police
station when the co-defendants decided what amount
of money to withhold from inventory. He further
explains that any force used was to effectuate a lawful
arrest, at which time police procedures were followed
to “seize” money according to forfeiture laws. According

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12 No. 09-2767
to official policy, officers are given the discretion to
either place property in their police vests for later in-
ventory at the scene; or to leave property on a suspect
for collection during the booking process. However, the
evidence at trial was more than sufficient for the jury
to conclude that the conspiracy was an ongoing agree-
ment to commit robberies, not thefts.
The distinction between a robbery and a theft can be
subtle—theft is a taking without the requirement of
force. 720 ILCS 5/16-1. To sustain a charge of robbery,
the robber must use force or the threat of force as the
means to take the property from the person or presence
of the victim. People v. Blake, 579 N.E. 2d 861, 863
(Ill. 1991). But the taking does not need to be contempora-
neous with the force. Id. at 865 (the “use and threat of
force and the defendant’s removal of the property were
essentially a related series of acts.”). And, the taking
of property does not need to directly follow the force
or threat of force as “there need only be some concur-
rence between the defendant’s threat of force and the
taking”. People v. Aguilar, 676 N.E. 2d 324, 327 (Ill. App.
Ct. 1997). Also, the force does not have to be exerted for
the purpose of taking the property. Id.
Shamah used force or the threat of force as the means
to take property from his victims on many occasions.
We provide only a few examples here: Love testified
that Shamah and Doroniuk forced down his door and
entered his home without a warrant. Doroniuk hand-
cuffed and planted cocaine on Love, and money was
taken from him. Additionally, Love testified that at least

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No. 09-2767 13
three times prior to the raid on his house, Shamah and
Doroniuk would pull him over while he was driving,
force him out of his car, search him, and take whatever
money they found. On at least one of these stops they
also had their guns drawn. On two different occasions,
the two officers entered Lucas’s garage, the place known
as the “Candy Store,” and robbed him. On February 19,
2006, Shamah and Doroniuk went to the Candy Store,
knocked on the door, and pushed their way in after
someone answered their knock. They did not have a
warrant, and they had their guns drawn. They searched
Lucas and his store, taking money from him personally
and from a back room. On March 26, 2006, Shamah
and Doroniuk went to the Candy Store again. They
kicked down the door with their guns drawn, handcuffed
Lucas, and took money and jewelry from him. Finally,
Shamah and Doroniuk used force to rob Bates. Cross,
their informant and co-conspirator, told them that Bates
was selling crack cocaine from a particular motel room.
The two officers, along with 4-6 other officers, forced
their way into Bates’ room as he was opening the
door. Doroniuk handcuffed Bates, searched him, and
took cash and cocaine from his pockets.
Clearly, the evidence showed that Shamah and
Doroniuk used the force that came along with their
police power as a way of subduing and preventing re-
sistance from those they robbed. Drug dealers were
their ideal targets because they tended to carry large
amounts of money and would not likely be credible if
they complained about the police officers’ actions. The
government also introduced evidence of Shamah and

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14 No. 09-2767
Doroniuk discussing ways they could get more
money from someone they believed was a particularly
profitable drug dealer, including a suggestion by
Doroniuk that they take money “off duty” with a “ski
mask on” if necessary. Given this evidence, a reasonable
jury had more than enough evidence to conclude
that Shamah and Doroniuk had an on-going agreement
to rob drug dealers.
We also easily dispose of Shamah’s argument that he
was just “doing his job” and that each arrest was pre-
ceded by probable cause. Shamah and Doroniuk created
opportunities to engage with drug dealers for the
purpose of robbing them, and some of the arrests or
searches were blatantly unauthorized and illegal.
Doroniuk testified that his standard practice was to
keep property in his police vest when arresting
suspects, unless another officer was nearby, and that
he preferred to arrest the drug dealers on whom he
planted evidence or robbed so that their complaints
would seem even less legitimate. From this evidence,
the jury could conclude that the arrests were made to
effectuate the robberies and continue the conspiracy,
and not to enforce the law. The jury was properly in-
structed on the elements of robbery, and there was suf-
ficient evidence for a reasonable jury to conclude that
an agreement existed between the officers to rob when-
ever the opportunity arose for them to do so.
B. Sentencing Challenges
At sentencing, the district court began by determining
the appropriate guideline range under the United States

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No. 09-2767 15
Sentencing Guidelines (“U.S.S.G.”). Although the guide-
lines are advisory, the sentencing judge must first cor-
rectly calculate the range and then, using the sen-
tencing factors of 18 U.S.C. § 3553(a), decide whether
to impose a sentence within that range. United States v.
Nelson, 491 F.3d 344, 347 (7th Cir. 2007).
The base offense level was calculated primarily from
the guideline for the civil rights conspiracy conviction,
and each underlying offense for the conspiracy count
was grouped together. The underlying offenses were
eight robberies—the five victims who testified at trial,
plus three other victims that Doroniuk testified about.
Starting with a base offense level of 20 (U.S.S.G. § 2B3.1(a)),
the district court also added the following enhance-
ments: five levels for brandishing or possessing a
firearm (U.S.S.G. § 2B3.1(b)(2)(C)), two levels for physi-
cal restraint via handcuffs (U.S.S.G. § 2B3.1(b)(4)(B)),
and six levels for acting under color of law (U.S.S.G.
§ 2H1.1(b)(1)(B)). The enhancement for use of body
armor was also added for one of the robberies. U.S.S.G.
§ 3B1.5(2)(A). Five levels were added because more than
five robberies were committed. U.S.S.G. §§ 3D1.1 and
3D1.4. Shamah’s total offense level was 40, resulting in a
guidelines range of 292-to-365 months’ imprisonment.
Concerns of over-counting and the 161-to-234 month
disparity between Doroniuk’s 131-month sentence and
Shamah’s potential sentence led the court to lower
Shamah’s sentence to 232 months. This was 60 months
lower than the low-end of Shamah’s guideline range.
The district court’s legal application of the sen-
tencing guidelines is reviewed de novo. United States v.

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16 No. 09-2767
Hernandez, 544 F.3d 743, 746 (7th Cir. 2008). We review
factual findings supporting a sentencing enhancement
for clear error, United States v. Bermea-Boone, 563 F.3d
621, 627 (7th Cir. 2009), and only reverse if a review of
the evidence leaves us “firmly convinced” that a mistake
has been made. United States v. Orozco-Vasquez, 469
F.3d 1101, 1107 (7th Cir. 2009). Where a district court
has properly calculated the guidelines range, we re-
view sentences for reasonableness, using an abuse
of discretion standard. Gall v. United States, 552 U.S. 38,
41 (2007); United States v. Panaigua-Verdugo, 537 F.3d 722,
727 (7th Cir. 2008). The district court is given great defer-
ence in balancing the 18 U.S.C. § 3553(a) sentencing
factors, and a sentence that falls within a properly calcu-
lated guidelines range is presumptively reasonable.
Panaigua-Verdugo, 537 F.3d at 727.
1. Any Error Regarding Number of Robberies
Was Harmless
The district court applied the robbery guideline,
U.S.S.G. § 2B3.1, to eight arrests. Although Shamah con-
tends that some of these incidents were thefts, and not
robberies, the district court stated that “the arrests them-
selves were sufficient to constitute, particularly under a
preponderance standard, evidence of robbery rather
than theft.” The district court went on to state that it was
“ruling for the government on that as did the jury on
the specific incidents that they were directed to rule
on.” Shamah challenges the district court’s application
of the robbery guideline to each of the eight incidents
because the jury did not find that each incident was

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No. 09-2767 17
a robbery, and he does not believe that each incident
was a robbery.
Shamah is correct that the jury did not definitively
find that all of the eight arrests were robberies. The jury
only needed to find that Shamah and Doroniuk con-
spired to commit two underlying predicate acts of
robbery in order to convict Shamah on the RICO con-
spiracy charge. And, a couple of the arrests may have
been thefts and not robberies because of the time and
distance between the force and the taking of property. For
example, Benton did not have any money taken from
his person. It was only after he was arrested and taken
back to the station that his money was withheld from
inventory. But to the extent that one or two of the
eight arrests were improperly deemed robberies by the
district court, such error is harmless. The district court
only needed to find that more than five of the incidents
were robberies to justify a five-level enhancement under
U.S.S.G. § 3D1.4. And the record supports this finding.
2. Sentencing Enhancements for Armor, Weapons,
and Restraints
Shamah also contests the enhancements for brandishing
a weapon, using handcuffs, and wearing body armor.
He argues that all officers carry these tools as part of
their uniform, and use them in proper arrest procedure
to ensure officer safety, so they cannot be the basis of
sentencing enhancements. Shamah further argues that
even if they can be the basis of sentencing enhancements,
there was insufficient evidence for the district court to
apply these sentencing enhancements in his case.

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18 No. 09-2767
That Shamah’s police tools had a second, legitimate
purpose does not make the enhancements inappropri-
ate. United States v. Haynes, 582 F.3d 686, 712 (7th Cir.
2009). The theory of the government’s case was that the
defendants manipulated their power to arrest in order
to rob drug dealers. In Haynes, another case involving
a corrupt Chicago police officer, the defendant argued
that the use of body armor was a specific offense charac-
teristic because he used the body armor to make his
targets believe they were engaged in legitimate law
enforcement activity. He claimed that the use of the
body armor was already accounted for by the specific
offense conduct, so it could not also be the basis of an
enhancement. Haynes, 582 F.3d at 712; see U.S.S.G. § 3B1.3
(an “adjustment may not be employed if an abuse of
trust or skill is included in the base offense level or
specific offense characteristic.”). There, we rejected the
idea that the enhancement should not apply: “The court
drew the reasonable inference that the body armor
was being used for its primary purpose—for protec-
tion. The fact that the body armor may also have been
used to identify the defendant officers as legitimate
Chicago cops engaged in lawful police activity doesn’t
make the enhancement inappropriate.” Haynes, 582 F.3d
at 712; see United States v. Barrett, 552 F.3d 724, 728
(8th Cir. 2009) (stating that “[t]he ability of body armor
to serve dual purposes” did not make the enhance-
ment inappropriate). In the context of possessing or
brandishing a weapon, other circuits have stated the
same, holding that just because a defendant may be
required to carry a weapon does not entitle that de-
fendant to a blanket exception to the application of an

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No. 09-2767 19
enhancement. United States v. Partida, 385 F.3d 546, 562
(5th Cir. 2004); United States v. Sivils, 960 F.2d 587, 596
(6th Cir. 1992); United States v. Ruiz, 905 F.2d 499, 508
(1st Cir. 1990).
The evidence was more than sufficient for the district
court to apply the sentencing enhancements here.
Doroniuk testified that victims were stopped at gun-
point and restrained by handcuffs. Each testifying
victim also stated that Shamah drew his weapon and
that he was physically restrained during the encounter.
As to the use of body armor, Bates testified before the
grand jury that the officers were wearing police vests,
and Doroniuk testified about the Bates robbery at trial.
Contrary to his argument, Shamah is not receiving
these enhancements for each time he used handcuffs
or pulled a gun on a suspect as a legitimate law enforce-
ment tool. These enhancements are for the specific times
where those tools were used to effectuate a robbery. The
district court did not err in relying on trial testimony,
grand jury testimony, and the Pre-Sentencing Report in
applying enhancements on the ground that weapons
were possessed or brandished during these encounters,
that victims were physically restrained, and that Shamah
wore a bulletproof vest during one incident.
Finally, Shamah argues that the jury acquitted him of
possessing a firearm during and in relation to a violent
crime, and so he cannot receive the enhancement for
possessing or brandishing a firearm during the robbery
of Matthew Smith. This argument also fails. A sentencing
court may consider conduct of which a defendant has
been acquitted, as long as that conduct is proved by a

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20 No. 09-2767
preponderance of the evidence. United States v. Watts,
519 U.S. 148, 157 (1997). The district court did not clearly
err in relying on trial testimony that Shamah and
Doroniuk drew their weapons during Smith’s traffic
stop in order to effectuate a robbery, so the enhancement
was not improper.
3. Shamah’s Sentence Was Reasonable
Shamah argues that his sentence was substantively
unreasonable. Again, where the sentencing guidelines
range has been properly calculated, we review the rea-
sonableness of a sentence for an abuse of discretion. Gall,
552 U.S. at 41; Panaigua-Verdugo, 537 F.3d at 727. A below-
guidelines sentence is presumed reasonable against a
defendant’s challenge that it is too high. Panaigua-Verdugo,
537 F.3d at 727. We do not reverse simply because
we might have imposed a different sentence, United
States v. Scott, 555 F.3d 605, 610 (7th Cir. 2009), as rea-
sonableness contemplates a range.
The district court sentenced Shamah to 232 months’
imprisonment, which was 60 months lower than the
low end of his guidelines range. Our review of the record
convinces us that the district court thoughtfully con-
sidered the § 3553(a) sentencing factors and adequately
stated why its sentence was appropriate. See Scott, 555
F.3d 608-09. The court addressed Shamah’s personal
history and strong family support, the nature of the
offense, mitigating factors raised on Shamah’s behalf,
and the unlikelihood that Shamah would recidivate
upon his release. Shamah argues that the district court

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No. 09-2767 21
spent too much time discussing the general problem
of corrupt police officers and the need for general deter-
rence, but the court specifically stated that it was punish-
ing Shamah for his actions and not the actions of others.
Shamah also argues that the district court did not
sufficiently take into consideration the disparity in
the sentences between him and his co-conspirator, as
Doroniuk was sentenced to 131 months’ imprisonment.
See 18 U.S.C. § 3553(a)(6) (requiring a sentencing court
to “avoid unwarranted sentence disparities among de-
fendants with similar records who have been found
guilty of similar conduct”). A within-guidelines sen-
tence necessarily gives weight and consideration to
avoiding unwarranted sentencing disparities. United
States v. Bartlett, 567 F.3d 901, 907-08 (7th Cir. 2009). Here,
the district court gave a below-guidelines sentence, and
specifically addressed the large disparity. Although the
court recognized that Doroniuk would serve much less
time for equally culpable conduct, the court believed
the difference in sentencing was appropriate given
Doroniuk’s guilty plea, cooperation with the govern-
ment, and testimony at trial against his fellow officer.
See United States v. Statham, 581 F.3d 548, 556 (7th Cir.
2009) (“Statham’s co-defendants entered plea agree-
ments with the government, cooperated in the inves-
tigation, and had less-extensive criminal histories. The
district court was entitled to take these facts into
account when it chose each person’s sentence.”).
The district court considered the relevant sentencing
factors in choosing a below-guidelines sentence. We

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22 No. 09-2767
conclude that Shamah’s below-guidelines sentence was
a reasonable one, in light of all the relevant circumstances.
III. CONCLUSION
For the reasons expressed above, we AFFIRM Shamah’s
conviction and sentence.
10-12-10

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