United States v. Fitzpatrick

32 F.4th 644

UNITED STATES of America, Plaintiff-Appellee,

v.Lajuan FITZPATRICK, Defendant-Appellant.

No. 21-1286

United States Court of Appeals, Seventh Circuit.

Argued January 12, 2022

Decided April 27, 2022

Nathaniel Whalen, Attorney, Office of the United States Attorney, Hammond, IN, for Plaintiff-Appellee.

Michelle L. Jacobs, Justin J. Dreikosen, Vanessa K. Eisenmann, Attorneys, Biskupic & Jacobs, S.C., Mequon, WI, for Defendant-Appellant.

Before Flaum, Easterbrook, and Wood, Circuit Judges.

Flaum, Circuit Judge.

After a home invasion robbery went violently awry, a jury convicted Lajuan Fitzpatrick of two crimes: (1) conspiring to possess with the intent to distribute a controlled substance and (2) murder resulting from the use and carrying of a firearm during and in relation to a drug trafficking crime. On appeal, Fitzpatrick challenges the sufficiency of the evidence underpinning his convictions and the reasonableness of his sentence. For the following reasons, we affirm Fitzpatrick's conviction and sentence.

I. Background

A. Summary of Events and Indictment

As presented through testimony at trial, after Robert Nieto (known as Cowboy), a leader of the Black Oak Latin Kings gang in Gary, Indiana, learned that a local drug dealer, Anthony Martinez, had "some pounds" of marijuana at his home, he devised a plan to rob Martinez's home. Leading up to the deadly encounter at the center of this case, Nieto recruited Bruce Hendry (known as Casper), another Latin Kings gang member, and Hendry then reached out to Mark Cherry, a former member of the Black P. Stone gang, who also agreed to participate. Cherry in turn looped his roommate, Fitzpatrick, into the scheme. Fitzpatrick was also a member of the Black P. Stones, a gang known to be non-adversarial (at least to some degree) with the Latin Kings.

On or about December 1, 2013, Cherry told Fitzpatrick that Hendry "had a lick"—also known as a "sting" or a robbery. Cherry then picked up an assault rifle and a handgun from the home he shared with Fitzpatrick. Cherry informed Fitzpatrick they needed the guns for the robbery and told Fitzpatrick there were drugs—specifically marijuana—in the target house. Hendry, Cherry, and Fitzpatrick drove together to Nieto's house. While Fitzpatrick stayed in the car, Hendry and Cherry went in to talk with Nieto about their plans. Nieto told them that it would be an "easy" robbery to score "a couple pounds" of marijuana. The three men—Nieto, Cherry, and Hendry—planned to smoke some of the marijuana and resell the rest. Hendry and Cherry planned to carry out the robbery while Nieto listened on the police scanner.

Shortly thereafter—sometime around midnight—the crew put the plan into action. Cherry and Hendry rejoined Fitzpatrick before the trio switched cars and were driven a short, approximately two-minute distance to the intended robbery location by a fourth person. They exited the car upon arriving at Martinez's home—carrying firearms and obscuring their faces with masks and black hoodies.

Martinez, the target of this drug-focused robbery, estimated that he was selling roughly "[a] couple hundred bucks, if that," worth of marijuana per month at the time of the incident. That night, Martinez was watching television with his fiancée and two friends when he heard a knock on his front door. Suspicious because that door was not normally used, Martinez walked out the back door to investigate and was promptly hit in the head with a pistol as he turned the corner to the front of his house. Martinez's assailant then "threw [his] sweater over [his] face and walked [Martinez] through the back door" into his home. Once inside, one of his attackers—later identified as Cherry—repeatedly asked where the marijuana was kept. Martinez indicated that at the time of the home invasion there was "[z]ero marijuana" in the home.

Martinez's brother, who lived next door, entered the kitchen, and a fight ensued. The brothers eventually subdued the assailants, but not before Martinez shot Cherry at least twice in the abdomen. After hearing "rapid fire" shots aimed at the house, the brothers took cover in the kitchen, using the refrigerator as a shield. The scene around the house was described as a "war zone" amid copious amounts of gunfire. In the chaos, an uninvolved friend of the Martinez brothers was fatally shot by the ongoing gunfire while his toddler-aged daughter looked on.

After sustaining serious gunshot wounds, Cherry was dragged from the home into the car in which he arrived, all while Fitzpatrick continued to spray fire from the street. After getting Cherry into the car, the group of robbers drove less than a block to Nieto's house, where a nearby police officer arrested Cherry and the driver. Hendry and Fitzpatrick ran. After fleeing to a friend's house, attempting to clean himself up with bleach, and telling a Latin King gang member present that he "just laid a [expletive] down," Fitzpatrick placed his bloody clothes into a steel drum and set them on fire.

The grand jury returned a two-count indictment against Fitzpatrick, charging him with (1) conspiracy to possess with intent to distribute marijuana, in violation of 21 U.S.C. §§ 841(a)(1) and 846, and (2) carrying, using, and discharging a firearm in relation to a drug trafficking crime resulting in killing defined as murder, in violation of 18 U.S.C. §§ 924(c)(1)(A), (j). Fitzpatrick denied committing these offenses and pleaded not guilty.

B. Trial, Post-Trial Motions, and Sentencing

After the government rested its case, Fitzpatrick made a motion for acquittal. He renewed his motion for a directed finding of acquittal once jury deliberations were underway. The court promptly denied both oral motions. The jury convicted Fitzpatrick on both counts. Fitzpatrick filed a written post-trial motion for judgment of acquittal and motion for new trial, both of which were denied.

The district court proceeded to sentence Fitzpatrick. Looking to Fitzpatrick's presentence investigation report ("PSR"), is base offense level was 43 and his criminal history category was III. For Count 1, the probation office recommended one day of imprisonment. For Count 2, the statutory provision was ten years to life, the Guideline provision was life, and the recommended sentence was 240 months' imprisonment. In reaching its below-Guidelines recommendation, the probation office noted significant mitigating factors in the PSR, including the details of a challenging childhood, a severe learning disability (Fitzpatrick could not read or write), and bullying.

The district court adopted the PSR's Guidelines calculations. Defense counsel requested a 240-month (twenty-year) sentence, aligning with the probation office's recommendation. The defense pointed to Hendry's 360-month (thirty-year) sentence as an unequal comparator, given that Hendry's role in organizing the crime was much more significant and that Fitzpatrick's minimal criminal history paled in comparison to Hendry's long history of gang-related criminal activity. The government asked for a life sentence.

The court sentenced Fitzpatrick to 432 months (thirty-six years) of imprisonment on Count 2 and one day on Count 1, to run concurrently, as well as three years of supervised release. Leading up to this sentence, the district court acknowledged the extreme difficulties faced by Fitzpatrick growing up, noting, "[i]t really takes my breath away this environment in which you were raised."

In paying special attention to the need to avoid unwarranted sentencing disparities among similarly situated defendants, the district judge acknowledged that he was "troubled" that "the co-defendants in this case have received a variety of sentences." The court found Nieto, who received a life sentence, more culpable than Fitzpatrick, given his role as ringleader of this crime and history of extensive gang-related criminal activity. Hendry's sentence of thirty years was a notable discussion point for the court. The district judge stated:

Hendry received a sentence of 30 years. I wasn't born yesterday. I understand the circumstances. I mean, the government cut a deal with him. You had a bird in the hand. Even though he sent them on, sort of, a wild goose chase here that ended up requiring the government—they actually charged somebody and then had to back-track because they no longer could believe Mr. Hendry.... The government could have moved to withdraw his plea agreement because he was violating its terms.

The government decided instead to simply put it in Judge Moody's capable hands and let him decide what the appropriate sentence would be for him. And he gave him the maximum that he could have given him under the terms of the plea agreement, which was 30 years. It's worth noting that Mr. Hendry had substantially more criminal history than Mr. Fitzpatrick did, and so, you know, that fact is not lost on me either.

The district court went on to dismiss any comparison to Cherry or Landrum as not compelling. Cherry, who received 188 months (over fifteen years), "cooperated, testified, [and] put himself at risk," making his sentence "entirely defensible." Landrum, the driver of the car, "played a really passing role in this case, literally driving these guys, like, around the block." Even so, he received a 168-month (fourteen-year) sentence.

Finally, when choosing Fitzpatrick's sentence, the district court emphasized the "extreme" and "frightening" level of violence that Fitzpatrick engaged in, acting like he was "in some war movie where you're firing protective shots to keep your cohorts safe." The district court also factored in the death of the "terrific young man" and "good father" caused by this crime. The district court concluded that a 432-month (thirty-six-year) sentence of incarceration was "sufficient but not greater than necessary to achieve all of the statutory goals of sentencing."

Fitzpatrick now appeals.

II. Discussion

On appeal, Fitzpatrick raises two challenges. He argues the government failed...