Opinion
23-2295
06-10-2024
UNITED STATES OF AMERICA, Plaintiff-Appellee, v. COTTRELL MACKEY, Defendant-Appellant.
NONPRECEDENTIAL DISPOSITION
Argued June 5, 2024
Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 1:17-CR-00040(7) John J. Tharp, Jr., Judge.
Before FRANK H. EASTERBROOK, Circuit Judge, MICHAEL B. BRENNAN, Circuit Judge, CANDACE JACKSON-AKIWUMI, Circuit Judge
ORDER
Cottrell Mackey, a former member of the LAFA street gang, pleaded guilty to conspiracy to engage in racketeering activity, 18 U.S.C. § 1962(d), and was sentenced above his calculated guidelines range to 420 months' imprisonment. He appeals, arguing that the district court procedurally erred by failing to consider all relevant factors under 18 U.S.C. § 3553(a) and substantively erred by (1) improperly situating his offense in the context of broader Chicago gun violence and (2) failing to craft an individualized sentence. Because the district court considered the relevant § 3553(a) factors and adequately justified the above-guidelines sentence, we affirm.
Mackey and other LAFA members drove to a rival gang's territory on the far south side of Chicago in June 2014 in search of a rival gang member to shoot. They spotted Denero Appleton, whom they recognized as a member of the Merrill Park Gangster Disciples. Mackey and two other LAFA members shot Appleton thirteen times and then sped away from the scene. Appleton died.
In the years after Appleton's murder, Mackey continued his involvement in LAFA activities. He bragged online (on social media and in a YouTube music video) about killing Appleton. He committed an armed robbery. And, upon learning that the robbery victim had cooperated with police and provided descriptions of LAFA members, Mackey directed a cohort to bribe the victim into retracting his account.
Mackey was charged with conspiring to engage in racketeering activity, 18 U.S.C. § 1962(d), and witness tampering, id. §§ 1512(b)(3), (2). He pleaded guilty to the racketeering conspiracy offense in 2023, under a written plea agreement with the government; the government later dismissed the witness-tampering count.
At sentencing, the district court calculated a guidelines range of 292 to 365 months' imprisonment, based in part on Mackey's minimal prior criminal history (only one conviction) and acceptance of responsibility. Mackey did not object to this calculation. The government, noting the aggravating circumstances and unprovoked nature of Mackey's offenses, recommended a within-guidelines sentence. Mackey, pointing to his acceptance of responsibility, limited criminal history, difficult childhood, and personal successes (working consistently, raising a son), argued that even the low end of the guidelines range was "excessive."
The district court settled upon an above-guidelines sentence of 420 months. The court explained, "You can't kill another human being for sport and not expect to spend most of the rest of your life behind bars." In its consideration of the § 3553(a) sentencing factors, the court identified the most significant to be the nature and circumstances of the offense: Mackey went "hunting" to find rival gang members to kill; "brutally ambush[ed]" Appleton and shot him 13 times, even after he already was on the ground; endangered innocent bystanders; and-even years later-was "not the least bit remorseful for his conduct." As for mitigating factors, the court dismissed any suggestion that Mackey had accepted responsibility by pleading guilty; the court pointed out that as recently as 2016 Mackey was "more interested in laughing about how many times [Appleton] had been shot in the face." The court also downplayed Mackey's limited criminal record, noting that he had belonged to LAFA for more than a decade and that the lack of any convictions was "just luck." The court recognized that Mackey's difficult childhood "provide[d] some context" for his actions but determined that it was "not an excuse" and merited only "minimal consideration and weight" in the sentencing calculus. And the court acknowledged the other factors weighing in Mackey's favor, including his significant employment history, relationship with his wife and children, and support from his family and friends. The court explained that its sentence would promote retribution, specific deterrence (to make sure Mackey "think[s] twice" before picking up a gun again), and general deterrence (to send a message to the public that gun violence in Chicago will not be tolerated). The court also asked Mackey whether there were any other § 3553(a) factors that it neglected to discuss, and Mackey said there were not.
Mackey first contends that the district court procedurally erred by not adequately considering the mitigating § 3553(a) factors. He asserts that the court "never discussed how [the § 3553(a)] factors were being considered" in relation to his case and "did not give meaningful consideration to [Mackey's] history and characteristics." Mackey appears to take issue with the court's treatment of his mitigating factors, arguing that the court "only addressed [his] arguments in order to minimize" them.
The court's consideration of the relevant § 3553(a) was more than adequate. The court's burden of explanation is "not particularly onerous," United States v. Hendrix, 74 F.4th 859, 867 (7th Cir. 2023), and here, the court dwelled upon the barbaric nature and circumstances of the offense. The court also acknowledged Mackey's history and characteristics, as well as his mitigating arguments, including his lack of criminal history and acceptance of responsibility. Disagreement with how the court weighs mitigating factors generally is not grounds for reversal, see United States v. Hatch, 909 F.3d 872, 875 (7th Cir. 2018), and the record here establishes that the court's consideration of Mackey's arguments in mitigation was sufficient. Hendrix, 74 F.4th at 868 (citations omitted).
Mackey also raises a two-part challenge to the substantive reasonableness of his above-guidelines sentence. First, he argues that the district court should not have based its sentence on the trend of on gun violence in Chicago. He argues that doing so was "not only improper but also completely irrelevant," and that the goal of general deterrence is an "improper use of sentencing procedures."
The district court did not abuse its discretion by referring during sentencing to Chicago's gun violence. This court permits district courts to "consider the serious problem of gun violence in Chicago in imposing stiff sentences on those who commit firearms offenses in the city," so long as there is a "reasonable nexus" between that problem and the crime committed. Id. at 870, 867 (collecting cases). Such a nexus surely exists here: Chicago is beset with gun violence, and Mackey shot to death a rival gang member in Chicago. The court also appropriately decided that general deterrence was a penological goal it wished to address. See Hatch, 909 F.3d at 876.
Second, Mackey again seems to take issue with the court's consideration of his mitigating factors, but this time frames it as substantive error, contending that his sentence was not sufficiently individualized. He argues that the court, in fashioning his sentence, "minimiz[ed] any and all mitigation" and "did not "tak[e his] unique characteristics ... into account." He maintains that the court "failed to give meaningful consideration" to his lack of a criminal background and traumatic childhood, and that the court was unduly dismissive of the letters of support from his friends and family.
The district court engaged Mackey's mitigating arguments and more than adequately considered the individual circumstances of his case. The court highlighted the specific nature of Mackey's actions (unjustified and "brutal"), the setting of the shooting (a residential area), and Mackey's actions after the offense (bragging about killing Appleton). The court bluntly refuted Mackey's arguments that he accepted responsibility and that his criminal record was limited. As to the letters from Mackey's friends and family, the court acted within its discretion to discount their force by stating that Mackey had not exhibited those positive traits when he committed the crimes at issue. Mackey seems to take issue with how the district court weighed his mitigating factors, but, again, disagreement with the court's weighting of these factors does not warrant reversal. Id. at 875.
AFFIRMED.