U.S. v. ELLIS

140606754317600-fn3 a district court's power to seal an indictment is broad; sealing an indictment is generally permitted when it is in the public interest or serves a legitimate law-enforcement purpose. See Worrell Newspapers of Ind., Inc. v. Westhafer, 739 F.2d 1219, 1222-23 (7th Cir. 1984) ("[C]ourts have the power to seal indictments or informations, under appropriate circumstances, to facilitate the apprehension of criminals."); Bracy, 67 F.3d at 1426 (holding that the need to protect potential witnesses from a violent gang may justify the sealing of an indictment); United States v. DiSalvo, 34 F.3d 1204, 1218 (3d Cir. 1994) ("An indictment may be sealed for any legitimate law enforcement reason or where the public interest requires it."); United States v. Southland Corp., 760 F.2d 1366, 1380 (2d Cir. 1985) ("[G]reat deference should be accorded to the discretion of the magistrate [to seal an indictment], at least in the absence of any evidence of substantial prejudice to the defendant."). Here, the indictment was sealed for the security of the witnesses and to guard against potential witness intimidation or tampering. These reasons are legitimate and compellingly supported by the record.

The Rule reads in relevant part: "The magistrate judge to whom an indictment is returned may direct that the indictment be kept secret until the defendant is in custody or has been released pending trial." FED.R.CRIM.P. 6(e)(4).

Ellis was the chief enforcer of a violent street gang and had an acknowledged history of torture, extortion, and shakedowns. Before he was arrested, he had threatened several witnesses. Under these circumstances, it was manifestly reasonable for the government to suspect that Ellis might enlist fellow gang members to target witnesses in the Indiana case during the pendency of the Illinois prosecution. Ellis contends that sealing the indictment was not necessary because some of the witnesses had themselves been indicted. We are not persuaded. That some of the witnesses in the Indiana prosecution were under public indictment does not mean they could not be targets of intimidation or retaliation by Ellis or his gang associates. Sealing the indictment was a reasonable measure to protect the identity, security, and testimony of the witnesses in the Indiana case.

3. Double Jeopardy as to Count 9 in the Indiana Prosecution

Ellis was prosecuted in the Illinois case for unlawfully possessing the two handguns from the June 2005 Indiana straw purchase that he turned over to the ATF agents in Chicago on July 29, 2005. Count 9 in the Indiana case charged Ellis with illegally possessing the same two firearms in Indiana after they were acquired in the straw purchase at the Osceola gun store. Ellis argued in the district court that punishing him twice for possessing the same guns violated the Double Jeopardy Clause. The district court agreed as to the handgun he kept at his mother's house in Illinois; that gun never left his possession after he acquired it in Indiana. But the court rejected Ellis's double-jeopardy claim with respect to the second gun from the June 2005 straw purchase. Because Ellis retrieved that gun from a fellow Gangster Disciple before giving it to federal agents, the court held there was a "break in possession that is sufficient to satisfy the . . . double-jeopardy clause of the Constitution." The court explained that Ellis "had the [second] gun in June, . . . gave it to somebody else and got it back. Getting it back was a crime for which Mr. Ellis has been convicted in Illinois. . . ."

We review de novo the district court's denial of Ellis's motion to dismiss Count 9. See United States v. Gilmore, 454 F.3d 725, 729 (7th Cir. 2006). The Double Jeopardy Clause of the Fifth Amendment prohibits "punishing twice, or attempting a second time to punish criminally, for the same offense." Witte v. United States, 515 U.S. 389, 396, 115 S.Ct. 2199, 132 L.Ed.2d 351 (1995) (emphasis removed) (quotation marks omitted). The § 922(g)(1) felon-in-possession crime is a continuing offense. See United States v. Fleischli 305 F.3d 643, 658 (7th Cir. 2002) ("Possession of a firearm is a continuing offense which ceases only when the possession stops."), superseded by statute on other grounds. As such, the Double Jeopardy Clause prohibits punishing Ellis twice for a continuous possession of the same gun, even under a theory that he is being charged for different "moments" of possession. See United States v. Hope, 545 F.3d 293, 296 (5th Cir. 2008). Accordingly, if Ellis maintained possession of the second handgun from the June 2005 straw purchase in Indiana until he turned it over to federal agents the following month in Illinois, double jeopardy prohibits a second punishment in the Indiana case after his conviction and sentence for unlawfully possessing the same gun in Illinois.

As it did in the district court, the government argues that Ellis's act of retrieving the second gun from his gang associate establishes that he committed two separate crimes rather than one continuous crime of possession, citing United States v. Conley, 291 F.3d 464, 470 (7th Cir. 2002). In Conley we held that a felon may be charged with two crimes of unlawful possession of the same firearm under § 922(g)(1) if he possessed the gun, knowingly relinquished possession, and then reacquired possession of the gun. Id. at 470-71. Possession may be actual or constructive, and "there is no legal difference . . . between actual and constructive possession." United States v. Moses, 513" F.3d 727, 733 (7th Cir. 2008); see also Conley, 291 F.3d at 468 n. 2. Therefore, a felon who unlawfully possesses a firearm and then relinquishes actual possession while maintaining constructive possession has committed only one violation of § 922(g)(1). Stated differently, a felon in this situation — one who maintains constructive possession of a firearm while another has actual possession of it — does not commit a new crime when he regains actual possession of the firearm. See United States v. Jones, 403 F.3d 604, 606 (8th Cir. 2005) (handing firearm momentarily to officers does not establish interruption of constructive possession); United States v. Horodner, 993 F.2d 191, 193 (9th Cir. 1993) (leaving firearm with repairman for one week does not establish break in constructive possession).

Therefore, to charge and punish a defendant for more than one § 922(g)(1) offense for separate "possessions" of the same gun, there must be a relinquishment of both actual and constructive possession of the gun before it is reacquired. See United States v. Lloyd, 71 F.3d 1256, 1267 (7th Cir. 1995). Here, Ellis argues that he committed only one continuous § 922(g)(1) offense involving both of the firearms from the June 2005 straw purchase — the one he kept at his mother's house and the one that was in OG's actual possession at the time he retrieved it and gave it to the agents. Because he was convicted and punished for illegally possessing the guns in Illinois, he cannot be punished a second time in Indiana unless the government can establish that he relinquished constructive possession of the second firearm while it was in OG's actual possession.

Our cases hold that a gang leader constructively possesses a gang firearm when he has knowledge of the firearm's existence and intentionally directs the actions of those who physically possess it. United States v. Rawlings, 341 F.3d 657, 659 (7th Cir. 2003) ("[A] drug lord who directs his enforcers to arm themselves is, if they do so, a constructive possessor of the arms. He is acting through agents, just as in the case . . . of the felon who asks his companion to hold his gun for him." (citations omitted)); United States v. McAnderson, 914 F.2d 934, 947-48 (7th Cir. 1990) (upholding a finding of constructive possession where the gang leader "was aware of the violence that had been planned and knew that the weapons in the [gang's] possession would be used to commit [violent] acts"); see also Lloyd, 71 F.3d at 1266 ("Constructive possession exists when a person does not have actual possession but instead knowingly has the power and the intention at a given time to exercise dominion and control over an object, either directly or through others." (quotation marks omitted)). As the chief enforcer for the Gangster Disciples, Ellis certainly was a gang leader, but the district court held that he could not have had "constructive possession of every firearm in the possession of a member of the Gangster Disciples."

We think this overstates the inquiry. The pertinent question is not whether Ellis was in constructive possession of every firearm in the Gangster Disciples' arsenal but whether he relinquished constructive possession of this particular firearm while it was in the actual possession of OG, his gang associate. And on this question the record is scanty and the government's argument nonexistent. We do not know how long Ellis possessed the gun after the straw purchase in June 2005. We do not know when he gave it to OG (or how OG otherwise came into actual possession of it) or what OG's possessory "rights" were with respect to the firearm. We do know that Ellis was able to reacquire actual physical possession of the gun on a moment's notice on July 29 and then permanently deprive OG of possession of it. The government has focused its argument exclusively on the break in actual possession of the firearm and does not address the question of constructive possession at all.

Moreover, Conley, on which the government heavily relies, is factually distinguishable from this case. There, the defendant was indicted for two violations of § 922(g)(1) for possessing the same shotgun on two dates about six months apart. Conley, 291 F.3d at 467. The shotgun in question was not owned by the defendant but by a friend who lived in a trailer behind the defendant's house. The first count in the indictment charged the defendant with possessing the shotgun on July 7, 1999; the evidence established that on that date he had fired it to scare a group of teenagers off his property. The second count charged him with possessing the shotgun about six months later, in January 2000. Regarding this second possession, the evidence established that the owner of the shotgun had resumed possession of it sometime after the July 7 incident and retained possession until the fall when he moved away and abandoned the gun to the defendant. During the execution of a search warrant on January 27, 2000, the shotgun was found in the defendant's padlocked storage shed, along with many other items of his property. Id. at 467-68. This evidence, we held, established an interruption in the defendant's possession of the shotgun sufficient to establish two separate crimes and therefore permit more than one punishment for distinct acts of possessing the same firearm. Id. at 470-71.

Conley thus involved two separate episodes of actual possession of the same firearm; the question was whether there was a sufficient break between the two for double-jeopardy purposes. Constructive possession was not at issue. This case is different. Here, it is undisputed that Ellis relinquished actual possession of the second gun after he acquired it from the straw purchaser in June 2005; the important question for double-jeopardy purposes is whether he relinquished constructive possession as well. As we have noted, the government has not discussed this question at all; it has not addressed, that is, whether the evidence establishes that Ellis intended either to relinquish or maintain control over the gun while OG had it. As far as we can tell, to the extent the evidence points in one direction or another, it appears to suggest that Ellis intended to maintain dominion and control over the gun. He knew exactly where it was kept and was able to get it back from OG in very short order and deprive him permanently of it.

In any event, we are hard-pressed to credit the opposite view of the evidence when the government has neither made nor supported an argument in favor of it. In the face of this silence, we conclude that double jeopardy precludes punishing Ellis twice under § 922(g)(9) — first in the Illinois case and then in the Indiana case — based on his possession of the same gun. His motion to dismiss Count 9 should have been granted.

Our cases are not clear about who has the burden in a double-jeopardy claim of this type. In United States v. Dortch, 5 F.3d 1056, 1061 (7th Cir. 1993), we said that "at the post-trial stage the defendant alone bears the burden of proving that he or she has been charged with the same offense twice." On the other hand, in United States v. Doyle, 121 F.3d 1078, 1089 (7th Cir. 1997), we applied a burden-shifting approach and held that "[t]he defendant first must set out a prima facie case that the second indictment charges him with the same offense for which he has already been convicted. Then, the burden switches to the government to demonstrate, by a preponderance of the evidence, that the two indictments charged separate offenses." Conley considered the double-jeopardy question — whether there was an interruption in the defendant's possession of the firearm — to be part of the government's general burden of proof at trial. United States v. Conley, 291 F.3d 464, 470-71 (7th Cir. 2002). ("Because the Government was required to convince the jury beyond a reasonable doubt of Conley's possession of the shotgun on two separate dates, as two distinct courses of conduct, the Government established the elements of two separate crimes."). The disagreement over the applicable standards is not limited to this circuit. See, e.g., United States v. Hope, 545 F.3d 293, 296 (5th Cir. 2008) ("To prevail on a double jeopardy argument, the defendant bears the burden to establish, both in law and in fact, the commonality of the offenses." (quotation marks omitted)); United States v. Olmeda, 461 F.3d 271, 282 (2d Cir. 2006) ("In considering double jeopardy challenges to successive conspiracy prosecutions, this court has identified a shifting burden of proof."); United States v. Jones, 403 F.3d 604, 606 (8th Cir. 2005) ("The government argues that the record will support a finding beyond a reasonable doubt that Mr. Jones knowingly lost and then regained possession of the firearm. . . . "); see also United States v. Guzman, 85 F.3d 823, 827 n. 3 (1st Cir. 1996) (recognizing other circuits' various positions). As we have noted, the government relied entirely on Conley in its brief and at oral argument acknowledged that it had the burden of establishing factually separate offenses beyond a reasonable doubt. We will hold the government to this concession.

B. Sentencing Challenges

1. Sentencing Enhancement Under the Armed Career Criminal Act

The two district courts disagreed over whether Ellis's Indiana conviction for felony intimidation qualifies as a third predicate violent felony for purposes of the enhanced penalties in the ACCA and the corresponding sentencing guidelines. This is the primary issue in Ellis's challenge to his sentence in the Indiana case and prompted the government's cross-appeal in the Illinois case.

Ordinarily, a defendant who violates § 922(g)(1) may be "imprisoned not more than 10 years." 18 U.S.C. § 924(a)(2). But under the ACCA, a defendant who violates § 922(g)(1) "shall be . . . imprisoned not less than fifteen years" if he "has three previous convictions . . . for a violent felony or a serious drug offense, or both." 18 U.S.C. § 924(e)(1). As relevant here, the ACCA defines "violent felony" as any crime punishable by more than one year in prison and that "has as an element the use, attempted use, or threatened use of physical force against the person of another." Id. § 924(e)(2)(B)(i). A defendant who is subject to the ACCA's enhanced penalties as an armed career criminal is also subject to higher offense and criminal-history levels under the sentencing guidelines. See U.S.S.G. § 4B1.4.

The parties agree that two of Ellis's convictions — for robbery and armed robbery — are violent felonies. Their disagreement centers on whether his Indiana conviction for felony intimidation under IND. CODE § 35-45-2-1 qualifies as a third violent felony. A person is guilty of intimidation under Indiana law if he "communicates a threat to another person" with one of three prohibited intents; the one that is relevant here is "the intent . . . that the other person be placed in fear of retaliation for a prior lawful act." IND. CODE § 35-45-2-1(a)(2). The statute also defines "threat" in several different ways. The relevant definition in this case is "an expression, by words or action, of an intention to . . . unlawfully injure the person threatened or another person." Id. § 35-45-2-1(c)(1). Although Indiana's intimidation offense is generally a misdemeanor, the crime is a felony (and carries a possible prison term of more than one year) if the threat is directed at a law-enforcement officer. Id. § 35-45-2-1(b)(1)(B)(i).

Ellis pleaded guilty to a state-court information charging him with Class D felony intimidation for threatening to "harm" a police officer who had arrested him. As we have noted, this implicates the version of the intimidation offense that requires an "expression . . . of an intention to unlawfully injure" another "with the intent . . . that the other person be placed in fear of retaliation for a prior lawful act." IND. CODE § 35-4-2-1(a)(2) and (c)(1). After reviewing the state-court record, the district judge in the Illinois case decided that Ellis's offense was not a violent felony because "the [state-court] judge did not really believe that Mr. Ellis engaged in or was about to engage in any actual violent behavior." The Indiana judge disagreed and held that a conviction for the offense described in subsections (a)(2) and (c)(1) of the Indiana statute "has as an element the threatened use of physical force against another person" and therefore counts as a violent felony. We review these determinations de novo. United States v. Woods, 576 F.3d 400, 408 (7th Cir. 2009).

Ellis argues that the Indiana district judge was precluded from considering the application of the ACCA to his intimidation conviction because the issue had already been decided by the Illinois district court. As a general matter, "[i]ssue preclusion bars successive litigation of `an issue of fact or law' that `is actually litigated and determined by a valid and final judgment, and . . . is essential to the judgment.'" Bobby v. Bies. U.S. 129 S.Ct. 2145, 2152, 173 L.Ed.2d 1173 (2009) (quoting RESTATEMENT (SECOND) OF JUDGMENTS § 27 (1980)). It is unclear how the doctrine of issue preclusion applies in criminal sentencing. The Supreme Court has applied the doctrine to a jury's factual determinations necessary to an acquittal, Ashe v. Swenson, 397 U.S. 436, 443-45, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970), but it has also suggested that the doctrine applies more narrowly in the criminal context than the civil context, Standefer v. United States, 447 U.S. 10, 22-25, 100 S.Ct. 1999, 64 L.Ed.2d 689 (1980). We have uncovered only one case in which a federal circuit court applied issue preclusion at sentencing, and that was in a capital case. See Delap v. Dugger, 890 F.2d 285, 314-19 (11th Cir. 1989). Because we agree with Ellis's position on the merits, we need not decide the procedural issue here.

A "categorical approach" applies to the determination of whether a crime qualifies as a violent felony under the ACCA. See, e.g., United States v. Dismuke, 593 F.3d 582, 589 (7th Cir. 2010); Woods, 576 F.3d at 403-04. Under this approach "we `look only to the fact of conviction and the statutory definition of the prior offense' rather than the `particular facts disclosed by the record of conviction.' " Dismuke, 593 F.3d at 589 (quoting Shepard v. United States, 544 U.S. 13, 17, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005) (internal quotation marks omitted)). A modified categorical approach applies when the relevant statute is divisible — that is, when the statute describes multiple crimes or one crime with multiple modes of commission. Id. This approach permits an "expand[ed] . . . inquiry into a limited range of additional material . . . in order to determine whether the jury actually convicted the defendant of (or, in the case of a guilty plea, the defendant expressly admitted to) violating a portion of the statute that constitutes a violent felony." Id. (internal quotation marks and emphasis omitted). This inquiry, however, is limited to "the terms of the charging document, the terms of a plea agreement or transcript of colloquy between judge and defendant in which the factual basis for the plea was confirmed by the defendant, or to some comparable judicial record of this information." Shepard, 544 U.S. at 26, 125 S.Ct. 1254. Importantly, the point of the modified categorical approach is to determine which part of a divisible statute the defendant was convicted of violating, not to evaluate the actual facts of the underlying case. Dismuke, 593 F.3d at 589. As such, the Illinois judge's focus on whether Ellis had "engaged in or was about to engage in any actual violent behavior" was misplaced.

The Illinois judge reached the right result, however, if by the wrong route. Indiana's intimidation statute is divisible in the sense required to trigger the modified categorical approach, so a review of the state-court charging document and Ellis's plea colloquy was appropriate — but only to determine which part of the Indiana intimidation statute he was convicted of violating. As we have already noted, it is clear from these documents that Ellis was convicted under subsections (a)(2) and (c)(1) of the statute for threatening to "unlawfully injure" a law-enforcement officer, making his offense a felony under the penalty section of the statute. IND. CODE § 35-45-2-1(b)(1)(B)(i). The government maintains, and the Indiana district court held, that this crime "has as an element the . . . threatened use of physical force against the person of another." 18 U.S.C. § 924(e)(2)(B)(i). We disagree.

The Supreme Court's decision in Johnson v. United States, ___ U.S. ___, 130 S.Ct. 1265, 176 L.Ed.2d 1 (2010), provides the framework for determining whether a crime has as an element the use of physical force against another. The Supreme Court explained in Johnson that "in the context of a statutory definition of 'violent felony,' the phrase `physical force' means violent force — that is, force capable of causing physical pain or injury to another person." Id. at 1271 (citing Flores v. Ashcroft, 350 F.3d 666, 672 (7th Cir. 2003)). Applying this interpretation, the Court concluded that Florida's battery statute — which requires for conviction only intentional physical contact, no matter how slight, see id. at 1269-70 — did not include as an element the use of physical force and therefore was not a violent felony under the ACCA. Id. at 1274.

If under Indiana law a threat to "unlawfully injure" another person includes only threats to inflict physical injury, then a violation of subsection (c)(1) of Indiana's intimidation statute has as an element the threatened use of physical force, as required by the ACCA and explained in Johnson. Ellis argues, however, that the statute does not require a threat to inflict a physical injury, noting instead that a threat to "unlawfully injure" can be directed at either physical or nonphysical injuries, the latter including emotional or reputational harms. The government notes in supplemental briefing that most of the published Indiana cases analyzing convictions under subsection (c)(1) involve threats of physical force against others. See, e.g., Hyde v. State, 531 N.E.2d 472, 473 (Ind. 1988) (shotgun owner's threat to "blow [officer] away"); H.J. v. State, 746 N.E.2d 400, 403 (Ind.Ct.App. 2001) (threat to put gun to another's head and pull trigger). But neither the language of the statute itself nor any Indiana case limits the reach of subsection (c)(1) to threats of physical injury. Indeed, Ellis has alerted us to one Indiana Supreme Court decision suggesting that subsection (c)(1) covers threats to inflict nonphysical injuries.

In Meek v. State, 205 Ind. 102, 185 N.E. 899 (1933), the defendant threatened to disinter and sell the body of a widow's late husband unless she paid $200. Indiana charged the defendant with violating the then-operative blackmail statute, which criminalized "threat[s] to do any injury to the person or property of any one." Id. at 900. The defendant argued that the prosecution failed under the statute because he had not threatened to do any injury to the victim herself or to her property. The Indiana Supreme Court rejected this argument, instead concluding that "injury to the person" included "a threat to invade any right for the invasion of which an action in damages would lie." Id. at 901. Thus, the court explained, "The damage that would result to a widow from disinterment, removal, or destruction of the body of her husband consists principally, at least, in physical and mental pain, anguish, and suffering, and to that extent is an `injury to the person.'" Id. Meek teaches that "an injury to the person" for purposes of Indiana's threat statute encompasses threats of physical and nonphysical injuries. Although subsection (c)(1) of the intimidation statute uses the term "unlawfully injure," the fact that the earlier and the current version of the statute use the word "injury" without any modifier is significant. An "injury" is "[t]he violation of another's legal right, for which the law provides a remedy," and can be either physical or nonphysical. BLACK'S LAW DICTIONARY 856 (9th ed. 2009). Moreover, the Indiana Code uses the phrases "bodily injury" and "serious bodily injury" to signify physical injuries. See IND. CODE §§ 35-41-1-4 (defining "bodily injury") 35-41-1-25 (defining "serious bodily injury"); see also IND. CODE § 35-42-2-1(a) (using the terms in the battery statute). If the intimidation offense described in subsection (c)(1) of the statute were limited to threats of physical injury, it would use a term such as "bodily injury," as the `Indiana Code does elsewhere when only physical injury is meant. Instead, the intimidation statute uses the general term "injure" and therefore applies more broadly to encompass threats to inflict "unlawful injury," whether physical or nonphysical.

The government contends that this interpretation is in direct tension with United States v. Sperberg, 432 F.3d 706, 707-08 (7th Cir. 2005), which held that a conviction under a similar Wisconsin statute was a violent felony. At issue in Sperberg was Wis. STAT. 943.30(1), which provides in relevant part: "Whoever . . . threatens or commits any injury to the person . . . of another . . . with intent to compel the person so threatened to do any act against the person's will or omit to do any lawful act, is guilty of a Class H felony." The defendant in Sperberg stole lobster tails from a grocery store, and while making his escape told a security guard to get out of his way, stating, "I've got a gun and I'll shoot you." Although noting that "Wisconsin equates physical and economic injury," we affirmed the district court's determination that Sperberg's crime was a "violent felony" because the defendant had threatened the guard with physical injury. Id. at 707-08.

Our later decision in Woods undermines Sperberg to the extent that its holding was premised on an examination of the specific facts underlying the defendant's conviction when the statute describing the crime is nondivisible. Woods specifically disavowed this understanding of the modified categorical approach. See Woods, 576 F.3d at 404 ("What the sentencing court cannot do is to look at the particular facts underlying the defendant's conviction."). Under the modified categorical approach, properly understood, the result in Sperberg would likely have been different; the opinion specifically noted that Wis. STAT. 943.30(1) permits prosecutions for threats to cause physical and nonphysical injuries. Sperberg, 432 F.3d at 708. Sperberg does not control the outcome here.

We hold that Ellis's conviction under IND. CODE § 35-45-2-1(a)(2) and (c)(1) is not a violent felony under the ACCA because it does not "ha[ve] as an element the . . . threatened use of physical force against the of another." § 924(e)(2)(B)(i). This conclusion requires resentencing in the Indiana case. The government has not argued that Ellis's intimidation conviction qualifies as a violent felony under the ACCA's residual clause. See id. at § 924(e)(2)(B)(ii) (a crime is a "violent felony" if the crime "is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another"); see also Begay v. United States, 553 U.S. 137, 128 S.Ct. 1581, 170 L.Ed.2d 490 (2008) (analyzing the residual clause). Neither district court considered this question, and by not advancing this alternative argument on appeal, the government has waived it. See United States v. Knox, 573 F.3d 441, 450 (7th Cir. 2009).

2. Reasonableness of the Illinois Sentence

Ellis's advisory guidelines range in the Illinois case was 46 to 57 months, but the district court imposed an above guidelines sentence of 90 months in prison. The judge explained that Ellis's extensive criminal history justified a sentence above the recommended range, noting that Ellis's prior crimes were "potentially horrifying to the people involved" and that his earlier "ten-year time in jail did not deter [him] from committing crimes when he got out of jail." Ellis argues that 90 months is unreasonably high. The government argues that 90 months is unreasonably low. Our review is for an abuse of discretion. Gall v. United States, 552 U.S. 38, 51, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007). "[W]e will uphold an above guidelines sentence so long as the district court offered an adequate statement of its reasons, consistent with 18 U.S.C. § 3553(a), for imposing such a sentence." United States v. McIntyre, 531 F.3d 481, 483 (7th Cir. 2008) (per curiam).

Under the circumstances here, a 90-month sentence strikes us as quite lenient. Ellis is a former chief enforcer for a violent Chicago street gang, committed serious gun crimes, and has an appalling criminal record and an acknowledged history of torture and extortion. But the court's explanation for the sentence was adequate and grounded in an appropriate consideration of the § 3553(a) factors. That a longer sentence would have made sense does not make this sentence unreasonable. And the 90-month sentence is hardly unreasonably high, as Ellis contends. There was no abuse of discretion.

III. Conclusion

For the foregoing reasons, the judgment in the Illinois case is AFFIRMED. Ellis's conviction on Count 9 in the Indiana case is REVERSED, but the remaining convictions are AFFIRMED. Ellis's sentence in the Indiana case is VACATED, and the case is REMANDED for resentencing consistent with this opinion.