                               In the

    United States Court of Appeals
                 For the Seventh Circuit
                     ____________________
No. 18-3545
UNITED STATES OF AMERICA,
                                                   Plaintiff-Appellee,
                                 v.

RUBEN PORRAZ,
                                               Defendant-Appellant.
                     ____________________

         Appeal from the United States District Court for the
           Northern District of Illinois, Eastern Division.
          No. 16 CR 463-7 — Virginia M. Kendall, Judge.
                     ____________________

 ARGUED SEPTEMBER 13, 2019 — DECIDED NOVEMBER 27, 2019
                ____________________

   Before BAUER, ROVNER, and SYKES, Circuit Judges.
    SYKES, Circuit Judge. Ruben Porraz was the leader of a
Chicago chapter of the Latin Kings gang for about four
years. In 2018 he pleaded guilty to participating in a racket-
eering conspiracy in violation of the Racketeer Influenced
and Corrupt Organizations Act (“RICO”), 18 U.S.C. §§ 1961–
1968. The district judge applied the base offense level for
conspiracy to commit murder, factored in Porraz’s criminal
history, and sentenced him to 188 months in prison.
2                                                  No. 18-3545

    Porraz argues that his sentence was procedurally defec-
tive because he didn’t kill anyone and murder wasn’t a
reasonably foreseeable part of the conspiracy. He also claims
his sentence was substantively unreasonable because of
unwarranted disparities between his sentence and sentences
imposed on other Latin Kings members.
    We affirm. Porraz’s admitted conduct defeats his claim
that murder was not a reasonably foreseeable part of his
gang activities. And the judge considered and responded to
his disparity arguments.
                        I. Background
    The Latin Kings is a hierarchical and multinational vio-
lent street gang. The gang distributes cocaine, heroin, and
marijuana; and engages in assault, burglary, homicide,
identify theft, and money laundering, among other unlawful
activities. Members have been prosecuted within this circuit
on many occasions. See, e.g., United States v. Garcia, 754 F.3d
460 (7th Cir. 2014); United States v. Tello, 687 F.3d 785 (7th
Cir. 2012); United States v. King, 627 F.3d 641 (7th Cir. 2010);
United States v. Olson, 450 F.3d 655 (7th Cir. 2006).
    Local groups of the Latin Kings are organized into
“tribes” that represent specific neighborhoods and have
ranked leaders. Near the top of the tribal hierarchy sits the
“Inca”—the president. Ruben Porraz became a member of
the 89th Street Chapter when he was only 13 years old. He
rose in the ranks from soldier (the entry-level position) to
Inca over a nine-year period.
   As a soldier Porraz defended the chapter’s territory with
violence. He participated in “hood days,” during which he
stood with other gang members holding guns in order to
No. 18-3545                                                 3

protect the territory. He also brawled with and shot at rival
gang members.
    In 2000 Porraz was convicted of possession of a con-
trolled substance and imprisoned for two years. From 2002
through 2011, Porraz had no run-ins with law enforcement.
He satisfactorily completed his parole and was regularly
employed.
    Porraz again became an active member of the Latin Kings
sometime between late 2012 and early 2013. At the request of
the leadership, he assumed the role of Inca of the 89th Street
Chapter. He controlled the chapter’s drug-trafficking activi-
ties, ensured that the chapter was well stocked with guns,
and required members to participate in hood days. He
collected dues and ordered his subordinates to “smash on
sight” (beat up) the members who didn’t pay up.
   In 2016 Porraz and 19 other defendants were charged
with participating in a racketeering conspiracy. Porraz was
indicted on a single RICO conspiracy count under 18 U.S.C.
§ 1962(d). The indictment charged him with participating in
the Latin Kings organization, knowing the gang engaged in
murder, arson, robbery, extortion, witness tampering, and
drug distribution.
    Porraz pleaded guilty in 2018. In his plea declaration and
at the change-of-plea hearing, Porraz admitted the follow-
ing:
   •   He joined the 89th Street Chapter of the Latin Kings in
       1993.
   •   He was expected to participate in and support the
       gang by fighting, stabbing, shooting, and killing rival
       gang members.
4                                                  No. 18-3545

    •   He shot at the Latin Dragons, members of a rival
        gang, on five separate occasions.
    •   He became Inca of the 89th Street Chapter in either
        late 2012 or early 2013 at the request of the Latin
        Kings leadership.
    •   In his Inca role, he knew where the 89th Street Chap-
        ter stored its firearms, was responsible for protecting
        the neighborhood from incursions by rival gangs, and
        was responsible for the chapter’s drug operations.
    Prior to sentencing, the probation office submitted a
presentence report (“PSR”) to the district court. Based on the
admissions in the plea declaration, the probation office
concluded that U.S.S.G. § 2A1.5—the guideline for conspira-
cy to commit murder—governed Porraz’s underlying con-
duct. This resulted in a base offense level of 33. U.S.S.G.
§ 2A1.5(a). The PSR recommended that the judge apply a
criminal-history category IV, which when combined with an
offense level 33 yielded a Guidelines range of 188 to
235 months in prison.
    Porraz argued that § 2A1.5 should not have been used to
calculate the base offense level. He claimed that murder was
not within the scope of the conspiracy because he didn’t kill
anyone and couldn’t reasonably foresee that the Latin Kings
members would kill people. He emphasized that he directed
“smash on sight” orders and contended that the base offense
level should be 27 according to U.S.S.G. § 2A2.1(a)(2), which
applies to acts of assault with intent to commit murder and
attempted murder.
   Porraz also argued that he should be sentenced within
the range of punishment faced by codefendant Adam Flores
No. 18-3545                                                5

and similar to the sentences imposed on other Latin Kings
members in an unrelated case, United States v. Zambrano,
No. 08 CR 746-1, 2011 WL 4565796 (N.D. Ill. Sept. 25, 2011).
Flores pleaded guilty pursuant to a cooperation agreement
with the government, and the government agreed to rec-
ommend a 71-month sentence. Porraz identified ten defend-
ants from Zambrano whose sentences ranged from 42 to
84 months in prison.
    The judge concluded that the scope of Porraz’s conspira-
cy included conspiracy to commit murder. She found that
Porraz’s plea admissions fatally undermined his argument
that his participation in the gang’s criminal activities was
limited to assaults. The judge observed that it was not
necessary to find that Porraz personally committed a murder
or ordered a hit in order to find that he was part of a con-
spiracy to commit murder. As the PSR recommended, she
adopted a base offense level of 33 and a criminal-history
category IV, for a Guidelines range of 188 to 235 months in
prison.
    The judge then rejected Porraz’s argument that his sen-
tence ought to be within the same range as Flores and simi-
lar to the sentences imposed on the Zambrano defendants.
She pointed out that the focus of the Zambrano case was
narcotics trafficking, not violence; that Porraz admitted to
different activities than did the defendants in Zambrano; and
that Flores was a cooperating witness who did not have
Porraz’s criminal history. She sentenced Porraz to
188 months in prison, the bottom of the Guidelines range.
6                                                 No. 18-3545

                        II. Discussion
    We use a two-step process to review sentencing determi-
nations. United States v. Faulkner, 885 F.3d 488, 498 (7th Cir.
2018). First, we ask whether the district court committed any
procedural error, such as failing to calculate (or improperly
calculating) the Sentencing Guidelines range, treating the
Guidelines as mandatory, failing to consider the § 3553(a)
sentencing factors, or selecting a sentence based on clearly
erroneous facts. Id. Second, if we find no procedural error,
we review the substantive reasonableness of the sentence. Id.
Porraz argues that his sentence was both procedurally and
substantively unreasonable. We disagree, for reasons
grounded in well-established conspiracy and sentencing
law.
A. Procedural Error
    We review de novo a judge’s application and computa-
tion of a defendant’s Sentencing Guidelines range. United
States v. White, 737 F.3d 1121, 1139 (7th Cir. 2013). We review
for clear error a judge’s factual determinations underlying
the application of the Guidelines—like the determination
that a defendant conspired to commit murder. United States
v. Harper, 766 F.3d 741, 744 (7th Cir. 2014). Reversal is war-
ranted only if “after reviewing the entire record, we are left
with the firm and definite conviction that a mistake has been
made.” United States v. Ranjel, 872 F.3d 815, 818 (7th Cir.
2017) (quotation marks omitted).
   “[T]he essence of a conspiracy is an agreement to commit
an unlawful act.” United States v. Jimenez Recio, 537 U.S. 270,
274 (2003) (quotation marks omitted). For a defendant to be
held accountable for the conduct of others at sentencing, that
No. 18-3545                                                 7

conduct must have been (1) in furtherance of the jointly
undertaken criminal activity and (2) reasonably foreseeable
in connection with the criminal activity that the defendant
agreed to join. United States v. Edwards, 115 F.3d 1322, 1327
(7th Cir. 1997).
    Porraz argues § 2A2.1(a)(2) rather than § 2A1.5 should
have been used to calculate his base offense level because his
most serious underlying racketeering acts were his smash-
on-sight orders and murder wasn’t a reasonably foreseeable
result of his gang activities. But we have held that the overt
acts personally committed by a defendant do not establish the
most serious underlying racketeering activity attributable to
him. We have emphasized that murder can be a reasonably
foreseeable result of a defendant’s gang activities even if he
did not kill anyone or otherwise personally participate in a
murder.
   In United States v. Garcia, we used § 2A1.5 to determine
the base offense level for Luis Garcia, another Inca. 754 F.3d
460 (7th Cir. 2014). Like Porraz, Garcia pleaded guilty to
committing overt acts of drug distribution. Id. at 484. Like
Porraz, Garcia didn’t admit to committing murder. But the
judge found that “the use of murder as a tool to maintain the
gang’s reputation, protect its territory, and further its drug
trade was foreseeable to [Garcia] when he joined the con-
spiracy.” Id.
   We affirmed Garcia’s sentence. Id. at 488. We rejected his
argument that the guideline for conspiracy to commit mur-
der shouldn’t be applied to him because he didn‘t kill any-
one and couldn’t foresee that other Latin Kings would kill
anyone. Id. at 485. We noted that Garcia was an active gang
member, both as a drug distributor and an Inca. Id. at 484–
8                                                            No. 18-3545

85. We explained that the Latin Kings’ constitution and the
rules of Garcia’s chapter expressly contemplated violence,
including homicide, and that his duties as an Inca included
protecting the chapter’s territory with violence, if necessary.
Id. at 485. “It [did] not matter that there was no evidence that
[Garcia] pulled a trigger.” Id.
    Garcia controls this case. In his plea declaration, Porraz
admitted to having been an active participant in the Latin
Kings’ activities, both as a drug distributor and an Inca. He
acknowledged that he was responsible for protecting the
chapter’s territory and safeguarding the gang’s guns. He
knew that protecting the chapter’s territory entailed shoot-
ing at rival gangs. Murder was therefore a foreseeable part
of Porraz’s agreement with gang members. The judge cor-
rectly applied the guideline for conspiracy to commit mur-
der. 1




1  Even if U.S.S.G. § 2A2.1 were the proper guideline, Porraz’s base
offense level would likely remain the same. That guideline provides for a
base offense level of 33 “if the object of the offense would have constitut-
ed first degree murder.” U.S.S.G. § 2A2.1(a)(1) First-degree murder is
“conduct that … would constitute first degree murder under 18 U.S.C.
§ 1111.” Id. § 2A2.1 cmt. n.1. First-degree murder includes “willful,
deliberate, malicious, and premeditated killing.” 18 U.S.C. § 1111. If
Porraz’s smash-on-sight orders were assaults with intent to commit
murder or attempted murder, as he argues, his admission that they were
part of a plan to raise Latin Kings revenue would probably require that
§ 2A2.1(a)(1) be applied and he receive a base offense level of 33. Calcu-
lation errors in the context of sentencing that do not affect the base
offense level are harmless. See United States v. Westerfield, 714 F.3d 480,
489 (7th Cir. 2013); United States v. Crockett, 82 F.3d 722, 730 (7th Cir.
1996).
No. 18-3545                                                 9

B. Substantive Reasonableness
    In reviewing sentences for substantive reasonableness,
we do not substitute our judgment for that of a district
judge, who is better situated to make individualized sentenc-
ing decisions. United States v. Wachowiak, 496 F.3d 744, 751
(7th Cir. 2007). We review for abuse of discretion the sub-
stantive reasonableness of a sentence, considering the
judge’s explanation of his reasons for imposing the sentence.
United States v. Gill, 889 F.3d 373, 378 (7th Cir. 2018). We
uphold a sentence so long as the judge offers an adequate
statement of his reasons consistent with the sentencing
factors enumerated in 18 U.S.C. § 3553(a). United States v.
Melendez, 819 F.3d 1006, 1013 (7th Cir. 2016).
    The Sentencing Reform Act requires a judge to consider
“the need to avoid unwarranted sentence disparities among
defendants with similar records who have been found guilty
of similar conduct.” 18 U.S.C. § 3553(a)(6). We have held that
a sentence within a properly calculated Sentencing Guide-
lines range is presumptively reasonable and cannot be
treated as unreasonable by reference to § 3553(a)(6). United
States v. Gonzales, 765 F.3d 732, 740 (7th Cir. 2014).
   Porraz asked the judge to sentence him similarly to code-
fendant Adam Flores, who had not yet been sentenced. The
judge responded that Flores, unlike Porraz, had not pleaded
guilty to acts of violence, that Porraz had a more extensive
criminal history than Flores, and that Flores had agreed to
cooperate with the government.

   The judge gave Porraz’s codefendant-based argument
more consideration than the law requires. A judge is not
required to give any consideration to the sentencing expo-
10                                                   No. 18-3545

sure of a codefendant who has not yet been sentenced. See,
e.g., United States v. Cardena, 842 F.3d 959, 999 (7th Cir. 2016);
United States v. Sanchez, 710 F.3d 724, 732–33 (7th Cir. 2013),
vacated on other grounds, 571 U.S. 801 (2013). Furthermore, the
distinctions the judge drew between Porraz and Flores were
not unwarranted and were adequately explained. See United
States v. Duncan, 479 F.3d 924, 929–30 (7th Cir. 2007) (holding
that a sentence disparity grounded in differences among
offenses to which different defendants pleaded guilty and
differences in criminal history is not unwarranted); United
States v. Boscarino, 437 F.3d 634, 638 (7th Cir. 2006) (holding
that “a sentencing difference is not a forbidden ‘disparity’ if it
is justified by legitimate considerations, such as rewards for
cooperation”).
   Finally, Porraz asked the judge to sentence him similarly
to the defendants in United States v. Zambrano. The judge
responded that the defendants whom Porraz considered
comparable to himself and received sentences of between 42
and 84 months in prison admitted only to drug trafficking.
But Porraz admitted to drug trafficking, shooting at rival
gang members, and safeguarding the gang’s weapons. The
judge thus addressed each of the issues Porraz believed
created unwarranted disparities and explained why they did
not. The law requires no more. Gill, 889 F.3d at 378.
   Porraz has not rebutted the presumption that his within-
Guidelines sentence was substantively reasonable. We will
not disturb it.
                                                       AFFIRMED
