                      NONPRECEDENTIAL DISPOSITION
                        To be cited only in accordance with
                                Fed. R. App. P. 32.1




      United States Court of Appeals
                             For the Seventh Circuit
                             Chicago, Illinois 60604

                                   May 9, 2007

                                      Before

                   Hon. KENNETH F. RIPPLE, Circuit Judge

                   Hon. ILANA DIAMOND ROVNER, Circuit Judge

                   Hon. DIANE S. SYKES, Circuit Judge


No. 01-1949

UNITED STATES OF AMERICA,                    Appeal from the United States
                                             District Court for the Eastern
                                             District of Wisconsin,
      Plaintiff-Appellee,

              v.                             No. 98 CR 104

PEDRO MARTINEZ, also known                   Lynn Adelman,
as PISTOL PETE,                              Judge.

      Defendant-Appellant.

                                     ORDER

       Pedro Martinez appealed his conviction and sentence for racketeering and
drug conspiracy charges. We affirmed his conviction, United States v. Olson, 450
F.3d 655 (7th Cir. 2006), and ordered a limited remand to ask whether the district
court would have imposed the same sentence under an advisory regime. United
States v. Paladino, 401 F.3d 471, 483-84 (7th Cir. 2005), cert. denied, 126 S. Ct.
1343 (2006). See also United States v. Booker, 543 U.S. 220 (2005). The district
court has now indicated that it would impose the same sentence knowing that the
No. 01-1949                                                                    Page 2

guidelines are advisory rather than mandatory. United States v. Martinez, No. 98-
CR-104, 2006 WL 2845693 (E.D. Wis. Oct. 2, 2006) (hereafter "Memorandum"). We
invited Martinez and the United States to respond to the district court's
Memorandum and both have now done so. The United States urges us to affirm the
sentence as reasonable given the nature of Martinez's conduct, which included
murder, attempted murder, solicitation to commit murder, drug trafficking, witness
tampering, and racketeering. We will address Martinez's response after reviewing
the findings of the district court.

       In its thorough ten-page Memorandum, the district court accepted the
recommendations of the presentence report, which set the offense level at 52 and
the criminal history category at IV. As the government notes, this combination is
"literally off the chart." That is, the relevant guidelines chart ends at level 43 with
a sentencing range of life for criminal history category IV. The court thus correctly
found that the range for Martinez is life. The court then carefully considered the
factors set forth in 18 U.S.C. § 3553(a), applying each section to Martinez's
particular circumstances. Martinez was convicted of racketeering, conspiracy to
commit racketeering and conspiracy to distribute controlled substances. He was the
highest ranking leader of the Milwaukee chapter of the Latin Kings from 1992
through 1994. Among the predicate acts underlying the racketeering count were
conspiracy to murder, murder, attempted murder, solicitation to commit murder
and witness intimidation. The evidence at trial showed that the murder was
committed because the victim had offended the Latin Kings with a hand gesture the
group considered disrespectful. When Martinez's co-defendant fired multiple shots
into the victim's car, he did so without regard to the victim's passenger who was
wounded but survived, giving rise to the attempted murder charge. After the
charges in this case were filed, Martinez sought to have a cooperating witness
killed. Martinez also was involved in the distribution of a large quantity of illegal
drugs. Martinez argued to the district court that, immediately before the murder,
he attempted to stop the shooter. The court declined to credit Martinez's version of
events, finding that, rather than having a mitigated role in the killing, Martinez
provided a get-away for the shooter, ordered the disposal of the murder weapon,
hired a lawyer for the shooter using gang money, and had originally issued the
order to beat or shoot the victim on sight because she had publicly disrespected the
Latin Kings. As the court noted, "the crimes [the] defendant committed were
extremely serious, and [the] defendant has offered nothing persuasive in
mitigation."

      The court next considered Martinez' character, finding that by the time of his
original sentencing at the age of twenty-eight, he had already compiled a very
serious criminal record. During his incarceration on an unrelated drug case, he
committed a number of disciplinary infractions, and while jailed for the trial of this
No. 01-1949                                                                    Page 3


case, he assaulted another inmate. Additionally, he dropped out of high school,
fathered two children for whom he provided inadequate support, rarely worked and
used illegal drugs regularly. Against these facts, the court balanced the evidence of
Martinez's troubled childhood, his efforts to educate himself in prison, and his
strong family ties.

       Finally, the court considered whether a life sentence was necessary to satisfy
the purposes of sentencing under section 3553(a)(2). The court acknowledged that a
life sentence is "a most serious matter" and that a life sentence should be given only
when no lesser sentence will satisfy the purposes of sentencing. The court then
found that a life sentence was necessary to provide just punishment, to protect the
public, to deter Martinez and others from committing further crimes. Nor would
Martinez's rehabilitative needs be more effectively served by a lesser sentence. The
court noted that Martinez participated in a "brutal, cold-blooded murder to avenge a
slight to his gang," as well as the attempted murder and the solicitation for murder.
Commenting that the most serious sentences should be reserved for the most
serious crimes, the court concluded that these offenses qualified. Moreover,
Martinez had displayed a wanton disregard for life and a willingness to use extreme
violence for the smallest offenses; he also continued to commit violent acts in prison.
The court thus found it necessary to protect society from Martinez for the longest
time period possible. The court ruled that a life sentence was necessary to deter
others engaged in gang activity, and that Martinez's rehabilitative needs would not
be better served by a lesser sentence. The court therefore concluded that it would
have imposed the same sentence had it known the guidelines were advisory rather
than mandatory.

       We have held that a properly calculated guidelines sentence is entitled to a
rebuttable presumption of reasonableness. United States v. Mykytiuk, 415 F.3d
606, 608 (7th Cir. 2005). The district court has given a very thorough analysis of
the section 3553(a) factors in support of that sentence. See United States v. Dean,
414 F.3d 725, 729 (7th Cir. 2005) (holding that the sentencing judge need only
provide an adequate statement of the judge's reasoning, consistent with section
3553(a), for thinking that the sentence selected is indeed appropriate for the
particular defendant). Under the law of this circuit, that would be enough to affirm
the sentence as reasonable.

       Martinez offers several arguments in an attempt to rebut that presumption.
In his response to the court's Memorandum, Martinez argues that a life sentence is
unreasonable. He contends that the district court failed to give due weight to (1)
Martinez's attempt to stop the murder; (2) his troubled childhood; (3) his efforts to
improve his character during his incarceration; (4) the needs of his family; (5) the
statistical evidence that recidivism reduces with age; and (6) the efforts Martinez
No. 01-1949                                                                  Page 4

had made to ensure that he would not commit further crimes on his release from
prison. Martinez maintains that these "failures" rebut the presumption of
reasonableness applied to a sentence within the guidelines range. Our review of the
district court's order demonstrates that the district court considered all of these
factors and simply decided on balance that a guidelines sentence of life
imprisonment was warranted. There is nothing unreasonable about the district
court's analysis, conclusions, or sentence. We therefore affirm the sentence and the
judgment of the district court.

       The Supreme Court has issued a writ of certiorari to determine whether
presumptions like the one adopted in Mykytiuk are consistent with United States
Booker, 543 U.S. 220 (2005). See United States v. Rita, 177 Fed. Appx. 357 (4th Cir.
2006), cert. granted, 127 S. Ct. 551 (2006). We have therefore assessed the
reasonableness of Martinez's sentence without applying any presumptions. See
United States v. Nitch, 477 F. 3d 933, 937-38 (7th Cir. 2007). Without applying the
Mykytiuk presumption, we find that the district court's choice of sentence was
reasonable. The nature of Martinez's crimes, his continued criminal activity after
the charges in this case were filed, his lack of remorse, the need for specific and
general deterrence, and all of the other factors detailed in the district court's
Memorandum fully support a sentence of life imprisonment.

                                                                 AFFIRMED.
