                        NONPRECEDENTIAL DISPOSITION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

                              Argued September 17, 2013
                               Decided October 23, 2013

                                        Before

                           ANN CLAIRE WILLIAMS, Circuit Judge

                           DIANE S. SYKES, Circuit Judge

                           JOHN DANIEL TINDER, Circuit Judge



No. 12-2885                                      Appeal from the
                                                 United States District Court for the
UNITED STATES OF AMERICA,                        Northern District of Illinois,
          Plaintiff-Appellee,                    Eastern Division.

      v.                                         No. 10 CR 789-1

JASON HINTON,                                    Amy J. St. Eve,
          Defendant-Appellant.                   Judge.



                                       ORDER

       Jason Hinton appeals his conviction for distributing and conspiring to distribute
over 50 grams of crack cocaine. Hinton’s primary argument, aside from a meritless
challenge to his sentence, is that the district court should not have allowed the
government to withhold the identity of a confidential informant. At trial, however, he
submitted only a bare-bones motion that failed to explain why he needed to know the
informant’s identity. The district court denied the motion without prejudice and invited
Hinton to renew it if he could offer good reasons for compelling disclosure. Since
No. 12-2885                                                                                              Page 2

Hinton never renewed the motion, he waived the opportunity to elaborate on the need
for disclosure, and therefore we will not consider his new arguments on appeal. The
district judge did not abuse her discretion by demanding more explanation from
Hinton, so we affirm.

       The bulk of the evidence against Hinton at trial consisted of recorded phone calls
between himself and a confidential informant known only as “Chuck.” In these calls
Hinton agreed to sell about nine ounces of crack cocaine to Chuck, arranged a meeting
between Chuck and Winston Martin (Hinton’s runner and future codefendant), and
followed up after the sale to see if Chuck was satisfied. All of these calls were played for
the jury, and an FBI agent specializing in voice identification testified that the voice on
the calls was Hinton’s. As additional identification evidence, in the phone calls Hinton
and Chuck repeatedly used Hinton’s nickname, “Jay Cool,” which was tattooed on
Hinton’s forearms.

       Before trial began Martin filed, and Hinton adopted, a “Motion to Produce
Confidential Informant” requesting disclosure of Chuck’s identity. The motion was two
and a half pages long and cited only two cases, Roviaro v. United States, 353 U.S. 53
(1957), and United States v. Tucker, 552 F.2d 202 (7th Cir. 1977). The motion stated that
because “[t]he Confidential Informant is the only witness in a position to amplify or
contradict the testimony of [the agents] claiming to have controlled the transaction, and
witnessed conversations occurring during the transaction … [,] disclosure of the
identity of the Confidential Informant is required.” The district court denied the motion
without prejudice, finding that it presented only “undeveloped and conclusory
arguments.” The court explained that the motion failed to show why disclosure would
be helpful to the defense and failed to apply the relevant factors to the specific facts of
the case, then invited Martin and Hinton1 to file a renewed motion if they “obtain[ed]
additional information and ha[d] a good faith basis to renew.” Hinton never renewed
the motion, but he argues on appeal that the court erred in denying his initial motion.




        1
          In fact, the court’s order explicitly applied only to Martin and never even acknowledged that Hinton
joined the motion. Because the judge never made a ruling applicable to Hinton, and Hinton never requested
one, it would seem that Hinton waived his right to challenge the decision on appeal. See United States v. Taglia,
922 F.2d 413, 416 (7th Cir. 1991) (“If a motion is not acted upon, a litigant had better renew it. He may not lull
the judge into thinking that it has been abandoned and then, after he has lost, pull a rabbit out of his pocket
in the form of the forgotten motion.”). But the parties have argued the case as though the judge’s ruling
applied to both Martin and Hinton, so the government appears to have waived the waiver. We will proceed
on the assumption that when the judge invited “Defendant” to refile, she really meant to invite both
defendants.
No. 12-2885                                                                           Page 3

        The so-called “informer’s privilege” allows the government to withhold the
identity of confidential informants. See Roviaro, 353 U.S. at 59. The privilege encourages
people to cooperate with law enforcement by protecting their anonymity, see id., since
many informants would face severe retribution if exposed. But the privilege is not
absolute and gives way if the informant’s identity is “relevant and helpful to the
defense of an accused, or is essential to a fair determination of a cause.” Id. at 60–61. In
deciding whether to order disclosure, judges may not rely on absolute rules; instead,
they must carefully balance the public’s interest in protecting informers against the
defendant’s need for disclosure in light of “the particular circumstances of each case.”
Id. at 62. We review this fact-sensitive balancing only for abuse of discretion. See United
States v. McDowell, 687 F.3d 904, 911 (7th Cir. 2012).

       Hinton’s perfunctory motion did not address any of the “particular
circumstances” of his case. He relied instead on quotations from Roviaro and Tucker,
summarizing the law but failing to show how these cases applied to the facts at issue
here. Even when stating that Chuck was “the only witness in a position to amplify or
contradict the testimony of [the agents] claiming to have controlled the transaction,”
Hinton was simply parroting Roviaro, see 353 U.S. at 64 (noting that informant was
“[t]he only person … who could controvert, explain or amplify” the agents’ testimony),
without addressing any of the factual differences between that case and his own. True,
we have suggested that “the role of the confidential informant is an important factor to
consider when determining whether that informant’s identity need be disclosed,” and
that disclosure may be required “where the confidential informant was the sole
participant, other than the defendant, in the transaction charged.” United States v. Harris,
531 F.3d 507, 515 (7th Cir. 2008). But we have never held that this factor is conclusive or
that balancing is unnecessary anytime the confidential informant was a substantial
participant in the underlying transaction. See, e.g., McDowell, 687 F.3d at 911–12 (finding
that a participating informant’s identity could be withheld). Indeed, any such rule
would violate the principle of Roviaro, which requires case-by-case analysis rather than
categorical rules.

        On appeal Hinton has elaborated on his trial motion by discussing aspects of his
case about which Chuck might have testified. But Hinton had the opportunity to make
all these arguments in the trial court—in fact, he had two opportunities since the trial
judge told him to renew his motion if he could provide additional support for it. Hinton
failed to renew the motion and therefore waived his opportunity to make these
arguments on appeal. Cf. Jenkins v. Keating, 147 F.3d 577, 581 (7th Cir. 1998) (“Here, the
‘ball was in Jenkins' court’ to renew his challenge to the court's motion in limine ruling
and demonstrate how [the] testimony might have been relevant … . He cannot now
No. 12-2885                                                                           Page 4

‘pull a rabbit out of his pocket’ and claim reversible error on the court's in limine ruling
to bar [the] testimony.”); United States v. Addo, 989 F.2d 238, 242 (7th Cir. 1993) (“[T]he
record reflects that the defense was clearly given the opportunity to raise the matter
again before the trial judge and failed to do so. Accordingly, the defense may not
challenge the merits of this ruling on appeal.”).

       We conclude that there was no abuse of discretion in denying Hinton’s motion.
The judge was entitled to ask for more facts in order to perform the case-specific
balancing demanded by Roviaro. Moreover, the trial judge pointed out the many
deficiencies of Hinton’s motion and then invited him to renew it if he could identify a
good-faith basis. Hinton ignored this invitation. We reject his attempt to elaborate on
the original motion for the first time on appeal.

        Hinton also argues that his sentence was unreasonable. He concedes that the
district court correctly calculated a Sentencing Guidelines range between 121 and 151
months and that his within-guidelines sentence of 132 months is presumed reasonable.
See Rita v. United States, 551 U.S. 338, 347 (2007). He attempts to rebut the presumption
by showing that the district judge unreasonably applied the sentencing factors listed in
18 U.S.C. § 3553(a). We review the reasonableness of the sentence under an abuse-of-
discretion standard. See United States v. Annoreno, 713 F.3d 352, 359 (7th Cir. 2013).

        The thrust of Hinton’s challenge is that some arguably similarly situated
defendants received lower sentences than he did even though § 3553(a)(6) requires
judges to consider “the need to avoid unwarranted sentence disparities among
defendants with similar records who have been found guilty of similar conduct.” But
we have repeatedly held that “[c]hallenging a within-range sentence as disparate is a
‘pointless’ exercise,” United States v. Chapman, 694 F.3d 908, 916 (7th Cir. 2012), because
“[t]he best way to curtail ‘unwarranted’ disparities is to follow the Guidelines, which
are designed to treat similar offenses and offenders similarly,” United States v. Bartlett,
567 F.3d 901, 908 (7th Cir. 2009). In other words, the district court properly accounted
for this factor by sentencing Hinton within the guidelines range, and the sentence is not
unreasonable merely because the court strayed from the guidelines when sentencing
other defendants.

       Hinton further argues that the sentence is unreasonable in light of his criminal
history and personal characteristics because most of his 17 prior convictions are more
than a decade old. The district judge reasonably concluded that Hinton’s lengthy
criminal record, which includes two drug-related arrests while awaiting trial in this
very case, did not warrant a lower sentence. See United States v. Smith, 721 F.3d 904, 908
No. 12-2885                                                                         Page 5

(7th Cir. 2013) (“Such behavior does not display personal circumstances that place his
offense outside the heartland of cases warranting the admittedly harsh penalties
associated with drug offenses … .”). If anything, Hinton’s record shows that his prior
stints in jail have so far failed to deter him from dealing drugs, heightening the need for
incapacitation and a lengthy sentence.




                                                                              AFFIRMED.
