UNITED STATES of America, Plaintiff-Appellee, v. Cruz-GUEVARA, Defendant-Appellant.
No. 99-2313
United States Court of Appeals, Seventh Circuit.
April 18, 2000
209 F.3d 644
Accordingly, on remand the district court must provide an explanation for the extent to which it would depart downward from the total offense level as calculated in the pre-sentencing report. The court should compare the seriousness of the mitigating factors at hand with those that the commission contemplated. See Hogan, 54 F.3d at 342. If the court determines that the facts that underlie Cruz-Guevara’s aggravated felony conviction more closely resemble a felony than an aggravated felony, then the court should analogize from the Guidelines and choose the extent of its departure accordingly.
Because we find that the district court abused its discretion by failing to link its departure to the structure of the Guidelines, we will not discuss at length the question whether the court’s bases for downward departure constituted an abuse of discretion. We note, however, that “dissatisfaction with the available sentencing range ... is not an appropriate basis for a sentence outside the applicable guideline range.”
III. CONCLUSION
Because the district court failed to explain the basis for the extent of its downward departure, we VACATE the sentence imposed by the district court and REMAND for further proceedings.
OAK PARK TRUST AND SAVINGS BANK, as Trustee under Trust Agreement No. 6716, and Radcliff Development Corporation, Plaintiffs, Counterdefendants-Appellees, v. C.G. THERKILDSEN, Defendant, Counterplaintiff-Appellant.
Nos. 98-2841, 99-2020.
United States Court of Appeals, Seventh Circuit.
Argued Feb. 9, 2000. Decided March 30, 2000.
209 F.3d 648
Gerard C. Semetana (argued), Semetana & Avakian, Chicago, IL, for plaintiff-appellee.
Paul F. Donahue (argued), Seyfarth, Shaw, Fairweather & Geraldson, Chicago, IL, for defendant-appellant.
Before BAUER, EASTERBROOK, and RIPPLE, Circuit Judges.
EASTERBROOK, Circuit Judge.
District Judge Duff, to whom Radcliffs suit was initially assigned, entered an order forbidding any of the defendants to file an answer to the complaint while the parties engaged in settlement negotiations. The basis of this order is not readily apparent, but it was not appealable. Therkildsen filed his counterclaim before Judge Duff prohibited answers. After Judge Duff retired from active service, the case was reassigned to Judge Kocoras, who added a prohibition against “motions to dismiss and/or for summary judgment”. After Radcliff moved to dismiss Therkildsen’s counterclaim (violating Judge Kocoras’s order in the process) on the ground that a counterclaim is supposed to accompany the answer, see
Therkildsen asks us to hold that the district judge should not have struck his answer, and there is much to be said for his position. How can a district judge strike an answer that meets none of the conditions that
We need not nail down the consequences of these events, however, because there is a compelling reason why Therkildsen’s counterclaim was not properly before the court: lack of subject-matter jurisdiction. The district court hinted at this possibility when denying Therkildsen’s motion for reconsideration. 1998 WL 341831, 1998 U.S. Dist. LEXIS 9274 (N.D. Ill. June 22, 1998). Therkildsen’s claim against Radcliff arises from events other than those that led to Radcliffs claim against the Village. It is therefore a permissive rather than a compulsory counterclaim.
The nub of Therkildsen’s grievance is, to quote his brief: “Despite numerous written representations by Radcliff that the Development was a private gated community, some time after the house was built and Therkildsen moved in, Therkildsen came to realize that the Development would be neither private nor gated.” If these “written representations” were sufficiently definite, then they formed part of the parties’ contract, and Therkildsen has a simple contract claim. If they were not definite, then Therkildsen has no claim at all, whether denominated contract or fraud. Eisenberg v. Goldstein, 29 Ill.2d 617, 195 N.E.2d 184 (1963); Barille v. Sears, Roebuck & Co., 289 Ill.App.3d 171, 224 Ill.Dec. 557, 682 N.E.2d 118 (1997); see also Vaughn v. General Foods Corp., 797 F.2d 1403 (7th Cir.1986) (Indiana law). RICO does not provide a federal treble-damages action for breach of contract. See Perlman v. Zell, 185 F.3d 850, 853 (7th Cir.1999). Even if Radcliffs representations deserve the label “fraud,” RICO still does not come into play unless the defendant conducted a pattern of racketeering. H.J. Inc. v. Northwestern Bell Telephone Co., 492 U.S. 229, 109 S.Ct. 2893, 106 L.Ed.2d 195 (1989); see also Sedima, S.P.R.L. v. Imrex Co., 473 U.S. 479, 105 S.Ct. 3275, 87 L.Ed.2d 346 (1985). Therkildsen does not contend that Radcliff defrauded anyone other than purchasers at a single real estate development—one scheme at most, and well short of the required pattern. A plaintiff’s failure to prove his contentions does not deprive a court of jurisdiction, Steel Co. v. Citizens for a Better Environment, 523 U.S. 83, 89-90, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998); Bell v. Hood, 327 U.S. 678, 682, 66 S.Ct. 773, 90 L.Ed. 939 (1946), but Therkildsen’s RICO theory is so feeble, so transparent an attempt to move a state-law dispute to federal court and avoid the state statute of limitations, that it does not arise under federal law at all. See Goosby v. Osser, 409 U.S. 512, 518, 93 S.Ct. 854, 35 L.Ed.2d 36 (1973); Crowley Cutlery Co. v. Commissioner of Customs of United States, 849 F.2d 273 (7th Cir.1988). Thus the district judge rightly dismissed Therkildsen’s counterclaim, though not for the reasons the judge gave.
Affirmed