579 F.3d 798 (7th Cir. 2009), 08-2308, United States v. Villegas-Miranda

Docket Nº:08-2308.
Citation:579 F.3d 798
Opinion Judge:WILLIAMS, Circuit Judge.
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Octavio VILLEGAS-MIRANDA, Defendant-Appellant.
Attorney:Erika Csicsila (argued), Office of the United States Attorney, Chicago, IL, for Plaintiff-Appellee. Kent V. Anderson (argued), Attorney, Richard H. Parsons, Attorney, Office of the Federal Public Defender, Peoria, IL, for Defendant-Appellant.
Judge Panel:Before FLAUM and WILLIAMS, Circuit Judges, and LAWRENCE, District Judge.[*]
Case Date:August 27, 2009
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit
 
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Page 798

579 F.3d 798 (7th Cir. 2009)

UNITED STATES of America, Plaintiff-Appellee,

v.

Octavio VILLEGAS-MIRANDA, Defendant-Appellant.

No. 08-2308.

United States Court of Appeals, Seventh Circuit.

August 27, 2009

Argued May 7, 2009.

Page 799

Erika Csicsila (argued), Office of the United States Attorney, Chicago, IL, for Plaintiff-Appellee.

Kent V. Anderson (argued), Attorney, Richard H. Parsons, Attorney, Office of the Federal Public Defender, Peoria, IL, for Defendant-Appellant.

Before FLAUM and WILLIAMS, Circuit Judges, and LAWRENCE, District Judge.[*]

WILLIAMS, Circuit Judge.

Octavio Villegas-Miranda believes that the government intentionally delayed charging him with illegal reentry, a federal crime, while he was in state custody on a domestic battery charge. This delay, he claims, was designed to deprive him of the opportunity to serve his federal sentence concurrent with the remainder of his state sentence.

At sentencing, he asked the district court to lower the federal sentence that it

Page 800

intended to impose so that he could receive credit for the lost opportunity to serve it concurrently with the end of his state sentence. In support of this argument, he pointed to decisions from several other circuits which recognize that a district court may issue lower sentences to compensate for such delays. Unfortunately for Villegas-Miranda, the district court did not address this argument during his sentencing hearing. Because we find that this argument had legal and factual merit, under United States v. Cunningham, 429 F.3d 673, 679 (7th Cir.2005), the district court was required to specifically address it. It did not, so we remand this matter for resentencing.

I. BACKGROUND

Octavio Villegas-Miranda is a Mexican national who is not a United States citizen. Since emigrating from Mexico to the United States in 1990 as a youth, Villegas-Miranda has been arrested sixteen times and convicted of twelve crimes, including, among other things, domestic battery, sale of narcotics, and driving under the influence. After a conviction for domestic battery in June 2002, Villegas-Miranda was deported to Mexico. After sneaking back into the United States, he was convicted of violating 8 U.S.C. § 1326, which prohibits reentry into the United States by a non-citizen previously convicted of an aggravated felony, and was again deported.

During his third trip to the United States, on May 6, 2006, Villegas-Miranda was again arrested for domestic battery. He pleaded guilty in state court and was sentenced to thirty months' imprisonment. Villegas-Miranda was supposed to be paroled from state custody on February 9, 2007, but was held on a federal immigration detainer until February 12, 2007, when a federal immigration officer arrived and once again charged him with illegal reentry pursuant to 8 U.S.C. § 1326.

Villegas-Miranda pleaded guilty to illegal reentry without a plea agreement. His Sentencing Guidelines range was seventy-seven to ninety-six months' imprisonment. It is undisputed that in his sentencing memorandum, and during his sentencing hearing, he made two primary arguments in requesting a below-Guidelines sentence: (1) his daughter was ill and he needed to be with her; and (2) the district court should exercise its discretion and issue a sentence at least nine months below the bottom of the advisory Guidelines range to effectively credit him with the time served in state prison on the battery charge (his " concurrent sentences" argument). The gist of Villegas-Miranda's second argument was that if the government had charged him with illegal reentry when he was arrested on May 6, 2006 (or any reasonable time prior to his release from state custody), the district court would have been able to sentence him concurrently with his state time. Since the government did not do so, Villegas-Miranda lost the opportunity to serve his state and federal...

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