United States v. Ramirez

Decision Date23 December 2011
Docket NumberNos. 09–3932,10–2689.,10–2190,s. 09–3932
PartiesUNITED STATES of America, Plaintiff–Appellee, v. Sergio Sandoval RAMIREZ, Defendant–Appellant.United States of America, Plaintiff–Appellee, v. Francisco Ocampo–Pineda, Defendant–Appellant.United States of America, Plaintiff–Appellee, v. Luis A. Mandujano–Gonzalez, Defendant–Appellant.
CourtU.S. Court of Appeals — Seventh Circuit

OPINION TEXT STARTS HERE

Monica Mallory (argued), Attorney, Office of the United States Attorney, Rockford, IL, for PlaintiffAppellee in No. 09–3932.

Yasmin Noelle Best (argued), Attorney, Office of the United States Attorney, Chicago, IL, for PlaintiffAppellee in No. 10–2190.

Helene B. Greenwald (argued), Attorney, Office of the United States Attorney, Chicago, IL, for PlaintiffAppellee in No. 10–2689.Richard H. Parsons, Attorney, Office of the Federal Public Defender, Peoria, IL, A. Brian Threlkeld (argued), Attorney, Office of the Federal Public Defender, Urbana, IL, Sergio S. Ramirez, pro se, for DefendantAppellant in No. 09–3932.

Anthony W. Hill (argued), Attorney, Chicago, IL, for DefendantAppellant in No. 10–2190.Jonathan E. Hawley, Federal Public Defender, Office of the Federal Public Defender, Peoria, IL, A. Brian Threlkeld (argued), Attorney, Office of the Federal Public Defender, Urbana, IL, for DefendantAppellant in No. 10–2689.Daniel W. Stiller, Federal Public Defender, Federal Defender Services of Eastern Wisconsin, Incorporated, Milwaukee, WI, for Federal Defender Services of Wisconsin, Incorporated, Amicus Curiae.Before CUDAHY, EVANS,** and TINDER, Circuit Judges.PER CURIAM.

We have consolidated these appeals to answer a recurring question: What evidentiary showing must a defendant charged with being found in the United States after previously having been deported, 8 U.S.C. § 1326(a), make before a district court is obliged to consider his request for a lower sentence to account for the absence of a fast-track program in that judicial district? The question has been percolating since we decided United States v. Reyes–Hernandez, 624 F.3d 405, 417, 420 (7th Cir.2010), which permits sentencing courts to compensate for fast-track disparities but emphasizes that no district judge is required to evaluate this mitigating argument until the defendant demonstrates that he would have been eligible to participate in a fast-track program and, in fact, would have “pursued the option” had it been available. The contours of this threshold qualification have not been defined in a published opinion, but four nonprecedential orders offer helpful guidance. See United States v. Vazquez–Pita, 411 Fed.Appx. 887 (7th Cir.2011); United States v. Morant–Jones, 411 Fed.Appx. 885 (7th Cir.2011); United States v. Abasta–Ruiz, 409 Fed.Appx. 949 (7th Cir.2011); United States v. Torres–Vasquez, 406 Fed.Appx. 40 (7th Cir.2010). And in one of these appeals now before us, we directed the parties to submit supplemental statements addressing the question.

We hold that a district court need not address a fast-track argument unless the defendant has shown that he is similarly situated to persons who actually would receive a benefit in a fast-track district. That means that the defendant must promptly plead guilty, agree to the factual basis proffered by the government, and execute an enforceable waiver of specific rights before or during the plea colloquy. It also means that the defendant must establish that he would be eligible to receive a fast-track sentence in at least one district offering the program and submit the likely imprisonment range in that district. Unless and until the defendant meets these preconditions, his “disparity” argument is illusory and may be passed over in silence. Moreover, a defendant would be well advised to provide information on eligibility and the likely imprisonment range in any other district in which he would qualify for a fast–track sentence and also provide a candid assessment of the number of programs for which he would not qualify. This type of information might strengthen the defendant's disparity argument and would prove very useful to the sentencing court. Such information would allow the sentencing court to appreciate the extent of the disparity, if any, that would result if the defendant was not given a sentencing break. Of course, the government would be free to argue that the defendant would be ineligible for a reduction in a fast-track district, that the likely imprisonment range in any district where he would be eligible would be different from that suggested by the defendant, and that any fast-track disparity would not warrant a lower sentence anyway.

I.

The three defendants in our consolidated case are Mexican nationals who were living in the United States illegally. Luis Mandujano–Gonzalez first entered this country without authorization in 1998. Two years later he was convicted in Indiana of battering his girlfriend and her young son. The government removed him to Mexico after his release from prison in 2006, but Mandujano returned to the United States unlawfully. In 2009, police in Waukegan, Illinois, arrested him for driving under the influence of alcohol. He was charged in federal court with violating § 1326(a), and nine months passed before he pleaded guilty. He did not waive, however, his rights to file pretrial motions, to appeal, or to seek postconviction relief under 28 U.S.C. § 2255. A probation officer calculated a total offense level of 21 and a criminal-history category of III, yielding an imprisonment range of 46 to 57 months. This calculation included, among other things, a 16–level increase under U.S.S.G. § 2L1.2(b)(1)(A)(ii) because Mandujano was removed from the United States after a conviction for a felony crime of violence—beating his girlfriend's 13–month–old son.

Mandujano submitted a sentencing memorandum in which he asserted that the absence of a “fast track” program in the Northern District of Illinois created an unwarranted disparity between his guidelines imprisonment range and the sentences meted out in fast-track districts. But he dedicated only one paragraph to this contention and didn't even mention the criteria that defendants in fast-track districts must meet to obtain relief, much less discuss whether he would have been eligible to participate in any of those fast-track programs. At the sentencing hearing, the district judge asked whether Mandujano would have been eligible for fast-track relief in a district that offered it. “Probably not,” Mandujano's lawyer conceded, since his client “didn't do all the things he might have had to do” to qualify. “Then how is there a disparity,” the judge pressed, if Mandujano would not have received a reduction in a fast–track district? The lawyer had no answer. With that the court rejected the disparity argument and sentenced Mandujano within the guidelines range to 48 months. The court reasoned that Mandujano had not demonstrated his eligibility for fast–track sentencing and, indeed, that he probably wasn't eligible to begin with.

Our second defendant, Sergio Ramirez, first entered the United States in 1990 and was granted permanent residency. But eight years later he was convicted in Illinois of aggravated kidnapping, so immigration officials revoked his status and removed him to Mexico. He returned to the United States unlawfully and was removed a second time in 2005. Four years later, immigration officials received a tip that Ramirez was back in the United States and had applied for an Illinois driver's license under an alias. He was charged under § 1326(a) and pleaded guilty about three months later. But he did not waive his rights to file pretrial motions, to appeal, or to seek postconviction relief under § 2255. A probation officer concluded that Ramirez's conviction for aggravated kidnapping constituted a crime of violence for purposes of § 2L1.2(b)(1)(A)(ii) and accordingly increased his offense level by 16. Ramirez's total offense level of 21, coupled with a criminal-history category of III, resulted in a guideline imprisonment range of 46 to 57 months.

Like Mandujano, Ramirez submitted a sentencing memorandum urging the district court to reduce his sentence based on the purported disparity arising from the absence of a fast-track program in the Northern District of Illinois. But Ramirez too failed to assert that he would qualify for a reduction in a fast-track district. And at sentencing his lawyer said nothing at all about fast track. The government questioned, however, whether Ramirez even would be eligible for fast-track sentencing and insisted that, before the district court could address any supposed sentencing disparity, Ramirez first had to “show that he might qualify” for the program in a fast-track district. The court, citing precedent that we would later overturn in Reyes–Hernandez, concluded that it was forbidden from accepting Ramirez's fast-track argument. The court added, though, that if given discretion to accept Ramirez's argument, it still would decline to impose a lower sentence because Ramirez hadn't “demonstrated that he would be eligible for a fast-track disposition.” Ramirez was sentenced within the guidelines range to 50 months.

Our final defendant, Francisco Ocampo–Pineda, was removed from the United States in 2002 after he was convicted in Illinois of aggravated criminal sexual abuse. 720 ILCS 5/12–16(d). He returned without authorization and in 2004 was removed again. Then in 2009 police in Chicago discovered Ocampo's presence when they stopped him for traffic violations. He was charged with violating § 1326(a) and pleaded guilty 10 weeks later. A probation officer increased Ocampo's offense level by 16 after concluding that his conviction under § 5/12–16(d) constituted a crime of violence for purposes of § 2L1.2(b)(1)(A)(ii). Ocampo's total offense level of 21 and...

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