U.S. v. Corona-Gonzalez

• Decision Date: 02 December 2010
• Docket Number: No. 09-3993,09-3993
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Juan A. CORONA-GONZALEZ, also known as Juan R. Ramirez, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

628 F.3d 336 UNITED STATES of America, Plaintiff-Appellee, v. Juan A. CORONA-GONZALEZ, also known as Juan R. Ramirez, Defendant-Appellant. No. 09-3993. United States Court of Appeals, Seventh Circuit. Argued Oct. 20, 2010. Decided Dec. 2, 2010.

Michelle P. Jennings (argued), Attorney, Office of the United States Attorney, Indianapolis, IN, for Plaintiff-Appellee.

Grey A. Tanzi (argued), Attorney, Skadden, Arps, Slate, Meagher & Flom LLP, Chicago, IL, for Defendant-Appellant.

Before FLAUM, RIPPLE and EVANS, Circuit Judges.

RIPPLE, Circuit Judge.

Juan Corona-Gonzalez seeks review of a sentence imposed by the United States District Court for the Southern District ofIndiana. A jury found Mr. Corona-Gonzalez guilty of possession with intent to distribute, and distribution of, 500 grams or more of a mixture containing a detectable amount of methamphetamine and possession of a firearm in furtherance of a drug trafficking crime. The district court sentenced him to 240 months' imprisonment on each of Counts I and II, to run concurrently, and 60 months' imprisonment on Count III, to be served consecutively, for a total of 300 months' imprisonment. The court also imposed a term of five years of supervised release. Because the district court misapprehended a significant aspect of Mr. Corona-Gonzalez's record at the time it imposed the sentence, we must reverse the judgment of the district court and remand the case to permit the district court to determine whether, without that misapprehension, it would have imposed a different sentence.¹

IBACKGROUND

On February 13, 2008, Mr. Corona-Gonzalez was arrested during a DEA investigation in Indianapolis, Indiana, for allegedly delivering a substance containing methamphetamine to a confidential informant in a Wal-Mart Supercenter parking lot. He was charged with knowingly possessing with intent to distribute, and distributing, 500 grams or more of a mixture or substance containing a detectable amount of methamphetamine (Counts I and II), in violation of 21 U.S.C. § 841(a)(1), and knowingly possessing a firearm during and in furtherance of a drug trafficking offense (Count III), in violation of 18 U.S.C. § 924(c). A jury convicted him of all three counts.

The presentence investigation report ("PSR") contained the advisory sentencing guidelines calculations, which neither party contests. It also contained information regarding the circumstances under which Mr. Corona-Gonzalez, who was born in Mexico, came to the United States with his family in 1998. Mr. Corona-Gonzalez entered this Country, with his mother and siblings, pursuant to a lawfully issued visa to join his father, who already resided here. In 2002, Mr. Corona-Gonzalez's mother and siblings returned voluntarily to Mexico, after his father was removed from this Country as a result of a drug conviction. Mr. Corona-Gonzalez, whose visa had expired, remained in the United States illegally.

The PSR also included Mr. Corona-Gonzalez's five previous misdemeanor convictions. These convictions, which consisted of four traffic offenses and one disorderly conduct offense, had occurred from 2001-2002.

At the sentencing hearing, the district court inquired whether the defense had any objections to the PSR. Defense counsel replied that he had reviewed the report with Mr. Corona-Gonzalez and wished to clarify the nature of the misdemeanor convictions and the sentences imposed. The district court agreed with the defense that the point of contention—whether probation had been imposed—would have no effect on the guidelines calculation. Noting that it had received a sentencing memorandum from the defense, the court then proceeded to approve the sentencing guidelines calculation contained in the PSR. The court accepted a correction to the defense's sentencing memorandum with respect to the age of Mr. Corona-Gonzalez's child and then heard argument from defense counsel. After permitting Mr. Corona-Gonzalezto address the court, it heard argument from the Government's counsel. The court then announced the sentence that it was prepared to impose, followed by an explanation:

This is a case—by way of explanation—in which the Court finds that the guidelines provide a sound and reasonable basis for imposing the sentence to accomplish the purposes of section 3553(a)(2).

Looking first at the nature and circumstances of the offense here. I, frankly, am inclined to agree with the government. What we have here are lots of aggravating circumstances and very little by way of mitigation.

Mr. Corona-Gonzalez, you had already been deported from this country before. You returned and were dealing methamphetamine, the most addictive and destructive drug and distribution in the United States. You were doing so while armed and that is just a very dangerous, completely unacceptable combination, for which Congress has proscribed severe penalties.

There is some debate about some other drugs and whether the guidelines are excessive. I don't have any concerns with respect to methamphetamine as dangerous and as addictive as it is. Those guidelines seem to me quite reasonable in terms of protecting the public and reflecting the seriousness of the offense.

When I look at you as an individual, your history and characteristics, what I see is somebody—as I mentioned—deported before and returned in order to deal drugs; somebody who has consistently had other sorts of legal troubles. If the criminal history were more serious that [sic] it is, the sentence would have been significantly higher even within the category III guideline range. But I've tried to account for the defense argument that these were all essentially traffic offenses by sentencing close to the bottom of the guideline range.

I have no doubt that the sentence is going to be imposing a burden on your family. That is not a consequence of the sentence. It is a consequence of your crime.

Your lawyer has correctly pointed out that you were not a master mind in this case. But I also don't think it's appropriate to discount your role any further. You were playing essential roles in helping to distribute this methamphetamine and you are appropriately going to be punished very severely for this, a total of 25 years in prison followed by another deportation.

I think that sentence, for those reasons, is going to be consistent with section 3553(a) and it's consistent with the advisory guidelines, a severe punishment for a very serious crime.

Sent. Tr. at 13-14.²

At no point during the hearing did either party object to these statements as inconsistent with the facts previously established in the record.³ However, Mr.Corona-Gonzalez asserts, and the Government concedes, that the record contains no reference to a previous removal or an illegal reentry for the purposes of trafficking in drugs. Instead, the record supports Mr. Corona-Gonzalez's assertion that, although he overstayed his visa, he has remained in the United States since his initial entry with his family in 1998.

IIDISCUSSION

Mr. Corona-Gonzalez submits that the district court committed a significant procedural error, amounting to plain error, when it sentenced him while under a misapprehension as to the circumstances surrounding his presence in the United States.

In Mr. Corona-Gonzalez's view, the district court's repeated references to a previous removal and return to the United States during the sentencing hearing demonstrates that this mistake of fact significantly impacted the court's decision and may have ultimately affected the length of his sentence.

A district court commits a significant procedural error in sentencing when it "fail[s] to calculate (or improperly calculat[es] ) the Guidelines range, treat[s] the Guidelines as mandatory, fail[s] to consider the § 3553(a) factors, select[s] a sentence based on clearly erroneous facts, or fail[s] to adequately explain the chosen sentence." Gall v. United States, 552 U.S. 38, 51, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007) (emphasis added). Usually, we review procedural errors under a non-deferential standard. See, e.g., United States v. Rodriguez-Alvarez, 425 F.3d 1041, 1046 (7th Cir.2005) (noting that because the defendant based his argument on procedural errors, the court should review his sentence under a non-deferential standard). However, because Mr. Corona-Gonzalez did not object to the alleged procedural deficiency at the time of sentencing, we review for plain error. See, e.g., United States v. Simpson, 479 F.3d 492, 496 (7th Cir.2007).

On plain error review, we may reverse the determination of the district court only when we conclude that: "(1) [an] error occurred; (2) the error was 'plain'; (3) and the error affected the defendant's substantial rights." Id.; see also United States v. Olano, 507 U.S. 725, 731-36, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993). If these criteria are met, we may reverse, in an exercise of discretion, if we determine that the error "seriously affect[ed] the fairness, integrity or public reputation of judicial proceedings." Olano, 507 U.S. at 732, 113 S.Ct. 1770 (internal quotation marks omitted); see also Simpson, 479 F.3d at 502.

There is no question that a procedural error occurred during Mr. Corona-Gonzalez's sentencing hearing. The Government concedes that there is nothing in the record to support the district court's statements at the sentencing hearing regarding the previous removal of Mr. Corona-Gonzalez. Both the trial record and the PSR indicate that Mr. Corona-Gonzalez is an illegal alien who came to the United States with his family in 1998 under a temporary visa and that he remained in this Country through the time of his arrest in February 2008. Furthermore, neither side disputes that the error was "plain"; the only mention of the previous removal of Mr. Corona-Gonzalez anywhere in the record wasby the court at sentencing. See, e.g., United States v. Williams, 552 F.3d 592, 593 (7th Cir.2009) (explaining that an error is "plain" if it is "clear or obvious").

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