U.S. v. Galvez-Barrios

• Decision Date: 02 February 2005
• Docket Number: No. 04-CR-14.,04-CR-14.
• Citation: 355 F.Supp.2d 958
• Parties: UNITED STATES of America, Plaintiff, v. Jose GALVEZ-BARRIOS, Defendant.
• Court: U.S. District Court — Eastern District of Wisconsin

355 F.Supp.2d 958

UNITED STATES of America, Plaintiff, v. Jose GALVEZ-BARRIOS, Defendant.

No. 04-CR-14.

United States District Court, E.D. Wisconsin.

February 2, 2005.

Penelope Fleming, Milwaukee, WI, for Plaintiff.

Jess Martinez, Jr., Milwaukee, WI, for Defendant.

SENTENCING MEMORANDUM

ADELMAN, District Judge.

In United States v. Booker, ___ U.S. ___, 125 S.Ct. 738, ___ L.Ed.2d ___ (2005), the Supreme Court held that the federal sentencing guidelines violated the Sixth Amendment. As a remedy, the Court excised that part of the Sentencing Reform Act that made the guidelines mandatory, 18 U.S.C. § 3553(b). "So modified, the ... Sentencing Reform Act of 1984... makes the Guidelines effectively advisory. It requires a sentencing court to consider Guidelines ranges, see 18 U.S.C.A. § 3553(a)(4) (Supp.2004), but it permits the court to tailor the sentence in light of other statutory concerns as well, see § 3553(a) (Supp.2004)." Id. at 757.

In United States v. Ranum, 353 F.Supp.2d 984, 985-86 (E.D.Wis.2005), I set forth what I believed to be the proper methodology for sentencing post-Booker. I applied that methodology in sentencing the defendant, Jose Galvez-Barrios. In this memorandum, I explain how I determined what sentence to impose and how the advisory guidelines figured into that determination.

I. FACTS AND BACKGROUND

Defendant was born in Mexico in 1966, and when he was twelve or thirteen followed his stepfather and brothers to the United States. Eventually, his whole family came to this country. In 1986, he moved to Chicago, acquired permanent resident status, a social security number and lawful employment. In 1987, he began a long-term relationship with Alcira Lucrecia-Azanon, with whom he has four children, ages sixteen, fifteen, thirteen and four.

In 1993, defendant was convicted of aggravated battery with a firearm in Illinois state court and sentenced to ten years in prison. The charge arose out of an incident in which defendant shot a man while attempting to regain property that the man and his gang associates had taken from defendant after beating and robbing him. Shortly after the incident, defendant turned himself in. The police indicated that had he not done so the crime likely would have gone unsolved. Defendant pleaded guilty after the state substantially reduced the initial charge of attempted first degree murder.

In January 1998, defendant was paroled and deported to Mexico. In January 2000, he re-entered the country, and in September 2002, was found and deported. He subsequently re-entered the United States and returned to Chicago, where he lived with and supported his family while working as a truck driver. In January 2004, when his truck became disabled during a snow storm, sheriff's deputies who arrived to help defendant discovered that he was here illegally and arrested him.

Defendant pleaded guilty to a violation of 8 U.S.C. § 1326(b)(2), unlawful re-entry after deportation following an aggravated felony. The Pre-sentence Report ("PSR") set his offense level at 21 and his criminal history category at II, producing an imprisonment range of 41-51 months under the guidelines. At sentencing, the government recommended a guideline sentence, and defendant argued for a 15-21 month sentence. For the reasons stated below, I sentenced defendant to 24 months.

II. DISCUSSION

A. Sentencing Methodology Post-Booker

Title 18, U.S.Code § 3553(a) now governs federal sentencing. It requires courts to "impose a sentence sufficient, but not greater than necessary, to comply with the purposes set forth in paragraph 2." Section 3553(a)(2) states that such purposes are:

(A) to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense;

(B) to afford adequate deterrence to criminal conduct;

(C) to protect the public from further crimes of the defendant; and

(D) to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner.

Section 3553(a) also instructs sentencing courts to consider: (1) the nature and circumstances of the offense and the history and characteristics of the defendant; (3) the kinds of sentences available; (4) the sentencing range established by the guidelines; (5) any pertinent policy statements issued by the Sentencing Commission; (6) the need to avoid unwarranted sentencing disparities among defendants with similar records who have been found guilty of similar conduct; and (7) the need to provide restitution to any victims of the offense. I have found it helpful to group these factors into three main categories: the nature of the offense, the history and character of the defendant, and the needs of the public and any victims of the crime.

B. Application to the Present Case

1. Nature of Offense

The offense conduct in the present case consisted of defendant's re-entry into the United States without permission after having been convicted of a serious felony and removed. All violations of our immigration laws must be taken seriously. However, the seriousness of defendant's offense was mitigated by the fact that he re-entered to support his family and did not violate the law after he arrived. The only aggravating factor was that defendant had previously unlawfully re-entered the country and been removed, and thus knew that he had no legal right to be here.

2. History and Character of Defendant

Defendant's history and character are largely positive. He has been in a stable relationship with the same woman for seventeen years and supported his family. At sentencing, defendant explained that his biological father abandoned him when he was a child, and he did not want to do the same thing to his children. He also stated that in his absence his family encountered financial difficulties. Steadily employed as a truck driver, defendant paid taxes and filed tax returns, atypical conduct among the § 1326 defendants I have seen. Defendant's employer stated that defendant was an excellent worker, whom he would rehire without hesitation. Defendant's friends and neighbors as well as his parish priest wrote laudatory letters about him. In sum, from a family and employment standpoint, defendant did all of the things we want people to do.

I also considered defendant's immigration and criminal history. As stated, he first came to the United States more than twenty years ago, has strong family ties here and none in Mexico. At sentencing, defendant expressed gratitude to the United States for the opportunities this country afforded him and his children. With respect to his record, his sole prior conviction was the 1993 aggravated battery for which there were some mitigating circumstances. I concluded, based on his history and his character, that defendant was not a danger to society.

3. Needs of the Public

I also considered the needs of the public, including the need to promote respect for immigration law and to deter removed felons from re-entering. In the present case, this factor supported a substantial prison sentence. However, as noted, defendant is not dangerous and, therefore, lengthy incarceration was not necessary to protect the public.

4. Advisory Guidelines

As Booker directs, in determining defendant's sentence I gave serious consideration to the advisory guidelines. In the present case, I determined that: (1) the manner in which the guidelines calculated defendant's offense level was flawed; and (2) nevertheless, with modifications to account for the flaws, the guidelines helped translate my findings under § 3553(a) into a numerical sentence. I discuss each of these points below.

a. Problems With Guidelines in § 1326 Offenses

The guidelines treat § 1326(b) offenses very seriously. In the present case, as in most others in this district, they established an offense level of 21 (base level 8, U.S.S.G. § 2L1.2(a), plus 16 based on a prior serious felony, § 2L1.2(b)(1)(A), minus 3 for acceptance of responsibility, § 3E1.1). Although § 1326 offenses must be taken seriously, the guidelines establish the offense level for such crimes in an unusual way. The guidelines in chapter two typically establish offense levels based on a defendant's relevant conduct, not on his prior record. This makes sense because the criminal history chapter of the guidelines separately scores a defendant's prior record. However, § 2L1.2, which governs § 1326 cases, gives heavy weight to a defendant's prior convictions in establishing his offense level.¹ Courts and commentators have criticized this aspect of § 2L1.2, as well as its general harshness. See, e.g., Robert J. McWhirter & Jon M. Sands, A Defense Perspective on Sentencing in Aggravated Felon Re-entry Cases, 8 FED. SEN. REP. 275 (Mar/Apr.1996); see also United States v. Cruz-Guevara, 209 F.3d 644 (7th Cir.2000).

I examined the history of § 2L1.2 to try to determine its rationale and whether such rationale was applicable in the present case. The Commission originally set the § 2L1.2 offense level at 6 based on its analysis of past sentencing practices. In 1988, it increased the offense level to 8 to create a harsher penalty. In 1989, the Commission provided for a 4 level enhancement for defendants previously convicted of certain felonies. The Commission stated that this enhancement was to apply in addition to the inclusion of the prior offense in the defendant's criminal history score. In 1991, the Commission upped the offense level even more dramatically, providing for 16 level enhancements for those previously convicted of felonies designated as aggravated. McWhirter & Sands, supra, at 275.

To put the Commission's action into perspective, the theft guideline called for a 16 level enhancement if the defendant stole $5,000,000 to $10,000,000, and the fraud guideline provided for a 16 level enhancement if the defendant's conduct caused a loss of $20,000,000 to $40,000,000. See James P. Fleissner &...