U.S. v. Lua–guizar

• Decision Date: 26 August 2011
• Docket Number: No. 10–3042.,10–3042.
• Citation: 656 F.3d 563
• Parties: UNITED STATES of America, Plaintiff–Appellee,v.Juan P. LUA–GUIZAR, Defendant–Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

656 F.3d 563

UNITED STATES of America, Plaintiff–Appellee,

v.Juan P. LUA–GUIZAR, Defendant–Appellant.

No. 10–3042.

United States Court of Appeals, Seventh Circuit.

Argued May 31, 2011.Decided Aug. 26, 2011.

Helene B. Greenwald (argued), Marc Krickbaum, Attorneys, Office of the United States Attorney, Chicago, IL, for Plaintiff–Appellee.Carol A. Brook, Helen Kim Skinner (argued), Attorneys, Office of the Federal Defender Program, Chicago, IL, for Defendant–Appellant.Before EASTERBROOK, Chief Judge, and WOOD and TINDER, Circuit Judges.WOOD, Circuit Judge.

After Juan Lua–Guizar pleaded guilty to reentering the United States unlawfully following his removal, he asked the district judge to impose a sentence well below the range advised by the sentencing guidelines. Lua–Guizar gave two arguments in favor of this downward adjustment: (1) that his “cultural assimilation,” as contemplated in a then-pending amendment to the guidelines, made him eligible for a lower sentence; and (2) that a lighter sentence was necessary to avoid an “unwarranted sentencing disparity” based upon the fact that he was convicted in a district without a “fast-track” program that would have given him the opportunity to receive a lighter sentence in exchange for waiving certain rights. The district court was not persuaded by these points and imposed a sentence at the bottom of the guidelines range. On appeal, Lua–Guizar argues that the district court committed procedural error in so ruling. We find nothing amiss, however, and so we affirm.

I

Lua–Guizar first entered the United States from Mexico as a three-year-old; he grew up in Los Angeles, California. As a teenager, Lua–Guizar met his now-former wife, Irma Gonzalez, with whom he has three daughters. In January 2001, some time after his divorce, Lua–Guizar was arrested for the importation and sale of a significant amount of cocaine. Still in 2001 and while out on bail, Lua–Guizar was twice arrested near Los Angeles for driving on a suspended or revoked license. He was placed on probation for each driving offense. After being pulled over for failing to signal in January 2002, Lua–Guizar consented to a search of his car; in the course of that search, more cocaine turned up. Lua–Guizar pleaded guilty to possessing a small “personal use” quantity of cocaine and received probation after 10 days of imprisonment. In August 2002, Lua–Guizar was convicted of the 2001 importation and sale charge, for which he was sentenced to three years of imprisonment.

Before Lua–Guizar could complete his sentence, he was removed to Mexico in May 2004. Less than a month later, Lua–Guizar returned to Los Angeles without authorization, primarily to take care of his daughters (who were eight, nine, and 10 years old at the time), one of whom has cerebral palsy. Following yet another traffic stop, Lua–Guizar was deported in 2007; again he returned unlawfully in 2008. This time, Lua–Guizar moved to Chicago, where he was eventually arrested for possession of cocaine in December of 2009. Though that charge was later dismissed, Lua–Guizar admits that he used cocaine that day. The arrest also alerted the authorities to Lua–Guizar's unlawful presence in the United States and led to an indictment for illegal reentry in violation of 8 U.S.C. § 1326(a).

Lua–Guizar pleaded guilty to the charge alleged in the indictment, with a plea agreement under which he preserved his right to challenge his conviction and sentence on appeal. His presentence investigation report put his offense level at 21 and his criminal history at category III. This yielded an advisory guidelines range of 46 to 57 months. In response, Lua–Guizar offered two reasons why the judge should impose a lighter sentence of 24 months.

First, Lua–Guizar pointed to the then-pending guideline amendment authorizing district courts to consider a downward adjustment of offense level based on a defendant's “cultural assimilation.” U.S.S.G. § 2L1.2 cmt. n. 8 (2010); see Amendment 740, effective Nov. 1, 2010. Such a move is appropriate where (1) the defendant has formed cultural ties in the United States by living here since childhood, (2) those cultural ties motivated the illegal reentry, and (3) the downward adjustment will not increase the risk to the public from further crimes by the defendant. U.S.S.G. § 2L1.2 cmt. n. 8. Lua–Guizar noted that he has been in the United States since he was a toddler and that he returned to the United States after his removals to care for his young daughters. The risk of his illegally reentering again, Lua–Guizar urged, was significantly lower now that his daughters were older (the girls were 14, 15, and 16 at the time of sentencing). Lua–Guizar also provided an affidavit from his sister, who said that she had both a job and a place to stay in Mexico for her brother. Nonetheless, the district court declined to adjust his sentence downward on this basis because Amendment 740 was still pending and because the court considered Lua–Guizar to be a risk to the public in light of his criminal past.

Second, Lua–Guizar argued that he deserved a below-guidelines sentence in order to remedy an alleged “unwarranted disparity,” see 18 U.S.C. § 3553(a)(6), between himself and other defendants convicted of unlawful reentry but prosecuted in federal districts—like the Southern District of California, where Lua–Guizar grew up—that use “fast track” programs. Under such a program, a defendant's offense level may move down as much as four levels if he agrees to waive, among other things, his right to challenge his conviction either on appeal or in collateral proceedings. See U.S.S.G. § 5K3.1 (2009); United States v. Reyes–Hernandez, 624 F.3d 405, 409–11 (7th Cir.2010).

At the time of Lua–Guizar's sentencing, the law of this circuit prohibited judges from considering the disparity caused by the absence of a fast-track program. See United States v. Galicia–Cardenas, 443 F.3d 553, 555 (7th Cir.2006) ( per curiam ). Lua–Guizar nevertheless properly preserved this point with an argument that the holding of Kimbrough v. United States, 552 U.S. 85, 128 S.Ct. 558, 169 L.Ed.2d 481 (2007), applied equally to this circumstance. The district court declined to take this factor into account for three reasons: first, it thought that any disparity was not “unwarranted,” because Congress anticipated differences among districts; second, it noted that the government had not demonstrated its willingness to move for a departure as required by section 5K3.1; and finally, even assuming discretion under the guidelines, it found that the guidelines range was “perfectly suitable to Mr. Lua–Guizar's offenses and his criminal history.” The district court then sentenced Lua–Guizar to 46 months—the bottom of the guidelines range. This appeal followed.

II

Lua–Guizar continues to pursue his cultural assimilation and fast-track arguments on appeal. In each instance, he asserts that the district court committed procedural error—a matter that we review de novo. United States v. Olmeda–Garcia, 613 F.3d 721, 723 (7th Cir.2010). A sentencing judge must first calculate the applicable guidelines range, then apply the § 3553(a) factors, and finally arrive at a reasonable sentence. See Gall v. United States, 552 U.S. 38, 50–51, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007); United States v. Figueroa, 622 F.3d 739, 743 (7th Cir.2010). A procedural error occurs, for example, when the district court fails to calculate the proper guidelines range, treats the guidelines as mandatory, bases its sentence on clearly erroneous facts, fails adequately to consider the sentencing factors set out in § 3553(a), or provides an insufficient explanation of its sentencing decision. Gall, 552 U.S. at 51, 128 S.Ct. 586; see United States v. Aljabari, 626 F.3d 940, 950 (7th Cir.2010). To provide an explanation that demonstrates adequate consideration of the § 3553(a) factors, a district court must say enough to allow meaningful appellate review, but it need not mention every single factor, so long as we have confidence that the sentencing process was fair. See Gall, 552 U.S. at 50, 128 S.Ct. 586; Figueroa, 622 F.3d at 744. Each case is different, however, and the “amount of explanation needed in any particular case depends on the circumstances.” United States v. Curby, 595 F.3d 794, 797 (7th Cir.2010); see Rita v. United States, 551 U.S. 338, 357, 127 S.Ct. 2456, 168 L.Ed.2d 203 (2007).

Here, before considering Lua–Guizar's reasons for a lighter sentence, the district court carefully analyzed each of his prior crimes, some of which Lua–Guizar wanted to exclude for sentencing purposes. For the cocaine-related offenses, the court acknowledged that Lua–Guizar was more likely an addict than a serious drug dealer. Still, the court was “not convinced that the substance abuse problem mitigate[d] the gravity” of the 2001 and 2002 convictions, because the only thing that seemed to end Lua–Guizar's cocaine use was incarceration. Taking that into account, the court found Lua–Guizar to be “at a high risk of returning to the use of illegal drugs at such time as he is released from custody.” The district court acknowledged that his traffic offenses were “considerably less serious than the two drug-related crimes,” but not so insignificant that they could be “ignored in sentencing.” This analysis provided the backdrop for the district court's response to both of the reasons Lua–Guizar offered in support of a lowered offense level.

On the cultural assimilation point, Lua–Guizar argues that the court inadequately explained its reasons for not giving him the downward adjustment. The record, however, does not bear this out. The judge explained that “[t]he Court declines to consider Mr. Lua–Guizar's cultural assimilation to lower his sentence. First, the amendment will not go into effect until later this year. Second, the downward departure is authorized only if it, quote, is not likely to increase the risk to the public of...