U.S. v. Pacheco-Diaz

• Decision Date: 23 October 2007
• Docket Number: No. 05-2264.,05-2264.
• Citation: 506 F.3d 545
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Angel PACHECO-DIAZ, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

506 F.3d 545

UNITED STATES of America, Plaintiff-Appellee, v. Angel PACHECO-DIAZ, Defendant-Appellant.

No. 05-2264.

United States Court of Appeals, Seventh Circuit.

Argued November 27, 2006.

Decided October 23, 2007.

Daniel E. May (argued), Office of the United States Attorney, Chicago, IL, for Plaintiff-Appellee.

Gary L. Starkman, Karen Sewell (argued), McGuirewoods, Chicago, IL, for Defendant-Appellant.

Before EASTERBROOK, Chief Judge, and ROVNER and SYKES, Circuit Judges.

ROVNER, Circuit Judge.

Angel Pacheco-Diaz ("Pacheco") was convicted of one count of reentering the United States after previously having been deported, in violation of 8 U.S.C. §§ 1326(a) and (b)(2). In calculating Pacheco's sentence, the district court applied an eight-level enhancement because he had a prior conviction for an aggravated felony. After allowing a two-level reduction for acceptance of responsibility, the court declined to reduce Pacheco's sentence an additional level under that same provision. The court also refused to adjust Pacheco's sentence downward for what he argued was an unwarranted disparity compared to similarly situated defendants who were sentenced in "fast-track" jurisdictions. The court sentenced Pacheco on the high end of the resulting sentencing range, to a term of forty-six months' imprisonment. We affirm.

I.

The indictment alleged that Pacheco, an alien, was deported on October 10, 2003, following a conviction for an aggravated felony. On or about September 1, 2004, he was found in Waukegan, Illinois, having reentered the United States without the express consent of the Attorney General, in violation of 8 U.S.C. §§ 1326(a) and (b)(2). Pacheco waived his right to a jury trial and opted instead for a bench trial on stipulated facts. The parties stipulated that Pacheco was convicted on or about January 24, 2002, of possession of marijuana, in violation of 720 ILCS 550/4, and criminal damage to government property, in violation of 720 ILCS 5/21-4. Pacheco admitted that these crimes are felonies under Illinois law, and the government conceded that the marijuana possession would be a misdemeanor under applicable federal law. The parties did not agree whether the drug offense constituted an aggravated felony for sentencing purposes. Pacheco stipulated that, after he served his sentence for these Illinois crimes, he was deported. He conceded that he later returned to the United States without the consent of the Attorney General, and it is that return that makes up the charges in the present case. In this appeal, Pacheco contends that his prior Illinois conviction for simple possession of marijuana is insufficient to trigger the eight-level enhancement under either of two theories advanced by the government. He also argues that the district court misapprehended the scope of its discretion when it declined to further reduce his sentence for acceptance of responsibility. And finally, he posits that his sentence was unreasonable because the court failed to meaningfully consider the unwarranted disparity between his sentence and the sentences of similarly situated defendants in fast-track jurisdictions.

A.

Section 2L1.2 of the Sentencing Guidelines provides that the base offense level for a violation of 8 U.S.C. § 1326 is eight. If the defendant previously was deported after a conviction for an aggravated felony, the court is directed to increase the base offense level by eight levels. U.S.S.G. § 2L1.2(b)(1)(C). The Application Notes to the guideline provide that, for the purposes of subsection (b)(1)(C), the term "aggravated felony" has the meaning given that term in 8 U.S.C. § 1101(a)(43). That section defines an extensive list of crimes as aggravated felonies, but the only subsection relevant to Pacheco is 1101(a)(43)(B), which applies to "illicit trafficking in a controlled substance (as defined in section 802 of Title 21), including a drug trafficking crime (as defined in section 924(c) of Title 18)." Section 924(c) defines the term "drug trafficking crime" as, among other things, "any felony punishable under the Controlled Substances Act (21 U.S.C. § 801 et seq.)." No one disputes that marijuana is a controlled substance. The government and the probation officer preparing the Presentence Report ("PSR") both suggested to the district court that Pacheco's January 2002 conviction for possession of marijuana warranted an eight-level increase as a drug trafficking crime. The district court agreed, finding two alternate justifications for the increase under section 2L1.2. First, the court parsed the phrase "felony punishable under the Controlled Substances Act" and found that the January 2002 conviction was a felony under Illinois law. The court found that the same conduct was also punishable under the Controlled Substances Act ("CSA"), albeit as a misdemeanor. The court thus found this conviction met the definition of a drug trafficking crime because it was a felony and it was punishable under the CSA. In the alternative, the court found, Pacheco's January 2002 conviction for marijuana possession would be treated as a federal felony under the recidivist provision of 21 U.S.C. § 844(a). In October 2000, Pacheco pled guilty to another charge of possession of marijuana. Pursuant to section 844(a), the court held, the second possession conviction in January 2002 could have been treated as a felony punishable under the CSA. The court therefore concluded that the eight-level enhancement was appropriate.

Pacheco argued that the word "felony" could not be extracted from the phrase "felony punishable under the Controlled Substances Act" in this artificial manner. He suggested that the state's classification of the crime was irrelevant and that only crimes that would constitute felonies under federal law could trigger the eight-level increase. The Supreme Court recently agreed, holding that "a state offense constitutes a `felony punishable under the Controlled Substances Act' only if it proscribes conduct punishable as a felony under federal law." Lopez v. Gonzales, ___ U.S. ___, 127 S.Ct. 625, 633, 166 L.Ed.2d 462 (2006). Thus, the district court's first rationale for the eight-level increase was in error. However, the district court's alternate holding, that the January 2002 marijuana possession would be treated as a felony under the recidivist provision in light of the October 2000 possession conviction, passes muster under Lopez and our prior holdings. Specifically, the Lopez Court noted in footnote six that "Congress did counterintuitively define some possession offenses as `illicit trafficking.' Those state possession crimes that correspond to felony violations of one of the three statutes enumerated in § 924(c)(2), such as possession of cocaine base and recidivist possession, see 21 U.S.C. § 844(a), clearly fall within the definitions used by Congress in 8 U.S.C. § 1101(a)(43)(B) and 18 U.S.C. § 924(c)(2), regardless of whether these federal possession felonies or their state counterparts constitute `illicit trafficking in a controlled substance' or `drug trafficking' as those terms are used in ordinary speech. But this coerced inclusion of a few possession offenses in the definition of `illicit trafficking' does not call for reading the statute to cover others for which there is no clear statutory command to override ordinary meaning." Lopez, 127 S.Ct. at 630 n. 6. The Court thus acknowledged that, although it seemed counterintuitive to classify recidivist possession as "illicit trafficking," Congress had clearly done so.

The circuits are split on the use of the recidivist provision at issue here. The Ninth Circuit stands alone in holding that the district court must consider the sentence available for the crime itself, without considering separate recidivist enhancements, when determining whether the crime would be an aggravated felony under federal law. United States v. Arellano-Torres, 303 F.3d 1173, 1178 (9th Cir. 2002). Thus, when determining whether a drug offense qualifies as an aggravated felony, the courts of the Ninth Circuit "disregard § 844's penalties for repeat offenders." Id. The Second, Fifth and Sixth Circuits came to the opposite conclusion; all apply the recidivist provisions of section 844(a) in determining whether a defendant's prior state misdemeanor conviction could be considered an aggravated felony for the purposes of guideline 2L1.2. See United States v. Simpson, 319 F.3d 81, 85-86 (2d Cir.2002); United States v. Sanchez-Villalobos, 412 F.3d 572, 576-77 (5th Cir.2005), cert. denied, 546 U.S. 1137, 126 S.Ct. 1142, 163 L.Ed.2d 1000 (2006); United States v. Palacios-Suarez, 418 F.3d 692, 700 (6th Cir.2005).

This latter view is more consistent with our holding in United States v. Perkins, 449 F.3d 794 (7th Cir.), cert. denied, ___ U.S. ___, 127 S.Ct. 330, 166 L.Ed.2d 247 (2006). In Perkins, the issue was whether a defendant could be classified as an armed career criminal under 18 U.S.C. § 924(e), based on three prior state court convictions for "serious drug offense[s]." 449 F.3d at 795. The term "serious drug offense" included "an offense under State law, involving manufacturing, distributing, or possessing with intent to manufacture or distribute, a controlled substance . . . for which a maximum term of imprisonment of ten years or more is prescribed by law." 18 U.S.C. § 924(e)(2)(A)(ii); Perkins, 449 F.3d at 796. Under state law, Perkins faced a maximum term of seven years for his first conviction for delivering less than one gram of cocaine, in violation of 720 ILCS 570/401(d). But the maximum increased to fourteen years for his second conviction. Perkins argued that the government could not show that he would have faced that fourteen year maximum for his subsequent offense because state law required judges to inform persons pleading guilty about the extra penalties for recidivism, and the papers submitted to the federal district court did not show that Perkins had received...