U.S. v. Rodriguez-Alvarez, 05-1317.

• Decision Date: 12 October 2005
• Docket Number: No. 05-1317.,05-1317.
• Citation: 425 F.3d 1041
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Carlos RODRIGUEZ-ALVAREZ, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

425 F.3d 1041

UNITED STATES of America, Plaintiff-Appellee, v. Carlos RODRIGUEZ-ALVAREZ, Defendant-Appellant.

No. 05-1317.

United States Court of Appeals, Seventh Circuit.

Argued September 8, 2005.

Decided October 12, 2005.

COPYRIGHT MATERIAL OMITTED

Debra Riggs Bonamici (argued), Office of the United States Attorney, Chicago, IL, for Plaintiff-Appellee.

Terence F. MacCarthy, Gabriel B. Plotkin (argued), Office of the Federal Defender Program, Chicago, IL, for Defendant-Appellant.

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

FLAUM, Chief Judge.

Defendant-appellant Carlos Rodriguez-Alvarez pleaded guilty to illegally reentering the United States after having been deported following a conviction for an aggravated felony, in violation of 8 U.S.C. § 1326. He now appeals his sentence of 87 months imprisonment, claiming that it is unreasonable. For the reasons stated herein, we affirm the sentence.

I. Background

Defendant, Carlos Rodriguez-Alvarez, was born in Mexico and is not a United States citizen. He first entered the United States in August 1987. Once in this country, he was convicted of many criminal offenses, including domestic violence, distribution of narcotics, and possession of a deadly weapon. He was first deported from the United States in 1991, and then was deported again in 2000, after being convicted of possession of a controlled substance with intent to deliver, an aggravated felony. When defendant was deported for the second time, he had served three years of a seven-year prison sentence. Defendant returned to the United States in February 2003 without seeking permission to do so. He was discovered when local officials arrested him for domestic battery.

The government charged defendant with illegal reentry under 8 U.S.C. § 1326. Defendant pleaded guilty without the benefit of a plea agreement. While defendant was awaiting sentencing, the Supreme Court issued its decision in United States v. Booker, ___ U.S. ___, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). Both parties had the opportunity to present their respective views of Booker to the district court through briefs and oral argument. Defense counsel presented several arguments regarding the applicability of the sentencing factors listed in 18 U.S.C. § 3553(a).

After hearing the parties' arguments and defendant's statement of apology, the district court set forth the basis for the sentence it intended to impose. First, it acknowledged Booker and its holding that the sentencing guidelines were advisory and not mandatory. It then calculated the applicable guidelines range, accepting defendant's argument that the criminal history category should be reduced from six, as recommended in the presentencing report, to five. The base offense level was eight, but the court increased this by 16 levels because the defendant was deported after a criminal conviction for a felony drug trafficking offense. The court determined that an offense level of 21 and a criminal history category of 5 yielded a range of 70 to 87 months imprisonment. The court then stated:

Defendant has argued that the Court should consider the guidelines as one factor and the government has argued that the Court should consider the guidelines as advisory. The defendant has argued that the guidelines don't take into account rehabilitative needs of the defendant and the defendant further claims that he has been a father figure for prisoners at MCC, which is a prison in Chicago, that he's a good person but he's been depending on alcohol and drugs which has caused his crimes. He has stated that he will not return back to the United States if he is deported again and that his fiancé is willing to return to Mexico with him.

The defendant also has stated to the Court that he's not proud of his criminal history and he asked the Court to forgive his coming back to the United States illegally. He has indicated that he is older and more mature.

The defendant has an extensive criminal history. His prior criminal convictions shows [sic] his flagrant disregard for the law and the likelihood of recidivism. Based upon his prior convictions and the seriousness of the convictions such as domestic battery, possession of a deadly weapon, it is clear that a severe sentence is warranted. Defendant has also argued that he has merely been charged with illegal entry into the United States and that I should consider that there are many illegal aliens in the United States who are working here and previously have been granted amnesty. However, the record also reflects that this is not the first illegal re-entry into the United States by the defendant. The defendant was previously deported and re-entered the United States illegally.

Defendant has submitted letters from employers on his behalf that indicate that he is a reliable employee. However, there's no indication by the employers whether they are aware that they are employing an illegal alien in the United States, whether they are familiar with the defendant's extensive criminal history since the record reflects that while in the United States illegally, the defendant has been convicted of theft, illegal sale and transportation of narcotics, possession of a deadly weapon, disorderly conduct, under the influence of a controlled substance, unlawful violation of an order from protection and domestic battery. The defendant has asked the Court to consider 18 U.S.C. § 3553.

That section provides factors to be considered in imposing sentence — the nature and circumstances of the offense, the need for the sentence imposed, the seriousness of the offense, to promote respect for the law, provide just punishment for the offense, afford adequate deterrence to criminal conduct, [to] protect the public from further crimes, to provide the defendant with needed educational or vocational training, medical care or other correctional treatment in the most effective manner, the kinds of sentences available, the kinds of sentence and sentencing range established for.

The defendant has no right to be in the United States. He has come to the United States on two different occasions illegally, committed crimes, numerous crimes — crimes which are a felony — and has been deported previously. The defendant has re-entered the United States and has continued with the commission of the crimes after illegal re-entry. The defendant was deported again with the condition that he not return without special permission of the Attorney General. Yet, the defendant has asked the Court to forgive him for coming back to the United States. The Court has considered the crimes committed by the defendant, the favorable factors articulated by the defendant, the arguments by defendant and counsel and government's counsel; and after reviewing all of the documents presented to the Court and the arguments and considering the sentencing guideline's range, I conclude that the defendant's imprisonment at the highest range of the sentencing guideline would be appropriate. Therefore, the following will be the decision of the court relating to the defendant's sentence:

It is the judgment of the Court that the defendant, Carlos Rodriguez-Alvarez, is hereby committed to the custody of the Bureau of Prisons to be imprisoned for a term of 87 months. . . . Upon release from imprisonment, the defendant shall be placed on supervised release for a term of three years. (emphasis added)

Defendant timely appealed his sentence.

II. Discussion

In United States v. Booker, the Supreme Court held that henceforth appellate courts must review sentences for "unreasonableness." Booker, 125 S.Ct. at 765-66. This reasonableness review is guided by the factors set forth in 18 U.S.C. § 3553(a). United States v. Alburay, 415 F.3d 782, 786 (7th Cir.2005) (citing Booker, 125 S.Ct. at 765-66) ("Section 3553(a) . . . sets forth numerous factors that guide sentencing. Those factors in turn will guide appellate courts. . . in determining whether a sentence is reasonable."). These factors include the following: the nature and circumstances of the offense; the history and characteristics of the defendant; the seriousness of the offense; the sentence necessary to promote respect for the law and to provide just punishment for the offense; the sentence that would provide adequate deterrence to criminal conduct; the sentence that would provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner; the sentencing guidelines range; and the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct. 18 U.S.C. § 3553(a).

"[A]ny sentence that is properly calculated under the Guidelines is entitled to a rebuttable presumption of reasonableness." United States v. Mykytiuk, 415 F.3d 606, 608 (7th Cir.2005). "[A] defendant can rebut this presumption only by demonstrating that his or her sentence is unreasonable when measured against the factors set forth in § 3553(a)." Id. Appellate review of the application of these factors is deferential. Id.

Defendant has not argued that his sentence is unreasonable when measured against any § 3553(a) factor. Rather, he argues that the sentence must be vacated because the district court made two procedural errors in imposing the sentence. According to defendant, the district court did not consider the § 3553(a) factors and did not state its reasons for the imposition of a particular sentence with reference to those factors.

While defendant states that these procedural errors make his sentence "unreasonable," Mykytiuk suggests that a sentence can only be vacated for unreasonableness based on the application of § 3553(a) factors. Because defendant's argument is based on procedural errors and not on the application of the factors, it is not appropriate to consider defendant's arguments under the "reasonableness" framework. Instead...