U.S. v. Villegas-Miranda

• Decision Date: 27 August 2009
• Docket Number: No. 08-2308.,08-2308.
• Citation: 579 F.3d 798
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Octavio VILLEGAS-MIRANDA, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

579 F.3d 798

UNITED STATES of America, Plaintiff-Appellee, v. Octavio VILLEGAS-MIRANDA, Defendant-Appellant.

No. 08-2308.

United States Court of Appeals, Seventh Circuit.

Argued May 7, 2009.

Decided August 27, 2009.

Erika Csicsila (argued), Office of the United States Attorney, Chicago, IL, for Plaintiff-Appellee.

Kent V. Anderson (argued), Attorney, Richard H. Parsons, Attorney, Office of the Federal Public Defender, Peoria, IL, for Defendant-Appellant.

Before FLAUM and WILLIAMS, Circuit Judges, and LAWRENCE, District Judge.^*

WILLIAMS, Circuit Judge.

Octavio Villegas-Miranda believes that the government intentionally delayed charging him with illegal reentry, a federal crime, while he was in state custody on a domestic battery charge. This delay, he claims, was designed to deprive him of the opportunity to serve his federal sentence concurrent with the remainder of his state sentence.

At sentencing, he asked the district court to lower the federal sentence that it intended to impose so that he could receive credit for the lost opportunity to serve it concurrently with the end of his state sentence. In support of this argument, he pointed to decisions from several other circuits which recognize that a district court may issue lower sentences to compensate for such delays. Unfortunately for Villegas-Miranda, the district court did not address this argument during his sentencing hearing. Because we find that this argument had legal and factual merit, under United States v. Cunningham, 429 F.3d 673, 679 (7th Cir.2005), the district court was required to specifically address it. It did not, so we remand this matter for resentencing.

I. BACKGROUND

Octavio Villegas-Miranda is a Mexican national who is not a United States citizen. Since emigrating from Mexico to the United States in 1990 as a youth, Villegas-Miranda has been arrested sixteen times and convicted of twelve crimes, including, among other things, domestic battery, sale of narcotics, and driving under the influence. After a conviction for domestic battery in June 2002, Villegas-Miranda was deported to Mexico. After sneaking back into the United States, he was convicted of violating 8 U.S.C. § 1326, which prohibits reentry into the United States by a non-citizen previously convicted of an aggravated felony, and was again deported.

During his third trip to the United States, on May 6, 2006, Villegas-Miranda was again arrested for domestic battery. He pleaded guilty in state court and was sentenced to thirty months' imprisonment. Villegas-Miranda was supposed to be paroled from state custody on February 9, 2007, but was held on a federal immigration detainer until February 12, 2007, when a federal immigration officer arrived and once again charged him with illegal reentry pursuant to 8 U.S.C. § 1326.

Villegas-Miranda pleaded guilty to illegal reentry without a plea agreement. His Sentencing Guidelines range was seventy-seven to ninety-six months' imprisonment. It is undisputed that in his sentencing memorandum, and during his sentencing hearing, he made two primary arguments in requesting a below-Guidelines sentence: (1) his daughter was ill and he needed to be with her; and (2) the district court should exercise its discretion and issue a sentence at least nine months below the bottom of the advisory Guidelines range to effectively credit him with the time served in state prison on the battery charge (his "concurrent sentences" argument). The gist of Villegas-Miranda's second argument was that if the government had charged him with illegal reentry when he was arrested on May 6, 2006 (or any reasonable time prior to his release from state custody), the district court would have been able to sentence him concurrently with his state time. Since the government did not do so, Villegas-Miranda lost the opportunity to serve his state and federal sentences concurrently, and he asked the district court to compensate for this by issuing a below-Guidelines sentence.

The district court acknowledged that it had "perused [Villegas-Miranda's] rather extensive sentencing memorandum" and found it to be "well drafted and very persuasive." It then rejected Villegas-Miranda's family situation argument because it found that his presence in the household exacerbated the situation (by assaulting his family members) rather than alleviating it. It stated that a high, within-Guidelines sentence was appropriate because of Villegas-Miranda's extensive criminal history and because he repeatedly reentered the United States after being deported. The court sentenced him to ninety months' imprisonment and three years' supervised release. The court did not address Villegas-Miranda's second principal argument that a below-Guidelines sentence should be imposed to effectively credit him with time served in state prison.

II. ANALYSIS

A. The District Court Was Required, But Failed to, Address All Principal Arguments that Were "Not So Weak As to Not Merit Discussion"

Villegas-Miranda argues that the district court's failure to respond to his argument that it should issue a below-Guidelines sentence to compensate him for the lost opportunity to serve his state and federal sentences concurrently, as a result of the government's purported delay in charging him with illegal reentry, requires us to remand for resentencing. The government disagrees because it contends that: (1) the district court adequately stated its reasons for issuing Villegas-Miranda's ninety month sentence; and (2) Villegas-Miranda's "concurrent sentences" argument was sufficiently weak so as to not require a response from the district court.

We review a district court's sentencing decisions for reasonableness, but its sentencing procedures under a nondeferential standard. United States v. Mendoza, 510 F.3d 749, 754 (7th Cir.2007). A within-Guidelines sentence is presumed reasonable. United States v. Omole, 523 F.3d 691, 696 (7th Cir.2008) (citing Rita v. United States, 551 U.S. 338, 127 S.Ct. 2456, 168 L.Ed.2d 203 (2007)). A sentencing court need not comprehensively discuss each of the factors listed in 18 U.S.C. § 3553(a). United States v. Dean, 414 F.3d 725, 729 (7th Cir.2005). Rather, it must give the reasons for its sentencing decision and address all of a defendant's principal arguments that "are not so weak as to not merit discussion." United States v. Cunningham, 429 F.3d 673, 679 (7th Cir.2005).

The government first contends, relying on United States v. Millet, 510 F.3d 668 (7th Cir.2007), that because the district court gave sound reasons for its within-Guidelines sentence (Villegas-Miranda's criminal history and repeated illegal reentry into the United States), its failure to address Villegas-Miranda's "concurrent sentences" argument does not merit remand. In Millet, we found that a sentencing court gave an adequate statement of its reasons for issuing a within-Guidelines sentence for drug and conspiracy offenses, even though it did not address each of the defendant's arguments for a below-Guidelines sentence in detail or specifically address each of the section 3553(a) factors because, among other things, the court's statements as a whole indicated beyond a doubt that it considered all of the section 3553(a) factors. Id. at 679-80.

Contrary to the government's assertion, Millet does not control here. Millet's argument on appeal was that the sentencing court erred by not specifically addressing every section 3553(a) factor and/or by failing to respond to each of his arguments for a lower sentence in detail. Id. Dean and Cunningham foreclosed these questions; the court need not discuss each section 3553(a) factor at sentencing and need not respond to every pithy argument that a defendant raises, just the "principal" ones. Dean, 414 F.3d at 729; Cunningham, 429 F.3d at 676-79 (citing United States v. Williams, 425 F.3d 478, 479 (7th Cir. 2005)). Villegas-Miranda's argument on appeal, however, is not that the court did not adequately state its reasons for imposing his sentence, but rather that it failed to specifically address his principal argument for a lower sentence. Cunningham addresses this question as well. The court must state its reasons for rejecting a defendant's principal arguments if the arguments have merit. Cunningham, 429 F.3d at 679 ("We cannot have much confidence in the judge's considered attention to the factors in this case, when he passed over in silence the principal argument made by the defendant even though the argument was not so weak as not to merit discussion, as it would have been if anyone acquainted with the facts would have known without being told why the judge had not accepted the argument.... A judge who fails to mention a ground of recognized legal merit (provided it has a factual basis) is likely to have committed an error or oversight."). Even if the sentencing court stated convincing reasons for the sentence it imposed, we cannot find its silence in response to a defendant's principal argument to be harmless error because we can never be sure of what effect it had, or could have had, on the court's decision. Id. Given that there is no dispute that Villegas-Miranda's "concurrent sentences" argument was one of his two principal arguments, if it "was not so weak as to not merit discussion," the sentencing court was required to respond to it. See id. Although the district court listened at length to...