United States v. Garcia-Segura

• Decision Date: 22 July 2013
• Docket Number: No. 12–2522.,12–2522.
• Citation: 717 F.3d 566
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Ricardo GARCIA–SEGURA, Defendant–Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

717 F.3d 566

UNITED STATES of America, Plaintiff–Appellee,

v.Ricardo GARCIA–SEGURA, Defendant–Appellant.

No. 12–2522.

United States Court of Appeals,Seventh Circuit.

Argued April 30, 2013.

Decided June 3, 2013.

Rehearing and Rehearing En Banc Denied July 22, 2013.

Sarah Streicker (argued), Attorney, Office of the United States Attorney, Chicago, IL, for Plaintiff–Appellee.

John C. Legutki (argued), Attorney, Chicago, IL, for Defendant–Appellant.

Before FLAUM, WOOD, and HAMILTON, Circuit Judges.

FLAUM, Circuit Judge.

Ricardo Garcia–Segura appeals his sentence for unauthorized presence in the United States after removal, arguing that the district court failed to specifically address his argument that his sentence should be reduced to account for his lost opportunity, allegedly caused by the government's delay in charging him, to serve his federal prison term concurrently with his unrelated state sentence. Because the court acknowledged and rejected Garcia–Segura's argument before imposing the sentence, we affirm.

Since entering the United States from Mexico in 1993, Garcia–Segura has had numerous encounters with law enforcement, including arrests for driving under the influence of alcohol, possession of a stolen motor vehicle, and domestic battery. He was first removed from this country in 2003 after serving two years in jail for possessing cocaine. Less than two months later, he was arrested in the United States for delivering cocaine to an undercover officer. After serving part of his nine-year prison sentence for that offense, he was removed a second time in 2007 but returned to this country within three days. In January 2009, he encountered immigration officials while incarcerated in county jail on charges of possession of cocaine and possession of a firearm by a felon. A year and a half later, he was charged with unauthorized presence in the United States after removal, see8 U.S.C. § 1326(a), and eventually pleaded guilty.

Garcia–Segura sought a below-guidelines sentence, proposing a 19–month reduction to account for the time he served in county jail after immigration officials learned of his illegal presence in this country but before he was charged. He argued that he was entitled to this credit because, had the government charged him when immigration officials first discovered him, he would have received concurrent sentences. The government responded that even absent any delay, concurrent sentences would have been inappropriate because Garcia–Segura's state crimes were unrelated to the illegal-reentry charge. See United States v. Villegas–Miranda, 579 F.3d 798, 803 (7th Cir.2009). The government also argued that Garcia–Segura's recidivism and criminal history merited a more severe sentence.

The district court ultimately sentenced Garcia–Segura to 90 months' imprisonment, within the guideline range of 77 to 96 months. Before announcing the sentence, the court acknowledged its discretion to impose a below-guidelines sentence to account for Garcia–Segura's state incarceration, but it concluded that a longer sentence was necessary because his previous sentences were insufficient to deter him from repeatedly reentering this country and committing additional crimes.

A sentencing court must address a defendant's principal arguments in mitigation unless they are too weak to merit discussion. See United States v. Marin–Castano, 688 F.3d 899, 902 (7th Cir.2012); United States v. Curby, 595 F.3d 794, 797 (7th Cir.2010); United States v. Cunningham, 429 F.3d 673, 679 (7th Cir.2005). Relying on Villegas–Miranda, Garcia–Segura now insists that the district court failed to address the argument that he was entitled to a 19–month state sentence credit. But Villegas–Miranda is distinguishable; in that case the district court passed over the defendant's similar mitigation argument in silence. 579 F.3d at 802. Here, in contrast, the district court acknowledged Garcia–Segura's argument and recognized its discretion to account for the 19 months.¹ The court then rejected his mitigation arguments, stating that they “would have some significant force if this weren't going to be the third time he was sent back.” It concluded that a within-guidelines sentence was necessary to deter him from further criminal activity. See United States v. Pape, 601 F.3d 743, 749 (7th Cir.2010) (no error, even when district court implicitly rejected defendant's argument in mitigation by acknowledging it but concluding that other factors warranted the sentence imposed); United States v. Diekemper, 604 F.3d 345, 355 (7th Cir.2010) (same); United States v. Poetz, 582 F.3d 835, 837–39 (7th Cir.2009) (same); Curby, 595 F.3d at 796, 798 (same).

Although we conclude that the district court adequately addressed the defendant's principal arguments in this case, we note that similar appellate challenges are not uncommon. In order to ensure that defendants feel that they have had such arguments in mitigation addressed by the court and to aid appellate review, after imposing sentence but before advising the defendant of his right to appeal, we encourage sentencing courts to inquire of defense counsel whether they are satisfied that the court has addressed their main arguments in mitigation. If the response is in the affirmative, a later challenge for failure to address a principal mitigation argument under the reasoning of Cunningham...