United States v. Trujillo–Castillon

• Decision Date: 14 August 2012
• Docket Number: No. 11–2646.,11–2646.
• Citation: 692 F.3d 575
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Giraldo TRUJILLO–CASTILLON, Defendant–Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

692 F.3d 575

UNITED STATES of America, Plaintiff–Appellee,

v.Giraldo TRUJILLO–CASTILLON, Defendant–Appellant.

No. 11–2646.

United States Court of Appeals, Seventh Circuit.

Argued March 27, 2012.

Decided Aug. 14, 2012.

Paul Lars Kanter (argued), Attorney, Office of the United States Attorney, Milwaukee, WI, for Plaintiff–Appellee.

Matthew Joseph Troccoli (argued), Attorney, Law Offices of Matthew Troccoli, P.A., Michael Walsh, Attorney, Downtown Legal Center, Miami, FL, for Defendant–Appellant.

Before FLAUM, WILLIAMS, and TINDER, Circuit Judges.

WILLIAMS, Circuit Judge.

Giraldo Trujillo–Castillon pled guilty to one count of conspiring to use unauthorized accounts and one count of aggravated identity theft. He received an above-guideline, 48–month prison term for the conspiracy, and a mandatory, consecutive 24–month term for aggravated identity theft. Trujillo–Castillon appeals the 48–month sentence, first arguing that the court ignored his evidence in mitigation. However, the court considered his lesser participation in the conspiracy but found it was outweighed by the severity of his crime and his underrepresented criminal history. Trujillo–Castillon next contends that his Cuban heritage was improperly factored into his sentence. His argument finds support in the transcript, and we cannot say with any reasonable certainty that his national origin had no impact, so we vacate his sentence and remand for resentencing.

I. BACKGROUND

Giraldo Trujillo–Castillon and two co-defendants were indicted for fraudulently using credit and gift card accounts for purchases totaling $139,063.23. Count one charged the trio with conspiring to violate 18 U.S.C. § 1029(a)(2) and (3), which respectively prohibit intentionally using an unauthorized access device, and knowingly possessing fifteen or more such devices with the intent to defraud. 18 U.S.C. § 1029(b)(2). Counts two and three alleged fraudulent use and possession of unauthorized access devices in violation of 18 U.S.C. §§ 1029(a)(2) and (3). And count four charged aggravated identity theft in violation of 18 U.S.C. § 1028A(a)(1).

Trujillo–Castillon pled guilty to counts one (conspiracy) and four (aggravated identity theft), and the remaining counts were dismissed pursuant to his plea agreement. His Presentence Investigation Report (“PSR”) revealed that he was born in Cuba and fled to the United States at seventeen years old. It calculated his offense level at sixteen, and his criminal history category at four. His recommended guideline range was 33 to 41 months in prison for the conspiracy. He also faced a consecutive, mandatory 24–month term for the aggravated identity theft conviction.

At sentencing, the government argued that Trujillo–Castillon deserved a sentence at the top of the guideline range because of his criminal history and his general attitude toward crime. Pointing to the defendant's admission that he viewed fraud differently than violent crimes, the government argued that “it may be possible to explain his stated attitude because of his Cuban heritage.... Maybe there is a different attitude toward private property in Cuba.” The government noted Trujillo–Castillon's statement that his only friend in the United States was his wife, and said that “if you play by the rules, if you join us, if you become American, [you] will have many [ ] friends in the United States.” The government then turned to “why people should come to the United States,” professing that “if he came here because he thought it would be easy, then I would simply suggest that he and others like him either wise up, or don't come.”

Defense counsel did not object to this line of argument; instead, he responded in kind. He explained that there is an “attitude” in Cuba that when you steal “you're pulling a Robin Hood type of act.” He suggested that many Cuban immigrants have a hard time adjusting to “the American way of life.” And he argued for a sentence at the low end of the guidelines because Trujillo–Castillon had “never challenge[d] the Government's evidence or accusation” and the PSR adequately accounted for the defendant's criminal history. Counsel highlighted the defendant's departure from the conspiracy before most of the fraudulent transactions occurred as evidence in mitigation, and requested a 33–month sentence.

The sentencing court began by finding that even though Trujillo–Castillon's “lesser participation in this offense ... mollifies the severity of the offense ... that can't be divorced from [his criminal] history.” The court then noted that the defendant had never successfully completed supervision and that he had “one of the worst records” the court had “ever seen.” The court detailed Trujillo–Castillon's prior arrests and convictions for theft, counterfeiting, and other fraud-related offenses. It concluded that the defendant's criminal history had been substantially underrepresented.

The court then turned to the defendant's “characteristics.” The court first explained that Trujillo–Castillon's “lifestyle” cannot “be blamed on Cuba.” It said that his record was reminiscent of “when the Mariel people came over here and created crime waves all over the place”; “When [Fidel] Castro emptied his prisons, and his psychiatric wards, and Jimmy Carter took them all in.” The court continued that, unlike in Cuba, “in America, private property is sacrosanct. It's not the Government's property.... And that's the way we live in America. And that's why it's a serious offense when you do this.” The court inveighed that coming from “deprived circumstances” does not “give anybody who comes from Cuba the right to ... not value the very constitutional rights that other citizens possess.” Finally, before imposing Trujillo–Castillon's sentence, the court stated:

You have a criminal history category of 4, but the Court's view is that the sentencing guidelines don't represent what the Court has just characterized is your criminal history ... it's under-represented. So when I look at the total circumstances of your history, coupled with the nature and severity of the crime, and even your lesser involvement in this offense, it is, as the Court has indicated, a pattern that requires that I go above the guidelines in this sentence....The court sentenced Trujillo–Castillon to 48 months in prison for the conspiracy count, exceeding his guideline range by seven months. He also received the mandatory 24–month prison term for aggravated identity theft, to run consecutively. Judgment was entered, and this appeal followed.

II. ANALYSIS

Trujillo–Castillon advances two arguments on appeal. First, he contends that the sentencing court overlooked the evidence he presented in mitigation, particularly proof that he left Wisconsin before the bulk of the fraudulent transactions occurred. Second, he argues that the court “allowed its passions and past experiences with Cuban immigration and crime to negatively impact and enhance [his] sentence.” The government disagrees. We address each issue in order.

A. The Sentencing Court Adequately Considered Trujillo–Castillon's Mitigating Evidence

We review de novo whether a district court followed proper procedures in sentencing, including its consideration of the 18 U.S.C. § 3553(a) factors and any evidence in mitigation. United States v. Vallar, 635 F.3d 271, 277–78 (7th Cir.2011). If we find no significant procedural error, we will review the substantive reasonableness of the defendant's sentence for an abuse of discretion. United States v. Coopman, 602 F.3d 814, 819 (7th Cir.2010). We presume that a correctly calculated, within- or below-guideline sentence is reasonable. See Rita v. United States, 551 U.S. 338, 347, 127 S.Ct. 2456, 168 L.Ed.2d 203 (2007) (within-guideline); United States v. Wallace, 531 F.3d 504, 507 (7th Cir.2008) (below-guideline). But we do not presume that an above-guideline sentence is unreasonable. United States v. Reyes–Hernandez, 624 F.3d 405, 409 (7th Cir.2010).

Trujillo–Castillon claims the sentencing court did not consider his “lesser participation” argument. A court must address the defendant's non-frivolous sentencing claims by providing a “reasonable justification” for the sentence imposed. Coopman, 602 F.3d at 818. The record here shows that the sentencing court satisfied its duty on this front. The court stated that “lesser participation does [mollify the severity of the offense] ... [b]ut that can't be divorced from your history here.” It noted that Trujillo–Castillon had never “complete[d] a successful supervision” and had one of the worst criminal records the court had ever seen. After reviewing the sentencing transcript, we are confident that the court considered Trujillo–Castillon's evidence in mitigation but simply assigned it lesser weight than the defendant would have liked. See id. We find no error here.

B. Remand Is Necessary to Ensure that Trujillo–Castillon's Cuban Heritage Was Not a Factor in His Sentencing

Trujillo–Castillon's second argument is that his Cuban heritage negatively affected his sentence. Because Trujillo–Castillon did not object at sentencing, we review for plain error. United States v. Anderson, 604 F.3d 997, 1001 (7th Cir.2010). To prevail, the defendant must first show that (1) there was error, (2) it was plain, and (3) it affected his substantial rights. United States v. Moody, 664 F.3d 164, 166 (7th Cir.2011). We will remand to avoid a “miscarriage of justice,” which the Supreme Court has defined as an error that “ ‘seriously affects the fairness, integrity, or public reputation of judicial proceedings.’...