US v. Moreno-Padilla

• Decision Date: 08 April 2010
• Docket Number: No. 08-4302.,08-4302.
• Parties: 602 F.3d 802 (2010) UNITED STATES of America, Plaintiff-Appellee, v. Juan A. MORENO-PADILLA, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

602 F.3d 802

UNITED STATES of America, Plaintiff-Appellee, v. Juan A. MORENO-PADILLA, Defendant-Appellant

No. 08-4302.

United States Court of Appeals, Seventh Circuit

Argued September 18, 2009.

Decided April 8, 2010.

COPYRIGHT MATERIAL OMITTED

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

Daniel T. Cook (argued), Daniel T. Hansmeier, Office of the Federal Public Defender, Springfield, IL, Richard H. Parsons, Office of the Federal Public Defender, Peoria, IL, for Defendant-Appellant.

Before EASTERBROOK, Chief Judge, and WILLIAMS and TINDER, Circuit Judges.

TINDER, Circuit Judge.

Appellant Juan A. Moreno-Padilla was indicted on one count of illegal reentry in violation of 8 U.S.C. § 1326(a) & (b)(2). He pleaded guilty and was sentenced to eighty months' imprisonment followed by three years of supervised release. Moreno-Padilla now challenges his sentence. He disputes two findings affecting the calculation of his criminal history and the application of a 16-level enhancement pursuant to U.S.S.G. § 2L1.2(b)(1)(A). We affirm.

I. Background

Juan A. Moreno-Padilla is a citizen of Mexico. He is not a lawful permanent resident or citizen of the United States, but he has lived in the United States essentially continuously since his childhood. Federal officials found Moreno-Padilla living in Chicago with his parents and sister in 2004, and he was deported to Mexico. He returned to the United States illegally in January 2008.

He returned to Illinois upon his reentry, and on March 14, 2008 pleaded guilty to an aggravated DUI offense. He was sentenced to eighteen months in state prison. Officers at the Stateville Correctional Facility became suspicious about Moreno-Padilla's immigration status early on in his incarceration and, on March 18, 2008, alerted federal immigration officials to his presence. Immigration officials placed a detainer on him and took him into custody upon his May 19, 2008 release from Stateville. On May 23, 2008, the federal government filed a criminal complaint in the district court against Moreno-Padilla alleging illegal reentry, and on June 11, 2008, a federal grand jury indicted him on one count of illegal reentry in violation of 8 U.S.C. § 1326(a) & (b)(2).

After Moreno-Padilla's guilty plea to the indictment's only charge on October 1, 2008, a Presentence Investigation Report ("PSR") was prepared using the 2008 Sentencing Guidelines in effect at the time. The PSR assessed Moreno-Padilla's base offense level at 8, pursuant to U.S.S.G. § 2L1.2(a). Sixteen levels were added pursuant to U.S.S.G. § 2L1.2(b)(1)(A)(ii) because Moreno-Padilla had prior convictions that qualified as "crimes of violence." Three levels were subtracted in recognition of Moreno-Padilla's acceptance of responsibility and timely notification of his intent to enter a plea, U.S.S.G. § 3E1.1(a) & (b), leaving Moreno-Padilla with an offense level of 21.

The PSR's computation of Moreno-Padilla's criminal history requires a more detailed discussion. Moreno-Padilla was convicted of aggravated battery on April 17, 1991. He was sentenced to fifty-four months in prison for that offense on May 21, 1991. In June 1991, while imprisoned for the April 1991 offense, Moreno-Padilla was convicted of another aggravated battery offense. He received a sentence of fifty-one months for the second 1991 conviction, set to run concurrently with his previous sentence. Moreno-Padilla was released from prison on January 24, 1992, and began a term of supervised parole. On March 28, 1992, while he was on parole, Moreno-Padilla was arrested and charged with yet another aggravated battery, this time in connection with a shooting incident in Chicago. He was reimprisoned in the Illinois Department of Corrections on September 4, 1992. He pleaded guilty to the March 1992 aggravated battery on November 2, 1992, and was sentenced to thirty-six months' imprisonment. He was released from prison on June 4, 1993, resumed parole, and was released from that supervision on June 5, 1994.

The parties agree that the June 1993 release date is accurate as to the November 1992 conviction. Moreno-Padilla insists that the June 1993 release date is accurate only as to the November 1992 conviction. The government, on the other hand, claims that because Moreno-Padilla was on parole when he committed the March 1992 offense, his September 1992 reimprisonment stemmed, at least in part, from a revocation of his parole on the 1991 convictions. It goes on to assert that because Moreno-Padilla was not released from confinement until June 1993, the June 1993 release date is applicable to all three aggravated battery convictions. The release date applicable to the 1991 convictions is particularly important in light of U.S.S.G. § 4A1.2(e)(1), which restricts the reach of the PSR's criminal history calculation to convictions imposed or incarcerations served within fifteen years of a defendant's commencement of the instant offense. Moreno-Padilla's instant offense, illegal reentry, was commenced in January 2008 when he crossed the border into the United States. A release date prior to January 1993 for the 1991 convictions would thus render them irrelevant to Moreno-Padilla's criminal history calculation.

The PSR concluded that the three 1991-92 convictions all counted for criminal history purposes. It calculated Moreno-Padilla's criminal history as follows:

• 3 points for the first 1991 aggravated battery conviction, pursuant to U.S.S.G. § 4A1.2(k)(2)(B)(i);

• 3 points for the second 1991 aggravated battery conviction, pursuant to U.S.S.G. § 4A1.2(k)(2)(B)(i);

• 3 points for the 1992 aggravated battery conviction, pursuant to U.S.S.G. § 4A1.2(e)(1);

• 8 points for miscellaneous other offenses, including 3 for the 2008 DUI conviction, pursuant to U.S.S.G. § 4A1.1(a) & (c);

• 3 points pursuant to U.S.S.G. § 4A1.1(d) & (e) because Moreno-Padilla was serving a sentence of imprisonment when he committed the instant offense.

The PSR determined that Moreno-Padilla had twenty criminal history points, which easily placed him in the highest criminal history category, category VI.

With a criminal history in category VI and an offense level of 21, Moreno-Padilla faced a Guidelines sentence range of 77-96 months. In a sentencing memorandum filed prior to his sentencing hearing, Moreno-Padilla's counsel raised two objections to the PSR's Guidelines calculations. First, he argued that Moreno-Padilla should have received four points rather than six for the 1991 convictions because the sentences were concurrent. Second, he argued that the one point added under U.S.S.G. § 4A1.1(e) amounted to impermissible double-counting. Moreno-Padilla also requested that the district court consider the 18 U.S.C. § 3553(a) factors and issue him a sentence below the recommended Guidelines range. Additionally, he objected to the 16-level crime-of-violence enhancement because of its harshness.

At his sentencing hearing, Moreno-Padilla informed the district court that he was dissatisfied with his counsel's sentencing arguments and requested new counsel. The court declined to provide Moreno-Padilla with a new attorney but continued the hearing to permit Moreno-Padilla to file a pro se memorandum raising his desired sentencing arguments. In that document, which was not provided to the government until the morning of his sentencing hearing, Moreno-Padilla asserted that the PSR erred when it included six criminal history points for his 1991 aggravated battery convictions. He claimed that he "never had any parole hearing or revocation of parole" in connection with the 1991 offenses, and, therefore, the proper release date for them was January 24, 1992, rendering them too stale to be included in his criminal history calculation. Unlike his attorney, who argued that the 1991 convictions should be included in the criminal history calculation but contribute fewer than the PSR-recommended six points, Moreno-Padilla wanted them completely removed from consideration. He also challenged the PSR's inclusion of three points for his 1992 battery because he was released from prison on June 3, 1993, barely more than fifteen years before his June 11, 2008 indictment, and asked for a "downward departure" because the addition of three criminal history points pursuant to U.S.S.G. § 4A1.1(d) & (e) in his view overstated his criminal history.

At the continued sentencing hearing, Moreno-Padilla and his counsel emphasized the parole revocation argument Moreno-Padilla made in his pro se memorandum. Moreno-Padilla's attorney averred that parole revocation without a hearing amounts to a violation of due process. He conceded that he had not had an opportunity to review any Illinois Department of Corrections records to verify his client's assertion that no revocation proceeding was conducted, but maintained that attribution of the late 1992 imprisonment time to Moreno-Padilla's 1991 convictions could have resulted only from an "automatic" parole revocation, that is, one imposed without the requisite hearing to determine the propriety of revocation.

The district court engaged Moreno-Padilla's counsel in a colloquy about the new line of argument, but it ultimately relied on the PSR and concluded that the 1993 release date was applicable to all three 1991-92 convictions. The district court then noted Moreno-Padilla's unrelated and relatively inconsequential factual objections to the PSR, rejected his other Guidelines arguments, and adopted the PSR's Guidelines calculations. The government asked for a within-Guidelines sentence, and Moreno-Padilla was given the opportunity to raise his 18 U.S.C. § 3553(a)...