United States v. Lua-Guizar

In the

United States Court of Appeals

For the Seventh Circuit

No. 10-3042

U NITED S TATES OF A MERICA,

Plaintiff-Appellee,

v.

JUAN P. L UA-G UIZAR,

Defendant-Appellant.

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 10 CR 71—George W. Lindberg, Judge.

A RGUED M AY 31, 2011—D ECIDED A UGUST 26, 2011

Before E ASTERBROOK, Chief Judge, and W OOD and

T INDER, Circuit Judges.

W OOD , Circuit Judge. After Juan Lua-Guizar pleaded

guilty to reentering the United States unlawfully

following his removal, he asked the district judge to

impose a sentence well below the range advised by

the sentencing guidelines. Lua-Guizar gave two argu-

ments in favor of this downward adjustment: (1) that

his “cultural assimilation,” as contemplated in a then-

2 No. 10-3042

pending amendment to the guidelines, made him eligible

for a lower sentence; and (2) that a lighter sentence was

necessary to avoid an “unwarranted sentencing dispar-

ity” based upon the fact that he was convicted in a

district without a “fast-track” program that would have

given him the opportunity to receive a lighter sentence

in exchange for waiving certain rights. The district court

was not persuaded by these points and imposed a sen-

tence at the bottom of the guidelines range. On appeal,

Lua-Guizar argues that the district court committed

procedural error in so ruling. We find nothing amiss,

however, and so we affirm.

I

Lua-Guizar first entered the United States from

Mexico as a three-year-old; he grew up in Los Angeles,

California. As a teenager, Lua-Guizar met his now-former

wife, Irma Gonzalez, with whom he has three daughters.

In January 2001, some time after his divorce, Lua-

Guizar was arrested for the importation and sale of a

significant amount of cocaine. Still in 2001 and while

out on bail, Lua-Guizar was twice arrested near Los

Angeles for driving on a suspended or revoked license.

He was placed on probation for each driving offense.

After being pulled over for failing to signal in January

2002, Lua-Guizar consented to a search of his car; in the

course of that search, more cocaine turned up. Lua-Guizar

pleaded guilty to possessing a small “personal use”

quantity of cocaine and received probation after 10 days

of imprisonment. In August 2002, Lua-Guizar was con-

No. 10-3042 3

victed of the 2001 importation and sale charge, for which

he was sentenced to three years of imprisonment.

Before Lua-Guizar could complete his sentence,

he was removed to Mexico in May 2004. Less than a

month later, Lua-Guizar returned to Los Angeles with-

out authorization, primarily to take care of his daughters

(who were eight, nine, and 10 years old at the time), one

of whom has cerebral palsy. Following yet another

traffic stop, Lua-Guizar was deported in 2007; again he

returned unlawfully in 2008. This time, Lua-Guizar

moved to Chicago, where he was eventually arrested

for possession of cocaine in December of 2009. Though

that charge was later dismissed, Lua-Guizar admits that

he used cocaine that day. The arrest also alerted the

authorities to Lua-Guizar’s unlawful presence in the

United States and led to an indictment for illegal reentry

in violation of 8 U.S.C. § 1326(a).

Lua-Guizar pleaded guilty to the charge alleged in the

indictment, with a plea agreement under which he pre-

served his right to challenge his conviction and sentence

on appeal. His presentence investigation report put his

offense level at 21 and his criminal history at category

III. This yielded an advisory guidelines range of 46 to 57

months. In response, Lua-Guizar offered two reasons

why the judge should impose a lighter sentence of

24 months.

First, Lua-Guizar pointed to the then-pending guideline

amendment authorizing district courts to consider a

downward adjustment of offense level based on a defen-

dant’s “cultural assimilation.” U.S.S.G. § 2L1.2 cmt. n.8

4 No. 10-3042

(2010); see Amendment 740, effective Nov. 1, 2010. Such

a move is appropriate where (1) the defendant has

formed cultural ties in the United States by living here

since childhood, (2) those cultural ties motivated the

illegal reentry, and (3) the downward adjustment will

not increase the risk to the public from further crimes

by the defendant. U.S.S.G. § 2L1.2 cmt. n.8. Lua-Guizar

noted that he has been in the United States since he was

a toddler and that he returned to the United States after

his removals to care for his young daughters. The risk of

his illegally reentering again, Lua-Guizar urged, was

significantly lower now that his daughters were older

(the girls were 14, 15, and 16 at the time of sentencing).

Lua-Guizar also provided an affidavit from his sister,

who said that she had both a job and a place to stay in

Mexico for her brother. Nonetheless, the district court

declined to adjust his sentence downward on this basis

because Amendment 740 was still pending and because

the court considered Lua-Guizar to be a risk to the

public in light of his criminal past.

Second, Lua-Guizar argued that he deserved a below-

guidelines sentence in order to remedy an alleged “unwar-

ranted disparity,” see 18 U.S.C. § 3553(a)(6), between

himself and other defendants convicted of unlawful

reentry but prosecuted in federal districts—like the

Southern District of California, where Lua-Guizar grew

up—that use “fast track” programs. Under such a

program, a defendant’s offense level may move down

as much as four levels if he agrees to waive, among

other things, his right to challenge his conviction either

on appeal or in collateral proceedings. See U.S.S.G. § 5K3.1

No. 10-3042 5

(2009); United States v. Reyes-Hernandez, 624 F.3d 405, 409-11

(7th Cir. 2010).

At the time of Lua-Guizar’s sentencing, the law of this

circuit prohibited judges from considering the disparity

caused by the absence of a fast-track program. See

United States v. Galicia-Cardenas, 443 F.3d 553, 555 (7th

Cir. 2006) (per curiam). Lua-Guizar nevertheless properly

preserved this point with an argument that the holding

of Kimbrough v. United States, 552 U.S. 85 (2007),

applied equally to this circumstance. The district court

declined to take this factor into account for three

reasons: first, it thought that any disparity was not “un-

warranted,” because Congress anticipated differences

among districts; second, it noted that the government

had not demonstrated its willingness to move for a de-

parture as required by section 5K3.1; and finally, even

assuming discretion under the guidelines, it found that

the guidelines range was “perfectly suitable to

Mr. Lua-Guizar’s offenses and his criminal history.” The

district court then sentenced Lua-Guizar to 46 months—

the bottom of the guidelines range. This appeal followed.

II

Lua-Guizar continues to pursue his cultural assimila-

tion and fast-track arguments on appeal. In each

instance, he asserts that the district court committed

procedural error—a matter that we review de novo.

United States v. Olmeda-Garcia, 613 F.3d 721, 723 (7th Cir.

2010). A sentencing judge must first calculate the ap-

plicable guidelines range, then apply the § 3553(a) factors,

6 No. 10-3042

and finally arrive at a reasonable sentence. See Gall v.

United States, 552 U.S. 38, 50-51 (2007); United States

v. Figueroa, 622 F.3d 739, 743 (7th Cir. 2010). A procedural

error occurs, for example, when the district court fails

to calculate the proper guidelines range, treats the guide-

lines as mandatory, bases its sentence on clearly er-

roneous facts, fails adequately to consider the sentencing

factors set out in § 3553(a), or provides an insufficient

explanation of its sentencing decision. Gall, 552 U.S. at

51; see United States v. Aljabari, 626 F.3d 940, 950 (7th

Cir. 2010). To provide an explanation that demonstrates

adequate consideration of the § 3553(a) factors, a district

court must say enough to allow meaningful appellate

review, but it need not mention every single factor, so

long as we have confidence that the sentencing process

was fair. See Gall, 552 U.S. at 50; Figueroa, 622 F.3d at 744.

Each case is different, however, and the “amount of

explanation needed in any particular case depends on the

circumstances.” United States v. Curby, 595 F.3d 794, 797

(7th Cir. 2010); see Rita v. United States, 551 U.S. 338,

357 (2007).

Here, before considering Lua-Guizar’s reasons for a

lighter sentence, the district court carefully analyzed

each of his prior crimes, some of which Lua-Guizar

wanted to exclude for sentencing purposes. For the co-

caine-related offenses, the court acknowledged that Lua-

Guizar was more likely an addict than a serious drug

dealer. Still, the court was “not convinced that the sub-

stance abuse problem mitigate[d] the gravity” of the

2001 and 2002 convictions, because the only thing that

seemed to end Lua-Guizar’s cocaine use was incarcera-

No. 10-3042 7

tion. Taking that into account, the court found

Lua-Guizar to be “at a high risk of returning to the use

of illegal drugs at such time as he is released from cus-

tody.” The district court acknowledged that his traffic

offenses were “considerably less serious than the two

drug-related crimes,” but not so insignificant that

they could be “ignored in sentencing.” This analysis

provided the backdrop for the district court’s response

to both of the reasons Lua-Guizar offered in support of

a lowered offense level.

On the cultural assimilation point, Lua-Guizar argues

that the court inadequately explained its reasons for not

giving him the downward adjustment. The record, how-

ever, does not bear this out. The judge explained that

“[t]he Court declines to consider Mr. Lua-Guizar’s

cultural assimilation to lower his sentence. First, the

amendment will not go into effect until later this year.

Second, the downward departure is authorized only if it,

quote, is not likely to increase the risk to the public of

further crimes of the defendant, end quote.” Viewed in

context, this explanation was sufficient. The first

reason relates directly to § 3553(a)(4)(A)(ii), which directs

judges to apply the guidelines “in effect on the date

the defendant is sentenced.” See United States v. Baretz,

411 F.3d 867, 874 (7th Cir. 2005). While the court could

have considered the pending amendment, it was not

required to do so. It thus committed no procedural error

by applying the guidelines in effect at the time of sen-

tencing.

The second reason comes directly from the language

of the then-pending amendment:

8 No. 10-3042

There may be cases in which a downward departure

may be appropriate on the basis of cultural assimila-

tion. Such a departure should be considered only in

cases where (A) the defendant formed cultural ties

primarily with the United States from having resided

continuously in the United States from childhood,

(B) those cultural ties provided the primary motiva-

tion for the defendant’s illegal reentry or continued

presence in the United States, and (C) such a departure

is not likely to increase the risk to the public from

further crimes of the defendant.

U.S.S.G. § 2L1.2 cmt. n.8 (2010) (emphasis added). Even if

the amendment had taken effect, the court would have

been obliged to consider subpart (C), which we have

emphasized. And it appears that this is exactly what it

did. The court explained that, in light of Lua-Guizar’s

track record, it found unpersuasive his argument that he

was unlikely to recidivate. Using the same risk-

based language as the pending application note, the

district court said that it was unconvinced that Lua-

Guizar would not again return to cocaine use, which

he had done even up to the day of his final arrest in

2009. In addition, the application note further advises

a sentencing court to consider the “seriousness of the

defendant’s criminal history,” and “whether the

defendant engaged in additional criminal activity after

illegally reentering the United States.” Id. The district

court did all that here. We find no procedural error in

its approach to Lua-Guizar’s cultural assimilation argu-

ment.

No. 10-3042 9

That leaves his argument based on the non-existence

of a fast-track procedure in the Northern District of

Illinois. His basic point was that the district court failed

to give this argument adequate consideration. Given the

lengthy discussion of the issue by the district court, which

quoted directly from section 5K3.1, it is plain that the

district court did not overlook this argument. What Lua-

Guizar is really saying, we believe, is that the court misun-

derstood its discretion to make adjustments on this

basis—a point that was not clear at the time of Lua-

Guizar’s sentencing. Compare Spears v. United States, 129

S. Ct. 840 (2009); United States v. Corner, 598 F.3d 411,

415 (7th Cir. 2010) (en banc) (holding that “district

judges are at liberty to reject any Guideline on policy

grounds—though they must act reasonably when using

that power”), with Galicia-Cardenas, 443 F.3d at 555 (lim-

iting a district judge’s discretion).

Fast-track procedures are not available in every district;

Congress has instead made their availability contingent

upon approval by the Attorney General. See Prosecutorial

Remedies and Tools Against the Exploitation of Children

Today Act of 2003, Pub. L. No. 108-21, § 401(m), 117 Stat.

650, 675. The Attorney General must designate a judicial

district for a specific crime, and such a designation is

reserved for offenses “whose high incidence within the

district has imposed an extraordinary strain on the re-

sources of that district as compared to other districts.”

H.R. Rep. No. 108-48, at 7 (2003). Most fast-track pro-

grams have been authorized for “illegal reentry after

deportation,” and all other crimes that are allowed to

receive fast-track disposition are immigration-related.

10 No. 10-3042

See Memorandum from David Ogden, Deputy Att’y

Gen., Dep’t of Justice, to U.S. Attorneys (May 29, 2009),

reprinted in 21 F ED. S ENT. R EP. 318, 337-38 (June 2009). Yet

even in a fast-track district, the downward departure is

not automatic. The request for a reduced sentence must

be made “[u]pon motion of the Government,” and the

district court is not required to grant such a request if

it considers the reduction to be inappropriate given the

facts of a particular case. U.S.S.G. § 5K3.1 (2009). The

Northern District of Illinois, where Lua-Guizar was

convicted, does not have an early disposition program, and

there are none in the Seventh Circuit. See Ogden, supra,

at 337-38; Reyes-Hernandez, 624 F.3d at 412. For these

reasons, the Sentencing Commission has recognized

that treating defendants differently on the basis of their

geography alone—a morally arbitrary factor—has the

potential to create unwarranted sentencing disparities

under § 3553(a)(6). See Reyes-Hernandez, 624 F.3d at 410-11

(citation omitted).

As we mentioned, at the time Lua-Guizar was sen-

tenced the law of this circuit prohibited a district

court from considering the lack of a fast-track option an

“unwarranted sentencing disparity” under § 3553(a)(6)

because, in setting up the system of district-by-district

authorization, Congress contemplated the disparity

based upon geography, which we reasoned precluded

a finding that such a disparity is “unwarranted.” Galicia-

Cardenas, 443 F.3d at 554. In light of Kimbrough, Spears, and

Corner, we switched course in Reyes-Hernandez, and held

that sentencing courts may consider the disparity in

applicable guidelines ranges between similarly situated

No. 10-3042 11

defendants in districts with a fast-track program and

districts without a fast-track program. 624 F.3d at 416-17;

see also United States v. Guajardo-Martinez, 635 F.3d 1056,

1062 (7th Cir. 2011). We explained further what kind of

showing would be necessary in our recent decision in

United States v. Sandoval Ramirez, Nos. 09-3932, 10-2190, 10-

2689, 2011 WL 2864417, at *5-*9 (7th Cir. July 20, 2011).

Here is the summary of our conclusion:

[A] defendant claiming entitlement to a lower sen-

tence because of a perceived fast-track “disparity”

must promptly plead guilty, agree to the factual

basis proffered by the government, execute an en-

forceable waiver of specific rights before or during

the plea colloquy, establish that he would receive a

fast-track sentence in at least one district offering

the program, and submit a thorough account of the

likely imprisonment range in the districts where he

is eligible, as well as a candid assessment of the num-

ber of programs for which he would not qualify.

Id. at *9. We recognize that this approach may be in some

tension with, and more extensive than, the showing

required in other circuits. See, e.g., United States v.

Arrelucea-Zamdio, 581 F.3d 142, 156-57 & n.13 (3d Cir. 2009)

(holding that defendant need only offer to accept a

plea agreement forfeiting rights as if in a fast-track district

and refusing to require “a more extensive showing”);

United States v. Rodriguez, 527 F.3d 221, 231 (1st Cir. 2008)

(holding that a defendant “cannot be expected to re-

nounce his right to mount a defense” by actually waiving

his rights in order to demonstrate a possible fast-track

12 No. 10-3042

disparity). We need not, however, resolve this tension in

order to dispose of this appeal. At a minimum, Sandoval

Ramirez sheds light on when a district court might be

at risk of abusing its discretion when it rejects a fast-

track argument. In the end, this is a discretionary factor

like many others. Nothing prevents a district court from

finding, as Congress did, that geographical disparity

alone is not a compelling reason to treat all defendants

as if they were in fast-track districts. See Reyes-Hernandez,

624 F.3d at 421.

The district court here did a remarkably good job

with this argument, considering the unsettled state of

the law at that time. It explicitly acknowledged the

premise of Lua-Guizar’s argument—that “he should be

sentenced with some recognition of the fast track juris-

dictions that provide for lower sentences than his pros-

ecution in this district” and wanted to “be sentenced as

if this were a fast track jurisdiction in order to avoid

a sentencing disparity.” The district court then re-

sponded to Lua-Guizar’s argument with three reasons

why it would not grant his request, but the final one

is dispositive:

Third, this Court, while recognizing that the sen-

tencing guidelines are advisory and that it would

have discretion to reduce Mr. Lua-Guizar’s sentence

on this basis if it chose to do so, does not believe

that Mr. Lua-Guizar’s sentence should be reduced

in recognition of the existence of other fast track

jurisdictions. The court believes that the sentencing

range reached by the use of the guidelines is perfectly

No. 10-3042 13

suitable to Mr. Lua-Guizar’s offenses and his criminal

history.

This was all the court needed to say. It specifically recog-

nized that it had the discretion to depart from the guide-

lines if it chose, but it found such a move to be unwar-

ranted. As we have emphasized, even in a district with

an early disposition program, a downward adjustment

is not automatic, and a defendant’s criminal history is an

appropriate factor to consider at this juncture. Guajardo-

Martinez, 635 F.3d at 1062. The district court committed

no error.

For these reasons, we A FFIRM the judgment of the

district court.

8-26-11