United States v. Ediberto Aguilar-Calvo ( 2019 )

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 19a0296p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA, ┐
Plaintiff-Appellee, │
│
> No. 19-5278
v. │
│
│
EDIBERTO AGUILAR-CALVO, │
Defendant-Appellant. │
┘
Appeal from the United States District Court
for the Middle District of Tennessee at Nashville.
No. 3:18-cr-00149-1—Eli J. Richardson, District Judge.
Decided and Filed: December 16, 2019
Before: NORRIS, MOORE, and DONALD, Circuit Judges.
_________________
COUNSEL
ON BRIEF: Molly Rose Green, R. David Baker, OFFICE OF THE FEDERAL PUBLIC
DEFENDER, Nashville, Tennessee, for Appellant. Byron M. Jones, UNITED STATES
ATTORNEY’S OFFICE, Nashville, Tennessee, for Appellee.
_________________
OPINION
_________________
KAREN NELSON MOORE, Circuit Judge. Ediberto Aguilar-Calvo pleaded guilty to
illegal reentry by a previously deported felon, and the district court sentenced him to thirty-eight
months in prison, to run consecutive to an eight-month sentence for a supervised-release
violation. Aguilar-Calvo now appeals this sentence on the ground that it is procedurally
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unreasonable. For the reasons set forth in this opinion, we AFFIRM the sentence of the district
court.
I. BACKGROUND
On June 20, 2018, Ediberto Aguilar-Calvo was indicted for illegal reentry, in violation of
8 U.S.C. § 1326(a) and (b)(1). R. 1 (Indictment). He had been previously convicted of felony
drug possession, assault, driving under the influence, and illegal reentry. R. 38 (Presentence
Investigation Report ¶¶ 4–5, 23–27) (Page ID #165, 167–69). On November 19, 2018, Aguilar-
Calvo entered a plea of guilty. In its sentencing memorandum, the government addressed the
sentencing factors set forth in 18 U.S.C. § 3553(a), and stated the following in connection with
the statute’s requirement that the district court consider the “seriousness of the offense”:
Many citizens of the United States have grown impatient with their
government’s seeming inability to deter undocumented immigrants, convicted of
felonies in the United States and deported back to their home countries, from
returning to the United States illegally. Those of us who are relatively more
privileged may welcome the contributions of undocumented immigrants. Our
neighbors who are less materially secure, however, who must compete more
directly with undocumented immigrants for employment opportunities and social
services, are not feeling so generous or welcoming. Those neighbors want our
borders secured with physical barriers if our justice system does not suffice to
enforce our duly enacted immigration policies. Those neighbors are impatient for
action to protect their perceived economic interests, as promised by our duly
enacted immigration policies.
R. 24 (Gov’t Sent’g Mem. at 3–4) (Page ID #59–60). Aguilar-Calvo’s sentencing memorandum
argued that the district court should not consider such “extraneous, inflammatory, and
idiosyncratic views” in sentencing him. R. 25 (Def. Sent’g Mem. at 3) (Page ID #66). In
response to Aguilar-Calvo’s sentencing memorandum, the government stated as follows:
The United States does not agree that these concerns are “extraneous” to
the sentencing considerations in this case. These concerns are among the reasons
that the advisory sentencing guidelines recommend a higher sentence for
recidivist illegal reentries, like Mr. Aguilar-Calvo’s. These concerns are among
the reasons that the advisory sentencing guidelines recommend a higher sentence
for illegal reentries by defendants who have a prior felony conviction for which
they were sentenced to serve five years or more, as was Mr. Aguilar-Calvo.
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Rawle 26 (Gov’t Response to Def. Sent’g Mem. at 4) (Page ID #82). The district court heard
argument on this issue at the sentencing hearing and then sentenced Aguilar-Calvo to thirty-eight
months of imprisonment after a lengthy explanation of the basis for its sentence pursuant to 18
U.S.C. § 3553(a). Aguilar-Calvo objected to “any consideration of the Government’s arguments
about political debate about illegal immigration.” R. 40 (Sent’g Hr’g Tr. at 63) (Page ID #244).
He timely appealed his sentence.
II. DISCUSSION
The sole argument Aguilar-Calvo raises on appeal is that the district court committed
procedural error in relying on the government’s “unfounded assertions” regarding the
seriousness of illegal immigration in sentencing him. Appellant Br. at 8, 10. Because Aguilar-
Calvo timely objected to the district court’s consideration of the government’s statements, this
review is conducted under an abuse-of-discretion standard. United States v. Wallace, 597 F.3d
794, 802 (6th Cir. 2010).
A sentencing court commits procedural error by “failing to calculate (or improperly
calculating) the Guidelines range, treating the Guidelines as mandatory, failing to consider the
[18 U.S.C.] § 3553(a) factors, selecting a sentence based on clearly erroneous facts, or failing to
adequately explain the chosen sentence—including an explanation for any deviation from the
Guidelines range.” Gall v. United States, 552 U.S. 38, 51 (2007). A sentencing court commits
procedural error in this manner “only if it based the defendant’s sentence on . . . erroneous
information.” United States v. Adams, 873 F.3d 512, 518 (6th Cir. 2017). This requires us to
“look to the sentencing decision with an eye for whether the information in question appears to
have been ‘an important factor in determining [the] sentence.’” United States v. Wilson,
614 F.3d 219, 224 n.3 (6th Cir. 2010) (quoting United States v. González–Castillo, 562 F.3d 80,
81 (1st Cir. 2009)).
Similarly, “we have found reversible error where a district judge relies on a factor that is
neither enumerated in nor consistent with the Sentencing Guidelines or 18 U.S.C. § 3553(a).”
United States v. Cabrera, 811 F.3d 801, 808 (6th Cir. 2016). If we conclude that the district
court relied on such irrelevant information, “it does not matter that the district court relied on a
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number, even a large number, of relevant facts in its sentencing . . . . Thus we would not hesitate
to reverse a sentence if a judge relied on numerous relevant facts but also relied, for instance, on
the morning’s horoscope.” United States v. Hunt, 521 F.3d 636, 649 (6th Cir. 2008). As the
morning horoscope example illuminates, the requirement that the defendant be sentenced based
on accurate information is “not limited to information solely about the defendant’s actions and
criminal history.” Adams, 873 F.3d at 518.
Aguilar-Calvo argues that the sentencing court impermissibly relied upon two categories
of statements that were either speculative or erroneous. First, he points to the government’s
representation that U.S. citizens who are “less materially secure” are “not feeling so generous or
welcoming” to undocumented immigrants with whom they compete for jobs and social services,
and that these citizens “want our borders secured with physical barriers if our justice system does
not suffice to enforce our duly enacted immigration policies.” R. 24 (Gov’t Sent’g Mem. at 4)
(Page ID #60). Aguilar-Calvo argues that the government did not provide “any factual basis for
these claims.” Appellant Br. at 11. Second, he points to the government’s characterization of
the Sentencing Guidelines as incorporating these immigration concerns by recommending higher
sentences for 1) illegal reentries by defendants who have already illegally reentered at least once
before, and 2) illegal reentries by defendants who have a prior felony conviction for which they
were sentenced to serve five years or more. R. 26 (Gov’t Response to Def. Sent’g Mem. at 4)
(Page ID #82). This characterization of the Guidelines is erroneous, Aguilar-Calvo argues,
because the Sentencing Commission has made clear that the illegal reentry guideline at issue
“address[es] culpability . . . not harm.” Appellant Br. at 12 (emphasis in original).
The government’s arguments before the district court were blatantly inappropriate. At
least with respect to the first category of statements, the government presented the district court
with the supposed view of “many” people without providing a hint of factual or legal support.
To be clear, the problem with the government’s argument was not that it adverted to public
opinion in discussing the seriousness of the offense. After all, the statute setting forth the duties
of the United States Sentencing Commission requires the commission, in fashioning the
Sentencing Guidelines, to determine “the community view of the gravity of the offense” and “the
public concern generated by the offense.” 28 U.S.C. § 994(c)(4)–(5). The Senate Judiciary
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Committee’s report on the legislation creating the Sentencing Commission suggested that the
Commission, in adhering to these requirements, take note of the Parole Commission’s recent
lowering of the guideline parole dates for simple possession of marijuana, in light of changing
public opinion on this offense. See Continuing Appropriations, 1985 -- Comprehensive Crime
Control Act of 1984, S. Rep. No. 98-225, 98th Cong., 2d Sess. (1984), reprinted in 1984
U.S.C.C.A.N. 3220, 3353 (1984). Similarly, district courts may find that, in light of changing
public opinion of certain offenses, application of strict Guidelines sentences would not properly
reflect the seriousness of the offense under 18 U.S.C. § 3553(a). See Memorandum on
Sentencing Variance in U.S. v. Dayi, 26 Fed. Sent. R. 223, 225, 2014 WL 4745515 (Vera Inst.
Just.) (2014) (district court explaining the waning seriousness of violations of federal marijuana
laws given widespread enactment of state laws decriminalizing, legalizing, and regulating
marijuana, as well as the federal government’s policy of non-enforcement).
Here, however, the government believed it sufficient to argue for a lengthy prison term
for Aguilar-Calvo based on its unsubstantiated belief that many people want our borders secured
with physical barriers because immigrants are competing with them for employment
opportunities and social services. Putting aside the possibility that, as an empirical matter, this
view of how immigrant labor affects the national economy may be unfounded, there are
numerous flaws with this line of reasoning. First, it shoulders Aguilar-Calvo with the blame for
a poorly articulated problem that is of little relevance to this case. This is not a case where a
defendant’s conduct allegedly resulted in tangible harm to identifiable victims, or, even more
broadly, to a specified geographic community, such as in United States v. Robinson, 892 F.3d
209 (6th Cir. 2018). In Robinson, we held that the district court did not abuse its discretion in
considering, under the “seriousness” prong of 18 U.S.C. § 3553(a), the risk to which the
defendant exposed a young child and two women by keeping fentanyl in his apartment and in
their presence, and the harm that opioids, fentanyl, and other drugs caused to local Ohio
communities where the defendant was distributing drugs, including the county where his offense
occurred. Id. at 215–16. Here, in stark contrast, the government identified no victim or
community that suffered from the conduct of this defendant; instead, it put him on the hook for a
narrow strain of economic anxiety, without substantiating the bases for this purported anxiety in
any way. This tenuous connection is similar to the one criticized in United States v. Figueroa,
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622 F.3d 739 (7th Cir. 2010), involving a defendant of Mexican descent sentenced for
distributing cocaine. In vacating the sentence, due in part to the district court’s “extraneous and
inflammatory comments” about the drug wars and undocumented immigrants, the Seventh
Circuit noted that it was “unpersuaded by the government’s argument that the discussion of the
Mexican drug wars was sufficiently germane to the underlying conduct to support the sentence.”
Id. at 741, 744. Here, the government apparently thought it was appropriate to advocate a
lengthy term of imprisonment for Aguilar-Calvo because of the perception that the $10 per hour
he earned as a construction worker in Missouri, or the $14 per hour he earned for the same work
in Tennessee, could have gone to a hardworking American. See R. 5-1 (PSR ¶ 41) (Page ID
#171).
This relates to another troubling feature of the government’s reasoning. Even if Aguilar-
Calvo’s illegal reentry were somehow responsible, in part, for a scarcity of jobs and other
resources for U.S. citizens, his crime did not contribute to a market for any criminal activity. By
contrast, criminal defendants convicted of possession of illegal drugs or child pornography are
frequently sentenced harshly because they “contribute[] to a growing market” for this
contraband. United States v. Faulkner, 926 F.3d 266, 272 (6th Cir.), cert. denied, No. 19-5877,
2019 WL 5150707 (U.S. Oct. 15, 2019) (addressing child pornography). Although sentencing
enhancements in the child pornography context, for example, may be wholly unrelated to “the
[Sentencing] Commission’s usual statistical methods” for fashioning advisory sentencing
guidelines, United States v. Lynde, 926 F.3d 275, 280 (6th Cir. 2019), the theory is that longer
sentences are justified in this context because an individual defendant’s activity helps the market
for the unlawful product expand.
There is no corresponding “unlawful product” here. The supposed harm of Aguilar-
Calvo’s participation in the job market cannot be equated with the harm that a possessor and
distributor of fentanyl inflicts through propelling the market for this dangerous, unlawful
substance. Indeed, this is not why legislation establishing the crime of illegal reentry was
enacted in the first place or why maximum sentences for committing the crime have increased
over the years. First established as a felony by the Immigration and Nationality Act of 1952, the
crime of illegal reentry has been amended multiple times to increase maximum sentences for
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offenders who have previously committed other crimes. See Anti-Drug Abuse Act of 1988, Pub.
L. No. 100-690, § 7345(a)(2), 102 Stat. 4181, 4471; Violent Crime Control and Law
Enforcement Act of 1994, Pub. L. No. 103-322, tit. XIII, § 130001(b)(1)–(2), 108 Stat. 1796,
2023. The punishment for this crime is in part aimed at preventing and deterring undocumented
immigrants from committing further crimes, see Zoey T. Jones, Prescribing Disproportionate
Punishment: The Federal Sentencing Guidelines for Illegal Reentry, 33 CARDOZO L. REV. 1217,
1221–23 (2012) (reviewing legislative history of statutory sentencing range for illegal reentry),
but this is entirely different from imposing harsh punishment due to the effect of illegal
immigration on the job market. Yet the government presented these concerns to the district court
as justification for sentencing Aguilar-Calvo to a lengthy term of imprisonment.
On appeal, the government appears to attempt to distance itself from its improper
presentation to the district court, stating that it “did not take a position on which side of the
debate was correct.” Appellee Br. at 14; see also R. 40 (Sent’g Hr’g Tr. at 14) (Page ID #195)
(Assistant U.S. Attorney: “[A]ll I’ve said is there’s a national debate.”). This strains credulity.
If the government had explained that illegal reentry is a serious offense because some U.S.
citizens believe that all Mexican nationals entering this country are drug-dealers and rapists, we
would surely have faulted the government for promoting a baseless theory. The government
cannot wash its hands of the unseemly argument included in its sentencing memorandum, reply
memorandum, and oral advocacy at the sentencing hearing simply by attributing the argument to
“[o]ur neighbors” who are not materially secure. R. 24 (Gov’t Sent’g Mem. at 4) (Page ID #60).
Indeed, the government encouraged the district court to consider these concerns by arguing that
the advisory guidelines take account of them in recommending higher sentences for defendants
like Aguilar-Calvo. R. 26 (Gov’t Response to Def. Sent’g Mem. at 4) (Page ID #82). The
government’s sponsorship of these concerns in seeking a lengthy sentence for Aguilar-Calvo
strikes this court as unbecoming of the quality of lawyering expected from the United States
Attorney’s Office.
Despite the government’s presentation of these inappropriate arguments, however, the
district court explicitly disclaimed reliance on them at the sentencing hearing. It is true that the
district court, after summarizing the government’s argument, stated, “I think that that argument is
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perfectly proper.” R. 40 (Sent’g Hr’g Tr. at 7) (Page ID #188). In Aguilar-Calvo’s view, this
shows that the district court weighed the existence of one political constituency’s perspective on
illegal reentry as determinative of—or at least relevant to—its seriousness. Yet the portion of the
transcript that Aguilar-Calvo cites for his claim that the court was “relying on [the government’s
claims] to help explain why the crime of illegal entry [sic] was serious” includes no statement
indicating reliance. Appellant Br. at 11 (citing R. 40 (Sent’g Hr’g Tr. at 7–8) (Page ID #188–
89)). Instead, after hearing the parties’ arguments on this issue, the district court stated:
I’m going to take the [government’s] argument as sort of like this: To the
extent that some folks in society are not eager for immigration enforcement, that
could tend to indicate the offense isn’t so serious.
[The Assistant U.S. Attorney] makes the point, which is fair enough, that,
well, there’s a countervailing constituency, so if the Court were to look to one
constituency’s views that this is not a serious offense, it’s appropriate for the
Court just to keep in mind there’s another constituency that thinks quite the
opposite. So, to me, those things, in a sense, balance each other out.
And so the Court will, you know, acknowledge that there is this political
debate that there are people on both sides of it, and sort of neither set of voices
will sort of move the needle for the Court on how serious this is.
R. 40 (Sent’g Hr’g Tr. at 15) (Page ID #196). Thus, the closest the district court came to
acknowledging the relevance of external opinions about the seriousness of illegal reentry was in
a hypothetical sense: “[I]f the Court were to look to one constituency’s views,” the district court
posited, the government argued that the court should be mindful of a different constituency’s
views. R. 40 (Sent’g Hr’g Tr. at 15) (Page ID #196) (emphasis added). This diversity of views
itself is what led the district court not to rely on one constituency’s perspective when considering
the seriousness of illegal reentry: “[N]either set of voices will sort of move the needle for the
Court on how serious this is.” Id. Although the district court described the government’s
arguments as “perfectly proper” and “fair enough,” id. at 7, 15, we cannot conclude that it relied
on these arguments when it said that the views raised by the government would not affect its
sentence. Indeed, the district court’s subsequent explanation of the seriousness of the offense
made no reference to the government’s arguments; instead, the court emphasized that “the
seriousness of the offense is substantially heightened . . . by the fact that the same conduct had
recently landed the Defendant in prison for a 14-month sentence,” though the court
No. 19-5278 United States v. Aguilar-Calvo Page 9
acknowledged that criminal-immigration violations were, although “serious matters, not as
serious as some offenses.” R. 40 (Sent’g Hr’g Tr. at 49) (Page ID #230). Similarly, there is no
indication in the record that the district court sentenced Aguilar-Calvo in reliance on the
government’s representation that the Sentencing Guidelines take into account the purported
“concerns” that “many citizens” have about illegal immigration. R. 26 (Gov’t Response to Def.
Sent’g Mem. at 3–4) (Page ID #81–82). Thus, at no point in sentencing Aguilar-Calvo did the
district court rely on the government’s inappropriate representations.
Comparison with other cases we have decided involving a district court’s reliance on
speculative or erroneous information at sentencing confirms this conclusion. In United States v.
Hughes, we vacated a district court’s sentence after concluding that it “inappropriately
speculated” both about the victim’s wishes to be compensated and about the government’s
reasons for prosecuting the defendant. 283 F. App’x 345, 353–55 (6th Cir. 2008) (“After
announcing that it did not think imprisonment was appropriate for Hughes, the district court
stated that Hughes would need to begin making restitution payments to SunTrust. The district
court concluded: ‘I feel that that’s all the bank really wants anyway.’”). And in United States v.
Adams, we vacated a district court’s sentence for a defendant’s supervised-release violation
when the district court based its eighteen-month sentence in part on the “unsubstantiated
assertion” by the government that “the brain of an addicted person requires at least eighteen
months without abusing drugs to ‘reset.’” 873 F.3d 512, 519 (6th Cir. 2017) (“The district court
then explained—in response to Adams’s question about the length of the period of
incarceration—that it had chosen that length ‘because you need that long to reset and maybe get
another, maybe get another chance at remaining clean and sober.’”). There is simply nothing in
the transcript of the sentencing hearing in this case that manifests a similar reliance on
unreasonable speculation or erroneous information. The district court therefore did not commit
procedural error in sentencing Aguilar-Calvo.
III. CONCLUSION
For the foregoing reasons, we AFFIRM Aguilar-Calvo’s sentence.