United States v. Bahena-Guifarro, Jos ( 2003 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 02-1349
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
JOSE BAHENA-GUIFARRO, also
known as Jose Bahena-Jimenez,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 01 CR 585—Charles R. Norgle, Sr., Judge.
____________
ARGUED JANUARY 9, 2003—DECIDED APRIL 1, 2003
____________
Before RIPPLE, ROVNER and EVANS, Circuit Judges.
ROVNER, Circuit Judge. Jose Bahena-Guifarro pled guilty
to two counts of illegal reentry of an alien who had previ-
ously been removed from the United States following a
conviction for an aggravated felony, in violation of 8 U.S.C.
§§ 1326(a) and (b). In this case of first impression, Bahena-
Guifarro appeals the district court’s refusal to group the
two counts under U.S.S.G. § 3D1.2. We affirm.
I.
Jose Bahena-Guifarro was born in Mexico but came to
the United States in 1979 as an infant and lived in Illinois
2 No. 02-1349
most of his life. He became a lawful permanent resident
in 1989. Unfortunately, the “lawful” part of his stay was
short-lived. In 1996, he was convicted in Lake County,
Illinois of burglary, robbery and aggravated battery and
sentenced to concurrent six year terms of imprisonment.
After serving part of his sentence, he was placed on super-
vised release and transferred to INS custody. In 1997,
following a hearing, an immigration judge ordered Bahena
deported. He was removed from the United States in 1998
and deported to Mexico.1 Bahena returned to the United
States in early 1999 without obtaining permission of the
Attorney General to do so. A few months later, he was
convicted of burglary in Lake County, Illinois and sen-
tenced to three years of incarceration. After serving part
of his term, he was again placed on supervised release
and transferred to INS custody. An immigration judge
held another hearing and ordered him deported in April
2000. He was again removed from the United States
and returned to Mexico. Once again, Bahena entered the
United States without the permission of the Attorney
General. In June 2001, he was arrested in Lake County,
Illinois for driving under the influence of alcohol. After his
conviction (he was sentenced to time served), he was again
transferred to INS custody. This time he was charged
with two counts of illegal reentry of an alien who has
previously been removed from the United States subse-
quent to a conviction for an aggravated felony, in viola-
tion of 8 U.S.C. §§ 1326(a) and (b).
Bahena pled guilty to both counts. In the Presentence
Investigation Report (“PSR”), the probation officer con-
cluded that the two counts should be grouped under
U.S.S.G. § 3D1.2(b) because they involved the same type
of offense and the same victim, and because the two acts
1
Counsel refers to Bahena-Guifarro as Bahena throughout the
appellant’s brief. We will therefore also refer to him as Bahena.
No. 02-1349 3
were connected by a common scheme or plan. The govern-
ment objected to the grouping recommendation, arguing
that two separate acts after two separate deportations
should be counted as two units under U.S.S.G. § 3D1.4.
At the sentencing hearing, the parties first presented
their legal positions on the issue to the court. The gov-
ernment argued that, generally, crimes committed on
different days should not be grouped. The government
analogized Bahena’s offenses to two bank robberies com-
mitted a year apart, or two assaults against the same
victim committed a year apart, which would not be grouped.
Unlike multiple drug crimes related to the same transac-
tion or a series of crimes that is somehow linked, the
government maintained that the grouping rules were not
intended to cover the situation presented by Bahena’s
crimes:
[T]his is the same crime committed over a year apart
with intervening government action, the arrest and
deportation. When somebody does the same thing
consciously again over a year apart, we would submit
that it’s not appropriate for those to be grouped, and
that’s not within the language or purpose of the rule
for those to be grouped.
R.24, at 13. The district court agreed, finding that “these
previous convictions do not lend themselves to . . . group-
ing.” R.24, at 13. Because there was no evidence in sup-
port of the defendant’s position, the court rejected
Bahena’s argument that he had returned to the United
States for the same purpose each time, to be back with
his family. The court invited counsel to present evi-
dence regarding why Bahena returned to the United
States. Instead, counsel called the probation officer to
testify.
The probation officer testified that he called a Sentenc-
ing Commission hot line used by probation officers through-
4 No. 02-1349
out the United States to obtain assistance with sentencing
calculations. He could not identify the person with whom
he spoke. He explained the issues of the case to the hot
line worker, who had not addressed this particular problem
before. The hot line worker indicated that the counts
should be grouped. R. 24, at 15-17. After the probation
officer’s testimony, the district court reaffirmed its earlier
conclusion:
Well, I have already ruled that grouping does not ap-
ply under the circumstances in this case. The record
has been made on this issue. But this is not a case
where the Court should give the benefit in terms of
sentencing to the defendant regarding grouping. They
are separate and distinct acts, separate in terms of
time. Law enforcement intervention, and do not fit
within the concept of routine grouping. It just doesn’t
fit the circumstances in this case.
R. 24, at 17. The district court’s refusal to group the
counts resulted in an offense level of 23, with a sentencing
range of 92 to 115 months in light of Bahena’s criminal
history category of VI. If the court had grouped the counts,
Bahena’s offense level would have been 21, with a resultant
sentencing range of 77 to 96 months. The court sentenced
Bahena to 92 months of imprisonment, followed by three
years of supervised release. Bahena appeals.
II.
We review the district court’s interpretation of the
Sentencing Guidelines de novo, but we review the court’s
factual findings for clear error only. United States v.
Bolden, 279 F.3d 498, 502 (7th Cir. 2002). On appeal,
Bahena maintains that although his illegal reentries
were separated in time, both crimes involved identical
harm to societal interests and a common criminal objective.
In particular, Bahena urges us to find that the counts
No. 02-1349 5
must be grouped together because they involve the same
victim (here, society at large) and they were connected by
a common criminal objective (in this case, Bahena’s de-
sire to be in the United States near his family). The gov-
ernment counters that although Bahena’s crimes both
involved the same victim, grouping should not be ap-
plied when the criminal acts are separated by more than
a year and by law enforcement action, including arrest,
conviction and deportation. The government maintains
that Bahena’s actions cannot be considered part of a
common scheme or plan when they are separated by a
great length of time and each resulted in a separate harm
to the United States, including the costs of arrest, pros-
ecution and deportation on two separate occasions.
We begin with the guideline at issue, section 3D1.2, which
addresses grouping of “closely related counts.” The only
part of this guideline that arguably applies to Bahena is
subsection (b):
All counts involving substantially the same harm shall
be grouped together into a single Group. Counts in-
volve substantially the same harm within the mean-
ing of this rule . . .
(b) When counts involve the same victim and two or
more acts or transactions connected by a common
criminal objective or constituting part of a common
scheme or plan.
6 No. 02-1349
U.S.S.G. § 3D1.2.2 The commentary to the guideline
provides that, for offenses in which there is no identifiable
victim (such as drug or immigration offenses), the victim
is the societal interest that is harmed. Bahena character-
izes the societal interest here as the United States’ con-
cern in protecting the borders and controlling immigra-
tion. See United States v. Owolabi, 69 F.3d 156, 166 (7th
Cir. 1995), cert. denied, 516 U.S. 1134 (1996) (citing United
States v. Cupa-Guillen, 34 F.3d 860, 863 (9th Cir. 1994),
cert. denied, 513 U.S. 1120 (1995)) (8 U.S.C. § 1326(b)
furthers the strong societal interest in controlling immi-
gration and effectively policing our borders). The govern-
ment does not dispute this characterization but main-
tains that the grouping rules apply only to two classes
of cases: those where a total amount of drugs or money
is aggregated under the rule or those in which the con-
duct occurred close in time and involved a common crim-
inal objective. The government objects to grouping here
because each crime caused a separate harm and a sep-
arate cost to the United States, similar to two prison
escapes or two assaults.
2
Bahena also argues that section 3D1.2 contains a “catch-all”
provision in subsection (d) that applies to his offenses. In particu-
lar, he maintains that because the guideline section applicable
to illegal reentry is not listed in subsection (d), “a case-by-case
determination must be made based upon the facts of the case
and the applicable guidelines (including specific offense char-
acteristics and other adjustments) used to determine the offense
level.” U.S.S.G. § 3D1.2(d). On its face, however, subsection (d) is
limited in application to situations in which “the offense level is
determined largely on the basis of the total amount of harm or
loss, the quantity of substance involved, or some other measure
of aggregate harm, or if the offense behavior is ongoing or
continuous in nature and the offense guideline is written to cov-
er such behavior.” Id. Illegal reentry into the United States is
not the sort of offense contemplated in this guideline.
No. 02-1349 7
No other court of appeals has addressed the question
presented here. Whether two separate acts of illegal re-
entry into the United States should be grouped under the
Sentencing Guidelines is an issue of first impression. The
Commentary to section 3D1.2 provides some guidance:
Subsection (b) provides that counts that are part of a
single course of conduct with a single criminal objec-
tive and represent essentially one composite harm to
the same victim are to be grouped together, even if
they constitute legally distinct offenses occurring at
different times. This provision does not authorize
the grouping of offenses that cannot be considered to
represent essentially one composite harm (e.g., robbery
of the same victim on different occasions involves
multiple, separate instances of fear and risk of harm,
not one composite harm).
U.S.S.G. § 3D1.2, Commentary, ¶ 4. In an ensuing list of
examples applying this principle, the Commentary states
that if a defendant is convicted of two counts of rape for
raping the same person on different days, the counts are
not to be grouped together. In another example, the Com-
mentary directs the court to group the counts if the de-
fendant is convicted of one count of auto theft and one
count of altering the vehicle identification number of the
stolen car. Id.
We are persuaded that the district court did not err
in declining to group the two counts of illegal reentry for
two reasons. First, Bahena’s offenses did not constitute a
single, composite harm. United States v. Cueto, 151 F.3d
620, 638 (7th Cir. 1998), cert. denied, 526 U.S. 1016 (1999)
(section 3D1.2 does not authorize the grouping of offenses
that do not represent essentially one composite harm).
Second, Bahena did not provide the court with any evi-
dence that the crimes were committed as part of a com-
mon scheme or plan even though it was his burden to do
8 No. 02-1349
so. On the question of one composite harm, we note that
each time Bahena illegally reentered the United States,
the government incurred the cost of processing and de-
porting him. Moreover, each time Bahena reentered the
United States, he committed a crime in addition to the
illegal reentry. Initially having been deported following
convictions for burglary, robbery and aggravated battery,
Bahena committed another burglary after his first illegal
reentry and drove under the influence of alcohol after
his second illegal reentry. Thus, in addition to the sep-
arate instances of harm incurred in the cost of processing
and deporting Bahena each time, the community was
subjected to separate instances of risk of harm from
Bahena’s continued criminal activities. See Cueto, 151 F.3d
at 639 n.12 (“the same crime against the same victim on
separate occasions would not be grouped because each
separate crime, even though they may be identical, in-
volves separate instances of risk of harm”); United States
v. McDuffy, 90 F.3d 233, 237 (7th Cir. 1996) (offenses
that are clearly distinct, such as crimes committed on
two different days, ought not to be grouped). Cf. United
States v. Bruder, 945 F.2d 167, 171-72 (7th Cir. 1991)
(where the harm to society is unitary, offenses should be
grouped). Bahena’s two illegal reentries are akin to two
counts of escape from prison. See United States v. Bradford,
277 F.3d 1311, 1316 (11th Cir. 2002), cert. denied, 123 S.
Ct. 304 (2002). Although the defendant who escapes
engages in the same type of conduct each time and
harms the same societal interest each time, each escape
is a separate and distinct offense that may not be grouped.
Id. So too with illegal reentry.
Moreover, as we noted, Bahena bore the burden of
demonstrating that the two illegal reentries were part of
a common scheme or plan. When this issue arose at the
sentencing hearing, Bahena’s counsel argued that “Mr.
Bahena obviously came back into the United States for
No. 02-1349 9
the purpose of being with his family.” R. 24, Tr. at 13-14.
The court replied “I don’t know if that’s obvious. That’s
what you say.” R. 24, Tr. at 14. The court then offered
Bahena the opportunity to present evidence on this issue,
among others. Bahena proffered no evidence regarding
his reasons for returning to the United States each time,
and the court was certainly not obliged to accept coun-
sel’s characterization of Bahena’s motives at face value.
See United States v. Pitts, 176 F.3d 239, 245 (4th Cir.
1999), cert. denied, 528 U.S. 911 (1999) (“[A] defendant
cannot merely define his scheme in broad fashion and
argue that all of his conduct was undertaken to satisfy
that broad goal. Rather, a more particularized definition
of the defendant’s intent is required.”). Bahena has dem-
onstrated nothing more than conduct that “constitutes
single episodes of criminal behavior, each satisfying
an individual—albeit identical—goal.” Pitts, 176 F.3d at
245. Therefore, the district court was correct not to group
the offenses.
AFFIRMED.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—4-1-03