United States v. Solis-Vaquera, Rober ( 2005 )

UNPUBLISHED ORDER
Not to be cited per Circuit Rule 53
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted August 31, 2005*
Decided September 2, 2005
Before
Hon. RICHARD D. CUDAHY, Circuit Judge
Hon. DANIEL A. MANION, Circuit Judge
Hon. DIANE P. WOOD, Circuit Judge
No. 04-3627
UNITED STATES OF AMERICA, Appeal from the United States
Plaintiff-Appellee, District Court for the Northern
District of Illinois, Eastern Division
v.
No. 03 CR 74
ROBERTO SOLIS-VAQUERA, a/k/a
ROBERTO AVILA, a/k/a ROBERTO Amy J. St. Eve,
VASQUEZ, a/k/a ROBERTO Judge.
SOLIS-ARQUEDA, a/k/a ROBERTO
AVILA-VAZQUEZ, a/k/a ROBERTO
ABILIA, a/k/a ROBERTO SAEOLES,
Defendant-Appellant.
ORDER
Mexican citizen Roberto Solis-Vaquera pleaded guilty to reentering the
United States without permission after being deported, 8 U.S.C. § 1326(a), and was
sentenced near the middle of the guideline range to 83 months’ imprisonment. At
his September 2004 sentencing, Solis-Vaquera objected unsuccessfully to a 16-level
*
After an examination of the briefs and the record, we have concluded that oral
argument is unnecessary. Thus, the appeal is submitted on the briefs and the record.
See Fed. R. App. P. 34(a)(2).
No. 04-3627 Page 2
upward adjustment due to a prior conviction for a crime of violence, see U.S.S.G.
§ 2L1.2(b)(1)(A)(ii); he argued that the increase was unconstitutional under Blakely
v. Washington, 542 U.S. 296 (2004), and our decision in United States v. Booker,
375 F.3d 508 (7th Cir. 2004). Solis-Vaquera now contends, citing United States v.
Schlifer, 403 F.3d 849 (7th Cir. 2005), that this objection preserved an argument
under United States v. Booker, 125 S. Ct. 738 (2005), that the district court erred in
sentencing him under the formerly mandatory guidelines regime. He adds that he
is entitled to resentencing because the government cannot show that the district
court’s error was harmless.
We agree with the former proposition, but not with the latter. All sentences
imposed under the mandatory guidelines regime involve error, Schlifer, 403 F.3d at
853, and because Solis-Vaquera raised a Sixth Amendment argument in the district
court, we must vacate his sentence unless the government has established that the
error did not affect the district court’s choice of sentence, id. at 854. The
government contends, and we agree, that the error was harmless in this case
because the district court selected an alternative sentence in accordance with our
advice in Booker. See Booker, 375 F.3d at 515. The court specified that it would
choose the same sentence “if the guidelines are deemed unconstitutional.”
Solis-Vaquera asserts that the alternative sentence does not “comport[] with
the Supreme Court’s holdings in Booker” because, in his view, the district court
failed to consider “all of the factors listed in 18 U.S.C. § 3553(a),” including the
appropriate guideline range. But we discern no error. Because the district court
properly calculated a guidelines sentence, we will infer that it “took the guidelines
into account in fashioning” its alternative sentence. See United States v. Bryant,
2005 WL 2000981, at *4 (7th Cir. Aug. 22, 2005). Similarly, since the court’s
alternative sentence is within the guideline range, we may presume that the court
properly canvassed the § 3553(a) factors. See United States v. Dean, 414 F.3d 725,
729 (7th Cir. 2005); United States v. George, 403 F.3d 470, 472-73 (7th Cir. 2005).
In this case, though, we have the added assurance that the court examined the
relevant factors because it explicitly referred to Solis-Vaquera’s “incredibly sad”
family history, his need for mental health treatment, and his history of recidivism.
See 18 U.S.C. § 3553(a)(1), (2)(D), (2)(B). Moreover, after Booker a defendant need
only “be given an opportunity to draw the judge’s attention to any factor” that
“might warrant a sentence different from the guidelines sentence,” Dean, 414 F.3d
at 730-31, and Solis-Vaquera does not contend that he missed an opportunity to
make the district court aware of material information.
Accordingly, the judgment of the district court is AFFIRMED.