United States v. Uriel Carrillo-Esparza ( 2010 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 08-3863
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
U RIEL C ARRILLO-E SPARZA,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 08 CR 150-1—Blanche M. Manning, Judge.
A RGUED O CTOBER 15, 2009—D ECIDED JANUARY 5, 2010
Before R IPPLE, M ANION, and K ANNE, Circuit Judges.
P ER C URIAM. Uriel Carrillo-Esparza, who had twice
previously been convicted for aggravated felonies and
deported to Mexico, pleaded guilty to illegally re-entering
the United States. See 8 U.S.C. § 1326(a)-(b)(2). The
district court sentenced him to 90 months’ imprisonment.
Carrillo-Esparza argues that the court erred by failing to
consider his contention that the time remaining on his
sentence for state offenses supported a reduced sentence.
Because the district court implicitly considered and
2 No. 08-3863
rejected Carrillo-Esparza’s argument and properly con-
sidered the sentencing factors in 18 U.S.C. § 3553(a),
we affirm.
Background
Though not a legal resident of the United States, Carrillo-
Esparza has lived in the Chicago area since the age of
one—except for the times he has been incarcerated or
deported to Mexico. He was first deported in 1994, fol-
lowing his state conviction in 1993 for attempted first-
degree murder. He re-entered the United States illegally
in either 1994 or 1995. In 1996 he pleaded guilty in
federal court to a charge of illegal re-entry, and later
that year he was convicted of burglary in state court.
After serving his federal and state sentences concur-
rently, he was deported in 1999. Carrillo-Esparza re-
entered the United States illegally again, presumably in
2002. He was convicted in state court in 2006 of driving
under the influence and forgery (relating to an incident
in 2003), fleeing and eluding police (relating to an
incident in 2005), and residential burglary (relating to an
incident in 2005).
Carrillo-Esparza pleaded guilty in 2008 to re-entering
the United States illegally after his prior aggravated-
felony convictions and subsequent deportations. See 8
U.S.C. § 1326(a)-(b)(2). At his sentencing hearing later
that year, he questioned the effect of the 2006 state sen-
tence, which was expected to run until September 2009.
Carrillo-Esparza’s sentence for this offense would not
begin until then—a fact, he argued, that supported a
No. 08-3863 3
sentence below the guidelines range in the district
court’s § 3553(a) analysis.
The district court did not address that specific argu-
ment, but it did consider the § 3553(a) factors and
imposed a sentence of 90 months, near the high end of
the properly calculated guidelines range of 77 to 96
months. Although the court expressed some sympathy
for Carrillo-Esparza’s circumstances—his entire family
was in the Chicago area—it emphasized that he
had done everything “the wrong way” by re-entering
without permission, and pointed to his “checkered crimi-
nal history.” It also cited a “significant need to
deter [him] from this kind of behavior with a sub-
stantial penalty.”
Discussion
Carrillo-Esparza challenges his sentence on appeal,
contending that the district court erred procedurally by
not considering his argument for a lower sentence in
light of the time remaining on his state sentence. He
argues that the undischarged time on that sentence sup-
ported a reduced sentence under the court’s required
consideration of such § 3553(a) factors as his history
and characteristics, the statutory goals of sentencing,
and the kinds of sentences available.
A district court need not address every argument a
defendant makes at sentencing, but it must address an
argument of “recognized legal merit.” United States v.
Cunningham, 429 F.3d 673, 679 (7th Cir. 2005). In sen-
4 No. 08-3863
tencing the defendant, the court must comply with
§ 3553(a) by giving meaningful consideration to the
statutory factors. United States v. Tahzib, 513 F.3d 692, 695
(7th Cir. 2008). An adequate statement of reasons why
its sentence is appropriate and consistent with § 3553(a)
will suffice. United States v. Alden, 527 F.3d 653, 662
(7th Cir. 2008).
Although the district court, in its ruling, did not explic-
itly mention the undischarged time on Carrillo-Esparza’s
state sentence, it did implicitly consider and reject that
time as a basis for a lower sentence. At sentencing, Carrillo-
Esparza and his attorney informed the court of his state
offenses and his expected parole date. The court, through
follow-up questions, confirmed the details of the state
sentence, including the underlying offenses and Carrillo-
Esparza’s parole date. It then referred to the sentencing
goals in § 3553(a) when it emphasized the need to deter
Carrillo-Esparza from illegal re-entry and other criminal
behavior. See 18 U.S.C. § 3553(a)(2)(B). The court’s order
also noted that Carrillo-Esparza was serving time for
his state offenses, and it acknowledged a great need to
protect others from him. See 18 U.S.C. § 3553(a)(2)(C).
The court ultimately imposed a sentence within the
guidelines range, and Carrillo-Esparza has not rebutted
our presumption that such a sentence is reasonable.
See Alden, 527 F.3d at 662.
Carrillo-Esparza now argues for the first time that
because the district court had discretion under U.S.S.G.
§ 5G1.3(c) to run this sentence concurrently to his undis-
charged sentence—which would have resulted, essen-
No. 08-3863 5
tially, in a reduced sentence—it also could have relied
on his undischarged time to impose a reduced sentence
under § 3553(a).
At bottom, Carrillo-Esparza’s § 5G1.3(c) argument
appears simply to be a revival of his meritless argument
that the district court did not meaningfully consider the
time remaining on his state sentence before imposing
its sentence. To the extent Carrillo-Esparza is raising
any new arguments—that the court should have con-
sidered § 5G1.3(c) or imposed a concurrent sentence—he
has forfeited them. He did not refer to § 5G1.3(c) before
the district court or in his sentencing memorandum, and
he did not ask for a concurrent sentence. See Houskins
v. Sheahan, 549 F.3d 480, 496 (7th Cir. 2008).
Our recent decision in United States v. Villegas-Miranda,
579 F.3d 798 (7th Cir. 2009), does not affect our decision
here. We vacated the sentence in that case after the
district court failed to address the defendant’s argument
that the government’s intentional delay in charging
him with illegal re-entry had deprived him of the oppor-
tunity to serve his state and federal sentences concur-
rently. Carrillo-Esparza’s case is distinct from Villegas-
Miranda in at least two ways. First, he does not argue
that there was any delay—intentional or otherwise—in
charging him. Second, Carrillo-Esparza did not lose his
opportunity to ask the district court to run his federal
sentence concurrently to his state sentence; he simply
never asked.
A FFIRMED.
1-5-10