United States v. Ines Olmeda-Garcia ( 2010 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 09-3042
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
INES O LMEDA-G ARCIA,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of Wisconsin.
No. 00 CR 67—Rudolph T. Randa, Judge.
A RGUED M AY 19, 2010—D ECIDED JULY 29, 2010
Before F LAUM, M ANION, and H AMILTON, Circuit Judges
F LAUM, Circuit Judge. Defendant-appellant argues that
the district court committed a procedural error by disre-
garding his comment that a comparison of his case to
those in so-called “fast track” districts might reveal
an unwarranted sentencing disparity. The argument was
not adequately developed and thus falls below the thresh-
old of relevance. We find no error in the district court’s
decision not to address the point directly and affirm
the judgment below.
2 No. 09-3042
I. Background
Appellant Ines Olmeda-Garcia has a long criminal
history that includes a July 2000 conviction for drunk
driving, a 2002 conviction for cocaine trafficking, a 2002
conviction for battery of his girlfriend and her nine-
year-old daughter, and three other drunk driving arrests.
Appellant also has arrests for illegal entry into the
United States, several batteries, burglary, sexual assault,
failure to appear, and drug dealing. He has been deported
from the United States on two prior occasions. The most
recent one was in 2005, after appellant completed a 42-
month sentence for drug trafficking.
In February 2009, Immigration and Customs Enforce-
ment (“ICE”) agents discovered that appellant was in
custody in Milwaukee on drunk driving charges. On
March 10, 2009, a grand jury sitting in the Eastern Dis-
trict of Wisconsin charged Olmeda-Garcia with posses-
sion with intent to deliver cocaine, being found in the
United States following removal for an aggravated felony,
and not having obtained the express consent of the gov-
ernment to re-apply for admission into the United States,
in violation of 8 U.S.C. §§ 1326(a) and (b)(2). On April 28,
2009, Olmeda-Garcia pleaded guilty to a single count of
illegal re-entry. The Presentencing Investigation Report
(“PSR”) determined appellant’s base offense level to
be 8, with a 16-level increase for a prior felony drug
trafficking offense for which the sentence exceeded
13 months, and a 3-level decrease for acceptance of re-
sponsibility. Accordingly, the PSR calculated a total of-
fense level of 21 and a criminal history category of IV.
No. 09-3042 3
These parameters yielded a guideline sentencing range
of 57 to 71 months. If the district court imposed a term of
imprisonment longer than one year, the PSR found that
the guidelines required the court to also impose a term
of supervised release of at least two years, but not
more than three years, on defendant-appellant.
At sentencing, the government recommended a sen-
tence at the low end of the guideline range. Defense
counsel recommended a sentence of 36 months. Olmeda-
Garcia’s attorney argued that appellant illegally reentered
the country to see his children and that he would have
no reason to come back in the future because his older
child had returned to Mexico and appellant lost custody
of the younger kids. An excerpt of the transcript captures
remarks made by appellant’s counsel on this topic as
well as the one motivating the present appeal:
[Olmeda-Garcia’s] older child is no longer residing
in the country. Has since returned to Mexico with his
mother. And his younger children have—his parental
rights have since terminated and they’ve been ad-
opted. Although he has other contacts with many
in the U.S., the children were his closest contacts and
why he took the risk to come back in the United States.
The recommendation is also guided, Your Honor—
although this is a serious offense, it’s not a violent
offense. The 36 months recommendation [sic] is also
guided by the fact that, Your Honor, had Mr. Olmeda-
Garcia been arrested in any of the Districts that have
the fast-track program, that would be a typical sen-
tence that he would received.
4 No. 09-3042
And then finally, the recommendation is guided
by the fact that, Your Honor, Mr. Olmeda-Garcia’s
guidelines here are primarily being ruled by one
fact. That is for a prior drug conviction.
Appellant’s counsel also pointed out that Olmeda-
Garcia will suffer the collateral consequence of deporta-
tion. Appellant then exercised his right of allocution and
spoke through an interpreter. He reiterated the story
about coming back to the U.S. to find his family and
being arrested for not having a valid driver’s license
right as he was about to leave the country for Mexico.
Prior to announcing appellant’s sentence, the district
court discussed Olmeda-Garcia’s extensive contact with
the criminal system, the fact that he operated under ten
different aliases, and his fathering of several children out
of wedlock while keeping a wife in Mexico. Given these
circumstances, in an effort to “promot[e] respect for
the law,” the court imposed a sentence of 64 months. In
doing so, the court made no mention of any potential
disparity between appellant’s term of imprisonment
and those imposed on individuals in districts with a fast-
track deportation program. Olmeda-Garcia argues that
silence on this subject amounts to a procedural error that
violates 18 U.S.C. § 3553(a).
II. Discussion
Whether a district court followed proper sentencing
procedure is a question of law that we review de novo.
United States v. Curby, 595 F.3d 794, 796 (7th Cir. 2010).
No. 09-3042 5
Under Gall, the district court “must adequately explain
the chosen sentence to allow for meaningful appellate
review and to promote the perception of fair sentencing.”
Gall v. United States, 552 U.S. 38, 50 (2007). We have re-
marked that “[a] judge who fails to mention a ground of
recognized legal merit (provided it has a factual basis) is
likely to have committed an error or oversight.” United
States v. Cunningham, 429 F.3d 673, 679 (7th Cir. 2005)
(emphasis added). The sentencing court is not required to
discuss each and every sentencing factor; it is enough if
the record shows meaningful consideration of the types
of factors set forth in § 3553(a). That is, the court “need
not respond to every pithy argument that a defendant
raises, just the ‘principal’ ones.” United States v. Villegas-
Miranda, 579 F.3d 798, 801 (7th Cir. 2009).
Given these standards, Olmeda-Garcia cannot prevail.
The only potential error appellant identifies is the district
court’s silence with respect to a possible disparity that
could arise between appellant’s sentence and those avail-
able to defendants in other districts. Olmeda-Garcia’s
counsel did not adequately develop this argument and
the district court was entitled to hand down an other-
wise procedurally and substantively sound sentence
without expressly discussing the point. Cf. Cunningham,
429 F.3d at 679 (“[A] judge’s failure to discuss an im-
material or insubstantial dispute relating to the proper
sentence would be at worst a harmless error.”).
The fast-track program began in 1994 in the Southern
District of California, where federal courts were faced with
more than 600,000 arrests annually at the border with
6 No. 09-3042
Mexico. See Alan D. Bersin, Reinventing Immigration Law
Enforcement in the Southern District of California, 8 Fed.
Sentencing Rep. 254 (1996). The program allowed “federal
prosecutors to offer shorter sentences to defendants
who plead guilty at an early stage in the prosecution and
agree to waive appeal and other rights.” United States v.
Gonzalez-Zotelo, 556 F.3d 736, 739 (9th Cir. 2009). “In
2003, Congress explicitly authorized downward sen-
tencing departures for fast-track programs in the Prosecu-
torial Remedies and Tools Against the Exploitation of
Children Today Act of 2003 (’PROTECT Act’), Pub. L. No.
108-21, § 401(m), 117 Stat. 650 (2003). The PROTECT Act
directed the Sentencing Commission to ‘promulgate . . .
a policy statement authorizing a downward departure
of not more than 4 levels if the Government files a
motion for such departure pursuant to an early disposi-
tion program authorized by the Attorney General and the
United States Attorney.’ ” Id. Thereafter, the Attorney
General issued a memorandum outlining criteria for
the program. Memorandum from Attorney General John
Ashcroft Setting Forth Justice Department’s “Fast-Track”
Policies (Sept. 22, 2003), 16 Fed. Sent. Rep. 134 (Dec. 2003).
The Memorandum restricted the program to districts
with an exceptionally large number of immigration cases
that could not be handled by the state, and further condi-
tioned its application to individual defendants on their
willingness to waive pre-trial motions, right to habeas
corpus, and right to appeal, inter alia. The program is not
applicable to individuals charged with a “crime of vio-
lence” listed under 28 C.F.R. § 28.2 (2009).
No. 09-3042 7
The Eastern District of Wisconsin does not have a
formal fast-track program in place, but appellant’s coun-
sel had to do more than merely allude to that fact to create
an argument that the district court had to consider.
Olmeda-Garcia never attempted to demonstrate that he
would be eligible for a 4-level offense-level reduction in
a fast-track district. In fact, his counsel’s comments must
be read quite generously to find even the seed of an
argument about potential unwarranted sentencing dis-
parities relevant under 18 U.S.C. § 3553(a)(6). Since ap-
pellant did not establish that sentences available under
the fast-track program are comparable to his own, we
cannot fault the district court for skipping over this
particular point. See United States v. Ramirez-Silva,
No. 09-3365, 2010 U.S. App. LEXIS 6766, at *10-11 (7th Cir.
Apr. 1, 2010) (“Counsel failed to explain, for example,
(1) the minimum eligibility thresholds set out by United
States Attorneys’ offices with approved fast-track pro-
grams, (2) whether the two months that Ramirez-Silva
waited after his indictment before pleading guilty would
have put him on a fast-track in any district, (3) whether
fast-track defendants must waive their right to appeal,
(4) whether there are differences among fast-track dis-
tricts as to the amount of sentencing consideration
given, and (5) whether Ramirez-Silva met any disquali-
fying criteria (such as his prior conviction for alien smug-
gling or his violation of supervised release). The dis-
trict court properly disregarded the argument because
Ramirez-Silva never explained or even asserted that
he would be eligible for a fast-track reduction in any
district.”) (citations omitted); see also United States v.
8 No. 09-3042
Mejia, 461 F.3d 158, 162-63 (2d Cir. 2006) (describing a
similar argument as unavailing because it “rests on a false
equivalence between (on the one hand) defendants in
fast-track jurisdictions who receive a benefit in exchange
for the acceptance of certain detriments, and (on the other
hand) a defendant in Mejia’s position, who claims the
benefit without suffering the detriment. As Mejia points
out, he did not have the opportunity to make the bar-
gain; by the same token, the bargain has not been made,
and no sentencing principle requires the sentencing
court to mimic the transaction or compensate for its
unavailability.”).
We note here that even if Olmeda-Garcia adequately
substantiated his position that the existence of fast-
track programs in other districts generates a sentencing
disparity, he would run into precedent that forbids
district courts in this Circuit from deeming any such
sentencing disparity “unwarranted” because it is a
product of express legislative choice. See United States v.
Galicia-Cardenas, 443 F.3d 553 (7th Cir. 2006); United
States v. Martinez-Martinez, 442 F.3d 539 (7th Cir. 2006).
Olmeda-Garcia argues that the Supreme Court’s holding
in Kimbrough v. United States, 552 U.S. 85, 110 (2007),
which clarified that district court judges may consider
the disparity created by the crack cocaine guidelines
during sentencing even in routine cases, requires us to
revisit the aforementioned precedent. Given the narrow
posture of this appeal, however, we need not reach
this contention today.
No. 09-3042 9
III. Conclusion
For the foregoing reasons, we A FFIRM the judgment
of the district court.
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