United States v. Jose Perez-Molina ( 2010 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 10-2427
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
JOSE G UADALUPE P EREZ-M OLINA,
Defendant-Appellant.
Appeal from the United States District Court
for the Central District of Illinois.
No. 09-40092-001—Joe Billy McDade, Judge.
A RGUED N OVEMBER 9, 2010—D ECIDED D ECEMBER 3, 2010
Before P OSNER, T INDER, and H AMILTON, Circuit Judges.
H AMILTON, Circuit Judge. Jose Guadalupe Perez-Molina
pled guilty to unlawful entry into the United States
following removal, see 8 U.S.C. §§ 1326(a) and (b)(1), and
was sentenced to 34 months in prison, more than twice
as long as the high end of the applicable sentencing
guideline range. On appeal Perez-Molina argues that the
court did not adequately justify imposing a sentence
above the guideline range. We affirm. The district court
2 No. 10-2427
acted well within its discretion by imposing a higher
sentence to deter the defendant from continued reentry
and criminal activity in the United States.
Perez-Molina has a history of unlawfully entering the
United States and committing crimes while here. He
was first removed to Mexico in 2004 after being con-
victed in Arizona courts twice for assaulting his girl-
friend and once for theft. Within a week of that removal,
border patrol agents arrested him for illegal entry and
he was removed a second time. Two days later he was
again arrested in Arizona. In June 2008 he was removed
a third time. In October 2009 Illinois police arrested Perez-
Molina for burglary. He was convicted in state court
of burglary.
This time around, Perez-Molina was also charged with
and pled guilty to the federal crime of unlawful reentry
after an earlier removal following conviction for a fel-
ony. The government recommended a 16-month sen-
tence, the high end of the applicable guideline range.
At the first sentencing hearing, the court stated its in-
tention to sentence Perez-Molina to 36 months, expressing
concern that Perez-Molina would be likely to re-enter
the United States and commit further crimes. The court
added, “I don’t think a sentence of 10 to 16 months
[the calculated range] where he has already served
almost half of that will accomplish anything.” Citing
U.S.S.G. § 4A1.3, the guidelines’ policy statement
regarding upward departures for criminal history, the
court explained that an above-range sentence was
needed to deter Perez-Molina from continuing to enter
No. 10-2427 3
the United States illegally and from committing further
crimes here. Perez-Molina’s counsel objected that he
had no notice of the court’s intent to sentence above
the range. The court agreed to continue the hearing until
the following week to give the defense a further oppor-
tunity to address the issue. (Because the sentencing
guidelines are no longer mandatory, the district court
was not required to grant the continuance, see Irizarry v.
United States, 553 U.S. 708, 715-16 (2008), but the con-
tinuance was a reasonable and fair-minded response to
the objection.)
At the second hearing, the court reduced the planned
sentence to 34 months and reaffirmed that a sentence
greater than 16 months was needed to “encourage him
to live a law-abiding life and not get arrested or brought
to the attention of the police.” The court made clear that
the sentence was “not a criminal history departure” (a
term defense counsel had used), but simply a sentence
above the guidelines range based on the court’s authority
under 18 U.S.C. § 3553(a).
On appeal Perez-Molina argues that the district
court abused its discretion by not adequately justifying
its above-guideline sentence. When sentencing above
an applicable guideline range, a district court must
“consider the extent of the deviation and ensure that the
justification is sufficiently compelling to support the
degree of variance.” Gall v. United States, 552 U.S. 38, 50
(2007); United States v. Miller, 601 F.3d 734, 739 (7th
Cir. 2010). Perez-Molina argues that the district court’s
justifications for his sentence cannot be distinguished
4 No. 10-2427
from those we deemed insufficient in United States v.
Castro-Juarez, 425 F.3d 430 (7th Cir. 2005), also involving
a defendant convicted of unlawful entry after removal
following a felony conviction. In Castro-Juarez, the district
court failed to single out any factor in 18 U.S.C. § 3553(a)
that warranted an above-guideline sentence other than
concerns about criminal history encompassed by its refer-
ence to § 4A1.3, which did not justify sentencing the
defendant to more than twice the high end of the guide-
line range. 425 F.3d at 436-37.
Although district courts may apply the departure
guidelines by way of analogy in analyzing the § 3553(a)
factors, they are not bound by the guidelines. See
United States v. Johnson, 612 F.3d 889, 896 (7th Cir. 2010). In
Castro-Juarez, we looked to § 4A1.3 at the parties’ urging,
but we emphasized that United States v. Booker, 543 U.S.
220 (2005), required the court to base its sentence on
an analysis of the § 3553(a) factors. 425 F.3d at 436. Just
as sentencing judges may impose below-guideline sen-
tences when they regard the guideline range as too
severe, see Gall, 552 U.S. at 56; Kimbrough v. United States,
552 U.S. 85, 111 (2007), judges may sentence above the
guidelines if they consider the range too lenient. See
United States v. McIntyre, 531 F.3d 481, 484 (7th Cir. 2008)
(affirming above-guideline sentence); United States v.
King, 506 F.3d 532, 536-37 (7th Cir. 2007) (concluding
challenge to above-guideline sentence would be frivo-
lous); United States v. Spano, 476 F.3d 476, 480-81 (7th
Cir. 2007) (affirming above-guideline sentence). More-
over, unlike Castro-Juarez, the district court here relied
on more than criminal history to justify its above-
No. 10-2427 5
guideline sentence. Besides noting Perez-Molina’s ex-
tensive history of illegal entry and crime, the court com-
m ented upon his personal characteristics, see
§ 3553(a)(1)—including his search for a better life, his
family’s residing in the United States, and his ability to
earn money in the United States—and the particular need
to deter him from further reentry, see § 3553(a)(2)(B), since
there was “nothing for him in Mexico.” By considering
the other circumstances drawing Perez-Molina to the
United States, along with the need to deter him from
reentry and crime, the district court here adequately
justified its above-guideline sentence.
A FFIRMED.
12-3-10