NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued March 2, 2010
Decided April 1, 2010
Before
DIANE P. WOOD, Circuit Judge
ANN CLAIRE WILLIAMS, Circuit Judge
DAVID F. HAMILTON, Circuit Judge
No. 09‐3365
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff‐Appellee, Court for the Southern District of Illinois.
v. Nos. 09 CR 40023‐001‐JPG
MARCIAL RAMIREZ‐SILVA, a/k/a J. Phil Gilbert,
ALVARO TORRES‐VALENCIA, Judge.
Defendant‐Appellant.
O R D E R
Marcial Ramirez‐Silva pleaded guilty to being in the United States without
permission after a prior removal,
8 U.S.C. § 1326(a). The district court sentenced him to 46
months in prison, the bottom of the guidelines range. He argues on appeal that the court
failed to address his proposed bases for an even lower sentence. We affirm.
In March 2009, a deputy sheriff in Effingham County, Illinois, pulled over Ramirez‐
Silva in a routine traffic stop. Ramirez‐Silva provided a Mexican identification card with the
name “Alvaro Torres‐Valencia,” one of his several aliases. He admitted being in the country
illegally, as did his two passengers. Ramirez‐Silva was arrested and turned over to
immigration authorities, who discovered his true identity.
No. 09‐3365 Page 2
Federal authorities also learned that he had been convicted in the Southern District
of New York in 2007 of conspiracy to transport illegal aliens from Arizona to New York. He
was sentenced to a term of 12 months and one day in prison and 3 years’ supervised release.
He completed his prison sentence in October 2007 and was removed to Mexico in January
2008. He was still on supervised release at the time of his arrest in this case.
The probation officer calculated a base offense level of 8, see U.S.S.G. § 2L1.2(a), and
added 16 because Ramirez‐Silva had been removed following a conviction for alien
smuggling, id. § 2L1.2(b)(1)(A)(vii). After a 3‐level reduction for acceptance of
responsibility, id. § 3E1.1, his total offense level was 21. With a criminal history category of
III, his guidelines imprisonment range was 46 to 57 months.
Ramirez‐Silva filed objections and a sentencing memorandum in response to the
presentence report. In his objections he asserted that (1) the statutory maximum should be 2
years instead of the 20 noted in the presentence report, and (2) § 2L1.2 is “flawed” because it
lacks empirical support and should be ignored by the district court. In his memorandum,
Ramirez‐Silva discussed the sentencing factors in
18 U.S.C. § 3553(a). He mentioned that he
is a father of three and “remains close to his parents and siblings,” that he faces potential
deportation and revocation of supervised release, and that his one conviction is already
accounted for in criminal history points and does not warrant the “profoundly severe” 16‐
level increase under § 2L1.2(b)(1)(A)(vii). He also noted that the Southern District of Illinois
does not have a fast‐track program:
Section 5K3.1 states that upon motion of the government, the Court
may depart downward not more than four‐levels pursuant to an early
disposition program authorized by the U.S. Attorney General and the U.S.
Attorney in a particular district. Unfortunately, an early disposition program
or ‘fast track” program is not available in this district. However, the Seventh
Circuit has determined that:
The Supreme Court’s decision in Kimbrough v. United States . . .
has rekindled debate about whether the absence of a fast track
program can be a factor in the choice of sentence.
See United States v. Valdez‐Martinez, 295 F.App’x. 832, 835 (7th Cir. 2008).
In an addendum to the presentence report, the probation office addressed the two objections
but did not discuss the arguments in the sentencing memorandum concerning § 3553(a).
No. 09‐3365 Page 3
At sentencing the district court overruled the two objections and adopted the
guidelines calculations in the presentence report. Ramirez‐Silva, through counsel, then
discussed his § 3553(a) arguments, emphasizing his disagreement with the 16‐level increase,
his limited criminal history, and his lack of access to a fast‐track program:
Additionally, Your Honor, the Court is now free to consider the lack of
the fast track program in this district. And the recent Seventh Circuit case,
Valdez‐Martinez, the Seventh Circuit has now recognized this is a valid factor
for this Court to consider. There are numerous districts across the country
who, some of them, based upon my reading of the case, have only one reentry
case a year. And yet they have a fast track program.
Because it is not available here, defendants in this district are subject to
sentencing disparity. They do not have the benefit of that. I think thatʹs a very
valid consideration for the Court.
In allocution Ramirez‐Silva personally addressed the court and added that “[t]here’s no
work in Mexico, and it’s very hard to feed my family.” That statement prompted the court
to reply that “[w]ork may be tough in Mexico,” but in the United States “we’re almost at a
low tolerance for people who come into this country illegally and then commit crimes.” The
court went on to express the importance of adequately deterring Ramirez‐Silva from
returning to this country and the need for the sentence to protect the public and reflect the
seriousness of the offense. The court then imposed a bottom‐of‐the‐range sentence of 46
months in prison (though with credit for one month served in ICE detention).
On appeal Ramirez‐Silva does not dispute the district courtʹs guidelines calculations,
and because his prison term is within the resulting range, the sentence is presumed to be
reasonable. See United States v. Omole,
523 F.3d 691, 696 (7th Cir. 2008); United States v.
Mykytiuk,
415 F.3d 606, 608 (7th Cir. 2005). According to Ramirez‐Silva, however, the court
did not adequately address several of his arguments in favor of greater leniency.
Ramirez‐Silva first asserts that the district court did not respond to his contention
that a lower sentence was warranted because he is the father of three, because he is close to
his mother who lives in Mexico, and because he came to this country to find work to feed
his family. A sentencing court is required to consider the § 3553(a) factors and to address
any substantial argument the defendant makes, United States v. Martinez,
520 F.3d 749, 753
(7th Cir. 2008); United States v. Sainz‐Preciado,
566 F.3d 708, 716 (7th Cir. 2009), but the court
need not discuss every factor and may reject “stock arguments” without any discussion at
all, United States v. Young,
590 F.3d 467, 474 (7th Cir. 2009); United States v. Mendoza, 576 F.3d
No. 09‐3365 Page 4
711, 721 (7th Cir. 2009); Martinez,
520 F.3d at 753; United States v. Tahzib,
513 F.3d 692, 694‐95
(7th Cir. 2008); United States v. Cunningham,
429 F.3d 673, 678 (7th Cir. 2005). Ramirez‐Silvaʹs
contention about his family situation and his purported reason for being in the United
States unlawfully are precisely the types of stock arguments that a sentencing judge is free
to reject without comment. Young,
590 F.3d at 467; Martinez,
520 F.3d at 753; Tahzib,
513 F.3d
at 694‐95. The representation that work was unavailable in Mexico and that Ramirez‐Silva
was having difficulty feeding his family constituted the bulk of his argument about his
family but did nothing to distinguish him from other defendants. Nor did the
representation that he is close to his mother.
Ramirez‐Silva next argues that the district court should have explicitly addressed his
contention that § 2L1.2 is “flawed.” He no longer contends that § 2L1.2 could be ignored in
calculating the guidelines range; rather, he insists that the court, as an exercise of its
§ 3553(a) discretion, should have evaluated whether applying the guideline to him would
lead to an unreasonable sentence. And it would have, says Ramirez‐Silva, because his one
conviction not only increased the statutory maximum under § 1326(b) from 2 years to 20,
but also yielded a 16‐level increase under § 2L1.2(b)(1)(A)(vii) as well as criminal history
points.
An argument that § 2L1.2 leads to “an unsound sentence in the particular
circumstances of the case” might not be frivolous, see United States v. Aguilar‐Huerta,
576
F.3d 365, 367‐69 (7th Cir. 2009), but despite the window dressing, that is not the argument
Ramirez‐Silva made. Once again he failed to explain to the district court how his
circumstances were distinguishable from every other defendant who is subject to the
guideline. Ramirez‐Silva stated at sentencing that “he has no other priors. He has no crimes
of violence. He has no drug charges. He has nothing of that nature. He is simply one of
those poor souls who comes from a poor country and came here to work.” But
§ 2L1.2(b)(1)(A)(vii) specifically requires a 16‐level increase for any defendant with a prior
alien‐smuggling conviction, so the district court had no reason to address the absence of
convictions for drug offenses or violent crimes. And the court already had stated that it was
not going to ignore the guideline:
I think itʹs consistent with what this Courtʹs ruled before in other
similar cases. And if thereʹs going to be a change in the guidelines, the
Sentencing Commission or the Court of Appeals is going to have to do it. But
in reviewing . . . the applicable guidelines and the statute, the Court finds that
the presentence report, the calculation of the 16‐level enhancement, is an
appropriate application here.
No. 09‐3365 Page 5
Ramirez‐Silva was not making an argument that the guideline was particularly unsuited to
his personal circumstances; he was arguing that the guideline is “flawed” and should not
ever be given effect. The sentencing court was under no obligation to even consider that
argument. See Aguilar‐Huerta,
576 F.3d at 367‐68.
Ramirez‐Silva next argues that the district court failed to consider potential
sentencing disparities created by the lack of a fast‐track program in the Southern District of
Illinois, see
18 U.S.C. § 3553(a)(6). He notes that U.S.S.G. § 5K3.1 allows the government to
move for a four‐level guideline reduction “pursuant to an early disposition program” that
exists in other districts.
Before Kimbrough v. United States,
552 U.S. 85 (2007), we had held that a sentence was
not unreasonable solely because it was imposed in a jurisdiction that did not have a fast‐
track program. See United States v. Pacheco‐Diaz,
506 F.3d 545, 552‐53 (7th Cir. 2007); United
States v. Galicia‐Cardenas,
443 F.3d 553, 555 (7th Cir. 2006); United States v. Martinez‐Martinez,
442 F.3d 539, 542 (7th Cir. 2006). We have not evaluated whether Kimbrough compels
another look at the issue, but other circuits have required defendants asking for a lower
sentence on the basis of a purported fast‐track “disparity” to establish that they are similarly
situated to defendants in districts with a program and, factually, would have been eligible
for fast‐track relief. See United States v. Gomez‐Herrera,
523 F.3d 554, 563 (5th Cir. 2008);
United States v. Vargas,
477 F.3d 94, 100 (3d Cir. 2007), overruled on other grounds by United
States v. Arrelucea‐Zamudio,
581 F.3d 142, 149 (3d Cir. 2009).
Ramirez‐Silva stated at sentencing only that these programs exist in other districts,
but he did not assert that he would have met the eligibility criteria for even one program of
those which exist. Counsel failed to explain, for example, (1) the minimum eligibility
thresholds set out by United States Attorneys’ offices with approved fast‐track programs,
(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 districts
as to the amount of sentencing consideration given, and (5) whether Ramirez‐Silva met any
disqualifying criteria (such as his prior conviction for alien smuggling or his violation of
supervised release). See Paul W. Hahn, Responding to the Fast‐Track Disparity Argument, 54
U.S. ATTʹYSʹ BULL. 11, 15‐16 (2006) (discussing how prosecutors confronted with a fast‐track
disparity argument can initially determine whether a defendant would qualify for fast‐track
disposition in a fast‐track district). The district 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.
No. 09‐3365 Page 6
Finally, Ramirez‐Silva argues that the district court failed to consider the fact that he
is likely to face revocation of his supervised release and removal after his release from
prison. He asserts that consideration of future reimprisonment and removal was required to
insure his punishment is not greater than necessary, see
18 U.S.C. § 3553(a)(1), (a)(2)(A‐C).
These are more examples of stock arguments that are routinely made to sentencing courts.
Every defendant convicted under § 1326(a) could argue for mitigation based on his
inevitable removal after release from imprisonment, and, as such, the contention was not
substantial. See Mendoza,
576 F.3d at 722. Moreover, the district court was clearly aware of
the possibility of deportation and mentioned it several times at sentencing. As for the
possibility of revocation, any period of reimprisonment would be part of the penalty for the
original alien‐smuggling offense and is of little relevance to punishment for the current
offense. See United States v. Johnson,
529 U.S. 694, 700‐01 (2000).
AFFIRMED.
