NONPRECEDENTIAL DISPOSITION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 August 2, 2011
Decided September 13, 2011
Before
DIANE P. WOOD, Circuit Judge
DIANE S. SYKES, Circuit Judge
DAVID F. HAMILTON, Circuit Judge
No. 11‐1609 Appeal from the
United States District Court
UNITED STATES OF AMERICA, for the Northern District of Illinois,
Plaintiff‐Appellee, Eastern Division.
v. No. 09‐cr‐283
GREGORIO A. BALSECA‐VEGA, John F. Grady,
Defendant‐Appellant. Judge.
Gregorio Balseca‐Vega pleaded guilty to illegally reentering the United States after
having been deported, see
8 U.S.C. § 1326(a), and was sentenced to 60 months’
imprisonment based in part on the district court’s mistaken belief about the length of time
that he had evaded detection. Because the mistake may have prejudiced the court’s
sentencing determination, we reverse and remand for resentencing.
After two prior deportations (in 2000 and 2005), Balseca‐Vega reentered the United
States illegally sometime between June 2005 and March 2006. Shortly thereafter, he was
convicted in Illinois state court of driving under the influence and sentenced to three years’
No. 11‐1609 Page 2
imprisonment. That conviction tipped off immigration authorities, and eight months after
finishing his state sentence, he was charged with the present offense.
Balseca‐Vega pleaded guilty, and the presentence report recommended a guidelines
imprisonment range of 33 to 41 months, largely based on the 29 criminal‐history points
Balseca‐Vega had accumulated (including six offenses in 2000, 2001, 2002, 2003, and 2008
related to driving under the influence or reckless driving). The judge concluded, however,
that a within‐range sentence would not be adequate to deter Balseca‐Vega from illegally
reentering the country again and sentenced him to 60 months’ imprisonment. The judge
noted Balseca‐Vega’s long criminal record and repeated illegal entries into the United
States, and found his drunk‐driving offenses “truly frightening.” In reaching an above‐
range sentence for Balseca‐Vega, the judge focused on “the extreme ease with which
[Balseca‐Vega] reenter[ed] the country illegally and blend[ed] into the environment”—an
observation based on the judge’s belief that Balseca‐Vega had remained undetected for
twelve years since his last reentry.
On appeal Balseca‐Vega contends that the district court procedurally erred by
assuming that he avoided detection for twelve years after his third, and most recent,
reentry. At most, he says, that period of time was three years (he was deported in June 2005,
and federal authorities learned of his presence in June 2008 when Immigration and Customs
Enforcement officials interviewed him while in state custody). He argues that the district
court’s mistaken belief about the length of time he evaded detection was a significant factor
in his above‐guidelines sentence. He notes too that the district court memorialized this
mistaken belief in its written statement of reasons for the sentence.
The government concedes that Balseca‐Vega remained undetected for three years
rather than twelve, but contends that the court’s error was harmless. The government also
notes that although Balseca‐Vega evaded detection for only three years after his most recent
entry, he has resided illegally in the United States for more than twelve years. According to
the government, the “exact number of years” that Balseca‐Vega remained undetected since
his last reentry did not significantly affect the judge’s analysis because the sentence was
actually guided by the judge’s concern that “Balseca‐Vega hadn’t learned from his past
deportations [and] had successfully outwitted immigration authorities for years at a time on
multiple occasions.” Because Balseca‐Vega was essentially a “habitual reenterer,” the
government suggests that his sentence would not be any different on remand.
We review claimed procedural sentencing errors de novo. United States v. Aljabari,
626 F.3d 940, 950 (7th Cir. 2010). Even where a district court commits procedural error,
however, we will affirm the sentence if the error was harmless—that is, if the sentence
No. 11‐1609 Page 3
would not likely change on remand. United States v. Anderson,
604 F.3d 997, 1003 (7th Cir.
2010); see also United States v. Abbas,
560 F.3d 660, 667 (7th Cir. 2009).
The record does not support the government’s contention that the “exact number of
years” that Balseca‐Vega remained undetected was an insignificant factor in the district
court’s sentencing decision. The judge said that he settled on Balseca‐Vega’s sentence by
“tak[ing] into consideration the extreme ease with which [Balseca‐Vega] reenter[ed] the
country illegally and blend[ed] into the environment,” making it “highly unlikely” that
Balseca‐Vega would be apprehended in “any brief period of time” if he reentered again. The
judge specifically stated that “it took 12 years to find [Balseca‐Vega]” and thus “[Balseca‐
Vega] has no reason to think that if he returns again, it won’t take another 12 years.”
Balseca‐Vega’s ability to remain undetected for long periods gave him “as much incentive
to return to this country now as he had on his two prior deportations.” And the judge
reiterated this rationale in his written statement of reasons, in which he explained that an
above‐range sentence was necessary because “[Balseca‐Vega] has been living in the U.S.
undetected since his third reentry 12 years ago and could reasonably expect equal success
should he reenter the fourth time.” On this record, the court’s factual error cannot be
considered harmless.
Accordingly, we VACATE the sentence and REMAND the case for resentencing.
