United States v. Ingrel E. Ortega-Gal ( 2012 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 11-3115
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
INGREL E STIEL O RTEGA-G ALVAN,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 11 CR 349-1—Suzanne B. Conlon, Judge.
A RGUED A PRIL 25, 2012—D ECIDED M AY 29, 2012
Before P OSNER, S YKES, and T INDER, Circuit Judges.
P OSNER, Circuit Judge. In this appeal from a 41-month
sentence for entering the United States without auth-
orization after having been removed, 8 U.S.C. § 1326(a),
we consider whether and when a district judge can
reduce a defendant’s sentence upon discovering an
error in an earlier conviction of the defendant, a convic-
tion that if left undisturbed would support the higher
sentence.
2 No. 11-3115
Several of the circuits, relying on Custis v. United
States, 511 U.S. 485 (1994), have held that the judge may
not do that, at least (a potentially critical qualification, as
we’ll see) as part of his calculation of the defendant’s
guidelines range. United States v. Aguilar-Diaz, 626 F.3d
265, 269 (6th Cir. 2010); United States v. Longstreet, 603
F.3d 273, 276-77 (5th Cir. 2010); United States v. El-
Alamin, 574 F.3d 915, 928 (8th Cir. 2009); United States v.
Sharpley, 399 F.3d 123, 126 (2d Cir. 2005); Mateo v. United
States, 398 F.3d 126, 134 n. 7 (1st Cir. 2005). The Court
in Custis had held that a conviction used on the
authority of the Armed Career Criminal Act, 18 U.S.C.
§ 924(e), to enhance the defendant’s sentence could not
be attacked in the sentencing proceeding unless the
defendant hadn’t had counsel in the earlier case in
which he was convicted. 511 U.S. at 496. There is also a
statutory exception to the Custis rule, but, being
confined to drug sentencing, it is inapplicable to this
case. 21 U.S.C. § 851(c).
We had held before the Booker decision restored the
sentencing discretion taken away from district judges
by the Sentencing Reform Act of 1987 that “sentencing
hearings are not the appropriate forum to examine
the validity of prior convictions even though such convic-
tions may be used to enhance a present sentence.” United
States v. Mitchell, 18 F.3d 1355, 1358 (7th Cir. 1994); see
also, e.g., United States v. Jiles, 102 F.3d 278, 280-81 (7th
Cir. 1996); United States v. Martinez-Martinez, 295 F.3d
1041, 1045 (9th Cir. 2002). But we have not revisited the
question. The cases cited above are post-Booker, but
harbor a critical ambiguity: it is unclear whether they
No. 11-3115 3
preclude the sentencing judge from considering the
validity of a prior conviction at any point in the
sentencing process, or just not when he is computing
the defendant’s guidelines range. We think the latter
is the sounder position, though with a qualification
discussed at the end of the opinion.
The defendant, a Mexican citizen, had come to the
United States with his family in 1991, when he was a
young child. In 2006 he pleaded guilty in an
Illinois court to criminal sexual abuse for having had sex
with a 13-year-old girl. On the basis of his public school
records, which showed his age as 19 at the time of the
crime, the crime was a felony, 720 ILCS 5/12-15(a), (d)
(2000) (now 720 ILCS 5/11-1.50(a), (d) (2011)); had he been
under 17 it would have been a misdemeanor. 720 ILCS
5/12-15(b)-(d) (2000) (now 720 ILCS 5/11-1.50(b)-(d)
(2011)). He was sentenced to 24 months’ probation and
was deported to Mexico a month after the sentencing.
About a year later he returned to the United States ille-
gally, was soon apprehended, and was again deported,
but not prosecuted. Within a few months he returned
again (and again without authorization) and this time
was prosecuted for illegal reentry, pleaded guilty, and
was given the 41-month sentence (along with 3 years of
supervised release conditional on his not reentering
illegally during that period) that he has appealed to us.
The probation service calculated his total offense level
as 21. Sixteen of the 21 points were for his having been
previously removed from the country after having
been convicted of a felony crime of violence. U.S.S.G.
§ 2L1.2(b)(1)(A)(ii). The base offense level for illegal
4 No. 11-3115
reentry is 8, id., § 2L1.2(a), and 8 + 16 = 24, but Ortega
received a 3-point reduction for acceptance of respon-
sibility.
Although his felonious encounter with the 13-year-
old did not involve violence, the parties rightly assume
that it was a violent felony under the guidelines. Ap-
plication Note 1(B)(iii) to section 2L1.2 defines “crime
of violence” to include “forcible sex offenses (including
where consent to the conduct is not given or is not
legally valid, such as where consent to the conduct is
involuntary, incompetent, or coerced),” plus “statutory
rape [and] sexual abuse of a minor.” See United States v.
Ramirez, 675 F.3d 634, 639 (7th Cir. 2011) (per curiam);
United States v. Diaz-Corado, 648 F.3d 290, 292-93 (5th
Cir. 2011). Ortega’s sexual felony was statutory rape.
True, that the victim be a minor is not an element of
the crime of which he was convicted, only that “the
accused knew that the victim was unable to understand
the nature of the act or was unable to give knowing
consent.” 720 ILCS 5/12-15(a)(2) (2000) (now 720 ILCS 5/11-
1.50(a)(2)(2011)). But that condition is satisfied when
as in this case the victim is only 13. And true, we’ve held
that the crime defined in a similar California statute
was not a “violent felony” under 28 U.S.C. § 924 because
the statute did not require that the defendant use force;
even a light sexual touch might violate it. United States
v. Goodpasture, 595 F.3d 670, 670-71 (7th Cir. 2010). And
that is true of the Illinois statute as well. But section 924
does not designate “sexual abuse of a minor” as a
violent felony, and U.S.S.G. § 2L1.2 Application Note
1(B)(iii) does.
No. 11-3115 5
The probation service calculated the defendant’s
criminal history as a category IV. The combination of a
total offense level of 21 and a criminal history category
of IV yielded a guidelines range of 57 to 71 months of
imprisonment. Had it not been for the sexual felony,
the defendant’s criminal history category would have
been only II (based on a burglary conviction and a con-
viction for possession of marijuana), and his guide-
lines range (given his total offense level of 21) would
have been 41 to 51 months instead of 57 to 71.
But there is a novel twist. According to the
defendant’s Mexican birth certificate, which the govern-
ment concedes is authentic, he was only 16 when he
committed the sex offense, and so he should have been
convicted of a misdemeanor, not a felony. His lawyer
asked the district judge to eliminate the 16-point felony
enhancement from his total offense level and also
eliminate the felony from his criminal history. These
two adjustments would have brought his guidelines
range from 57 to 71 months down to 0 to 6 months.
The judge refused to make the first adjustment, but
made the second, reducing the defendant’s guidelines
range to 41 to 51 months; and she sentenced him at the
bottom of it.
The appeal argues that she should have given
the defendant a lower sentence, first because having
come to the United States as a small child he is culturally
American, not Mexican, and so will experience more
than the usual hardship if he is exiled to Mexico. That is
a bad argument, properly rejected by the district judge.
6 No. 11-3115
It is his attachment to the United States that incites
his illegal returns after removal, so that attachment is
as strong an argument for a longer sentence as for a
shorter one. It is true that the guidelines say that “there
may be cases in which a downward departure may be
appropriate on the basis of cultural assimilation.” U.S.S.G.
§ 2L1.2 Application Note 8. But a recidivist returner,
convicted as the defendant in this case was of a crime
upon his return to the United States (he was convicted
of possessing marijuana after his second illegal return)
is not an appealing candidate for such consideration.
His second argument is that the judge should have
made both adjustments to the guidelines range that he
requested—reducing his total offense level as well as
placing his criminal history in the lower category—on
the authority of 18 U.S.C. § 3553(a), which lists factors
that a judge must consider in sentencing if asked to
do so, notwithstanding the guidelines. The argument
rests on a misunderstanding. The regime created by the
Booker decision, which greatly enlarged the sentencing
discretion of federal district judges, allows a sentencing
judge to give a sentence outside the guidelines range
if persuaded by factors listed in section 3553(a) that a
higher or lower sentence would be more appropriate.
But the judge must first compute the guidelines range
correctly, and only then decide, on the basis of a
weighing of the statutory factors, whether to give a sen-
tence outside the range. Pepper v. United States, 131 S. Ct.
1229, 1241 (2011); Kimbrough v. United States, 552 U.S. 85,
108 (2007) (“district courts must treat the Guidelines as
the ‘starting point and the initial benchmark,’ ” quoting
No. 11-3115 7
Gall v. United States, 552 U.S. 38, 49 (2007)); United States
v. Hill, 645 F.3d 900, 905 (7th Cir. 2011).
Had the district judge in this case, in computing
the defendant’s total offense level, shaved points off
because the felony conviction was erroneous, she would
have been failing to treat the guidelines as “the starting
point and the initial benchmark,” because determining
whether a conviction that affects the calculation of the
total offense level is valid is not a permissible step
in that computation. But the judge didn’t do that;
she altered just his criminal history on the basis of
the error; and whether in doing that she exceeded her
authority is an unsettled question.
Section 4A1.3(b) of the guidelines provides that
“if reliable information indicates that the defendant’s
criminal history category substantially over-represents the
seriousness of the defendant’s criminal history or the
likelihood that the defendant will commit other crimes,
a downward departure may be warranted.” The words
we’ve italicized imply that when the judge decides
whether to act on the basis of “reliable information” he’s
already calculated the guidelines range because deter-
mining the defendant’s criminal history category is a
step in that calculation. And we held in United States v.
Lucas, 670 F.3d 784, 791-92 (7th Cir. 2012), with specific
reference to criminal history, that the departure
authorized by section 4A1.3(b), which can be applied by
analogy during the sentencing judge’s consideration of
the factors listed in section 3553(a), comes after rather
than before the guidelines range is determined, though
8 No. 11-3115
earlier we had left the question open, noting a conflict
among other circuits. United States v. Guyton, 636 F.3d
316, 319 and n. 2, 321 (7th Cir. 2011); compare United
States v. Barney, 672 F.3d 228, 231-32 (3d Cir. 2012), and
United States v. Pembrook, 609 F.3d 381, 384-87 (6th Cir.
2010), reaching the same conclusion as Lucas, with
United States v. Munn, 595 F.3d 183, 192-93 (4th Cir. 2010),
reaching the opposite conclusion. If the interpretation
in the Lucas decision is correct, the sentencing judge
exceeded her authority.
Section 1B1.1 (Application Instructions) tugs the
other way, because its subsection (a)(6) tells the judge
to determine the criminal history category “as specified
in Part A of Chapter Four” as a step in calculating the
guidelines range, and section 4A1.3(b) is in part A of
chapter 4. Contradicting this statement, however, is
section 1B1.1 Commentary, Application Note 1(E)(ii):
“ ‘Departure’ means . . . for purposes of §4A1.3 . . . assign-
ment of a criminal history category other than the other-
wise applicable criminal history category, in order to effect
a sentence outside the applicable guideline range” (emphasis
added). Thus a change in the criminal history category
is a “departure” that takes the sentence “outside the
applicable guideline range.” This is the clearest state-
ment in the guidelines on the matter, is consistent with
Lucas, and according to it the district judge changed
the applicable guideline range after it had been
correctly calculated by the probation service. She
changed it from 57-71 months to 41-51 months.
This characterization of her action is supported by the
fact that a federal judge has no authority to treat a state
No. 11-3115 9
criminal conviction as invalid in a sentencing pro-
ceeding unless the conviction has been successfully
challenged by an authorized method of collateral attack
on (that is, a post-appeal challenge to) a state convic-
tion. Custis v. United States, supra, 511 U.S. at 497; see
also, e.g., United States v. Longstreet, supra, 603 F.3d at 276.
Even if a judge could alter a guidelines range (as
opposed to a sentence) because of dissatisfaction with
the criminal history correctly computed under the guide-
lines, he could not do that on the basis of a finding
that a conviction recorded in the defendant’s criminal
history was in error—that the defendant should have
been acquitted or received a different sentence or (as in
this case) been convicted of a lesser crime.
It’s true that the defendant isn’t trying to vacate the
conviction. But he is trying to eliminate a part of the
punishment that resulted from it. That part—real though
probabilistic rather than certain—was the recidivist
enhancement that the conviction would trigger in the
calculation of the federal sentencing guidelines range
if the defendant was ever convicted of a federal crime.
By eliminating the effect of the state felony conviction
on his criminal history in calculating the range, the
district judge nullified a part of the punishment for
the felony; and the defendant wants us to order her
to nullify another part, the effect on the offense level,
and in sum reduce his minimum federal guideline
sentence from 57 months to 0 months. The judge could
make neither adjustment, because either would con-
stitute in effect a partial vacation of the defendant’s state
conviction.
10 No. 11-3115
But remember that a judge doesn’t have to give
the guidelines sentence, but only compute it correctly
and consider it thoughtfully before deciding whether to
impose a different sentence. The defendant’s guidelines
range was and is 57 to 71 months, but the statutory mini-
mum is 0 months, and the judge could go all the way
down to 0 if she had good reasons for doing so.
Obviously the judge did not feel bound by the guide-
lines, because she sentenced the defendant below the
guidelines range. (The base of the range was 57 months;
she sentenced him to 41.) Insofar as she thought that
she could alter his criminal history in calculating the
range this would be a ground for a remand, instructing
her that while she can sentence below the range (if she
has acceptable reasons for doing so) she cannot alter it.
But it would be a ground urged by the government—it is
the government that is harmed if a judge improperly
reduces a defendant’s guidelines range, and the gov-
ernment has not cross-appealed. The defendant can
complain if the judge mistakenly thinks there is a floor
under the sentence. But the judge in this case didn’t
think that. She knows—every federal judge knows—
that a judge can sentence below the guidelines range
for any defensible reason. And she knew there was
no statutory minimum in this case. Before Booker the
permissible grounds for sentencing below or above the
guidelines range were circumscribed by the guidelines
themselves, which permitted only limited departures;
but no more. The defendant asked the judge to go way
below. She refused, unsurprisingly given the defendant’s
two illegal returns to this country, the second within just
No. 11-3115 11
a few months of removal. It seems he doesn’t take
removal seriously. He is an immigration yo-yo, see
United States v. Carlos-Colmenares, 253 F.3d 276, 279 (7th
Cir. 2001), a veritable revenant. The zero imprisonment
would merely confirm him in his belief already demon-
strated that he needn’t take seriously the crime of unautho-
rized entry by a previously removed alien. The judge
made clear that the risk of further illegal returns was
the decisive consideration in her decision to give him
a significant prison sentence.
There is nothing illogical or unreasonable—nothing
inconsistent with the broad and vague standard of section
3553(a)—about giving a defendant a below-guidelines
sentence because his guidelines range had been
elevated as the result of an erroneous conviction. Section
3553(a)(1) instances among the factors for a sentencing
judge to consider the “history and characteristics of the
defendant” (emphasis added). Section 3661 states that
“no limitation shall be placed on the information con-
cerning the background, character, and conduct of a
person convicted of an offense which a court of the
United States may receive and consider for the pur-
pose of imposing an appropriate sentence.” In United
States v. Sonnenberg, 628 F.3d 361, 368 (7th Cir. 2010),
citing section 3661, we said that “nothing in the law
would require the court, in exercising its judgment
and discretion under § 3553(a), to close its eyes to the
actual conduct that led to the prior conviction.” Even
more emphatically, we said in United States v. Miranda,
505 F.3d 785, 795 (7th Cir. 2007), that when the defendant
“sought to enter evidence on the context of these two
12 No. 11-3115
prior convictions, the district court repeatedly stated
that it could not ‘revisit’ or ‘look beyond’ those con-
victions, apparently construing [his] argument as a col-
lateral attack on the prior convictions. But [he] was not
collaterally attacking those convictions; rather, he was
asking the court to consider an argument under section
3553(a)(1) that those convictions arose out of his mental
health issues and that his criminal history category over-
stated both the seriousness of his prior conduct and the
likelihood that he would commit further crimes. The
district court is free to accept or reject that theory based
on the evidence before it, using the factors set forth
in section 3553(a)(1) and, by way of analogy, sections
4A1.3(b) and 5K2.13 of the guidelines.”
Yet for a sentencing judge, invoking the broad sen-
tencing discretion restored by the Booker decision, to
peek behind a conviction used in calculating a guide-
line range and upon finding the conviction defec-
tive—though as in this case it has not been challenged in
a proper collateral proceeding—to discount its sig-
nificance, which is equivalent as we said to a partial
vacation of the conviction, rubs against the limitations
on collateral attack on state convictions. Were it to
become a practice, sentencing hearings could become
distended by challenges to prior convictions. This case
is unusual because the government tacitly concedes
that the defendant’s prior felony conviction that jacked
up his sentencing range from 0 to 6 months to 57 to 71
months was erroneous. For the government concedes
the authenticity of the Mexican birth certificate, and
neither party requested a factual hearing. If in the
No. 11-3115 13
next case a defendant asks for a factual inquiry into the
soundness of a previous conviction, rather than just a
glance at a birth certificate conceded to be valid, the
judge would be entitled, and well advised, to refuse—and
perhaps required to refuse, as held in United States v.
Delacruz-Soto, 414 F.3d 1158, 1164 (10th Cir. 2005) (in
tension however with our Sonnenberg and Miranda deci-
sions), though we needn’t decide that in this case.
In sum, although the judge erred in tinkering with
the guidelines range, the error was harmless. She gave
the defendant the sentence she wanted to give him irre-
spective of the guidelines, and the sentence is con-
sistent with sections 3553(a) and 3661 of the Criminal
Code. The judgment is therefore
A FFIRMED.
5-29-12