United States v. Agustin Rodriguez-Sanchez

NONPRECEDENTIAL DISPOSITION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 3, 2015
Decided March 11, 2015
Before
RICHARD A. POSNER, Circuit Judge
MICHAEL S. KANNE, Circuit Judge
JOHN DANIEL TINDER, Circuit Judge
No. 14-2456
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff-Appellee, Court for the Eastern District of Wisconsin.
v. No. 10-CR-262
AGUSTIN RODRIGUEZ-SÁNCHEZ, C.N. Clevert, Jr.,
Defendant-Appellant. Judge.
ORDER
Agustin Rodriguez-Sánchez, a Mexican citizen, pleaded guilty to unlawfully
possessing a firearm as an illegal alien, 18 U.S.C. § 922(g)(5)(A). He was sentenced to
time served plus three years’ supervised release. After he committed three Grade C
violations, however, the district court revoked his supervised release and imposed an
above-guidelines sentence of 18 months’ imprisonment. See 18 U.S.C. § 3583(e)(3).
Rodriguez-Sánchez appeals, arguing that the court did not adequately explain its
reason for sentencing him above the guidelines. Because the court’s explanation was
sufficient, we affirm.
No. 14-2456 Page 2
Milwaukee police learned from a confidential informant that Rodriguez-Sánchez,
an illegal immigrant, kept a sawed-off shotgun at his home. After obtaining a state
search warrant, the police recovered a 12-gauge shotgun and a box of cartridges.
Rodriguez-Sánchez was charged with possessing a firearm as an illegal alien, 18 U.S.C.
§ 922(g)(5)(A), and possessing a firearm that was not registered to him, 26 U.S.C.
§ 5861(d).
By the time Rodriguez-Sánchez was arrested for those offenses in November
2010, the Department of Homeland Security already had discovered his illegal status
(through an earlier arrest) and had scheduled a court date for removal proceedings. So
the government and Rodriguez-Sánchez negotiated a plea agreement designed to
expedite his removal from the United States. The parties asked to proceed without a
presentence investigation report. Rodriguez-Sánchez agreed to plead guilty to the
§ 922(g) charge and to be removed from the country following removal proceedings. In
exchange the government agreed to dismiss the registration charge. The parties further
agreed to ask the court to impose a sentence of time served (about 6 months)—well
below his guidelines range of 21 to 27 months—followed by 3 years’ supervised release.
The district court accepted Rodriguez-Sánchez’s plea and the parties’ sentencing
recommendation and sentenced him to time served.
But Rodriguez-Sánchez did not leave the country as expected. Following
sentencing in June 2011, Rodriguez-Sánchez immediately began serving his term of
supervised release but promptly was turned over to the custody of the U.S.
Immigration and Customs Enforcement. For reasons unknown to the parties (and
otherwise unreflected in the record), ICE allowed Rodriguez-Sánchez to post bond a
couple months later. A probation officer conducted an unscheduled home visit in
November 2012, and could not locate Rodriguez-Sánchez. The officer told Rodriguez-
Sánchez’s father, at whose house he resided, to tell his son to report to the probation
office the next day. Rodriguez-Sánchez did not do so, making that missed appointment
his fourth.
Rodriguez-Sánchez’s whereabouts went unknown for the next year and a half,
until he was arrested in Grand Forks, North Dakota, in April 2014. After the arrest,
Rodriguez-Sánchez was transferred to the Eastern District of Wisconsin, where he faced
charges for three Grade C violations of his supervised release: failing to report (four
times) to the probation office and absconding; twice failing to submit monthly
supervision reports; and a citation for marijuana possession.
At his supervised release revocation hearing, the government and Rodriguez-
Sánchez disputed whether the district judge should impose a prison sentence within or
No. 14-2456 Page 3
above the guidelines recommendation. The guidelines recommended a term of 4 to 10
months imprisonment based on Rodriguez-Sánchez’s Grace C violations and criminal
history category II. See U.S.S.G. § 7B1.4(a). The government asked for the 2-year
statutory maximum sentence, highlighting an ongoing pattern of involvement with
firearms (he had a prior firearms offense and was involved in a shooting while on
supervised release), the need to deter him from committing future crimes because he
continues to engage in criminal conduct, and the seriousness of his flight from
authorities. The government pointed to U.S.S.G. § 7B1.4 application note 4, which
suggests that an above-guidelines sentence may be warranted in resentencing a
defendant like Rodriguez-Sánchez who initially received a downward variance.
Rodriguez-Sánchez’s lawyer, in seeking a within-guidelines sentence, characterized the
defendant’s behavior while on supervised release as insubstantial, noting that he had
not engaged in any serious criminal activity and that avoiding removal a second time
was unlikely.
The district court rejected both parties’ sentencing recommendations and
sentenced Rodriguez-Sánchez to 18 months’ imprisonment, an above-guidelines
sentence that still was below the statutory maximum. The judge characterized
Rodriguez-Sánchez’s initial sentence of time served as a “cream puff” sentence, and
stressed that he “got an incredible, almost unbelievable break, and in the wake of that
break it is difficult to follow a suggestion that [the defendant] be handled with kid
gloves.” And despite the court’s expectation that the original sentence would facilitate
the defendant’s swift removal from this country, Rodriguez-Sánchez not only stayed
but absconded. Lastly, the judge recounted Rodriguez-Sánchez’s history involving
violence, weapons, and drugs, the need to protect the public, and duty to deter others
from committing similar violations.
On appeal Rodriguez-Sánchez argues that the district court did not sufficiently
explain why it sentenced him eight months beyond the high end of the guidelines
range. The sentence, in his view, was imposed only to compensate for the lenient
sentence (merely time served) set at his initial sentencing, instead of being based on the
factors set forth in 18 U.S.C. § 3553(a). Considering each of the § 3553(a) factors,
Rodriguez-Sánchez insists, is “something the district court did not do.”
But the court said enough. As required by 18 U.S.C. § 3583(e), the district court
discussed several of the § 3553(a) factors. See United States v. Carter, 408 F.3d 852, 854
(7th Cir. 2005). We have repeatedly stated that the court need not discuss each factor in
checklist form. See, e.g., United States v. Pollock, 757 F.3d 582, 590–91 (7th Cir. 2014);
United States v. Washington, 739 F.3d 1080, 1081 (7th Cir. 2014); United States v. Hodge, 729
F.3d 717, 721 (7th Cir. 2013). And though the discussion was brief, it was adequate to
No. 14-2456 Page 4
justify the upward variance. See Gall v. United States, 552 U.S. 38, 46–47 (2007); United
States v. Snyder, 635 F.3d 956, 960–61 (7th Cir. 2011). The court explained that
Rodriguez-Sánchez’s absconding was particularly egregious, given its intention that the
earlier lenient sentence of time served would expedite his removal. See 18 U.S.C.
§ 3553(a)(1). The court also noted that the sentence was necessary to protect the public
in light of the defendant’s history involving violence, weapons, and drugs, see id.
§ 3553(a)(1), (a)(2)(C), and to deter others from committing similar violations of
supervised release, see id. § 3553(a)(2)(B). And the court considered the kind of
sentences available when it explained why it rejected Rodriguez-Sánchez’s request for a
guidelines sentence and the government’s request for the statutory maximum. See id. at
§ 3553(a)(3), (a)(4).
Moreover, the commentary to policy statement U.S.S.G. § 7B1.4 , which sets forth
the prison range applicable upon revocation in the guidelines, suggests that an
above-guidelines sentence may be warranted when the original sentence resulted from
a downward variance. U.S.S.G. § 7B1.4 app. n.4; see United States v. Clay, 752 F.3d 1106,
1109 (7th Cir. 2014); United States v. Thornhill, 759 F.3d 299, 313 n.14 (3d Cir. 2014);
United States v. Hergott, 562 F.3d 968, 970 (8th Cir. 2009); United States v. Verkhoglyad, 516
F.3d 122, 129–30 (2d Cir. 2008); see also 18 U.S.C. § 3583(d)(3) (directing district court to
impose term of reimprisonment consistent with policy statements). Although the
district court did not refer to this policy statement when explaining Rodriguez-
Sánchez’s sentence, its many references to the defendant’s initial lenient sentence echo
§ 7B1.4’s rationale.
AFFIRMED.