United States v. Leal, Marcos

UNPUBLISHED ORDER
Not to be cited per Circuit Rule 53
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued March 27, 2006
Decided April 12, 2006
Before
Hon. RICHARD D. CUDAHY, Circuit Judge
Hon. MICHAEL S. KANNE, Circuit Judge
Hon. TERENCE T. EVANS, Circuit Judge
No. 05-3235
Appeal from the United States District
UNITED STATES OF AMERICA, Court for the Eastern District of Wisconsin
Plaintiff-Appellee,
No. 05-CR-67-001
v.
J.P. Stadtmueller,
MARCOS LEAL, Judge.
Defendant-Appellant.
ORDER
Marcos Leal pleaded guilty to conspiring to distribute 500 grams or more of
cocaine, 21 U.S.C. §§ 841(a)(1), (b)(1)(B), and 846. Applying the guidelines as
advisory, the district court sentenced him to 38 months imprisonment, the low end
of the applicable range of 37 to 46 months. On appeal, Leal challenges his sentence
as unreasonable.
In early 2005, Leal attempted to broker a cocaine sale between his supplier
and a confidential police informant. Milwaukee police arrested Leal and his
supplier after they showed the informant a portion of the cocaine and promised to
deliver the full amount upon payment; a search of Leal’s residence uncovered 750
No. 05-3235 Page 2
grams of cocaine. A grand jury indicted Leal for conspiring to distribute 500 grams
or more of cocaine, 21 U.S.C. §§ 841(a)(1), (b)(1)(B), and 846, possessing with the
intent to distribute 500 grams or more of cocaine, id. § 841(a)(1), (b)(1)(B), and
distributing cocaine, id. § 841(a)(1), 841(b)(1)(C). Leal pleaded guilty to the
conspiracy count and the government agreed to dismiss the remaining counts. The
PSR proposed a total offense level of 21 and a criminal history category of 1; the
resulting guidelines imprisonment range was 37 to 46 months. On appeal, Leal
does not challenge the calculation of the guideline range.
Sentencing took place after the Supreme Court’s decision in United States v.
Booker, 543 U.S. 220 (2005). At the sentencing hearing, Leal’s counsel moved for
what he called a downward departure based on Leal’s age (he was 62 at the time of
sentencing), his lack of sophistication in committing the crime, and his status as an
illegal immigrant. The court, after describing the guidelines as advisory and
considering Leal’s age, immigration status, criminal history, and the nature of his
crime, denied counsel’s motion and sentenced Leal to 38 months imprisonment.
Leal argues that it was unreasonable for the district court to deny his motion
for a downward departure. But his focus on the district court’s refusal to grant him
a downward departure is misplaced. We have noted that the concept of a
discretionary “departure” from a guideline sentence “has been rendered obsolete in
the post-Booker world.” United States v. Vaughn, 433 F.3d 917, 923-24 (7th Cir.
2006) (quoting United States v. Arnaout, 431 F.3d 994, 1003 (7th Cir. 2005)).
Instead, we review all sentences for reasonableness in light of the factors specified
in 18 U.S.C. § 3553(a). Vaughn, 433 F.3d at 924. Our review is deferential. United
States v. Sharp, 436 F.3d 730, 738 (7th Cir. 2006). A sentence within a properly
calculated guidelines range is presumed to be reasonable. United States v.
Mykytiuk, 415 F.3d 606, 608 (7th Cir. 2005).
Interpreting Leal’s argument as a challenge to the reasonableness of his
sentence, he cannot prevail. Leal cites mitigating factors he thinks require a
shorter period of incarceration. Just as he did in the district court, he argues here
that the likelihood of recidivism by a 62-year-old is very low. He also insists that he
showed a lack of sophistication or planning in committing his crime and submits
that his status as a removable immigrant will render him ineligible for many
programs in prison. These factors, he claims, will cause his 38-month sentence to
be more punitive than for the average inmate. While Leal recognizes that each
factor standing alone may not warrant a shorter prison sentence, he argues that
taken together they render his 38 months incarceration unreasonable.
Leal does not dispute that the district court considered these factors at
sentencing. Rather, he believes that under § 3553(a) these factors compel a shorter
No. 05-3235 Page 3
sentence. They do not. Leal’s sentence was at the bottom of the applicable
guideline range and presumptively reasonable. The court reasonably applied the
§ 3553(a) factors by determining that a sentence at the low end of the guideline
range was appropriate for Leal to provide for “just punishment, adequate
deterrence, and . . . respect for the law.” Section 3553(a) specifically empowers
district courts to impose sentences that deter others and engender respect for laws.
Finally, we cannot, as Leal asks, instruct the district court to lower his sentence
just because a shorter sentence may also be reasonable. See United States v. Laufle,
433 F.3d 981, 988 (7th Cir. 2006); United States v. Newsom, 428 F.3d 685, 686-87
(7th Cir. 2005).
For these reasons we AFFIRM the sentence imposed by the district court.