United States v. Antonio Medina

In the
United States Court of Appeals
For the Seventh Circuit
No. 11-2458
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
A NTONIO M EDINA,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 10 CR 735—Blanche M. Manning, Judge.
A RGUED JANUARY 11, 2012—D ECIDED A UGUST 30, 2012
Before K ANNE, W ILLIAMS, and H AMILTON, Circuit Judges.
W ILLIAMS, Circuit Judge. Antonio Medina was deported
after two 1989 convictions, one for selling or trans-
porting cocaine and the other for attempted robbery.
But that did not prevent him from returning to the
United States unlawfully, where he was convicted of
illegal reentry and again deported. He entered the
United States unlawfully a third time and was convicted
in this case of being found in the United States in viola-
tion of 8 U.S.C. § 1326(a). He appeals the thirty-seven
month sentence he received, contending that he should
2 No. 11-2458
not have received a sixteen-level enhancement for
being deported after a felony conviction for a “drug
trafficking offense” where the imposed sentence ex-
ceeded thirteen months or after a felony “crime of vio-
lence.” Medina argues that his 1989 convictions did not
fall within those definitions under the 1989 edition of
the United States Sentencing Guidelines and so the en-
hancement does not apply. But because the crimes
qualify under the 2010 Sentencing Guidelines, which
were the guidelines in effect at the time of Medina’s
sentencing and are the guidelines that matter, the en-
hancement was proper. Therefore, we affirm Medina’s
sentence.
I. BACKGROUND
Antonio Medina, a native and citizen of Mexico, came
to the United States in 1982 to search for work. He was
sixteen years old when he entered the United States
illegally near El Paso, Texas. Medina found work and
remained in the United States without incident for
some time. However, seven years after his arrival, in
January 1989, he was convicted in California state
court of the sale or transportation of cocaine. He received
a four-year sentence. Later that same year, he was con-
victed in another California state court, this time for
attempted robbery. He was sentenced to two years’
imprisonment for that offense and deported from the
United States in December 1990.
In 1994, Medina unlawfully reentered the United
States. He was convicted the next year of illegal reentry
in violation of 8 U.S.C. § 1326 and sentenced to ten
No. 11-2458 3
months’ imprisonment. In 1996, he was again deported
and removed to Mexico. Medina again illegally returned
to the United States. He encountered law enforcement
officials in November of 2009. The following year, he
was charged with violating 8 U.S.C. § 1326(a) because
he was found in the United States on or about November
9, 2009 without the Attorney General’s consent when
he had previously been removed and deported. He
pled guilty and signed and submitted a written plea
declaration, but he did not enter into a plea agreement
with the government.
The Presentence Report assigned a base offense level
of eight to Medina’s illegal reentry offense. It also
assessed a sixteen-level enhancement pursuant to United
States Sentencing Guideline § 2L1.2(b)(1)(A) for com-
mitting the instant crime after a conviction for a
drug trafficking offense where the sentence exceeded
thirteen months’ imprisonment, or, alternatively, after a
conviction for a crime of violence. The PSR did not
assess Medina any criminal history points. The resulting
advisory guidelines range was 37-46 months’ impris-
onment.
Medina objected to the sixteen-level enhancement.
He maintained that the guidelines in effect in 1989, when
he was sentenced for the narcotics and attempted
robbery convictions, would not have considered either
offense to be a “drug trafficking offense” or a “crime of
violence” and so he should not receive the enhancement.
The district court rejected Medina’s position and applied
the 2010 guidelines which were in effect on the day he
was sentenced. Using the definitions in the 2010 guide-
4 No. 11-2458
lines, the district court concluded that the sixteen-
level enhancement was proper.
Medina requested a sentence of 6-12 months’ imprison-
ment. Pointing to Medina’s multiple convictions and
multiple instances of illegal reentry, the district court
imposed a sentence of 37 months’ imprisonment, and
Medina appeals.
II. ANALYSIS
Medina maintains he should not have received a sixteen-
level enhancement for illegally reentering the United
States after committing a qualifying drug trafficking
offense or crime of violence. We review the district
court’s application of the sentencing guidelines de novo
and its findings of fact for clear error. United States v.
Sheneman, 682 F.3d 623, 630 (7th Cir. 2012).
The United States Sentencing Guidelines assign a base
offense level of 8 to the offense of unlawfully entering
or remaining in the United States. U.S.S.G. § 2L1.2(a).
But, “[i]f the defendant previously was deported, or
unlawfully remained in the United States, after . . . a
conviction for a felony that is (i) a drug trafficking offense
for which the sentence imposed exceeded 13 months;
(ii) a crime of violence, . . .” or other offenses not rele-
vant here, then the offense level increases by 16 levels.
U.S.S.G. § 2L1.2(b)(1)(A) (2010).1
1
Effective November 1, 2011, the sixteen-level increase only
applies “if the conviction receives criminal history points
(continued...)
No. 11-2458 5
The 2010 Guidelines define “drug trafficking offense” as
“an offense under federal, state, or local law that
prohibits the manufacture, import, export, distribution, or
dispensing of, or offer to sell a controlled substance.”
U.S.S.G. § 2L1.2 cmt. n.1(B)(iv) (2010). Medina was con-
victed in California in 1989 of violating a statute pro-
viding that
every person who transports, imports into this
state, sells, furnishes, administers, or gives away,
or offers to transport, import into this state, sell,
furnish, administer, or give away, or attempts to
import into this state or transport [a controlled
substance] . . . shall be punished by imprisonment
....
Cal. Health & Safety Code § 11352(a). Medina does not
contest that his 1989 conviction falls within the 2010
guideline’s definition of “drug trafficking offense.”
Medina argues, however, that the “drug trafficking
offense” definition in the 1989 Sentencing Guidelines
should control here because that is when he was sentenced
for the California crime. The Sentencing Guidelines in
effect at that time did not include “offer to sell” in the
1
(...continued)
under Chapter Four,” while the offense level increases “by
12 levels if the conviction does not receive criminal history
points.” Medina was sentenced on May 31, 2011, before
the amendment took effect. So although he did not have any
criminal history points, he did not receive the benefit of the
amendment at sentencing.
6 No. 11-2458
definition of “drug trafficking offense.” Because his
California drug conviction occurred before the Novem-
ber 1, 2008 guideline amendment that added “offer to
sell,” Medina maintains the sixteen-level enhancement
was improper.
Medina’s argument fails for several reasons. The
general rule at sentencing is that the court uses the
Guidelines Manual in effect on the date of sentencing,
regardless of when the offense was committed. See
18 U.S.C. § 3553(a)(4)(A)(ii); Dorsey v. United States, 132
S. Ct. 2321, 2332 (2012); U.S.S.G. § 1B1.11(a), (b)(2) (2010).
If using the Manual in effect on the date of sentencing
would violate the ex post facto clause of the Constitution,
then the sentencing judge uses the Manual in effect on
the date that the offense of conviction was committed.
See Dorsey, 132 S. Ct. at 2332; U.S.S.G. § 1B1.11(b)(2)
(2010). We have ruled that in light of the now-advisory
nature of the guidelines, using the guidelines in effect
on the date of sentencing does not violate the ex post facto
clause. United States v. Demaree, 459 F.3d 791, 795 (7th
Cir. 2006). Other circuits have disagreed with our
decision in Demaree. See United States v. Ortiz, 621 F.3d
82, 87 (2d Cir. 2010); United States v. Lewis, 606 F.3d 193,
199 (4th Cir. 2010); United States v. Lanham, 617 F.3d
873, 889-90 (6th Cir. 2010); United States v. Larrabee, 436
F.3d 890, 894 (8th Cir. 2006); United States v. Wetherald,
636 F.3d 1315, 1321 (11th Cir. 2011); United States v.
Turner, 548 F.3d 1094 (D.C. Cir. 2008).
If our decision in Demaree were incorrect, the conse-
quence would be to use the guidelines in effect on the
No. 11-2458 7
date of the offense, rather than on the date of sentencing.
See U.S.S.G. § 1B1.11(b)(2) (2010). Medina pled guilty
to being “found in” the United States without the permis-
sion of the Attorney General after having been deported
on or about November 9, 2009, and Medina does not
dispute that this was the date of his offense for purposes
of U.S.S.G. § 2L1.2. Cf. United States v. Are, 498 F.3d 460,
467 (7th Cir. 2007) (holding that statute of limitations
for a “found in” conviction under § 1326(a) begins to
run when government discovers alien’s presence or
when it arrests alien). The guidelines in effect in Novem-
ber 2009 included “offer to sell” in the “drug trafficking
offense” definition. So the difference between Demaree
and the other circuits therefore would not matter here.
Medina also argues that it was not proper for the
district court to consider the 1989 convictions in
imposing the enhancement because they occurred before
his 1995 illegal reentry conviction. He suggests that the
1989 convictions were used to enhance his sentence for
the 1995 illegal reentry conviction (it is not clear that
this actually happened, but no matter) and contends that
those same 1989 convictions should not be used again
to enhance his sentence in the instant case.
As support, Medina points to our decision in United
States v. Lopez, 634 F.3d 948 (7th Cir. 2011). Lopez,
however, does not help Medina. In Lopez, we considered
a challenge to a § 2L1.2 enhancement where the
defendant had a previous state court drug trafficking
conviction for which he was initially sentenced to proba-
tion. He was then deported from the United States and
8 No. 11-2458
later illegally reentered the country. His probation was
revoked, and the state court imposed a sentence of three
years in prison. We concluded that for purposes of the
§ 2L1.2(b)(1)(A)(I) enhancement’s requirement that
the defendant previously be deported after a conviction
for a drug trafficking felony where the sentence
imposed exceeded thirteen months, the time to measure
the sentence is before the deportation. Id. at 950. Because
the Lopez defendant only received a sentence of more
than thirteen months on a drug trafficking offense after
he was deported and illegally reentered, we held that
the sixteen-level enhancement did not apply. Id. Here,
in contrast, the sentences for Medina’s California con-
victions, both of which exceeded thirteen months, were
imposed before his deportation and removal. Therefore,
our decision in Lopez does not support Medina.
Moreover, nothing in the text of the guideline supports
Medina’s reading. The guideline states the enhancement
applies if the “defendant previously was deported . . .
after” a conviction for a certain crime, which is exactly
what happened here. The “section 2L1.2(b)(1) enhance-
ment reflects a judgment by the Sentencing Commission
that the illegal reentry of an individual previously de-
ported following a conviction for certain crimes poses a
greater risk to the general public’s health, safety, and
welfare than the illegal reentry of an alien otherwise
deported.” United States v. Garcia-Lopez, 375 F.3d 586,
589 (7th Cir. 2004). That Medina’s 1989 convictions oc-
curred before his 1995 deportation does not change the
fact that he was convicted of those crimes. The enhance-
No. 11-2458 9
ment’s concern with recidivism, see id., would be hindered,
not helped, were we to accept Medina’s argument.
The district court also correctly ruled that the sixteen-
level enhancement is independently supported by Me-
dina’s 1989 conviction for armed robbery. Drug trafficking
offenses for which the sentence imposed exceeds
thirteen months are not the only felonies that support
the sixteen-level enhancement. The enhancement also
applies if the defendant previously was deported after a
felony conviction for a crime of violence, a firearms
offense, a child pornography offense, a national security
or terrorism offense, a human trafficking offense, or an
alien smuggling offense. U.S.S.G. § 2L1.2(b)(1)(A)(ii)-(vii)
(2010). The 2010 guidelines include robbery in its list
of offenses that are specifically designated as crimes of
violence. U.S.S.G. § 2L1.2 cmt. n.1(B)(iii). And “[p]rior
convictions of offenses counted under subsection (b)(1)
include the offenses of . . . attempting [ ] to commit such
crimes.” U.S.S.G. § 2L1.2 cmt. n.5 (2010). Attempted
robbery is therefore a crime of violence for purposes of
U.S.S.G. § 2L1.2. So the enhancement was also proper
because Medina had a prior felony conviction for a
crime of violence. This is true even though the guide-
lines in effect in 1989 did not specifically enumerate
robbery as a crime of violence, but as we pointed out,
those guidelines do not control here.
The district court properly calculated the guideline
range, and it had the discretion to impose a sentence
outside the guidelines range if its consideration of the
factors in 18 U.S.C. § 3553(a) persuaded it to do so. See
10 No. 11-2458
Gall v. United States, 552 U.S. 38, 50 (2007). As part of
this consideration the district court had the discretion
to consider whether the length of time between the 1989
convictions and the current offense warranted a lower
sentence. See United States v. Myers, 569 F.3d 794, 800
(7th Cir. 2009); United States v. Turner, 569 F.3d 637, 640
(7th Cir. 2009). In light of Medina’s multiple instances of
illegal reentry, the judge declined to impose the lower
sentence that Medina sought, and the district court’s
exercise of discretion was not unreasonable.
III. CONCLUSION
The judgment of the district court is A FFIRMED.
8-30-12