United States v. Odilon Molinero-Jime

NONPRECEDENTIAL DISPOSITION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 April 27, 2011
Decided May 13, 2011
Before
RICHARD D. CUDAHY, Circuit Judge
TERENCE T. EVANS, Circuit Judge
JOHN DANIEL TINDER, Circuit Judge
No. 10-3569
UNITED STATES OF AMERICA, Appeal from the United States District Court
Plaintiff-Appellee, for the Southern District of Indiana, Terre
Haute Division
v. No. 2:10CR00001-001
ODILON MOLINERO-JIMENEZ, William T. Lawrence,
Defendant-Appellant. Judge.
ORDER
While imprisoned for unlawful reentry, Odilon Molinero-Jimenez was caught with a
shank. He pleaded guilty to one count of possession of a weapon in prison, see 18 U.S.C.
§ 1791(a)(2), (b)(3), and was sentenced to 27 months’ imprisonment, the bottom of the
applicable guidelines range. On appeal he argues that his sentence was substantively
unreasonable, because, he says, the guidelines do not distinguish between possession and
use of a weapon in prison and, therefore, unreasonably punish possessors as harshly as
users. We affirm.
While Molinero-Jimenez was in the prison yard, correctional officers saw him dig up
an object from the ground and put it into his sock. After searching him, they found a
No. 10-3569 Page 2
homemade weapon: a piece of metal twisted from a chainlink fence. It was six inches long,
sharpened to a point on one end, and wrapped with cloth on the other end. Molinero-
Jimenez told officers he fashioned the shank because he feared being assaulted. Correctional
officers found no evidence that he brandished, used, or threatened anyone with the weapon.
At the sentencing hearing following his plea, Molinero-Jimenez argued that the
applicable guidelines provision, U.S.S.G. § 2P1.2(a)(2), did not distinguish between use and
possession of a weapon in prison. He urged a below-range sentence, arguing that
§ 2P1.2(a)(2) was unreasonably severe because use of the shank would have yielded the
same sentencing range as mere possession. He did not object, however, to the probation
officer’s calculations in the presentence report (PSR). The government responded that
Molinero-Jimenez would have received a higher sentence if he had used the weapon
because a different guideline provision would have applied. The district court rejected
Molinero-Jimenez’s contention, calculated a guidelines range of 27 to 33 months, and
sentenced him to the bottom of that range.
On appeal Molinero-Jimenez contends that § 2P1.2(a)(2) resulted in a sentence that
was disproportionately high for his conduct. He argues that, because § 2P1.2(a)(2) punished
him as severely as an inmate who uses a weapon in prison, the guideline conflicts with 18
U.S.C. § 3553(a), which requires court’s to impose sentences that are “sufficient, but not
greater than necessary.” Molinero-Jimenez points out that § 2P1.2(a), unlike other
guidelines, assigns offense levels based on the kind of weapon possessed. Other guidelines,
he notes, adjust the offense level upward depending on whether a weapon was used. See e.g.
U.S.S.G. § 2B3.2 (Extortion by Force or Threat of Injury or Serious Damage) (4-level increase
if dangerous weapon used); U.S.S.G. § 2A2.2 (Aggravated Assault) (4-level increase if
dangerous weapon used); U.S.S.G. § 2A2.3 (Minor Assault) (7-level increase if offense
involved physical contact). Molinero-Jimenez, therefore, asserts that he was sentenced as
severely as an inmate who wields a weapon in prison.
Inmates who wield weapons in prison, however, are more severely sentenced under
the guidelines than those who merely possess them. Had Molinero-Jimenez assaulted an
inmate with the shank, he could have been convicted not merely for possession, but also for
assault with a dangerous weapon with intent to do bodily harm, see 18 U.S.C. § 113(a)(3). In
this scenario, Molinero-Jimenez could have been subject to § 2A2.2, which imposes a higher
base-offense level than § 2P1.2(a)(2) with further increases depending on the severity of
injury inflicted. See, e.g., United States v. Vaughn, 614 F.3d 412, 415 (7th Cir. 2010); United
States v. Bogan, 267 F.3d 614, 624 (7th Cir. 2001); United States v. Williams, 520 F.3d 414, 422-
23 (5th Cir. 2008).
Nevertheless Molinero-Jimenez contends that the district court should have
No. 10-3569 Page 3
sentenced him below the applicable guidelines range under § 3553(a), which requires courts
to impose sentences that are “sufficient, but not greater than necessary.” 18 U.S.C. § 3553(a);
see United States v. Johnson, No. 10-1737, 2011 WL 1045841, at * 4-5 (7th Cir. Mar. 24, 2011).
Because he does not challenge the district court’s calculation of his guidelines range,
however, the only question presented is whether his sentence was substantively
unreasonable under an abuse-of-discretion standard. See Gall v. United States, 552 U.S. 38, 51
(2007). And as the sentence was the bottom of the sentencing range, the sentence is
presumptively reasonable. See Gall, 552 U.S. at 51; United States v. Curb, 626 F.3d 921, 927
(7th Cir. 2010).
Here the record demonstrates that the district court properly considered the
§ 3553(a) factors when fashioning a within-guidelines sentence. See United States v. Campos,
541 F.3d 735, 749-50 (7th Cir. 2008). In discussing the nature and circumstances of Molinero-
Jimenez’s offense, see § 3553(a)(1), the district court reasonably found that possession of a
weapon in prison presents unique and enhanced dangers not only to its possessor, but also
to fellow inmates and correctional officers. See United States v. Akers, 476 F.3d 602, 606 (8th
Cir. 2007) (“When [illegal behavior] involves smuggling [contraband] into a correctional
facility . . . additional and unique risks of harm to inmates and corrections staff arise.”). And
the district court found it significant that Molinero-Jimenez fashioned and hid the shank,
rather than stumbling upon it. In evaluating the need for the sentence imposed, see
§ 3553(a)(2), the district court explained that Molinero-Jimenez had “been deported twice
from the United States to Mexico, and was serving a 77-month sentence of imprisonment for
being unlawfully found in the United States after having previously been deported.” It
noted that he was arrested in the United States on at least 39 separate occasions and has 19
adult-criminal convictions.
AFFIRMED.