United States v. Javier Camacho-Montalvo

NONPRECEDENTIAL DISPOSITION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 October 8, 2014
Decided November 21, 2014
Before
RICHARD A. POSNER, Circuit Judge
JOEL M. FLAUM, Circuit Judge
DIANE S. SYKES, Circuit Judge
No. 14-1220
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff-Appellee, Court for the Northern District of Illinois,
Eastern Division.
v.
No. 13 CR 505
JAVIER CAMACHO-MONTALVO,
Defendant-Appellant. Charles P. Kocoras,
Judge.
ORDER
After having twice been removed from the United States, Javier
Camacho-Montalvo returned. In May 2013 federal immigration officers arrested him for
illegal reentry, see 8 U.S.C. § 1326(a); 6 U.S.C. § 202(4). Camacho-Montalvo pleaded
guilty to the illegal-reentry charge, and the district court sentenced him to 46 months’
imprisonment. He now appeals his sentence, arguing that the district court failed to
consider six of his principal arguments in mitigation. Because the district court
adequately discussed Camacho-Montalvo’s arguments in mitigation, we affirm.
No. 14-1220 Page 2
Camacho-Montalvo, a native and citizen of Mexico, came to the United States in
1980 at the age of 12. At age 14, he moved to Chicago and the Pilsen Wellness Center
helped him find a place to live and employment. In 1987 he moved in with a co-worker
and enrolled in high school (he graduated in 1989). In 1989, while in jail for battery, he
married his high-school girlfriend, who was then-pregnant with the couple’s first child.
Two years later, in 1991, immigration authorities deported Camacho-Montalvo
for the first time; he had just completed serving a sentence for aggravated battery and
robbery. Camacho-Montalvo quickly returned to the United States to be with his wife
and son. The couple had two more children, a daughter and son, and were together for
about nine years before they separated in 2000. Over the next six years,
Camacho-Montalvo was convicted three times for driving under the influence of
alcohol (“DUI”) and was removed again in 2007. He again returned to the United States
and in 2011 was convicted of aggravated DUI in Cook County.
In April 2013, Camacho-Montalvo, who was in custody for yet another DUI
conviction, again caught the attention of immigration and customs enforcement agents.
Immigration officers arrested Camacho-Montalvo in May after he was released from
state custody, and a grand jury returned a single-count indictment against him a month
later charging him with being in the United States without the express permission of the
Attorney General after having been previously deported and removed, see 8 U.S.C.
§ 1326(a); 6 U.S.C. § 202(4). In October 2013, Camacho-Montalvo pleaded guilty to one
count of illegal reentry.
The presentence report recommended a sentence of 46 to 57 months’
imprisonment, given Camacho-Montalvo’s guidelines offense level of 17 and
criminal-history category of V. Neither party challenged the guidelines calculation and
the district court adopted it. The government requested a within-guidelines sentence
because Camacho-Montalvo had several convictions for DUI offenses, two previous
removals, and a high risk of recidivism because of his cultural ties to the United States.
Camacho-Montalvo asked the district court to impose a below-guidelines
sentence. He argued that he had a low risk of recidivism because he has strong family
ties in Mexico and job opportunities that were waiting for him in the Cancun tourist
industry. He explained that he returned to the United States because he was culturally
assimilated to the country and because he needed to care for his sick mother. He also
argued that he originally returned for his three children, but they are all adults and not
reliant on him. He added that a below-guidelines sentence was necessary because of his
No. 14-1220 Page 3
difficult childhood, alcoholism, and struggle to maintain sobriety. Finally, he argued
that a within-guidelines sentence would be unduly harsh because the reentry guidelines
are empirically unsound, unjustified, and severely punishes him for offenses committed
when he was 20 and 22 years old, even though he is now 45 years old.
The district court acknowledged that Camacho-Montalvo had a difficult
childhood and an alcohol problem, but believed that these characteristics did not
outweigh his track record of illegal entries and his criminal record of several DUI
offenses. The court found that Camacho-Montalvo was a recidivist—with an extensive
criminal record consisting of 13 convictions—and had every reason to return the United
States including a high school degree and job opportunities. Thus, the court determined
that a 46-month sentence was appropriate.
On appeal Camacho-Montalvo argues that the district court procedurally erred
when it failed to consider six of his arguments in mitigation. Indeed, a district court
must address nonfrivolous, factually-based arguments in mitigation. See United States v.
Cunningham, 429 F.3d 673, 678–79 (7th Cir. 2005).
During oral arguments, Camacho-Montalvo’s counsel focused on the fact that the
court never addressed his principal argument in mitigation—that the reentry guidelines
are too harsh, not supported by empirical data, and unfairly increased his offense level
and criminal-history score by including offenses that he committed when he was much
younger. However, these are arguments that the district court need not address.
See U.S.S.G. § 5H1.1 (age relevant only when defendant is old and infirm); United States
v. Aguilar-Heurta, 576 F.3d 365, 367–68 (7th Cir. 2009) (district court need not address
argument that guidelines are generally unworthy of application).
Camacho-Montalvo’s remaining arguments are equally unsuccessful. Camacho-
Montalvo argues that the district court also failed to address his strong family ties,
cultural assimilation, difficult childhood, alcohol addiction, and plan not to reenter the
United States again.
District courts need not discuss routine family-ties arguments that do not
encompass extraordinary circumstances. See U.S.S.G. § 5H1.6; United States v. Gary, 613
F.3d 706, 709 (7th Cir. 2010). Camacho-Montalvo argued that he reentered the United
States to be with his children (who are now adults) and care for his sick mother by
cooking for her and taking her to medical appointments. He stated that after
completing his sentence, he plans to permanently reside in Mexico with his three
No. 14-1220 Page 4
brothers and three sisters, who will help him find employment. But
Camacho-Montalvo’s case does not present extraordinary family ties and
responsibilities that would remove his case out of the heartland of cases sentenced
under the guidelines. Courts often do not consider the defendant’s continuous care for
family members to be extraordinary, see, e.g., United States v. Christman, 607 F.3d 1110(6th Cir. 2010) (noting that when feasible alternatives for continuous care taking exist,
like a nursing home or care from other family members, the defendant is not an
irreplaceable caretaker); United States v. Pereira, 272 F.3d 76, 80–81 (1st Cir. 2001) (noting
that “time-consuming family responsibilities” are not sufficiently extraordinary to
warrant a downward departure); thus, it is difficult to conclude that Camacho-
Montalvo’s cooking and driving activities for his mother constitute extraordinary
circumstances. In addition, Camacho-Montalvo cannot use his past care-taking activities
for his now-adult children as a basis for a downward departure. See United States v.
Runyan, 639 F.3d 382, 383 (7th Cir. 2011).
The district court orally addressed each of Camacho-Montalvo’s remaining
arguments. A district court may consider cultural assimilation as a mitigating factor
when the departure is “not likely to increase the risk to the public from further crimes
of the defendant.” U.S.S.G. § 2L1.2 app. n.9. Here the district court made numerous
references to Camacho-Montalvo’s cultural ties in the United States including his job
and high school degree, but found that Camacho-Montalvo had not “appreciate[d] what
America has to offer.” Overall, Camacho-Montalvo’s multiple convictions for DUIs and
multiple removals made an adjustment for cultural assimilation inappropriate.
See United States v. Lopez-Hernandez, 687 F.3d 900, 904 (7th Cir. 2012) (explaining no basis
for cultural-assimilation adjustment when defendant had extensive criminal record);
United States v. Lua-Guizar, 656 F.3d 563, 567 (7th Cir. 2011) (finding no error when
district court did not grant adjustment because it was unpersuaded that defendant
would not recidivate given multiple convictions).
The court explicitly recognized that Camacho-Montalvo had a difficult
upbringing and a history of alcohol abuse, but found that neither characteristic excused
his criminal record and history of reentry. The district court also explicitly disbelieved
Camacho-Montalvo’s assertion that he would remain in Mexico after his sentence,
noting that Camacho-Montalvo had twice reentered and has numerous ties to the
United States. See United States v. Gonzales-Lara, 702 F.3d 928, 932–33 (7th Cir. 2012)
(finding no procedural error when court determined that defendant posed “significant
risk” of reentering country).
No. 14-1220 Page 5
Overall, the district court properly addressed (or appropriately disregarded)
Camacho-Montalvo’s six mitigating arguments. Therefore, we affirm the judgment of
the district court.