Appeal from the United States District Court for the Northern District of Illinois, Eastern Division.
No. 95 CR 486 Charles R. Norgle, Sr., Judge.
Before POSNER, Chief Judge, and ESCHBACH and MANION, Circuit Judges.
Jorge Ramos Gonzalez pled guilty to reentering the United States after previously having been deported in violation of 8 U.S.C. sec. 1326. The relevant section of the Sentencing Guidelines, sec. 2L1.2(b)(2), provides for a sentencing increase if a defendant committed an aggravated felony before his previous deportation. This case presents the question of whether an aggravated felony can ever be too old to count for purposes of this enhancement. The district court thought not, and enhanced Ramos Gonzalez's base offense level by 16 points, despite the fact that the underlying aggravated felony was over 15-years old. Ramos Gonzalez now appeals his sentence, arguing that any aggravated felony over 15-years old is too old to be counted. He also argues that, if he must receive the 16-point enhancement, he should have received a downward departure. We have jurisdiction under 18 U.S.C. sec. 3742 and 28 U.S.C. sec. 1291. We affirm.
Jorge Ramos Gonzalez has lived in this country most of his life, much of the time as an illegal alien. He first came to the United States from Mexico with his family when he was a child. Since then, he has been deported, and returned, three times. His first deportation was in 1975, following an arrest and conviction for drug distribution in Cook County, Illinois. After Ramos Gonzalez returned the first time, he was convicted in May of 1980 in the Northern District of Illinois for unlawfully dealing in firearms and ammunition. He was subsequently convicted two more times in Cook County, Illinois: first, in 1981, for unlawful use of a weapon, and second, in 1982, for dealing in firearms and ammunition. In 1984, Ramos Gonzalez was deported for the second time. Proving that history repeats itself, Ramos Gonzalez once again returned to the United States, and he once again was deported in 1989.
In August 1995, Chicago, Illinois police discovered Ramos Gonzalez back in the United States when he was arrested for possession of heroin with intent to distribute. The superseding indictment that followed charged Ramos Gonzalez in Count II with possession with intent to distribute a controlled substance in violation of 21 U.S.C. sec. 841(a)(1). Count I charged him with violating 8 U.S.C. sec. 1326, illegally reentering the United States after previously having been arrested and deported. Pursuant to a plea agreement with the government, Ramos Gonzalez was convicted of both charges.
According to the Sentencing Guidelines, reentering the United States after deportation carries a base offense level of 8. U.S.S.G. sec. 2L1.2(a). However, the guidelines also provide a 16-level enhancement if the defendant was deported after having been convicted of an aggravated felony. U.S.S.G. sec. 2L1.2(b)(2). Under the terms of the plea agreement, Ramos Gonzalez's base offense level was to be increased 16 levels based on a May 1980 aggravated felony conviction for unlawfully dealing in firearms and ammunition. *fn1 The presentence report ("PSR") also recommended that Ramos Gonzalez receive the aggravated felony enhancement. Ramos Gonzalez objected to this recommendation, however, and argued at sentencing that the 1980 aggravated felony conviction should not form the basis for an aggravated felony enhancement. According to Ramos Gonzalez, convictions over 15-years old cannot be considered for purposes of sec. 2L1.2(b). The district court rejected this argument and added the 16 points to Ramos Gonzalez's offense level. The court held that the plea agreement's stipulation that Ramos Gonzalez would receive the 16-level enhancement precluded Ramos Gonzalez from arguing to the contrary. The court also rejected Ramos Gonzalez's argument that only aggravated felonies less than 15-years old could be considered for purposes of the enhancement.
Once his sentence was enhanced, Ramos Gonzalez argued that the court should depart downward from the sentencing range imposed by the guidelines. According to Ramos Gonzalez, a downward departure was appropriate under sec. 5K2.0 because a 16-level enhancement overrepresents the seriousness of his offense given the age of the aggravated felony conviction. The court refused to depart downward. It also refused to depart upward, however, as recommended in the PSR. In the end, the court sentenced Ramos Gonzalez to 63 months in prison, the high end of the guideline sentencing range.
Ramos Gonzalez now appeals his sentence. He argues first that the court erred by enhancing his sentence by 16 levels because the aggravated felony on which that enhancement was based was over 15-years old. He also argues that the court erred by denying his motion for a downward departure.
Before we may address the propriety of the aggravated felony enhancement, we must determine whether the plea agreement precludes Ramos Gonzalez from challenging it. The government argues that Ramos Gonzalez is bound because the plea agreement stipulates that the 16-level enhancement applies. The district court agreed with the government and held that the plea agreement precluded Ramos Gonzalez from arguing against the enhancement. We review the district ...