The opinion of the court was delivered by: Honorable David H. Coar
MEMORANDUM OPINION AND ORDER
Before this Court is a limited remand from the Seventh Circuit Court of Appeals pursuant to United States v. Paladino, 401 F.3d 471 (7th Cir. 2005). This Court is charged with determining whether it would have imposed a different sentence on Defendant Sergio TellezBoizo ("Defendant"), had the Federal Sentencing Guidelines ("Guidelines") been considered advisory rather than mandatory at the time of sentencing. After reviewing the parties' submissions and the pre-sentence report, this Court concludes that it would apply the same sentence.
On January 21, 2003, Defendant was indicted for being unlawfully present in the United States in violation of 8 U.S.C. § 1326(a) and (b)(2). Defendant pled guilty to the indictment, and a sentencing hearing was held on August 26, 2003. At sentencing, this Court denied Defendant's objection to a finding of 13 points of criminal background in the pre-sentence investigation, amounting to a criminal history level of VI. Defendant also moved for a downward departure based on alleged overstatement of that history, which this Court also denied. Both of these requests were denied. This court sentenced Defendant to the low end of the 77 to 96 month range that was determined under the Guidelines using an offense level of 21 and a criminal history category of VI.
At sentencing, the court made the following statement:
Mr. Tellez-Boizo, the manner in which the law treats illegal re-entry cases is to my way of thinking odd. The punishment can be very harsh in these cases, and I generally do not favor the approach that the Congress has taken -- the Congress and the Sentencing Commission have taken in these cases. But that is their right to set policy and not mine.
Having said that, it is perfectly rational to treat people differently who have illegally reentered the United States based on their criminal background. The United States certainly has a rational reason for exacting a more severe punishment for people who have committed crimes in this country and illegally reentered than those who have not committed crimes or have committed very few crimes.
So my disagreement is not with the overall structure. It is with how the law affects particular defendants. Now, your criminal history is shameful. And for that reason merits very little sympathy from the Court in imposing sentence.
This court also suggested that it had little desire to apply the low end of the range, much less grant a downward departure from it:
[A] sentence at the low end of the guideline range I think adequately addresses the legitimate concerns of the sentencing policy. And for that reason I will accept the suggestion of your attorney and sentence you at the low end of the guideline range. I do that, however, with some reluctance given your prior criminal involvement.
Defendant appealed, and the Seventh Circuit affirmed on October 25, 2004. A Petition for Writ of Certiorari to the Supreme Court resulted in a vacation and remand for further consideration in light of United States v. Booker, 543 U.S. 220, 246-49 (2005). The Seventh Circuit thereby issued a limited remand pursuant to United States v. Paladino, 401 F.3d 471, 483-84 (7th Cir. 2005).
Both sides filed briefs on the Paladino issue. This Court has reviewed the parties' submissions. As of this writing, Defendant has served ...