Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 06 CR 334-Ronald A. Guzman, Judge.
The opinion of the court was delivered by: Bauer, Circuit Judge.
Before BAUER, RIPPLE, and KANNE, Circuit Judges.
Defendant-Appellant Carl Gordon is a citizen of Belize who lawfully entered the United States in 1974. Gordon obtained permanent resident status and was issued a "green card." Ten years later, Gordon committed a series of home invasion robberies, targeting elderly women alone in their homes. In March of 1985, a Cook County grand jury indicted Gordon on multiple charges, including home invasion, residential burglary, armed robbery, robbery, aggravated battery, and theft. Gordon was found guilty of several of these charges and was sentenced to concurrent ten and seven year terms in the custody of the Illinois Department of Corrections. On January 3, 1990, Gordon was deported based on those convictions. Before he was deported, an immigration judge explained to Gordon that he no longer was a legal permanent resident and provided him with an I-294 form, which explained that he needed permission from the Attorney General to return to the United States.
Gordon returned to the United States in November of 1995 without obtaining permission from the Attorney General. The exact date of Gordon's return is uncertain, but on appeal, Gordon asserts that it was sometime during November of 1995. Gordon reentered via Mexico at the San Ysidro, California border checkpoint. At that checkpoint, Gordon presented his green card-which was still in his possession despite his deportation-to the Immigration and Customs Enforcement agent and was allowed to re-enter the United States.
On October 12, 2000, Gordon was again arrested on charges of home invasion and armed robbery of an elderly woman. On August 8, 2001, he was convicted of these crimes in Illinois state court and sentenced to twelve years' imprisonment. On August 10, 2001, Gordon entered the custody of the Illinois Department of Corrections to begin serving his sentence. Standard custodial procedures should have alerted the government to Gordon's unlawful presence at this time, but standard procedures, for some unknown reason, were not followed in this case.
On April 21, 2006, Gordon was interviewed by an Immigration and Customs Enforcement agent, and he admitted to the agent that he had illegally reentered the United States by presenting his authentic but invalid green card to the inspector at the border. With this green card, Gordon falsely represented that he was a lawful permanent resident of the United States.
On May 9, 2006, Gordon was indicted on charges of being a deported alien illegally present and found in the United States without the express consent of the Attorney General, in violation of 8 U.S.C. §§ 1326(a) and 1326(b)(2). This offense has a five-year statute of limitations period from the time the offense is complete. On June 27, 2006, Gordon moved to dismiss the indictment arguing that the prosecution was time-barred. Gordon argued that the government had constructive knowledge of his illegal presence in the United States as of the moment he crossed the border at San Ysidro and, through the exercise of due diligence, the government should have discovered his crime. Although charged with being "present and found" in the United States, Gordon asserted that this offense was not a continuing one in light of his entry through an official port of entry and the use of his real name, date of birth, and alien identification number, and thus his re-entry was not surreptitious. Therefore, Gordon argued, his offense was complete for statute of limitations purposes at the time of his successful re-entry. Gordon also claims that he did not know his re-entry was illegal because the I-294 form that he received upon his removal was confusing and he thought he was allowed to return after five years.
The government responded that Gordon's re-entry was surreptitious because the presentation of an invalid green card concealed the illegality of his presence from the border authorities exercising normal diligence. And, because his re-entry was surreptitious, the government argued, the statute of limitations did not begin to run until the government "actually discovered" Gordon's illegal presence in the United States. The government pointed out that requiring the border authorities to do a background check on everyone seeking to cross the border, even when they present an authentic immigration document, places an unreasonable burden on border personnel. Gordon responded that the border authorities have computers at their stations for precisely that reason, and insisted that background checks on everyone crossing the border is not too burdensome.
On August 3, 2006, the district court denied Gordon's motion, finding that the government could not be expected to run a background check on every person requesting permission to enter the United States, especially when he or she presents authentic immigration documents. The court held that the government did not have actual or constructive knowledge of Gordon's illegal re-entry at the time he crossed the border, and therefore the indictment was not time-barred. On November 14, 2006, Gordon entered a conditional guilty plea, preserving his right to appeal the district court's denial of his motion to dismiss the indictment.
At the sentencing hearing, the district court concluded that Gordon's offense level was twenty-one and his criminal history score was nine, which placed him in criminal history category four. This provided for an advisory guidelines range of fifty-seven to seventy-one months' imprisonment. The district court then heard arguments from both parties before sentencing Gordon.
Gordon argued for a sentence below the advisory guidelines range. He explained that when he was deported, he was told by immigration officials that he would be denied re-entry for five years; after that, it was Gordon's understanding that he would be allowed to return by showing his green card to immigration officials. He claimed that his risk of recidivism and any threat he posed to the public in the future was significantly diminished because he would not return to the United States now that he knew he could not do so legally (without the permission of the Attorney General). In support of his arguments, Gordon presented a copy of the I-294 form that he says was the source of his sincere-albeit incorrect-belief that he could return to the United States after five years. He also emphasized the fact that he reentered the United States at an official port of entry and used his real identity, which was evidence of his sincere misunderstanding of the restrictions on his re-entry. He said that he did not know his green card was invalid, despite his deportation in 1990.
The government argued for a sentence of 120 months' imprisonment, asserting that the guidelines range was "woefully inadequate" because Gordon preyed on vulnerable and defenseless elderly women, and that Gordon's prior deportation for similar crimes had done nothing to deter him from returning and claiming another elderly victim. Moreover, the government contended that Gordon's criminal history score under-represented the seriousness of his criminal history, and urged the district court for an upward departure to 120 months on the basis that such a sentence was necessary to protect the public from Gordon. This argument was based on the fact that seven of Gordon's prior convictions had been consolidated for sentencing, which resulted in him receiving two fewer points for his criminal history score. The government requested the guidelines range of seventy to eight-seven months' imprisonment, which would have been the guidelines range had Gordon's prior convictions not been consolidated. The government further argued that it could not prevent Gordon from returning to the United States and continuing his "signature offense" on society's elderly women.
Gordon responded that his prior crimes had adequately been accounted for and that his criminal history score did not under-represent the magnitude of his criminal history. Gordon also contended that the government's requested 120 months sentence was arbitrary, as it was not linked to any specific guideline. In a final comment to the court, Gordon apologized ...