The opinion of the court was delivered by: Judge Blanche M. Manning
Defendant Francisco Mendoza-Castellanos pleaded guilty to one count of illegal re-entry of a deported alien. See 8 U.S.C. § 1326(a) and (b)(2). He is before the court for sentencing. For the reasons stated below and in open court, the court sentences him to a term of incarceration of 24 months.
The United States is the only home that Francisco Mendoza-Castellanos has ever known. His parents brought him here with them from Mexico when he was just three years old. As Mendoza grew, he unfortunately began getting into trouble. By age 12, he and a brother were members of the Latin King street gang. By age 20, he pled guilty to raping a woman (though he now claims that the victim was his girlfriend and that he pled guilty only to avoid testifying against fellow gang members who had actually committed the rape).
Because Mendoza never became a citizen, he was deported in 1993 after completing his sentence for the rape conviction. In 1999 he returned to the United States*fn1 without permission and was eventually caught and deported by Immigration and Customs Enforcement in 2004. He reentered again in 2005. On June 24, 2007, a federal agent received a tip about Mendoza. Specifically, someone told the agent that a sex offender who had previously been deported had returned. Agents subsequently questioned Mendoza, which led to the instant proceeding.
Mendoza has remained relatively crime free since his rape conviction at age 20, except for a conviction for driving under the influence in 2004 and the instant offense. Now at age 36, he is a husband and father to his 15-year-old daughter from a previous relationship. He has also become a doting father-figure to his wife's two daughters, ages 7 and 6.
His opportunities for work have been limited by his illegal status, which is reflected in his sketchy work history as reported in his Presentence Investigation Report. However, the PSR appears not to tell the whole story. According to character reference letters submitted on Mendoza's behalf, he is a hard worker praised by customers for whom he does landscaping, as well as family members for whom he cares. Especially touching is a letter from his ten-year-old niece whose father was never around and who relied instead on Mendoza for help and support.
In order to determine the most appropriate sentence for Mendoza, the court must begin by calculating his sentencing range under the Sentencing Guidelines. The parties agree with the probation officer's calculations set out in the defendant's PSR, as does the court. Accordingly, the court adopts the calculation in the PSR. Specifically, the court finds that the base offense level for a violation of 8 U.S.C. § 1326(a) and (b)(2) is 8. See U.S.S.G. § 2L1.2(a). Because the defendant was previously deported after being convicted of a felony (criminal sexual assault), his offense level is increased by 16, resulting in an adjusted offense level of 24. He is entitled to a 3-level reduction for acceptance of responsibility and timely notification, see U.S.S.G. § 3E1.1(a) & (b), resulting in a total offense level of 21. His criminal history category is III, based upon three criminal history points for the criminal sexual assault, and one point for driving under the influence. The resulting sentencing range under the Sentencing Guidelines is 46-57 months.
II. Sentencing Factors of § 3553(a)
In addition to the sentencing range calculated under the Guidelines, the court must also take into account the sentencing factors set forth in 18 U.S.C. § 3553(a). Under § 3553(a), the court must impose a sentence sufficient, but not greater than necessary, to comply with the purposes of sentencing, which are:
(1) to reflect the seriousness of the offense, to promote respect for the law, and to ...