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United States v. Villegas-Miranda

August 27, 2009


Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 07 CR 130-George W. Lindberg, Judge.

The opinion of the court was delivered by: Williams, Circuit Judge.

ARGUED MAY 7, 2009

Before FLAUM and WILLIAMS, Circuit Judges, and LAWRENCE, District Judge.*fn1

Octavio Villegas-Miranda believes that the government intentionally delayed charging him with illegal re-entry, a federal crime, while he was in state custody on a domestic battery charge. This delay, he claims, was designed to deprive him of the opportunity to serve his federal sentence concurrent with the remainder of his state sentence.

At sentencing, he asked the district court to lower the federal sentence that it intended to impose so that he could receive credit for the lost opportunity to serve it concurrently with the end of his state sentence. In support of this argument, he pointed to decisions from several other circuits which recognize that a district court may issue lower sentences to compensate for such delays. Unfortunately for Villegas-Miranda, the district court did not address this argument during his sentencing hearing. Because we find that this argument had legal and factual merit, under United States v. Cunningham, 429 F.3d 673, 679 (7th Cir. 2005), the district court was required to specifically address it. It did not, so we remand this matter for resentencing.


Octavio Villegas-Miranda is a Mexican national who is not a United States citizen. Since emigrating from Mexico to the United States in 1990 as a youth, Villegas-Miranda has been arrested sixteen times and convicted of twelve crimes, including, among other things, domestic battery, sale of narcotics, and driving under the influence. After a conviction for domestic battery in June 2002, VillegasMiranda was deported to Mexico. After sneaking back into the United States, he was convicted of violating 8 U.S.C. § 1326, which prohibits re-entry into the United States by a non-citizen previously convicted of an aggravated felony, and was again deported.

During his third trip to the United States, on May 6, 2006, Villegas-Miranda was again arrested for domestic battery. He pleaded guilty in state court and was sentenced to thirty months' imprisonment. Villegas-Miranda was supposed to be paroled from state custody on February 9, 2007, but was held on a federal immigration detainer until February 12, 2007, when a federal immigration officer arrived and once again charged him with illegal re-entry pursuant to 8 U.S.C. § 1326.

Villegas-Miranda pleaded guilty to illegal re-entry without a plea agreement. His Sentencing Guidelines range was seventy-seven to ninety-six months' imprisonment. It is undisputed that in his sentencing memorandum, and during his sentencing hearing, he made two primary arguments in requesting a below-Guidelines sentence: (1) his daughter was ill and he needed to be with her; and (2) the district court should exercise its discretion and issue a sentence at least nine months below the bottom of the advisory Guidelines range to effectively credit him with the time served in state prison on the battery charge (his "concurrent sentences" argument). The gist of Villegas-Miranda's second argument was that if the government had charged him with illegal re-entry when he was arrested on May 6, 2006 (or any reasonable time prior to his release from state custody), the district court would have been able to sentence him concurrently with his state time. Since the government did not do so, Villegas-Miranda lost the opportunity to serve his state and federal sentences concurrently, and he asked the district court to compensate for this by issuing a below-Guidelines sentence.

The district court acknowledged that it had "perused [Villegas-Miranda's] rather extensive sentencing memorandum" and found it to be "well drafted and very persuasive." It then rejected Villegas-Miranda's family situation argument because it found that his presence in the household exacerbated the situation (by assaulting his family members) rather than alleviating it. It stated that a high, within-Guidelines sentence was appropriate because of Villegas-Miranda's extensive criminal history and because he repeatedly reentered the United States after being deported. The court sentenced him to ninety months' imprisonment and three years' supervised release. The court did not address Villegas-Miranda's second principal argument, that a below-Guidelines sentence should be imposed to effectively credit him with time served in state prison.


A. The District Court Was Required, But Failed to, Address All Principal Arguments that Were "Not So Weak As to Not Merit Discussion"

Villegas-Miranda argues that the district court's failure to respond to his argument that it should issue a below-Guidelines sentence to compensate him for the lost opportunity to serve his state and federal sentences con-currently, as a result of the government's purported delay in charging him with illegal re-entry, requires us to remand for resentencing. The government disagrees because it contends that: (1) the district court adequately stated its reasons for issuing Villegas-Miranda's ninety month sentence; and (2) Villegas-Miranda's "concurrent sentences" argument was sufficiently weak so as to not require a response from the district court.

We review a district court's sentencing decisions for reasonableness, but its sentencing procedures under a non-deferential standard. United States v. Mendoza, 510 F.3d 749, 754 (7th Cir. 2007). A within-Guidelines sentence is presumed reasonable. United States v. Omole, 523 F.3d 691, 696 (7th Cir. 2008) (citing Rita v. United States, 551, U.S. 338 (2007)). A sentencing court need not comprehensively discuss each of the factors listed in 18 U.S.C. § 3553(a). United States v. Dean, 414 F.3d 725, 729 (7th Cir. 2005). Rather, it must give the reasons for its sentencing decision and address all ...

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