Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 08 CR 416-1-Rebecca R. Pallmeyer, Judge.
The opinion of the court was delivered by: Tinder, Circuit Judge.
ARGUED SEPTEMBER 18, 2009
Before EASTERBROOK, Chief Judge, and WILLIAMS and TINDER, Circuit Judges.
Appellant Juan A. Moreno-Padilla was indicted on one count of illegal re-entry in violation of 8 U.S.C. § 1326(a) & (b)(2). He pleaded guilty and was sentenced to eighty months' imprisonment followed by three years of supervised release. Moreno-Padilla now challenges his sentence. He disputes two findings affecting the calculation of his criminal history and the application of a 16-level enhancement pursuant to U.S.S.G. § 2L1.2(b)(1)(A). We affirm.
Juan A. Moreno-Padilla is a citizen of Mexico. He is not a lawful permanent resident or citizen of the United States, but he has lived in the United States essentially continuously since his childhood. Federal officials found Moreno-Padilla living in Chicago with his parents and sister in 2004, and he was deported to Mexico. He returned to the United States illegally in January 2008.
He returned to Illinois upon his re-entry, and on March 14, 2008 pleaded guilty to an aggravated DUI offense. He was sentenced to eighteen months in state prison. Officers at the Stateville Correctional Facility became suspicious about Moreno-Padilla's immigration status early on in his incarceration and, on March 18, 2008, alerted federal immigration officials to his presence. Immigration officials placed a detainer on him and took him into custody upon his May 19, 2008 release from Stateville. On May 23, 2008, the federal government filed a criminal complaint in the district court against MorenoPadilla alleging illegal re-entry, and on June 11, 2008, a federal grand jury indicted him on one count of illegal re-entry in violation of 8 U.S.C. § 1326(a) & (b)(2).
After Moreno-Padilla's guilty plea to the indictment's only charge on October 1, 2008, a Presentence Investigation Report ("PSR") was prepared using the 2008 Sentencing Guidelines in effect at the time. The PSR assessed Moreno-Padilla's base offense level at 8, pursuant to U.S.S.G. § 2L1.2(a). Sixteen levels were added pursuant to U.S.S.G. § 2L1.2(b)(1)(A)(ii) because Moreno-Padilla had prior convictions that qualified as "crime[s] of violence." Three levels were subtracted in recognition of Moreno-Padilla's acceptance of responsibility and timely notification of his intent to enter a plea, U.S.S.G. § 3E1.1(a) & (b), leaving Moreno-Padilla with an offense level of 21.
The PSR's computation of Moreno-Padilla's criminal history requires a more detailed discussion. MorenoPadilla was convicted of aggravated battery on April 17, 1991. He was sentenced to fifty-four months in prison for that offense on May 21, 1991. In June 1991, while imprisoned for the April 1991 offense, Moreno-Padilla was convicted of another aggravated battery offense. He received a sentence of fifty-one months for the second 1991 conviction, set to run concurrently with his previous sentence. Moreno-Padilla was released from prison on January 24, 1992, and began a term of supervised parole. On March 28, 1992, while he was on parole, Moreno-Padilla was arrested and charged with yet another aggravated battery, this time in connection with a shooting incident in Chicago. He was reimprisoned in the Illinois Department of Corrections on September 4, 1992. He pleaded guilty to the March 1992 aggravated battery on November 2, 1992, and was sentenced to thirty-six months' imprisonment. He was released from prison on June 4, 1993, resumed parole, and was released from that supervision on June 5, 1994.
The parties agree that the June 1993 release date is accurate as to the November 1992 conviction. Moreno-Padilla insists that the June 1993 release date is accurate only as to the November 1992 conviction. The government, on the other hand, claims that because Moreno-Padilla was on parole when he committed the March 1992 offense, his September 1992 reimprisonment stemmed, at least in part, from a revocation of his parole on the 1991 convictions. It goes on to assert that because Moreno-Padilla was not released from confinement until June 1993, the June 1993 release date is applicable to all three aggravated battery convictions. The release date applicable to the 1991 convictions is particularly important in light of U.S.S.G. § 4A1.2(e)(1), which restricts the reach of the PSR's criminal history calculation to convictions imposed or incarcerations served within fifteen years of a defendant's commencement of the instant offense. Moreno-Padilla's instant offense, illegal re-entry, was commenced in January 2008 when he crossed the border into the United States. A release date prior to January 1993 for the 1991 convictions would thus render them irrelevant to Moreno-Padilla's criminal history calculation.
The PSR concluded that the three 1991-92 convictions all counted for criminal history purposes. It calculated Moreno-Padilla's criminal history as follows:
* 3 points for the first 1991 aggravated battery conviction, pursuant to U.S.S.G. § 4A1.2(k)(2)(B)(i);
* 3 points for the second 1991 aggravated battery conviction, pursuant to U.S.S.G. § 4A1.2(k)(2)(B)(i);
* 3 points for the 1992 aggravated battery conviction, pursuant to U.S.S.G. § 4A1.2(e)(1);
* 8 points for miscellaneous other offenses, including 3 for the 2008 DUI conviction, pursuant to U.S.S.G. § 4A1.1(a) & (c);
* 3 points pursuant to U.S.S.G. § 4A1.1(d) & (e) because Moreno-Padilla was serving a sentence of imprisonment when he committed the instant offense.
The PSR determined that Moreno-Padilla had twenty criminal history points, which easily placed him in the highest criminal history category, category VI.
With a criminal history in category VI and an offense level of 21, Moreno-Padilla faced a Guidelines sentence range of 77-96 months. In a sentencing memorandum filed prior to his sentencing hearing, Moreno-Padilla's counsel raised two objections to the PSR's Guidelines calculations. First, he argued that Moreno-Padilla should have received four points rather than six for the 1991 convictions because the sentences were concurrent. Second, he argued that the one point added under U.S.S.G. § 4A1.1(e) amounted to impermissible double-counting. Moreno-Padilla also requested that the district court consider the 18 U.S.C. § 3553(a) ...