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United States v. Olmeda-Garcia

July 29, 2010


Appeal from the United States District Court for the Eastern District of Wisconsin. No. 00 CR 67-Rudolph T. Randa, Judge.

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

ARGUED MAY 19, 2010

Before FLAUM, MANION, and HAMILTON, Circuit Judges

Defendant-appellant argues that the district court committed a procedural error by disregarding his comment that a comparison of his case to those in so-called "fast track" districts might reveal an unwarranted sentencing disparity. The argument was not adequately developed and thus falls below the threshold of relevance. We find no error in the district court's decision not to address the point directly and affirm the judgment below.

I. Background

Appellant Ines Olmeda-Garcia has a long criminal history that includes a July 2000 conviction for drunk driving, a 2002 conviction for cocaine trafficking, a 2002 conviction for battery of his girlfriend and her nine-year-old daughter, and three other drunk driving arrests. Appellant also has arrests for illegal entry into the United States, several batteries, burglary, sexual assault, failure to appear, and drug dealing. He has been deported from the United States on two prior occasions. The most recent one was in 2005, after appellant completed a 42-month sentence for drug trafficking.

In February 2009, Immigration and Customs Enforcement ("ICE") agents discovered that appellant was in custody in Milwaukee on drunk driving charges. On March 10, 2009, a grand jury sitting in the Eastern District of Wisconsin charged Olmeda-Garcia with possession with intent to deliver cocaine, being found in the United States following removal for an aggravated felony, and not having obtained the express consent of the government to re-apply for admission into the United States, in violation of 8 U.S.C. §§ 1326(a) and (b)(2). On April 28, 2009, Olmeda-Garcia pleaded guilty to a single count of illegal re-entry. The Presentencing Investigation Report ("PSR") determined appellant's base offense level to be 8, with a 16-level increase for a prior felony drug trafficking offense for which the sentence exceeded 13 months, and a 3-level decrease for acceptance of responsibility. Accordingly, the PSR calculated a total offense level of 21 and a criminal history category of IV.

These parameters yielded a guideline sentencing range of 57 to 71 months. If the district court imposed a term of imprisonment longer than one year, the PSR found that the guidelines required the court to also impose a term of supervised release of at least two years, but not more than three years, on defendant-appellant.

At sentencing, the government recommended a sentence at the low end of the guideline range. Defense counsel recommended a sentence of 36 months. OlmedaGarcia's attorney argued that appellant illegally reentered the country to see his children and that he would have no reason to come back in the future because his older child had returned to Mexico and appellant lost custody of the younger kids. An excerpt of the transcript captures remarks made by appellant's counsel on this topic as well as the one motivating the present appeal:

[Olmeda-Garcia's] older child is no longer residing in the country. Has since returned to Mexico with his mother. And his younger children have-his parental rights have since terminated and they've been adopted. Although he has other contacts with many in the U.S., the children were his closest contacts and why he took the risk to come back in the United States.

The recommendation is also guided, Your Honor- although this is a serious offense, it's not a violent offense. The 36 months recommendation [sic] is also guided by the fact that, Your Honor, had Mr. Olmeda-Garcia been arrested in any of the Districts that have the fast-track program, that would be a typical sentence that he would received.

And then finally, the recommendation is guided by the fact that, Your Honor, Mr. Olmeda-Garcia's guidelines here are primarily being ruled by one fact. That is for a prior drug conviction.

Appellant's counsel also pointed out that Olmeda-Garcia will suffer the collateral consequence of deportation. Appellant then exercised his right of allocution and spoke through an interpreter. He reiterated the story about coming back to the U.S. to find his family and being arrested for not having a valid driver's license right as he was about to leave the country for Mexico.

Prior to announcing appellant's sentence, the district court discussed Olmeda-Garcia's extensive contact with the criminal system, the fact that he operated under ten different aliases, and his fathering of several children out of wedlock while keeping a wife in Mexico. Given these circumstances, in an effort to "promot[e] respect for the law," the court imposed a sentence of 64 months. In doing so, the court made no mention of any potential disparity between appellant's term of imprisonment and those imposed on individuals in districts with a ...

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