The opinion of the court was delivered by: Richard Mills, U.S. District Judge:
E-FILED Friday, 13 July, 2012 11:48:01 AM Clerk, U.S. District Court, ILCD
On July 3, 2012, the Court held a sentencing hearing concerning Defendant Vicente Santana-Cruz (Santana). Santana lodged six objections to the Presentence Investigation Report (PSR). This Opinion explains the Court's rationale in denying the objections and adopting the calculations of the probation officer.
Santana first entered the United States in February 1985. He was arrested by immigration officers in Dallas, Texas, on May 22, 1998, and November 16, 1998, and was removed to Mexico on both occasions.
Santana was arrested by Border Patrol agents on April 14, 2006, near Laredo, Texas, and removed to Mexico on April 16, 2006.
Since the 1980s, Santana has resided in the Dallas-Fort Worth metropolitan area with his wife and children, who are all apparently citizens of the United States.
On October 25, 2011, Santana's vehicle became disabled near a Super 8 Motel in Springfield, Illinois. An officer of the Illinois Secretary of State Police stopped to assist him. The officer requested the assistance of Immigration and Customs Enforcement (ICE), U.S. Department of Homeland Security. ICE agents arrived on scene and made contact with Santana, who admitted to agents that he was not lawfully present in the United States.
At the ICE office, agents advised Santana of his consular notification rights, and his rights under Miranda v. Arizona , 384 U.S. 436 (1966). Santana said that he understood these rights, agreed to answer questions, and executed written waivers of his consular and Miranda rights. During an interview with an agent, he admitted that he was removed in April of 2006, and stated that following his removal he visited his family in Guerrero, Mexico, for about a month before returning to the United States. He stated that he paid an individual $1,500 in Nuevo Laredo, Mexico, to assist him in crossing the Rio Grande into Laredo, Texas.
On November 9, 2011, Santana was charged with being present in the United States without permission following deportation, in violation of 8 U.S.C. § 1326. He pled guilty pursuant to a plea agreement, and the Court accepted his plea of guilty.
The PSR revealed important information regarding Santana's background, including his criminal history.
In the late 1990s, Santana engaged in a beer theft scheme. He would enter a grocery store and purchase ten cases of Coors Light beer. He would take the beer to his vehicle and return to the store with his receipt. He would then load another ten cases of Coors Light into a shopping cart and attempt to exit the store with the beer. If challenged by store employees, he would present the receipt from the previous ten cases of beer.
Santana committed this offense on June 30, 1996, and pled guilty to theft of property between $50 and $500 in Collin County, Texas, on May 26, 1998. On the same date, he received a sentence of 50 days in jail, a $500 fine, and $232 in court costs.
He committed the same offense again in Collin County on October 11, 1998. Santana pled guilty to the same charge on November 13, 1998. He was sentenced on the same date to 30 days of incarceration and he was directed to pay $259 in court costs.
The probation officer assessed one criminal history point for each of these convictions.
On December 31, 2005, Santana was caught driving while intoxicated in Ellis County, Texas. On July 18, 2006, he pled no contest, received a suspended sentence of 120 days incarceration, was sentenced to two years of probation, was assessed a $500 fine, and was ordered to pay $251 in court costs.
On July 16, 2008, the court in Ellis County issued a probation violation warrant. (It appears that Santana neglected to pay the fine and court costs.)
On July 8, 2009, Santana was sentenced in Ellis County to 16 days of incarceration for the violating the terms of probation. The probation officer assessed two criminal history points for this offense.
The probation officer also assessed two additional criminal history points pursuant to U.S.S.G. § 4A1.1(d), because Santana was on probation for the Ellis County case when he committed the instant offense.
Other convictions were detailed in the PSR, but they do not have any bearing on the issues ...