Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 1:10-cr-01045-1--John W. Darrah, Judge.
The opinion of the court was delivered by: Bauer, Circuit Judge.
Before BAUER, SYKES and TINDER, Circuit Judges.
The defendant-appellant, Luis Eduardo Marin-Castano, was indicted and pleaded guilty to one count of illegal re-entry into the United States in violation of 8 U.S.C. § 1326(a) and 6 U.S.C. § 202(4). On November 30, 2011, upon consideration of Marin-Castano's criminal history and other factors, the district court issued a low-end, within-Guidelines sen- tence of 46 months in prison. This appeal followed. We affirm.
Marin-Castano, a native and citizen of Colombia, ille- gally entered the United States in 1982. In 1985, he was convicted of drug offenses in violation of 21 U.S.C. §§ 846 and 841(a)(1), was sentenced to five years in prison, and in 1987 he was deported to Colombia. Ap- proximately five years after his deportation, Marin- Castano reentered the United States and was arrested twice, yet managed to avoid deportation. On October 27, 2010, he was arrested in Illinois for driving under the influence and Immigration and Customs Enforcement agents were informed of his illegal status. Marin-Castano was indicted on one count of illegal re-entry in violation of 8 U.S.C. § 1326(a) and 6 U.S.C. § 202(4) and pleaded guilty pursuant to a plea agreement. At the sentencing hearing, upon consideration of the government's Pre- sentence Investigation Report, and in accordance with the United States Sentencing Guidelines, the district court determined Marin-Castano's criminal history cate- gory to be 3 and, after applying a 16-level enhancement pursuant to U.S.S.G. § 2L1.2(b)(1)(A), determined his offense level to be 21. U.S. Sentencing Guidelines Manual, § 2L1.2(b)(1)(A) (2010). This resulted in a cal- culated Guidelines range of 46 to 57 months' imprison- ment. U.S.S.G. Sentencing Table (2010). Neither the gov- ernment nor Marin-Castano objected to this calcula- tion. Marin-Castano was sentenced at the low-end of the Guidelines range to 46 months in prison and he appealed.
Marin-Castano claims that the district court com- mitted procedural error at sentencing by failing to address two of his principal arguments. At the heart of each of these arguments (which were at best comple- mentary, if not duplicative) was his claim that his 1985 conviction was stale and it overstated the serious- ness of his current re-entry offense. He further argued that although the district court's Guidelines calculation was technically correct, consideration of the § 3553(a) factors necessitated a below-Guidelines sentence.
The first argument cited § 3553(a)(2)(C) and claimed that a Guidelines range accounting for his 1985 convic- tion overstated the seriousness of his criminal history by elevating it to a Category 3, and thus would be greater than necessary to protect the public from further crimes of the defendant.
The second argument cited § 3553(a)(2)(A) and claimed that a Guidelines range accounting for his 1985 convic- tion overstated the seriousness of his re-entry offense by imposing a 16-level offense enhancement, pursuant to § 2L1.2(b)(1)(A).
We pause for a point of clarity and underscore that Marin-Castano essentially split one argument into "two principal arguments" by dividing it between the horizontal (criminal history) and vertical (offense level) axes of the Guidelines Sentencing Table. After sentencing, Marin-Castano appealed, claiming the district court committed procedural error by failing to properly address both of these arguments.
In addition to procedural error, Marin-Castano also claims the sentence imposed was substantively unreasonable because it failed to give proper weight to the age of Marin-Castano's 1985 conviction, in accordance with the 18 U.S.C. § 3553(a) factors.
We disagree. We find neither procedural error, nor substantive unreasonableness with regard to the district court's imposed sentence of 46 months' imprisonment.
Because Marin-Castano argues that the court commit- ted both procedural and substantive error, we employ more than one standard of review. First, we conduct a de novo review for any procedural error. United States v. Curby, 595 F.3d 794, 796 (7th Cir. 2010). If we deter- mine that the district court committed no pro-cedural error, we review the sentence for substantive reasonableness under an abuse-of-discretion standard. Gall v. United States, 552 U.S. 38, 51 (2007). In this circuit, we do apply a presumption of reasonableness to all within-Guidelines sentences. It is not a binding presumption, but it applies in every case and it is the de- fendant's burden to overcome it. See Gall, 552 U.S. at 51 (an appellate court may apply a presumption of reason- ableness to a within-Guidelines sentence) ...