Appeal from the United States District Court for the Eastern District of Wisconsin. No. 2:10-cr-00223-RTR-1--Rudolph T. Randa, Judge.
The opinion of the court was delivered by: Williams, Circuit Judge.
Before FLAUM, WILLIAMS, and TINDER, Circuit Judges.
Giraldo Trujillo-Castillon pled guilty to one count of conspiring to use unauthorized accounts and one count of aggravated identity theft. He received an above-guideline, 48-month prison term for the conspiracy, and a mandatory, consecutive 24- month term for aggravated identity theft. Trujillo- Castillon appeals the 48-month sentence, first arguing that the court ignored his evidence in mitigation. However, the court considered his lesser participation in the conspiracy but found it was outweighed by the severity of his crime and his underrepresented criminal history. Trujillo-Castillon next contends that his Cuban heritage was improperly factored into his sentence. His argument finds support in the transcript, and we cannot say with any reasonable certainty that his national origin had no impact, so we vacate his sentence and remand for resentencing.
Giraldo Trujillo-Castillon and two co-defendants were indicted for fraudulently using credit and gift card ac- counts for purchases totaling $139,063.23. Count one charged the trio with conspiring to violate 18 U.S.C. §§ 1029(a)(2) and (3), which respectively prohibit inten- tionally using an unauthorized access device, and know- ingly possessing fifteen or more such devices with the intent to defraud. 18 U.S.C. § 1029(b)(2). Counts two and three alleged fraudulent use and possession of unau- thorized access devices in violation of 18 U.S.C. §§ 1029(a)(2) and (3). And count four charged aggravated identity theft in violation of 18 U.S.C. § 1028A(a)(1).
Trujillo-Castillon pled guilty to counts one (conspiracy) and four (aggravated identity theft), and the remaining counts were dismissed pursuant to his plea agreement. His Presentence Investigation Report ("PSR") revealed that he was born in Cuba and fled to the United States at seventeen years old. It calculated his offense level at sixteen, and his criminal history category at four. His recommended guideline range was 33 to 41 months in prison for the conspiracy. He also faced a consecutive, mandatory 24-month term for the aggravated identity theft conviction.
At sentencing, the government argued that Trujillo-Castillon deserved a sentence at the top of the guideline range because of his criminal history and his general attitude toward crime. Pointing to the defen- dant's admission that he viewed fraud differently than violent crimes, the government argued that "it may be possible to explain his stated attitude because of his Cuban heritage. . . . Maybe there is a different attitude toward private property in Cuba." The government noted Trujillo-Castillon's statement that his only friend in the United States was his wife, and said that "if you play by the rules, if you join us, if you become American, [you] will have many  friends in the United States." The government then turned to "why people should come to the United States," professing that "if he came here because he thought it would be easy, then I would simply suggest that he and others like him either wise up, or don't come."
Defense counsel did not object to this line of argu- ment; instead, he responded in kind. He explained that there is an "attitude" in Cuba that when you steal "you're pulling a Robin Hood type of act." He suggested that many Cuban immigrants have a hard time adjusting to "the American way of life." And he argued for a sen- tence at the low end of the guidelines because Trujillo- Castillon had "never challenge[d] the Government's evidence or accusation" and the PSR adequately ac- counted for the defendant's criminal history. Counsel highlighted the defendant's departure from the con- spiracy before most of the fraudulent transactions occurred as evidence in mitigation, and requested a 33- month sentence.
The sentencing court began by finding that even though Trujillo-Castillon's "lesser participation in this offense . . . mollifies the severity of the offense . that can't be divorced from [his criminal] history." The court then noted that the defendant had never successfully completed supervision and that he had "one of the worst records" the court had "ever seen." The court detailed Trujillo-Castillon's prior arrests and convictions for theft, counterfeiting, and other fraud-related offenses. It concluded that the defendant's criminal history had been substantially underrepresented.
The court then turned to the defendant's "characteris- tics." The court first explained that Trujillo-Castillon's "lifestyle" cannot "be blamed on Cuba." It said that his record was reminiscent of "when the Mariel people came over here and created crime waves all over the place"; "When [Fidel] Castro emptied his prisons, and his psychiatric wards, and Jimmy Carter took them all in." The court continued that, unlike in Cuba, "in
America, private property is sacrosanct. It's not the Gov-ernment's property. . . . And that's the way we live in America. And that's why it's a serious offense when you do this." The court inveighed that coming from "deprived circumstances" does not "give anybody who comes from Cuba the right to . . . not value the very constitutional rights that other citizens possess." Finally, before imposing Trujillo-Castillon's sentence, the court stated:
You have a criminal history category of 4, but the Court's view is that the sentencing guidelines don't represent what the Court has just character- ized is your criminal history . . . it's under-repre- sented. So when I look at the total circumstances of your history, coupled with the nature and severity of the crime, and even your lesser involve- ment in this offense, it is, as the Court has indi- cated, a pattern that requires that I go above the guidelines in this sentence. . .
The court sentenced Trujillo-Castillon to 48 months in prison for the conspiracy count, exceeding his guideline range by seven months. He also received the mandatory 24-month prison term for aggravated identity theft, to run ...