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United States v. Sanchez-Lopez

United States Court of Appeals, Seventh Circuit

June 2, 2017

United States of America, Plaintiff-Appellee,
v.
Jesus Sanchez-Lopez, Defendant-Appellant.

          Argued April 26, 2017

         Appeal from the United States District Court for the Western District of Wisconsin. No. 3:16-cr-00061-wmc-l - William M. Conley, Judge.

          Before Wood, Chief Judge, and Ripple and Sykes, Circuit Judges.

          PER CURIAM.

         Jesus Sanchez-Lopez pleaded guilty to unauthorized presence in the United States after removal, see 8 U.S.C. § 1326(a), and was sentenced to twenty-four months' imprisonment-a term ninety days above the properly calculated guidelines range. Mr. Sanchez-Lopez contends that the district court erred when, in an effort to deter future illegal reentry by Mr. Sanchez-Lopez, it deviated from the Guidelines and sentenced him to a lengthier term than the sentence he had served the last time he was convicted of the same offense. Because the district court thoroughly explained its reasons and acted well within its discretion, we affirm the sentence.

         I

         BACKGROUND

         Mr. Sanchez-Lopez came to the attention of immigration authorities after local police arrested him for retail theft at a Home Depot in June 2016. Mr. Sanchez-Lopez was indicted for illegally reentering the United States after removal, see 8 U.S.C. § 1326(a), and pleaded guilty shortly thereafter.

         A probation officer compiled a report detailing Mr. Sanchez-Lopez's long history of criminal activity in and removal from the United States. He first entered the country without authorization and settled in Wisconsin in 1994. The majority of his convictions over the years were driving-related: four DUIs, one hit-and-run accident, and three charges of driving with a suspended license. His criminal history, however, also includes convictions for battery, sexually assaulting an eleven-year-old child, and criminal escape. Mr. Sanchez-Lopez first was removed in January 2010, but Border Patrol agents arrested him in Arizona only seven months later. Mr. Sanchez-Lopez was convicted of attempted reentry after removal, sentenced to eighteen months' imprisonment, and removed for the second time in November 2011.

         Mr. Sanchez-Lopez told the probation officer that he had reentered the United States, despite the risk of criminal prosecution and removal, because his common-law wife suffered serious work-related injuries and needed care. Mr. Sanchez-Lopez said that he returned to Wisconsin sometime in 2013 but could not remember the date. His wife told the district court that he had returned in January 2014. If Mr. Sanchez-Lopez returned to the United States after October 2013, his convictions for battery and sexual assault of a child fall outside the ten-year period factored into his criminal-history score. Taking a cautious approach, the probation officer excluded those convictions when calculating his criminal history category, but noted that the court might wish to consider those convictions nonetheless.

         With respect to Mr. Sanchez-Lopez's offense, the probation officer employed a base offense level of eight, see U.S.S.G. § 2L1.2(a), and Mr. Sanchez-Lopez received a four-level upward adjustment because he had been removed after a conviction for a felony, see id. § 2L1.2(b)(1)(D). After a two-level decrease for acceptance of responsibility, id. § 3El.l(a), Mr. Sanchez-Lopez's total offense level was ten. When combined with Mr. Sanchez-Lopez's criminal history category of IV, this yielded a guidelines range of fifteen to twenty-one months' imprisonment. If the judge had believed that Mr. Sanchez-Lopez entered the country during or before October 2013 -and his convictions for battery and sexual assault thus factored in to his criminal-history score-his guidelines range would have been twenty-one to twenty-seven months.

         The district judge began the sentencing hearing by expressing misgivings about the appropriateness of a sentence within the guidelines range:

The difficulty that I'm having with that range is that the defendant has reentered after receiving a sentence of 18 months from the District Court in Arizona. I understand, to the defendant's credit, that he reentered and has not offended, as far as we know, again. Hopefully that includes not drinking and not driving while drunk as well as no further battery offenses.
But I'm offsetting that against the fact that the defendant benefits by a favorable calculation ... in terms of his criminal history as well as, as I say, the fact that it would seem some graduated penalty is appropriate for reentry, notwithstanding the defendant's ...

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