April 26, 2017
from the United States District Court for the Western
District of Wisconsin. No. 3:16-cr-00061-wmc-l - William M.
Wood, Chief Judge, and Ripple and Sykes, Circuit Judges.
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
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
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.
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.
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
district judge began the sentencing hearing by expressing
misgivings about the appropriateness of a sentence within the
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 ...