10-3042 U.S. v. Lua-Guizar

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Sentencing
Illegal reentry; cultural assimilation reduction

Even if the cultural assimilation reduction had been in effect when the defendant was sentenced, it would have been properly denied because of the defendant’s criminal history.

“The second reason comes directly from the language of the then-pending amendment: There may be cases in which a downward departure may be appropriate on the basis of cultural assimilation. Such a departure should be considered only in cases where (A) the defendant formed cultural ties primarily with the United States from having resided continuously in the United States from childhood, (B) those cultural ties provided the primary motivation for the defendant’s illegal reentry or continued presence in the United States, and (C) such a departure is not likely to increase the risk to the public from further crimes of the defendant. U.S.S.G. § 2L1.2 cmt. n.8 (2010) (emphasis added). Even if the amendment had taken effect, the court would have been obliged to consider subpart (C), which we have emphasized. And it appears that this is exactly what it did. The court explained that, in light of Lua-Guizar’s track record, it found unpersuasive his argument that he was unlikely to recidivate. Using the same risk-based language as the pending application note, the district court said that it was unconvinced that Lua- Guizar would not again return to cocaine use, which he had done even up to the day of his final arrest in 2009. In addition, the application note further advises a sentencing court to consider the ‘seriousness of the defendant’s criminal history,’ and ‘whether the defendant engaged in additional criminal activity after illegally reentering the United States.’ Id. The district court did all that here. We find no procedural error in its approach to Lua-Guizar’s cultural assimilation argument.”

Affirmed.

10-3042 U.S. v. Lua-Guizar

Appeal from the United States District Court for the Northern District of Illinois, Lindberg, J., Wood, J.

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