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Sentence in excess of guidelines reversed

“Having identified the relevant factors, the judge did not single out any aspect except criminal history. … These are significant concerns, but they overlap and, as far as we can tell on this record, are encompassed by the district court’s explicit reference to the text of sec. 4A1.3.”

Hon. Daniel A. Manion
Seventh Circuit

On Oct. 3, the Seventh Circuit vacated a sentence that exceeded the guideline range; the court did not find the sentence unreasonable, but concluded that the district court did not sufficiently explain its reasons for imposing a longer sentence.

Salvador Castro-Juarez pleaded guilty in Illinois federal court to being in the United States unlawfully after his removal following a felony conviction. Sentencing occurred two days after the U.S. Supreme Court held in U.S. v. Booker, 125 S. Ct. 738 (2005), that the sentencing guidelines were advisory only.

Castro-Juarez had an offense level of ten, and eight criminal history points, resulting in a criminal history category IV. Thus, the guideline range was 15 to 21 months. However, he also had a number of convictions that resulted in no criminal history points, for various reasons.

Citing his criminal history, the district court imposed a sentence of 48 months, giving the following explanation:

“The problem I have is that, as you say, you’ve been here a long time, you’ve always been here illegally, you’ve been here at least three times that you’ve been caught illegally. You have a horrible history with respect to your activities while you’ve been in this country. You’ve engaged in many, many illegal acts, and one of the great things that bothers me about your activity while you’ve been here is several of these illegal acts have been violent acts. You’ve engaged in a number of crimes that have involved physical violence against others, including the women you have — woman or women you have been involved with, and at times have endangered children. So you have history that is very terrible. You have done some time in jail. You have not done very much time in jail, but you don’t seem to get the picture that when you do bad things in this country, bad things are going to happen. So I’m not at all impressed with your behavior while you’ve been in our country.”

The court added that “the Guidelines in your case don’t seem to take into account a person who has re-entered now on three occasions and who has the kind of criminal history that you have, and so I’m not going to apply the Guideline in your case.”

Castro-Juarez appealed, and the Seventh Circuit vacated the sentence, and remanded for resentencing, in an opinion by Judge Daniel A. Manion.

As an initial matter, the court held that Castro-Juarez did not waive his objections by failing to explicitly object after sentence in the trial court.

The court acknowledged that a defendant who is imprisoned after revocation of supervised release must object explicitly in the district court, but the court declined to impose a similar requirement for initial sentencings.

What the court held

Case: U.S. v. Salvador Castro-Juarez, No. 05-1195.

Issue: Must a court that imposes a sentence in excess of the guidelines, because of criminal history, link the degree of the increase to the structure of the guidelines?

Holding: Yes. Even post-Booker, if a sentencing court imposes a sentence in excess of the guideline range, because of criminal history, the court should still employ pre-Booker methodology — linking the degree of the departure to the structure of the guidelines.

The court reasoned, “To insist that defendants object at sentencing to preserve appellate review for reasonableness would create a trap for unwary defendants and saddle busy district courts with the burden of sitting through an objection — probably formulaic — in every criminal case. Since the district court will already have heard argument and allocution from the parties and weighed the relevant sec. 3553(a) factors before pronouncing sentence, we fail to see how requiring the defendant to then protest the term handed down as unreasonable will further the sentencing process in any meaningful way.”

Turning to the merits, the court looked to pre-Booker law, and how the sentence would have fared under decisions that analyze the reasonableness of upward departures.

Because the district court’s comments at sentencing focus on Castro-Juarez’s criminal history, the court looked to U.S.S.G. 4A1.3(a)(1), which authorizes sentences above the guideline range if “the defendant’s criminal history category substantially under-represents the seriousness of the defendant’s criminal history or the likelihood that the defendant will commit other crimes.”

Nevertheless, the court issued the following caveat: “the question before us is ultimately the reasonableness of the sentence the district court imposed, not the court’s application of a guideline authorizing an upward departure.”

The court looked to the governing standard set forth in U.S. v. Cross, 289 F.3d 476, 478 (7th Cir. 2002), which requires: (1) “adequate grounds to support the departure”; (2) evidence that “the facts cited to support the departure actually exist”; and (3) a sufficient link between the degree of departure and “the structure of the guidelines.”

The first two were not at issue, but the court found that the third factor was not met.

Castro-Juarez acknowledged the existence of 10 “hypothetical criminal history points” that could ha
ve accounted for the district court’s concerns, and the government did not disagree with that number.

Utilizing the methodology employed in Cross, an increase of ten criminal history points would result in a criminal history category of VI and an offense level of 11, which still yields a sentencing range of only 27 to 33 months.

The court observed, “it would have required adding 23 criminal history points to Castro-Juarez’s eight in order to reach the sentence handed down by the court.

Accordingly, if this appeal had reached us before Booker, we would have concluded that a 48-month sentence is not adequately tied to the structure of the guidelines.”

Related Links

Seventh Circuit Court of Appeals

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Case Analysis

Iterating that it is only using U.S.S.G 4A1.3 and Cross by way of analogy, the court stated that, although Castro-Juarez’s sentence would not have been sustainable as an “upward departure” before Booker, it is not necessarily unreasonable. However, the court found the sentencing court’s justification insufficient.

The court explained, “Having identified the relevant factors, however, the judge did not single out any aspect except criminal history. The court was understandably troubled by Castro-Juarez’s history of several times entering the United States illegally, committing crimes once in the country, being deported, and then beginning the cycle again. The judge also expressed dismay over Castro-Juarez’s history of violence, especially that directed against his girlfriend. These are significant concerns, but they overlap and, as far as we can tell on this record, are encompassed by the district court’s explicit reference to the text of sec. 4A1.3. We understand that reference to mean that the district court was itself drawing an analogy to sec. 4A1.3, yet we have seen that the analogy does not fully explain the 48-month sentence. And because that sentence is more than double the high end of the guideline range, we cannot conclude that the court’s explanation is sufficiently compelling, see Dean, 414 F.3d at 729, to uphold the court’s exercise of discretion.”

Accordingly, the court vacated the sentence, and remanded for resentencing.

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David Ziemer can be reached by email.

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