Illegal reentry sentence upheld

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The Seventh Circuit will continue to consider guideline sentences presumptively reasonable, despite the U.S. Supreme Court’s grant of certiorari to consider the issue, the court declared on Dec. 5.

The court also issued a statement that defendants may be able to use in seeking below-guideline sentences based on the lower sentences they would receive if prosecuted in state court for the same conduct.

In 1975, José Francisco Gama-Gonzalez was convicted of conspiracy to smuggle marijuana, and was deported to his native Mexico. In 1995 immigration officials allowed Gama-Gonzalez to return as a permanent resident.

However, in 1996, he was convicted of possessing marijuana and was removed to Mexico in 1998, after his release from prison. He illegally returned almost immediately. In 2005, he was arrested and convicted of illegal reentry in violation of 8 U.S.C. 1326.

He was sentenced to 37 months’ imprisonment, a sentence at the low end of the applicable guideline range, and he appealed. The Seventh Circuit affirmed, in an opinion by Judge Frank H. Easterbrook.

The court began by noting that a sentence within the Guidelines’ range is presumptively reasonable, pursuant to U.S. v. Mykytiuk, 415 F.3d 606, 608 (7th Cir. 2005).

The court explained its position as follows: “To say that a sentence within the range presumptively is reasonable is not to say that district judges ought to impose sentences within the range. See United States v. Demaree, 459 F.3d 791, 794-95 (7th Cir. 2006). It is only to say that, if the district judge does use the Guidelines, then the sentence is unlikely to be problematic.”

Elaborating further, the court wrote, “It will be the rare sentence indeed that was required under the Guidelines before Booker but forbidden afterward, when discretion has gone up rather than down (emphasis in original).”

The court stated that it is permissible for a sentencing court to start with the Guidelines’ framework, because avoiding unjustified disparity is one of the statutory objectives, and then consider other criteria in 18 U.S.C. 3553(a)(2).

The court advised, “When saying that sentences within the Guidelines are presumptively reasonable, we mean no more than the modest proposition that district judges generally possess the discretion under sec. 3553(a) and Booker to follow the Guidelines, if they so choose, without acting un-reasonably. It is accordingly unnecessary to hold this appeal, and others like it, for the Supreme Court’s decision in Rita v. United States, cert. granted, No. 06-5754 (U.S. Nov. 3, 2006)(emphasis in original).”

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Turning to the specifics of Gama-Gonzalez’ appeal, the court concluded that his sentence was reasonable. Calling him a “career criminal,” the court noted that he committed a new crime soon after his readmission to the United States in 1995, and that he reentered almost immediately after being removed a second time in 1998.

Before concluding, the court called his 37-month sentence “comparatively modest,” and noted that, in many state courts, he would be imprisoned for 25 years or more pursuant to three-strikes laws.

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