United States v. Sergio Enriquez-Gil , 497 F. App'x 655 ( 2012 )

NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued December 12, 2012
Decided December 17, 2012
Before
RICHARD A. POSNER, Circuit Judge
ILANA DIAMOND ROVNER, Circuit Judge
DIANE P. WOOD, Circuit Judge
No. 11-3565
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff–Appellee, Court for the Northern District of Illinois,
Eastern Division.
v.
No. 10 CR 1061
SERGIO ENRIQUEZ-GIL,
Defendant–Appellant. Gary S. Feinerman,
Judge.
ORDER
Sergio Enriquez-Gil, a Mexican citizen, pleaded guilty to being present in the United
States without permission after having been deported. 8 U.S.C. § 1326(a). The district court
imposed a within-guidelines sentence of 46 months. Enriquez-Gil now contends that the
sentence is unreasonable and longer than necessary to meet the sentencing goals of 18
U.S.C. § 3553(a). Because Enriquez-Gil’s sentence is reasonable, we affirm the judgment.
Enriquez-Gil was first deported in February 2010. In September 2011, immigration
officials learned that he had returned to the United States when he was arrested in Cook
County, Illinois, and charged with aggravated driving while under the influence of alcohol.
625 ILCS 5/11-501(d). (Officers had stopped him for driving erratically and not wearing a
No. 11-3565 Page 2
seatbelt.) He pleaded guilty in state court and was sentenced to 60 days’ imprisonment.
Enriquez-Gil was then charged in federal court with being present in the United States
without permission, 18 U.S.C. § 1326(a), to which he pleaded guilty. At the change of plea
hearing, Enriquez-Gil admitted that he had first entered the country, illegally, around 1998.
In 2003 he was convicted of aggravated battery for stabbing someone and sentenced to 54
months’ imprisonment. After serving that time, Enriquez-Gil was deported; he returned
shortly thereafter.
The parties agreed that Enriquez-Gil’s total offense level was 21, based on a base
offense level of 8, see U.S.S.G. § 2L1.2(a), a 16-level increase because Enriquez-Gil was
previously removed after a conviction for a crime of violence, see id. § 2L1.2(b)(1)(A)(ii), and
a 3-level reduction for acceptance of responsibility, see id. § 3E1.1. His criminal-history
category was III, and the resulting guidelines range was 46 to 57 months’ imprisonment.
The government retained its discretion to recommend any within-guidelines sentence, and
the PSR recommended a 46-month sentence with three years of supervised release.
Enriquez-Gil, however, objected to the PSR, arguing that the criminal-history category
overstated his prior criminal conduct, and requested that the court impose a sentence of 12
to 18 months.
The district court accepted the parties’ sentencing recommendation from the plea
agreement and imposed a sentence of 46 months, the bottom of the guidelines range. The
court explained, touching on each factor in 18 U.S.C. § 3553(a), that Enriquez-Gil’s offense
had strained immigration authorities and displayed his disrespect for the law; his
aggravated battery conviction was serious; Enriquez-Gil and other deportees need to be
deterred; and the public needs protection from Enriquez-Gil’s violence.
On appeal Enriquez-Gil asserts that the district court improperly applied the factors
in 18 U.S.C. § 3553(a), placing too much weight on his prior convictions and deportation.
He insists that the court impermissibly “triple-counted” his aggravated-battery conviction
when determining his sentence—“to form the basis of the instant offense,” in applying the
16-level increase, and in his criminal-history calculation. He also contends that a below-
guidelines sentence would meet the sentencing goals of § 3553(a)(2) and that the 46-month
sentence is thus unreasonable.
A sentence within a properly calculated guidelines range is presumed reasonable on
appeal, Rita v. United States, 551 U.S. 338, 351 (2007); United States v. Moreno-Padilla, 602 F.3d
802, 810 (7th Cir. 2010), and the defendant has the burden to rebut this presumption, United
States v. Marin-Castano, 688 F.3d 899, 902 (7th Cir. 2012). A sentencing judge must weigh the
factors in § 3553(a) when determining an appropriate sentence but has considerable
No. 11-3565 Page 3
discretion to decide how much weight to give to each factor. United States v. Reibel, 688 F.3d
868, 872 (7th Cir. 2012); United States v. Busara, 551 F.3d 669, 674 (7th Cir. 2008).
Enriquez-Gil has not shown that the district court placed undue reliance on his
criminal history when calculating his sentence. The court several times mentioned his
criminal history but never suggested that it was more important than any other § 3553(a)
factor. The court also thoroughly discussed each applicable aggravating and mitigating
factor. See United States v. Chapman, 694 F.3d 908, 913–14 (7th Cir. 2012) (discussing
sentencing court’s obligation to consider only meritorious mitigation arguments). For
example, the district judge noted that Enriquez-Gil was young when he stabbed the victim,
has assimilated to American culture since his return, and feels remorse for his crimes. But
the judge did not believe that those factors outweighed how severely Enriquez-Gil had
stabbed the victim, his cultural assimilation only after he returned illegally, and his
persistent disrespect for the law.
That the court imposed a sentence at the bottom of the guidelines range further
belies Enriquez-Gil’s characterization of the court’s reasoning—had the court believed that
Enriquez-Gil’s criminal history mattered more than anything else, it likely would have
imposed a higher within-guidelines sentence (or even a sentence above the guidelines).
See, e.g., United States v. Johnson, 612 F.3d 889, 896–97 (7th Cir. 2010) (discussing how
sentencing judges may depart from guidelines sentence based on criminal history, so long
as they properly explain and support decision). But even if Enriquez-Gil is correct that the
court heavily weighed his criminal-history, the court did so without undue emphasis, thus
acting within its discretion. See Reibel, 688 F.3d at 872; United States v. Jackson, 547 F.3d 786,
792 (7th Cir. 2008) (affirming above-guidelines sentence while noting sentencing judge’s
“considerable discretion to individualize the sentence to the offense and offender as long as
the judge’s reasoning is consistent with § 3553(a)”) (internal quotation marks omitted).
Nor did the sentencing court improperly count Enriquez-Gil’s aggravated battery
conviction multiple times. Multiple-counting refers to using the same conduct more than
once to increase a defendant’s guidelines sentencing range; it does not apply to a
sentencing judge’s consideration of a conviction when weighing the factors in § 3553(a), as
Enriquez-Gil appears to argue. See United States v. Vizcarra, 668 F.3d 516, 519–20 (7th Cir.
2012). Enriquez-Gil also wrongly asserts that the court counted his conviction (in the first of
three ways) “to form the basis of the instant offense.” He seems to say that it was improper
to consider his aggravated-battery conviction because he would not have been deported
(and thus would not have unlawfully returned) but for that conviction. But the basis of his
offense for this conviction is his unlawful presence in the United States after he was
deported; the 16-level increase applies based on the reason for his deportation (the
No. 11-3565 Page 4
stabbing) and is explicitly written into U.S.S.G. § 2L1.2(b)(1). In any case, multiple-counting
is a structural feature of guidelines sentencing and is permissible unless a specific guideline
expressly prohibits it. See United States v. Hill, 683 F.3d 867, 870 (7th Cir. 2012); Vizcarra, 668
F.3d at 519. Not only does U.S.S.G. § 2L1.2(b)(1) not forbid multiple-counting, the guideline
specifically permits it. See U.S.S.G. § 2L1.2 cmt. n.6 (“A conviction taken into account under
subsection (b)(1) is not excluded from consideration of whether that conviction receives
criminal history points pursuant to Chapter Four, Part A (Criminal History).”).
Last, the sentencing court did not abuse its discretion by concluding that a within-
guidelines sentence, rather than something lower, was appropriate. The court discussed
Enriquez-Gil’s letters of remorse and sympathized with his desire to stay in the United
States. The court explicitly decided, however, that a within-guidelines sentence was
appropriate to communicate the severity of Enriquez-Gil’s actions and deter him from
unlawfully returning again. And although Enriquez-Gil cites cases where we affirmed
below-guidelines sentences as being no longer than necessary, see United States v.
Wachowiak, 496 F.3d 744, 754–55 (7th Cir. 2007), abrogated on other grounds by Nelson v. United
States, 555 U.S. 350 (2009); United States v. Baker, 445 F.3d 987, 992–93 (7th Cir. 2006), he cites
none that reversed a sentencing court’s within-guidelines sentence for being longer than
necessary.
As a final note, Enriquez-Gil cites three cases purportedly in support of his
argument that the sentencing court improperly applied the factors in § 3553(a). United
States v. Carter, 530 F.3d 565 (7th Cir. 2008); United States v. Ross, 501 F.3d 851 (7th Cir. 2007);
United States v. Schmitt, 495 F.3d 860 (7th Cir. 2007). He specifies neither how these cases are
similar to his nor how they help his argument; nonetheless they are distinguishable. We
remanded for resentencing in all three cases: in Carter because the district court placed
dispositive weight on the guidelines themselves, rather than considering them as one factor
under § 3553(a), Carter, 530 F.3d at 577–78; in Ross because the district court erroneously
presumed the within-guidelines sentence was reasonable regardless of any other factor, Ross,
501 F.3d at 853–54; and in Schmitt because the district court presumed the guidelines were
mandatory, Schmitt, 495 F.3d at 864–65. There is no evidence in the transcripts here
suggesting that the sentencing court applied any incorrect presumption or failed to
consider any applicable statutory factor in making its determination.
AFFIRMED.