United States v. Gama-Gonzalez ( 2006 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 06-1965
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
JOSÉ FRANCISCO GAMA-GONZALEZ,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Western District of Wisconsin.
No. 05-CR-168—John C. Shabaz, Judge.
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ARGUED NOVEMBER 14, 2006—DECIDED DECEMBER 5, 2006
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Before EASTERBROOK, Chief Judge, and POSNER and
COFFEY, Circuit Judges.
EASTERBROOK, Chief Judge. José Gama-Gonzalez is a
three-time loser. In 1975 he was convicted of conspiracy
to smuggle marijuana into this country, in violation of
21 U.S.C. §952(a), and was deported to his native Mexico.
In 1995 immigration officials allowed Gama-Gonzalez to
return as a permanent resident. He repaid that favor
by returning to crime. In 1996 he was convicted of possess-
ing marijuana and was removed to Mexico in 1998 after his
release from prison. He came back almost immediately,
without any pretense of legal authority, and took up illegal
employment. (It was employment records that showed
2 No. 06-1965
his swift return.) In 2005 his presence in the United
States came to the attention of federal officials, and a
criminal prosecution for illegal reentry followed. See 8
U.S.C. §1326. Gama-Gonzalez pleaded guilty and was
sentenced to 37 months’ imprisonment.
Gama-Gonzalez contends that his sentence is unreason-
ably high even though it is at the low end of a range
properly determined under the Sentencing Guidelines. The
argument is unavailing, for a sentence within the Guide-
lines’ range is presumptively reasonable. See, e.g., United
States v. Mykytiuk, 415 F.3d 606, 608 (7th Cir. 2005);
United States v. Spano, 447 F.3d 517, 519 (7th Cir. 2006).
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.
United States v. Booker, 543 U.S. 220 (2005), increases
district judges’ discretion. 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. One permissible use of discretion
is to start with the Guidelines’ framework, which is de-
signed to curtail unjustified disparity in sentences— for
avoiding unjustified disparity is one of the statutory
objectives. See 18 U.S.C. §3553(a)(6); United States v.
Boscarino, 437 F.3d 634, 637-38 (7th Cir. 2006) (observing
that unjustified disparity is minimized by following the
Guidelines). Likewise the Guidelines recognize other
statutory criteria, such as choosing punishment that
achieves an appropriate level of deterrence and desert. 18
U.S.C. §3553(a)(2). 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 §3553(a) and Booker
No. 06-1965 3
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).
A presumptively reasonable sentence is not a conclusively
reasonable one, for the Guidelines may omit some factor to
which §3553(a) or a sound exercise of discretion gives
weight. Gama-Gonzalez maintains that his sentence, in
particular, is unreasonable because the Guidelines gave too
much effect to his 1975 conviction. It can’t have been a
serious drug crime, Gama-Gonzalez insists, if immigration
officials were willing to forgive it in 1995 and allow him
permanent-residence status. This theme— that lenience in
the past requires more lenience today—has things back-
ward. See United States v. Gonzalez, 462 F.3d 754 (7th Cir.
2006). When mercy does not succeed in achieving specific
deterrence, and the beneficiary continues a life of crime, we
learn that additional severity is essential. Gama-Gonzalez
committed a new crime at the earliest opportunity following
his readmission to the United States; and when he was
removed a second time, and told that reentry was illegal, he
reentered anyway almost before the ink was dry on the
warning and took up illegal employment. He is a career
criminal. No district judge is obliged (or well-advised) to
believe Gama-Gonzalez’s assertion that he has finally
learned his lesson, will return to Mexico and stay there, and
will at last go straight.
So straightforward is this that the district judge did not
need to discuss the subject. A judge must deal with serious
arguments for lower sentences, see United States v.
Cunningham, 429 F.3d 673, 679 (7th Cir. 2005), but Gama-
Gonzalez’s argument was insubstantial. Many states, using
three-strikes laws, would imprison him for 25 years or more
even though none of his felonies was violent. See Lockyer v.
Andrade, 538 U.S. 63 (2003). His federal sentence of three
4 No. 06-1965
years and one month for a third felony conviction is compar-
atively modest.
AFFIRMED
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—12-5-06