United States v. Jose Tovar-Pina
2013 U.S. App. LEXIS 8588
| 7th Cir. | 2013Background
- Tovar-Pina, a Mexican national, repeatedly entered the U.S. illegally and committed crimes.
- After third deportation in 2008, he unlawfully returned and was arrested in 2010 for cashing stolen checks using aliases.
- He was indicted separately for unlawful reentry and bank fraud; a petition to revoke his 2008 supervised release was filed.
- Two PSRs were prepared—one for unlawful reentry and one for bank fraud—with identical offense levels, and neither party objected.
- At sentencing in 2012, the court imposed 84 months’ imprisonment based on separate guidelines ranges for the two offenses, without recognizing a single combined offense level.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a single combined offense level should be used. | Tovar-Pina (and the government) contend for a single level. | Tovar-Pina argues the district court should have combined counts under §3D1.4-5. | Vacate and remand for resentencing with a single level of 15. |
| Whether the case should be remanded to a different judge under Rule 36. | Tovar-Pina seeks reassignment due to perceived impartiality. | Court should not remand for reassignment. | Rule 36 not warranted; no prejudicial impropriety shown. |
| Whether the appeal as to the supervised release count should be dismissed. | Appeal challenges the supervised release sentence. | N/A. | Appeal in Case No. 12-1966 dismissed with prejudice. |
Key Cases Cited
- United States v. Love, 680 F.3d 994 (7th Cir. 2012) (harmless-error rule not satisfied here; need remand when discrepanies exist)
- United States v. Bradley, 628 F.3d 394 (7th Cir. 2010) (remand appropriate for inflammatory remarks in some contexts)
- United States v. Figueroa, 622 F.3d 739 (7th Cir. 2010) (inflamatory remarks may warrant remand in some cases)
- United States v. Thomas, 956 F.2d 165 (7th Cir. 1992) (Rule 36 consideration for sentencing remand)