United States v. Lopez-Arellano
2:10-cr-00091
E.D. Wis.Oct 27, 2010Background
- Defendant Gerardo Lopez-Arellano pleaded guilty to unlawful re-entry after deportation under 8 U.S.C. § 1326.
- PSR set base offense level 8, added 16 levels for deportation after a crime of violence, and deducted 3 for acceptance of responsibility, yielding offense level 21.
- Criminal history category V produced an advisory range of 70–87 months; both parties did not object to these calculations.
- Court must calculate the guideline range and then consider 18 U.S.C. § 3553(a) factors to determine the actual sentence.
- Court acknowledged potential cultural assimilation departure under amendments and related authorities, but applied it as a mitigating factor within § 3553(a).
- Defendant’s history includes multiple illegal re-entries and prior Illinois and Wisconsin convictions; he has a significant but mitigated criminal history and substance abuse issues.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Guideline range calculation correct? | Lopez-Arellano's range is 70–87 months per PSR. | Range should be adjusted for assimilation/deviations. | Guidelines correctly calculated; range adopted as 70–87 months. |
| Role of cultural assimilation in sentence | Not specifically in PSR; no departure noted. | Cultural assimilation is a mitigating factor. | Court considered assimilation as a mitigating factor under § 3553(a). |
| Reasonableness of sentence within § 3553(a) | Within guideline range; sentence should reflect seriousness and deterrence. | Suggests a lower sentence due to mitigating factors. | 48-month sentence; sufficient but not greater than necessary, with modest variance from guidelines. |
| Whether recency/November 2010 amendments affect calculation | Amendments could affect application notes. | Not dispositive; moot because CH IV/V outcome unchanged. | Court treated issue as moot; CH V outcome remained moot. |
| Supervised release and post-release considerations | No supervised release due to statute and unlikely post-removal supervision. |
Key Cases Cited
- panice, 598 F.3d 426 (7th Cir. 2010) (guideline calculation and § 3553(a) considerations for sentencing)
- Nelson v. United States, 129 S. Ct. 890 (S. Ct. 2009) (district court must independently determine sentence; cannot presume guideline sentence)
- Gall v. United States, 552 U.S. 38 (2007) (reasonableness of sentence; district court may consider non-guideline factors)
- Galvez-Barrios, 353 F. Supp. 2d 958 (E.D. Wis. 2005) (cultural assimilation as mitigating factor in § 1326 cases)
- Martinez-Alvarez, 256 F. Supp. 2d 917 (E.D. Wis. 2003) (recognition of assimilation/mitigation in sentencing)
- Arguijo-Cervantes, 551 F. Supp. 2d 762 (E.D. Wis. 2008) (course of assimilation and mitigating considerations in sentencing)