United States v. Vazquez-Pita, 411 F. App'x 887

Background

Vazquez-Pita, a Mexican citizen, pleaded guilty to unlawful presence after removal under 8 U.S.C. § 1326(a).
District court sentenced Vazquez-Pita to 68 months below the guidelines range after considering mitigation grounds, including fast-track disparity.
Guidelines calculation: criminal history category VI, total offense level 21, with a 16-point upward adjustment under § 2L1.2(b)(1)(A) for prior drug trafficking conviction.
Vazquez-Pita argued for a below-range sentence due to absence of a fast-track program in his district and other mitigation grounds.
On appeal, Vazquez-Pita contends the district court failed to address the fast-track argument and misapplied certain mitigating considerations; the government concedes error on the fast-track point but challenges are rejected on independent review.
The court ultimately upheld the 68-month sentence, noting factors including repeated unlawful entries, serious criminal history, and reintegration concerns.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the fast-track argument was properly considered	Vazquez-Pita asserts the court did not evaluate fast-track disparity.	Vazquez-Pita argues the court should have reduced based on absence of fast-track program.	Court properly considered; no reversible error; 68-month sentence affirmed.
Validity of 2L1.2(b)(1)(A) 16-level enhancement	Vazquez-Pita contends the 16-level increase lacks empirical support and should be discounted.	State argues guidelines must be properly calculated but may be deviated from in discretion; no requirement to challenge drafting history.	Courts may rely on the guideline as written; no error in applying the enhancement.
Consideration of unadjudicated arrests	Vazquez-Pita claims arrests not resulting in convictions were improperly weighed.	District court did not rely on unadjudicated arrests in a material way; any such mention was non-prejudicial.	No reversible error; arrests not relied upon as sentencing grounds.
Use of cultural assimilation in sentencing	Vazquez-Pita argues Application Note 8 to § 2L1.2 could support leniency based on assimilation.	Note 8 postdates sentencing; court did not increase sentence for assimilation and may have declined to further decrease.	Note 8 not applicable to Vazquez-Pita; court did not rely to increase sentence and properly exercised discretion.

Key Cases Cited

United States v. Reyes-Hernandez, 624 F.3d 405 (7th Cir. 2010) (fast-track analysis within § 3553(a) context; not controlling to mandate below-range sentence)
United States v. Galicia-Cardenas, 443 F.3d 553 (7th Cir. 2006) (above-range adjustments not automatically discounted; sentencing discretion remains)
United States v. Martinez-Martinez, 442 F.3d 539 (7th Cir. 2006) (discussion of guidelines and discretion in sentencing decisions)
United States v. Demaree, 459 F.3d 791 (7th Cir. 2006) (independent assessment required when government confesses error)
United States v. Locklear, 97 F.3d 196 (7th Cir. 1996) (recognizes deference to district court's sentencing determinations)
United States v. Wilson, 237 F.3d 827 (7th Cir. 2001) (standard for evaluating reliance on evidence in sentencing)
Griffin v. United States, 109 F.3d 1217 (7th Cir. 1997) (discretion in sentencing and evaluation of arguments)
United States v. Shamah, 624 F.3d 449 (7th Cir. 2010) (guideline calculation and discretionary deviations; impact on 3553(a))
United States v. Nelson, 491 F.3d 344 (7th Cir. 2007) (principles for using and departing from guidelines)
United States v. Moreno-Padilla, 602 F.3d 802 (7th Cir. 2010) (limits on challenge to guideline drafting history)
United States v. Aguilar-Huerta, 576 F.3d 365 (7th Cir. 2009) (discussion of not entertaining arguments against guidelines as unworthy)
Olmeda-Garcia, 613 F.3d 721 (7th Cir. 2010) (defendant must show eligibility and pursuit of fast-track for disparity argument)
United States v. Johnson, 427 F.3d 423 (7th Cir. 2005) (adjudication of reliance on improper information in sentencing)