United States v. David Garcia-UgarteUnited States v. David Garcia-Ugarte
Eugene O‘Malley (argued), Attorney, Chicago, IL, for Defendant-Appellant.
Before BAUER, FLAUM and SYKES, Circuit Judges.
BAUER, Circuit Judge.
A Grand Jury indicted defendant-appellant David Garcia-Ugarte on one count of illegal reentry into the United States in violation of
I. BACKGROUND
In 1990, Garcia-Ugarte, a Mexican citizen, illegally entered the United States. Between 1994 and 2005, he was convicted
At sentencing, after a sixteen-level enhancement pursuant to United States Sentencing Guideline § 2L1.2(b)(1)(A), the district court correctly determined Garcia-Ugarte‘s offense level to be twenty-one and his criminal history category to be IV. United States Sentencing Commission, Guidelines Manual, § 2L1.2(b)(1)(A), Sentencing Table (Nov.2011). The corresponding Sentencing Guideline range was fifty-seven to seventy-one months in prison. U.S.S.G., Sentencing Table (Nov. 2011).
II. DISCUSSION
Garcia-Ugarte argues that the district court failed to address two of his main arguments: that he was deprived of the opportunity to argue for a concurrent sentence and should therefore be given credit for time already served on his attempted aggravated kidnapping conviction; and next, to avoid unwarranted sentencing disparities, a below-Guidelines sentence is appropriate to account for the lack of a fast-track program in the Northern District of Illinois. Finally, Garcia-Ugarte claims that the district court erred when it added a sixteen-level enhancement to its sentencing calculation. We will review each of these arguments in turn.
At sentencing, Garcia-Ugarte requested the court grant him credit for time already served in state prison. In support, he cited U.S.S.G. § 5G1.3(c) which states that an undischarged term of imprisonment may be imposed to run “concurrently, partially concurrently, or consecutively to the prior undischarged term of imprisonment to achieve a reasonable punishment for the instant offense.” U.S.S.G. § 5G1.3(c). In other words, Garcia-Ugarte claims his time spent in a state penitentiary for attempted aggravated kidnapping should result in a lower sentence for his federal charge of illegal reentry. Additionally, Garcia-Ugarte contends that because federal immigration authorities delayed his prosecution, he was deprived of the opportunity to seek a federal sentence concurrent with his state sentence. A review of the record indicates otherwise.
The sentencing transcript clearly shows that the court heard arguments from both parties, that time was dedicated to a recollection of § 5G1.3(c), and that both the government and the court acknowledged the advisory nature of the Guidelines, including § 5G1.3(c). Garcia-Ugarte then reiterated his main point, claiming he had been precluded from making a concurrent sentencing argument because of the delay on the part of the federal authorities. The court responded:
That raises the question of whether had you made that argument it would have been successful with this court, and let me give you my decision on that. The state sentence for attempted aggravated kidnapping is wholly different in kind from the offense of illegal reentry. They have nothing whatever in common. Concurrent sentences for these two disparate offenses would result in a free pass for the federal offense. So in no way would I reach the conclusion that justice requires or even permits concurrent sentences in this case. So I reject the argument of the defendant that I should give him credit for the fact that he was deprived of the opportunity to seek concurrent sentences.
It is well-settled that, absent any procedural error (such as improperly calculating the Guidelines, treating the Guidelines as mandatory, failing to consider the
Next, Garcia-Ugarte claims the district court failed to address his argument for a fast-track-type sentence. Citing the lack of a fast-track program in the
It is indeed true that a sentencing court may consider the absence of a fast-track program, in conjunction with the other
At the time of sentencing, fast-track programs were not available everywhere and even in districts that utilized them, such downward departures were not automatic; a defendant‘s criminal history would be an appropriate factor for the court to consider. United States v. Lua-Guizar, 656 F.3d 563, 568-69 (7th Cir.2011). Here, the record indicates that the court was also aware of its own authority to consider fast-track-type sentences as it saw fit. We find no error and uphold the lower court‘s ruling.
In Garcia-Ugarte‘s final argument, he challenges the sixteen-level enhancement imposed by the district court pursuant to U.S.S.G. § 2L1.2(b)(1)(A). Garcia-Ugarte claims that the sixteen-level enhancement was unwarranted because no weapon was involved in his previous conviction. While a firearms offense is listed as a possible factor under § 2L1.2(b)(1)(A), it is not necessary for the enhancement to apply. Subsection (i) however, calls for a sixteen-level enhancement “[i]f the defendant previously was deported, or unlawfully remained in the United States, after ... a conviction for a felony that is a drug trafficking offense for which the sentence imposed exceeded 13 months[.]” U.S.S.G. § 2L1.2(b)(1)(A)(i). The record shows that in 2002, Garcia-Ugarte was convicted of possession with intent to distribute marijuana worth nearly $200,000 and for this,
III. CONCLUSION
For the reasons stated, we AFFIRM.