UNITED STATES оf America, Plaintiff-Appellee, v. Jose Julian TOVAR-PINA, Defendant-Appellant.
Nos. 12-1964, 12-1965, 12-1966
United States Court of Appeals, Seventh Circuit.
April 29, 2013
1143
Decided April 29, 2013.
Joseph H. Hartzler (argued), Attorney, Office of the United States Attorney, Springfield, IL, Plaintiff-Appellee.
Daniel T. Hansmeier (argued), Attorney, Office of the Federal Public Defender, Springfield, IL, George F. Taseff, Attorney, Office of the Federal Public Defender, Peoria, IL, for Defendant-Appellant.
Before EASTERBROOK, Chief Judge, and BAUER and SYKES, Circuit Judges.
BAUER, Circuit Judge.
Jose Tovar-Pina1 has made a habit of coming to the United States illegally and committing crimes. After his third deportation in 2008 and subsequent unlawful return to the United States, Tovar-Pina was arrested in November 2010 for using aliases to cash stolen checks. He was later indicted in two separate jurisdictions—one indictment related to his unlawful return to the United States and the other involved the stolen checks—and a petition was filed to revoke the supervised release that accompanied his 2008 deportation. The three cases were consolidated, and Tovar-Pina pleaded guilty to various charges from the two indictments and admitted that he violated the conditions of his supervised release.
At the consolidated sentencing hearing, the district court sentenced Tovar-Pina to a total of 84 mоnths’ imprisonment, followed by 36 months of supervised release. The district court based its sentence on two separate Presentence Investigation Reports (PSR) prepared for the unlawful reentry offense and the bank fraud offenses. Neither party objected to the PSRs at the time. The government and Tovar-Pina now both agree, however, that
I. BACKGROUND
Tovar-Pina is a Mexican native who first entered the United States illegally sometime before June 1988. Between that time and his first deportation in 1992, Tovar-Pina was convicted of receiving stolen property, stealing an automobile, attempting to pass a fraudulent check, selling cocaine, and committing two forgeries involving bank victims. By October 1994, he was back in the United States. Upon his return, Tovar-Pina and four other men burglarized roofing and construction companies in Nebraska, took payroll checks, fоrged them, and attempted to cash them. Tovar-Pina was convicted of these crimes, as well as for unlawful reentry, and deported to Mexico for the second time in 1999.
By June 2005, Tovar-Pina had returned to the United States. It was then that Tovar-Pina was again arrested and convicted of charges related to a similar scheme of burglarizing landscaping and construction companies, stealing payroll checks, and fraudulently cashing the checks at banks. A district court in the Western District of Virginia sentenced Tovar-Pina to concurrent 4-year prison terms, followed by 3 years of supervised release, for the charges—bank fraud conspiracy and unlawful reentry. Tovar-Pina was deported to Mexico for the third time in August 2008.
Tovar-Pina made his way back into the United States sometime before November 2010. That month, Tovar-Pina and a partner stole blank checks from a number of businesses around the Illinois-Iowa border. The two men forged over forty checks, payable to seventeen different names, and presented them to various branches of five banks. Three of the banks cashed the checks and suffered a total loss of over $42,000; two banks suspected fraud and refused to cash them.
On November 24, 2010, Tovar-Pina and his partner‘s scheme was put to an end when they were arrested after fleeing one of the banks that suspected fraud. This conduct violated the conditions of Tovar-Pina‘s supervised release in the Western District of Virginia, and a petition to revoke his supervised release was issued (the supervised release violation).2
On January 12, 2011, a grand jury in the Southern District of Iowa charged Tovar-Pina with unlawful reentry after deportation (the unlawful reentry offense) in violation of
On December 9, 2011, Tovar-Pina pleaded guilty to the unlawful reentry offense and to three of the five bank fraud counts, as well as admitted to violating the conditions of his supervised release. (The government later dismissed the other two bank fraud counts.) A sentencing hearing for all three cases was set for April 2012.
Prior to Tovar-Pina‘s sentencing hearing, the probation office prepared two PSRs, one for the unlawful reentry case and one for the bank fraud case. The PSR for the unlawful reentry offense had an offense level of 13 and a criminal history category of IV, which set the Guidelines range at 24 to 30 months’ imprisonment. The PSR for the bank fraud offenses also had an offense level of 13 and a criminal history category of IV, which set the Guidelines range at 24 to 30 months.3 Neither Tovar-Pina nor the government objected to the calculation of the PSRs.
All parties involved failed to recognize that a single offense level should hаve been calculated for both cases pursuant to
The probation office also prepared a violation memorandum for the supervised release violation. The advisory Guidelines range for the violation was 24 to 30 months’ imprisonment because of the unlawful reentry and bаnk fraud offenses and Tovar-Pina‘s criminal history category IV. The memorandum also noted, however, that the statutory maximum sentence was 24 months, citing
The parties reconvened for Tovar-Pina‘s sentencing hearing on April 13, 2012. Without objection, the district court adopted the PSRs and their respective 24- to 30-month Guidelines ranges for the unlawful reentry offense and the bank fraud offenses. It also adopted the statutory maximum 24 months’ imprisonment Guidelines range for the supervised release violation.4 Both parties were then given an opportunity to address the court.
The government detailed Tovаr-Pina‘s lengthy criminal history of entering the United States illegally and engaging in schemes involving theft and fraud. The government then asked the court to impose consecutive 30-month prison terms for the unlawful reentry offense and the bank fraud offenses, plus an additional 24-month sentence for the supervised relеase violation.5 Conversely, Tovar-Pina‘s counsel asked the court to sentence Tovar-Pina to no more than concurrent 24- to 30-month prison terms for the unlawful reentry offense and the bank fraud offenses, plus an unspecified sentence for the supervised release violation. Tоvar-Pina‘s counsel also asked the court to recommend to the Bureau of Prisons that Tovar-Pina be housed at the Federal Correctional Institution in Pekin, Illinois.
The district court announced Tovar-Pina‘s sentence by first discussing the difference between illegal aliens who come to the United States to “work legally, if they can, to provide for families and themselves and to otherwise remain free from criminal conduct” and those who come to the United States “illegally but also to continue in an illegal purpose by conducting other criminal conduct.” Tovar-Pina was deemed tо be a member of the latter group. Then, after a few additional remarks, the district court imposed a sentence of 30 months’ imprisonment for the bank fraud offenses,6 to run consecutively to a 30-month prison term for the unlawful reentry offense and consecutively to a 24-month prison term for the supervised release violation, for a total of 84 months’ imprisonment. The district court also ordered concurrent 3-year terms of supervised release on the unlawful reentry and bank fraud offenses, plus $42,865.01 in restitution and special assessments totaling $400. Tovar-Pina‘s request to be placed at the Pekin, Illinois Correctional Institution was declined.
Tovar-Pina challenges his 84-month prison sentence, comprised of Case Nos. 12-1964 (unlawful reentry offense), 12-1965 (bank fraud offenses), and 12-1966 (supervised release violation). He contends the district court committed plain error when it failed to determine a single combined offense level for the unlawful reentry offense and the bank fraud offenses, which led to a sentence based on an improper Guidelines range. The government concurs, and so do we.
The Sentencing Guidelines instruct courts to determine a single offense level that encоmpasses all counts of conviction for a given defendant, including those “contained in the same indictment or information,” or as relevant here, “contained in different indictments or information for which sentences are to be imposed at the same time or in a consolidated prоceeding.”
That did not occur; the district cоurt was presented with a Guidelines range of
The only issue left to decide is whether we should apply Circuit Rule 36 and remand this case to a different judge for resentenсing. Tovar-Pina contends the original sentencing judge cannot be impartial because of two remarks made at his sentencing hearing:
(1) I believe that [Tovar-Pina] is the poster child for an extended sentence for illegal aliens. His conduct makes it difficult for all who come here seeking only the opportunity to legally work and provide for their families.
(2) This will be a first for me: With all due respect, I‘m not going to make any recommendations as to your placement. You can be placed where the Bureau of Prisons wishes you to be placed.
But these statements do not produce the concerns we voiced in prior cases where we have remanded to a different judge for sentencing. The comments were not unreasonably inflammatory, provocative, or disparaging, cf. United States v. Bradley, 628 F.3d 394, 398, 401 (7th Cir. 2010) (remanding to a different judge where the sentencing judge told the defendant, among other things, “You are the crabgrass on the lawn of life.“); United States v. Figueroa, 622 F.3d 739, 743-44 (7th Cir. 2010) (stating that the district judge‘s “litany of inflammatory remarks undermined anything else that court said during the [sentencing] hearing“); nor do they demonstrate the judge would be unable to follow our instructions on remand. Cf. United States v. Thomas, 956 F.2d 165, 167 (7th Cir. 1992) (using Rule 36 where the district judge “said he was in a foul mood becаuse he didn‘t like to redo sentences, didn‘t like [this Court‘s] handing of the [defendant‘s] first appeal, and didn‘t like the [G]uidelines“). Given Tovar-Pina‘s repeated disregard for the law, the comments demonstrate, at most, the sentencing judge‘s consideration of the requisite sentencing factors and attempt to exрlain the rationale behind the sentence imposed. We decline to invoke Rule 36.
III. CONCLUSION
For the aforementioned reasons, we VACATE Tovar-Pina‘s sentence in Case Nos. 12-1964 and 12-1965, and REMAND for further proceedings consistent with this opinion. We dismiss with prejudice Tovar-Pina‘s appeal in Case No. 12-1966.