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United States v. Vasquez-Abarca

United States Court of Appeals, Seventh Circuit

January 9, 2020

United States of America, Plaintiff-Appellee,
v.
Carlos A. Vasquez-Abarca, Defendant-Appellant.

          Argued November 7, 2019

          Appeal from the United States District Court for the Northern District of Illinois, Western Division. No. 3:17-cr-50079-l - Philip G. Reinhard, Judge.

          Before Hamilton, Scudder, and St. Eve, Circuit Judges.

          Hamilton, Circuit Judge.

         Defendant Carlos Vasquez-Abarca appeals his sentence for reentering the United States illegally after a prior deportation following a felony conviction, in violation of 8 U.S.C. § 1326(a). The district court imposed a sentence of 72 months in prison, about twice the range of 30 to 37 months in prison advised by the Sentencing Guidelines. The sentence was well within the statutory limits and was a reasonable exercise of the judge's discretion under 18 U.S.C. § 3553(a) and United States v. Booker, 543 U.S. 220 (2005). The judge here also gave a sufficient explanation for the decision, see Gall v. United States, 552 U.S. 38, 50 (2007), based primarily on Vasquez-Abarca's criminal history and the fact that a previous sentence of 57 months for the same crime had not deterred him from committing the crime again. We affirm the sentence.

         I. Factual and Procedural Background

         Vasquez-Abarca's parents brought him to the United States from Mexico in 1986, when he was about five years old. He has been deported from the United States on three prior occasions, in 1997, 2005, and 2015. His first encounter with law enforcement in the United States came in 1995-at the age of 14-when he was arrested for having sex with a 12-year-old. For reasons that are not clear, Vasquez-Abarca evidently told Illinois authorities that he was either 16 or 17 years old. Based on that age difference, he was convicted of a felony sex offense in June 1996. He was imprisoned in Illinois and then deported to Mexico for the first time on July 25, 1997.

         Soon after that deportation, Vasquez-Abarca reentered the United States illegally. Less than two months later, he was arrested in Chicago for disorderly conduct. (That charge was dismissed, apparently without any immigration consequences.) In July 2001, he was still living in Illinois and was convicted of failing to register as a sex offender. Later in 2001, federal immigration agents arrested Vasquez-Abarca. He was charged in the Northern District of Illinois with reentering the country illegally in violation of 8 U.S.C. § 1326(a). He pleaded guilty and was sentenced in 2002 to 57 months in prison, the lower limit of the guideline range. After serving that sentence, he was deported for a second time on December 2, 2005.

          Vasquez-Abarca entered the United States again in June 2006. In the following years, he committed about a dozen driving-related offenses in Illinois and Georgia, including various moving violations and driving without a valid license. His repeated traffic violations culminated in August 2012 in two felony convictions in Georgia and a one-year term of imprisonment. On December 19, 2013, shortly after his release from a Georgia prison, he was sentenced in the Northern District of Illinois to an additional 24 months in prison for violating the terms of his supervised release on the 2002 conviction for illegal reentry. After serving that supervised release revocation sentence, he was deported for a third time on May 19, 2015.

         Vasquez-Abarca committed the crime of conviction here when he illegally entered the United States again around January 2016. He moved to Rochelle, Illinois, where he found work remodeling homes. But he still had an outstanding Illinois warrant from 2007 for giving the police a fake name and driver's license. He was arrested on that warrant on April 8, 2017. That October he was convicted of the felony of obstructing justice. The state court sentenced him to time served, but Vasquez-Abarca was then taken into federal custody and indicted again for illegally reentering the United States after a prior deportation following a felony conviction, in violation of 8 U.S.C. § 1326(a) and (b)(1).

         Vasquez-Abarca ultimately pleaded guilty to the charge. At the sentencing hearing, the government asked for a sentence within the guideline range of 30 to 37 months. The defense requested a below-guideline sentence of 24 months, arguing that Vasquez-Abarca's driving violations stemmed from his lack of legal residency status. The district court, however, imposed a sentence of 72 months. The statute authorized a sentence of up to 20 years. 8 U.S.C. § 1326(b)(2). The only questions on appeal are whether the district court gave a sufficient explanation for the 72-month sentence and whether the sentence was substantively reasonable.[1]

         II. Analysis

         We review the substantive reasonableness of a sentence for abuse of discretion. Gall, 552 U.S. at 46; United States v. Carter, 538 F.3d 784, 789 (7th Cir. 2008). The district court must explain the sentence in terms of the factors set forth in 18 U.S.C. § 3553(a). See 18 U.S.C. § 3553(c). The judge "should set forth enough to satisfy the appellate court that he has considered the parties' arguments and has a reasoned basis for exercising his own legal decisionmaking authority." Rita v. United States, 551 U.S. 338, 356 (2007). The explanation need not be "exhaustive" but must be "adequate to allow for meaningful appellate review." Carter, 538 F.3d at 789 (quotation omitted). The court here gave three reasons for the above-guideline sentence: Vasquez-Abarca's extensive criminal history, the need to deter him from further illegal reentries, and protecting the public from the perils of unlicensed driving.[2]

         In United States v. Booker,543 U.S. 220 (2005), the Supreme Court remedied the Sixth Amendment problems with mandatory Sentencing Guidelines by making them advisory. "Mandatory" and "advisory" serve as shorthand descriptions of different standards of review for non-guideline sentences ("departures" under the Guidelines, and often called "variances" after Booker). Since Booker, the Supreme Court and lower federal courts have worked to maintain an ...


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