United States v. Torres-Gomez, Case No. 11-CR-237

UNITED STATES OF AMERICA Plaintiff,

v.FIDEL TORRES-GOMEZ Defendant.

Case No. 11-CR-237

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WISCONSIN

Dated: April 24, 2012

SENTENCING MEMORANDUM

Defendant Fidel Torres-Gomez pleaded guilty to unlawfully re-entering the United States after deportation, contrary to 8 U.S.C. § 1326, and I set the case for sentencing. In imposing sentence, the district court must first calculate the advisory sentencing guideline range, then determine what sentence is appropriate for the individual defendant in light of the statutory sentencing factors in 18 U.S.C. § 3553(a). Nelson v. United States, 555 U.S. 350, 351 (2009); United States v. Panice, 598 F.3d 426, 441 (7th Cir. 2010).

I. GUIDELINES

Defendant's pre-sentence report ("PSR") set a base offense level of 8 under U.S.S.G. § 2L1.2(a), then added a 16 level enhancement under § 2L1.2(b)(1)(A) because defendant was deported after sustaining a conviction for a felony crime of violence, producing an adjusted level of 24. The PSR then subtracted 3 levels for acceptance of responsibility under § 3E1.1, for a final level of 21. Coupled with defendant's criminal history category of IV, level 21 produced an imprisonment range of 57-71 months. Neither side objected to these calculations, which I found correct and adopted accordingly.

II. SECTION 3553

A. Sentencing Factors and Methodology

Section 3553(a) directs the sentencing court to consider:

(1) the nature and circumstances of the offense and the history and characteristics of the defendant;

(2) the need for the sentence imposed (A) to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense; (B) to afford adequate deterrence to criminal conduct; (C) to protect the public from further crimes of the defendant; and (D) to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner;

(3) the kinds of sentences available;

(4) the [advisory] sentencing [guideline] range[;]

(5) any pertinent policy statement ... issued by the Sentencing Commission[;]

(6) the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct; and

(7) the need to provide restitution to any victims of the offense.

18 U.S.C. § 3553(a). After considering these factors, the court must "impose a sentence sufficient, but not greater than necessary, to comply with the purposes set forth in paragraph (2) of this subsection." Id. This "parsimony provision" serves as the "'overarching' command of the statute." United States v. Ross, 755 F. Supp. 2d 1261, 1262 (S.D. Fla. 2010) (quoting Kimbrough v. United States, 552 U.S. 85, 101 (2007)).

The district court should in selecting the sentence begin with the guidelines' recommendation, see Gall v. United States, 552 U.S. 38, 49 (2007), but it may not presume that a guideline sentence is the correct one, Nelson, 555 U.S. at 352 (2009); Rita v. United States, 551 U.S. 338, 351 (2007), or even place "a 'thumb on the scale favoring a guidelinesentence.'" United States v. Pennington, 667 F.3d 953, 958 (7th Cir. 2012) (quoting United States v. Sachsenmaier, 491 F.3d 680, 685 (7th Cir. 2007)). Rather, the court must make an independent determination, considering the particular circumstances of the case, the types of sentences available, and the arguments of the parties. See Gall, 552 U.S. at 49-50. The district court is also free to reject any guideline on policy grounds, see United States v. Corner, 598 F.3d 411, 415 (7th Cir. 2010), particularly where the Commission failed to base the guideline at issue on study, expertise, empirical data, or national experience, see Kimbrough, 552 U.S. at 109; see also Pepper v. United States, 131 S. Ct. 1229, 1247 (2011) (holding that a district court may in appropriate cases impose a non-guideline sentence based on a disagreement with the Commission, particularly where the Commission's views rest on wholly unconvincing policy rationales); Spears v. United States, 555 U.S. 261, 264-54 (2009) (re-affirming district courts' authority vary categorically from the crack guideline).

B. Analysis

1. Nature of the Offense and Character of the Defendant

Defendant was born in Guanajuanto, Mexico in 1983 and raised by his parents in that small town. Defendant's father later came to the United States to work and send money back to the family, and defendant followed in 2000, settling with his father in Lake Geneva, Wisconsin.

In 2002, officials in Walworth County, Wisconsin charged defendant with several offenses, including child enticement, false imprisonment, and attempted second degree sexual assault of a child, all as a party to a crime. According to the criminal complaint in that case, a fifteen-year-old girl reported to police that she had been at a party, smoking marijuana anddrinking alcohol with defendant (then age eighteen) and another man. She indicated that defendant and the other man brought her into a bedroom, refused to let her leave, and asked her to perform oral sex on them. When she refused, they pinned her to a bed and tried to pull down her pants, and the other man tried to force his penis into her mouth. She physically resisted, and the men left the room. Shortly thereafter, other men at the party, not including defendant, entered the room and raped her. For his involvement in the assault, the state court sentenced defendant to 1 year in jail and 6 years probation. Because he lacked lawful status in this country, immigration authorities deported defendant to Mexico on February 28, 2003.

Defendant returned to the United States in late 2009 or early 2010, and on September 29, 2011, Immigration and Customs Enforcement ("ICE") agents found him in the Walworth County Jail following his arrest on a criminal complaint and warrant issued in that County related to a violation of sex offender registration. A review of defendant's alien file disclosed that he never applied to, nor received permission from, the Attorney General or the Secretary of the Department of Homeland Security to re-enter the United States. When he was arrested, defendant was using the name "Alex Flora," but a subsequent fingerprint analysis disclosed that defendant and the person convicted of the state offenses discussed above were the same.

In February 2012, the state revoked defendant's probation in the 2002 case (which never discharged due to his deportation placing him in "absconder" status), and the Walworth County Circuit Court imposed a sentence of 18 months initial confinement followed by 4 years of extended supervision. Defendant was also convicted of failure to maintain his sex offender registration in February 2012, with the state court imposing a 90 day sentence. Those state sentences were set to discharge on July 21, 2012, approximately three months after defendant appeared before me for sentencing.

Defendant indicated that he was sorry that he re-entered unlawfully, but he felt obligated to come back in order to be a good son and provide for his family, especially his father, who was ill and unable to work. Defendant's mother advised that defendant returned to the United States because he wanted to be near his parents and other family members. She indicated that he spent his time either working or with his family prior to his arrest in September 2011.

The PSR reported that defendant's oldest brother, Antonio, lives in Guanajuato, Mexico, as does his youngest brother, Ruben, but defendant's sister Maria, who lives in Lake Geneva, stated that the family had little contact with them. Maria also stated that defendant returned to the United States because he was unable to support himself in Mexico and had no family to help him.

Defendant was unmarried and had no children, and reported living with his parents in Lake Geneva from age fifteen or sixteen until his deportation at age nineteen. He again resided in Lake Geneva from his return in late 2009 or early 2010 until his arrest in September of 2011.

Defendant reported no physical or mental health issues, or substance abuse problems of significance. He admitted using marijuana in his late teens and early twenties, but he stated that he only smoked about twice a year and did not feel that he ever had a drug abuse problem (although he did admit being under the influence the night he was involved in the sexual assault). Defendant reported completing grade school in Mexico and enrolling in high school in Lake Geneva, Wisconsin when he moved to the United States, but he stopped attending after his arrest in the sexual assault case and denied any further schooling. Defendant reported working at Target in Lake Geneva under the name Alex Lara prior to his 2011 arrest. While in Mexico, he worked at a shoe factory for two years and on a farm for three years.B. The Guidelines and Purposes of Sentencing

The guidelines called for a prison term of 57-71 months, and the government recommended a sentence within that range. While I agreed that a prison sentence was needed to promote respect for the law and to deter defendant and others from entering unlawfully, for two primary reasons, I found a sentence below the range sufficient.

First, as I and other judges across the country have noted, U.S.S.G. § 2L1.2 suffers from significant flaws, in that it requires a colossal 16 level enhancement in many cases, an increase the Sentencing Commission has never adequately explained, and it does so based on prior convictions rather than offense conduct, effectively counting the defendant's prior record twice in constructing the guideline range. See, e.g., United States v. Escolastico-Pena, No. 11 Cr. 81-01, 2011 WL 4448956, at *5-6 (S.D.N.Y. Sept. 26, 2011); United States v. Garcia-Jaquez, 807 F. Supp. 2d 1005, 1011-16 (D. Colo. 2011); United States v. Carballo-Arguelles, 446 F. Supp. 2d 742, 745 (E.D. Mich. 2006), aff'd, 267 Fed. Appx. 416 (6th...