Court: Court of Appeals for the Seventh Circuit; October 23, 2007; Federal Appellate Court
Angel Pacheco-Diaz was convicted for reentering the U.S. after deportation, violating 8 U.S.C. § 1326. The district court enhanced his sentence by eight levels due to a prior aggravated felony conviction. After a two-level reduction for acceptance of responsibility, the court sentenced him to 46 months, the upper end of the sentencing range, and declined further reductions despite Pacheco's claims of unwarranted disparities with "fast-track" jurisdictions.
Pacheco was deported on October 10, 2003, following a conviction for an aggravated felony and was found in Waukegan, Illinois, on September 1, 2004. He waived his right to a jury trial for a bench trial based on stipulated facts, admitting prior felony convictions for possession of marijuana and criminal damage. The parties disagreed on whether the possession constituted an aggravated felony for sentencing.
On appeal, Pacheco argued that his prior conviction should not trigger the eight-level enhancement, claimed the district court misunderstood its discretion regarding sentence reductions, and asserted that his sentence was unreasonable compared to those of similarly situated defendants in fast-track jurisdictions. The appellate court affirmed the district court's decisions, referencing Section 2L1.2 of the Sentencing Guidelines, which stipulates enhancements for reentry after an aggravated felony conviction as defined by 8 U.S.C. § 1101(a)(43).
Section 924(c) defines "drug trafficking crime" to include any felony punishable under the Controlled Substances Act (CSA). Marijuana is classified as a controlled substance, and Pacheco's January 2002 conviction for marijuana possession was deemed by both the government and the probation officer to merit an eight-level increase under this definition. The district court supported this increase with two justifications. First, it determined that Pacheco's conviction was a felony under Illinois law and also punishable under the CSA, thus meeting the "drug trafficking crime" definition. Second, the court concluded that under the recidivist provision of 21 U.S.C. 844(a), the January 2002 conviction could be treated as a federal felony due to a prior conviction for possession in October 2000.
Pacheco contested the district court's interpretation, asserting that only federal felonies could trigger the increase. The Supreme Court, in Lopez v. Gonzales, clarified that a state offense qualifies as a "felony punishable under the CSA" only if it is punishable as a felony under federal law. Consequently, the district court's first rationale for the increase was incorrect. However, the second rationale regarding the recidivist provision was upheld, as it aligned with the Supreme Court's acknowledgment that Congress classified certain possession offenses, including recidivist possession, as "illicit trafficking." The ruling noted a circuit split, with the Ninth Circuit uniquely requiring consideration of the base offense's available sentence without factoring in recidivist enhancements for categorizing aggravated felonies under federal law.
When evaluating whether a drug offense qualifies as an aggravated felony, the Ninth Circuit ignores the penalties for repeat offenders under section 844. In contrast, the Second, Fifth, and Sixth Circuits consider these recidivist provisions when determining if a prior state misdemeanor conviction can be classified as an aggravated felony under guideline 2L1.2. This approach aligns with the Seventh Circuit's ruling in United States v. Perkins, where the court assessed whether a defendant could be deemed an armed career criminal based on prior convictions for "serious drug offenses." The definition of a "serious drug offense" includes state law violations that prescribe a maximum prison term of ten years or more.
In Perkins, the defendant faced a maximum of seven years for his first drug conviction, which increased to fourteen years for a second. Perkins challenged the government's ability to prove he would have faced the higher maximum, citing a lack of evidence that he was informed of recidivism penalties. The court dismissed this argument, referencing Supreme Court precedents that emphasize evaluating the crime of conviction rather than the defendant's conduct or state court proceedings. The determination of whether a state conviction supports a federal recidivism enhancement relies on the offense's elements and the details of the indictment.
Perkins was found guilty of two drug offenses that exposed him to a maximum of fourteen years, establishing their classification as "serious" offenses. The court further noted that under the Armed Career Criminal Act (ACCA), the potential sentence under state law, rather than the actual sentence imposed, is what matters. This reasoning similarly applies to section 844(a), indicating that a defendant like Pacheco, if charged federally for a second drug possession, would qualify for a recidivist enhancement, exposing him to a possible two-year felony sentence under federal law.
A second conviction for possession under the Controlled Substances Act qualifies as a "drug trafficking crime" under federal law, which leads to an eight-level increase in sentencing guidelines due to its classification as an aggravated felony. The court confirmed the appropriateness of this increase. Pacheco was granted a two-point reduction for acceptance of responsibility after agreeing to a bench trial on stipulated facts. However, he contested that he should receive an additional third point reduction, which requires a motion from the government under the PROTECT Act. The government declined to move for this additional point, citing the significant effort expended in preparing for trial prior to the agreement. During sentencing, the court clarified that it could not grant this third point without the government's motion, reaffirming the necessity of such a request. Pacheco's counsel acknowledged the two-point reduction but argued against penalizing Pacheco for the government's preparation efforts. The court ultimately affirmed the two-point reduction for acceptance of responsibility, with no dispute regarding this adjustment.
The court sentenced Pacheco to forty-six months' imprisonment, at the upper end of the guidelines range, after considering the arguments presented and the factors outlined in section 3553(a). Pacheco’s counsel did not contest the court’s statement regarding the third point for acceptance of responsibility, which could only be granted upon a motion from the government. Pacheco also agreed in his Objections that a two-level decrease for acceptance of responsibility was warranted, which typically waives the issue for appeal. However, the government has waived this waiver by seeking a review of the sentence for reasonableness and addressing the merits.
The government contended that, post-Booker, the district court must first correctly calculate the guidelines range and then apply the section 3553(a) factors. The government maintained that the court could only grant the third point for acceptance of responsibility if prompted by a government motion. This position is supported by case law, indicating that all circuits that have examined the matter agree a district court cannot grant the reduction without such a motion.
The guidelines require a government motion for the third-level reduction, and the district court acted correctly by not granting it in the absence of such a motion. There was no evidence that the court misunderstood its discretion when applying the section 3553(a) factors after calculating the guidelines range. Pacheco also raised concerns about sentencing disparity due to his lack of access to a fast-track program designed for cases of illegal reentry, which are prevalent in certain border states.
The PROTECT Act grants the U.S. Attorney General the authority to create and implement fast-track programs, with Congress acknowledging that these programs would lead to sentencing disparities. Courts have consistently ruled that a sentence is not unreasonable simply because it was issued in a jurisdiction without such programs. Specifically, it has been established that a sentence cannot be deemed unreasonable solely due to the absence of a fast-track program, as highlighted in multiple cases, including United States v. Galicia-Cardenas and United States v. Roche-Martinez. Furthermore, a downward departure does not automatically render a sentence reasonable in the context of fast-track programs. The court affirmed the district court's judgment, rejecting the challenges presented by Pacheco regarding the reasonableness of his within-guidelines sentence. Additional notes detail amendments to sentencing guidelines, particularly concerning the acceptance of responsibility and the formal motion requirement for adjustments based on the defendant’s cooperation with authorities.
