Angel Pacheco-Diaz was convicted for illegally reentering the United States after being deported, violating 8 U.S.C. § 1326(a) and (b)(2). The district court imposed an eight-level sentencing enhancement due to his prior aggravated felony conviction, which was contested by Pacheco, specifically regarding whether his Illinois conviction for simple possession of marijuana qualified as an aggravated felony. After a two-level reduction for acceptance of responsibility was applied, the court decided against a further reduction and rejected Pacheco's claim of unwarranted sentencing disparity compared to defendants in 'fast-track' jurisdictions. He was ultimately sentenced to 46 months of imprisonment. Pacheco's appeal raised three main issues: the sufficiency of his prior conviction to trigger the enhancement, the court's understanding of its discretion regarding sentence reduction for acceptance of responsibility, and the reasonableness of his sentence given the alleged disparity with other defendants. The relevant sentencing guidelines indicated that an eight-level increase is warranted for a defendant previously deported after an aggravated felony conviction, with the definition of 'aggravated felony' encompassing illicit trafficking in controlled substances, which, for Pacheco, included his prior drug offenses.
Section 924(c) defines 'drug trafficking crime' as any felony punishable under the Controlled Substances Act (CSA). Marijuana is classified as a controlled substance. The government and probation officer proposed an eight-level increase for Pacheco’s January 2002 marijuana possession conviction, which the district court upheld for two reasons.
First, the court determined that the conviction was a felony under Illinois law and could be punishable under the CSA as a misdemeanor, thus fitting the definition of a 'drug trafficking crime.' However, Pacheco contended that only federal felony classifications should trigger the enhancement. The Supreme Court's ruling in Lopez v. Gonzales clarified that a state offense qualifies as a 'felony punishable under the CSA' only if it aligns with federal felony definitions. Consequently, the district court's first rationale was incorrect.
Second, the court found that Pacheco’s January 2002 conviction could be classified as a federal felony due to his earlier October 2000 marijuana possession under the recidivist provision of 21 U.S.C. 844(a). This interpretation was consistent with Lopez, which acknowledged that Congress had specifically included some possession offenses as 'illicit trafficking.' The decision reflects a split among circuits regarding the application of the recidivist provision in such contexts.
The Ninth Circuit uniquely mandates that district courts assess the base sentence for a crime, excluding recidivist enhancements, to determine if it qualifies as an aggravated felony under federal law, as established in United States v. Arellano-Torres. In contrast, the Second, Fifth, and Sixth Circuits incorporate recidivist provisions of section 844(a) when evaluating if a prior state misdemeanor can be deemed an aggravated felony for guideline 2L1.2, aligning with the holding in United States v. Perkins. In Perkins, the court ruled that federal recidivism statutes, including 18 U.S.C. 924(e), focus on the conviction's elements rather than the specifics of the state court proceedings. The decision emphasized that a state conviction's eligibility for federal enhancement is based on the statutory definitions and potential maximum sentences, not the actual sentence received. Thus, it is immaterial under the Armed Career Criminal Act (ACCA) whether the defendant actually received the maximum sentence; what matters is the possible sentence defined by state law.
Pacheco would have faced a recidivist enhancement under section 844(a) if charged federally for a second drug possession, exposing him to a potential two-year felony sentence. This conviction, under the Controlled Substances Act, would classify as a 'drug trafficking crime' under section 924(c) and as an aggravated felony per 8 U.S.C. 1101(a)(43)(B), thus justifying an eight-level increase under guideline 2L1.2(b)(1)(C).
The government agreed to a two-point reduction for acceptance of responsibility due to Pacheco's agreement to a stipulated bench trial but declined to support a third point. Under the PROTECT Act, a third point can only be granted with a government motion. The government clarified that their initial suggestion of a three-point reduction was a mistake, explaining that substantial effort was involved in preparing for trial, influencing their decision not to move for the additional point. The district court reiterated that it lacked the authority to grant the third point without the government’s motion and affirmed that the decision rested solely with the government. Pacheco's counsel argued at sentencing that the lack of the third point should not adversely affect Pacheco's sentence, emphasizing that he had accepted responsibility despite requesting a bench trial.
The court confirmed a two-level decrease in Pacheco's sentence due to acceptance of responsibility, stating there was no dispute regarding this adjustment. Pacheco was sentenced to forty-six months in prison, at the high end of the guidelines range. His counsel did not contest the court’s discretion concerning a potential third point reduction for acceptance of responsibility, and Pacheco had previously agreed that the two-level decrease was appropriate. Ordinarily, this concession would waive the issue for appeal, but the government waived this waiver by seeking a review of the sentence’s reasonableness and addressing the merits. The government asserted that, following the Booker decision, the district court must first accurately calculate the guidelines range and that any third point reduction could only be granted upon its motion. The court recognized that it had not yet determined whether a district court could grant the third point without such a motion, but noted that all circuits considering the issue supported the government's position. The guidelines require a government motion for the third-level reduction, which the district court correctly adhered to in this case. Since the government did not move for the reduction, the court accurately calculated the guidelines range and did not misapprehend its discretion when applying the section 3553(a) factors for sentencing.
Pacheco's claim that the court misunderstood its authority is rejected. He argues that the district court did not consider the sentencing disparity caused by his lack of access to a fast-track program, which was established by the PROTECT Act to manage the high volume of illegal reentry cases in certain border states. However, the court notes that the U.S. Attorney General has the authority to implement these programs, and it has consistently ruled that a sentence is not deemed unreasonable solely because it originates from a jurisdiction without a fast-track program. Prior cases, including United States v. Galicia-Cardenas and United States v. Roche-Martinez, support this position, affirming that such disparities were anticipated by Congress. The court further states that a sentence resulting from a downward departure is not inherently reasonable simply due to the absence of a fast-track program. Pacheco fails to provide sufficient grounds to deviate from established precedents, leading the court to affirm the district court's judgment.
