USA v. Edwin Sanchez
Filing
Filed Nonprecedential Disposition PER CURIAM. The case is REMANDED to the district court for resentencing. Michael S. Kanne, Circuit Judge; John Daniel Tinder, Circuit Judge and David F. Hamilton, Circuit Judge. [6540441-1] [6540441] [11-3529]
Case: 11-3529
Document: 42
Filed: 12/23/2013
Pages: 3
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted November 30, 2013
Decided December 23, 2013
Before
MICHAEL S. KANNE, Circuit Judge
JOHN DANIEL TINDER, Circuit Judge
DAVID F. HAMILTON, Circuit Judge
No. 11‐3529
UNITED STATES OF AMERICA,
Plaintiff‐Appellee,
Appeal from the United States District
Court for the Northern District of
Illinois, Eastern Division.
v.
No. 1:10‐cr‐00131‐2
EDWIN SANCHEZ,
Defendant‐Appellant.
Charles R. Norgle, Judge.
O R D E R
Edwin Sanchez pled guilty to a one‐count superseding indictment that charged him
with conspiracy to possess with intent to distribute cocaine in violation of 21 U.S.C. §§
841(a)(1), 846. The conspiracy began in 2007 and continued until approximately June 2009.
Sanchez’s 262‐month sentence included a two‐level enhancement under U.S.S.G.
§ 2D1.1(b)(12)—the so‐called “stash house” enhancement. This enhancement was new to
the 2010 Guidelines and thus was not in effect at any point during the conspiracy for which
Case: 11-3529
No. 11‐3529
Document: 42
Filed: 12/23/2013
Pages: 3
Page 2
Sanchez was convicted. At sentencing, and on appeal, Sanchez argued that applying this
enhancement to his case violated the ex post facto clause. Applying our precedents, we
found no such violation. United States v. Sanchez, 710 F.3d 724, 727–28 (7th Cir. 2013) (citing
United States v. Demaree, 459 F.3d 791, 795 (7th Cir. 2006)).
Sanchez then petitioned the Supreme Court for a writ of certiorari. While his petition
was pending, the Supreme Court decided Peugh v. United States, 133 S. Ct. 2072 (2013).
Peugh held that sentencing a criminal defendant under current Guidelines that recommend
a higher sentence than the Guidelines in effect at the time of the offense violated the ex post
facto clause. The Supreme Court remanded Sanchez’s case for reconsideration in light of
Peugh.
In light of Peugh, it is clear the district court erred by employing the stash house
enhancement when sentencing Sanchez. The two‐level enhancement, which became
effective on November 1, 2010, when the 2010 Guidelines took effect, was not in force at the
time of Sanchez’s offense. And the application of the enhancement increased Sanchez’s
sentence by two levels, thus increasing the length of his Guidelines‐suggested sentence.
When the district court errs in determining the applicable Guidelines range, as the
district court did here, we must determine if the error was harmless. United States v.
Zahursky, 580 F.3d 515, 527 (7th Cir. 2009). If the record makes clear that the sentencing
judge would have imposed the same sentence under the older guidelines, an ex post facto
error may be considered harmless. Peugh, 133 S. Ct. at 2088 n.8. Essentially, the government
must show that the error did not affect the district court’s choice of sentence. See United
States v. Abbas, 560 F.3d 660, 667 (7th Cir. 2009).
We have previously found a Guidelines calculation error to be harmless where the
sentencing judge clearly stated on the record that he would have imposed the same
sentence regardless of the Guidelines calculation. United States v. Foster, 701 F.3d 1142, 1157
(7th Cir. 2012) (error in applying the Fair Sentencing Act harmless where judge explicitly
stated, “this is the sentence I would impose whether the Fair Sentencing Act applied or
not.”); Abbas, 560 F.3d at 667 (finding harmless error where sentencing judge said she
would impose the same sentence even if the improperly‐applied guideline did not apply);
United States v. Anderson, 517 F.3d 953, 965 (7th Cir. 2008) (same).
The court in this case made no such statement. After overruling Sanchez’s objection to
the application of the stash house enhancement, the court decided that the enhancement
“will be considered by the Court in reaching a sentence.” And after considering the 18
U.S.C. § 3553(a) factors, the court found no reason to deviate from the Guidelines
Case: 11-3529
No. 11‐3529
Document: 42
Filed: 12/23/2013
Pages: 3
Page 3
sentencing range. It then imposed a 262‐month sentence, which fell at the low end of the
range it had calculated, including the contested enhancement. Had the court calculated the
Guidelines range properly, without the two‐level enhancement, the 262‐month sentence
would have fallen at the high end of the suggested sentencing range.
Given the above, we cannot find that the district court’s ex post facto violation was
harmless. We thus REMAND the case to the district court for resentencing.
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?