USA v. Francisco Fuentes

Filing

Filed opinion of the court by Judge Bauer. AFFIRMED. William J. Bauer, Circuit Judge; Richard A. Posner, Circuit Judge and Diane S. Sykes, Circuit Judge. [6846578-1] [6846578] [16-3504]

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In the

United States Court of Appeals
For the Seventh Circuit
No. 16-3504
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
FRANCISCO FUENTES,
Defendant-Appellant.

Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 16 CR 00050 — Virginia M. Kendall, Judge.

ARGUED FEBRUARY 7, 2017 — DECIDED JUNE 8, 2017

Before BAUER, POSNER, and SYKES, Circuit Judges.
BAUER, Circuit Judge. On January 28, 2016, Francisco
Fuentes was charged with one count of illegal reentry by a
deported alien in violation of 8 U.S.C. §§ 1326(a) and (b)(2).
He pleaded guilty on June 7, 2016, pursuant to a written plea
agreement. On September 7, 2016, he was sentenced to 24
months’ imprisonment. Fuentes appeals his sentence, arguing

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that the district court erred in its Sentencing Guidelines
calculation. We find that Fuentes waived any such argument,
and therefore, we affirm the sentence.
I. BACKGROUND
Fuentes and his counsel signed a written plea agreement,
which included specific agreements as to the calculations of his
Guidelines range. The parties agreed that “[p]ursuant to
Guidelines § 2L1.2(b)(1)(C) defendant’s offense level is increased by 8 levels because defendant previously was deported
after a conviction for an aggravated felony.” The government
agreed to seek a three-sentence reduction if Fuentes continued
to accept responsibility, which he did. Ultimately, the parties
agreed that the resulting advisory Guidelines range was 24-30
months.
At his change of plea hearing, Fuentes confirmed that he
had reviewed the plea agreement with his attorney, that his
attorney had answered all of his questions, and that he was
satisfied with his representation. The court then described the
applicable Guidelines range in detail, including the eight-level
increase, and Fuentes stated that he understood the calculation.
Fuentes filed his sentencing memorandum on August 29,
2014, which stated that he did “not have any disagreements
with the advisory Guidelines calculated in the Presentence
Investigation Report.” His memorandum then outlined the
specific calculations as they were made in the PSR and the plea
agreement, and specifically stated that he agreed with them.
Fuentes sought a variance from the 24-30 month range based
on issues not raised on this appeal.

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At the sentencing hearing, Fuentes’ counsel made only one
objection to a specific factual characterization in the PSR, and
the court agreed to make the requested change. The court then
specifically asked whether there was any objection to the base
offense level or the eight-level increase “because it is after the
commission of an aggravated felony.” Fuentes’ counsel stated
that there was no objection, and also said “yes” when the court
asked if everyone agreed that 13 was the correct total offense
level. After addressing the appropriate factors and Fuentes’
primary mitigation argument, which concerned credit for time
served in state custody, the court sentenced him to 24 months’
imprisonment.
II. DISCUSSION
Fuentes’ only argument on this appeal is that the district
court erred by applying the eight-level enhancement because
it incorrectly considered his previous burglary conviction to be
an “aggravated felony” under 8 U.S.C. § 1101(a)(43)(G). The
government argues that Fuentes has waived this challenge.
Fuentes acknowledges that he failed to raise the argument in
the district court, but contends that he merely forfeited it. We
must determine, then, whether his failure constitutes a waiver
or a forfeiture.
“Waiver occurs when a criminal defendant intentionally
relinquishes a known right.” United States v. Brodie, 507 F.3d
527, 530 (7th Cir. 2007) (citation and quotation marks omitted).
Waiver is different than forfeiture, which “occurs when a
defendant negligently fails to assert a right in a timely fashion.” Id. A forfeited argument may be raised on appeal and is

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reviewed for plain error. Id. Waiver, on the other hand,
“extinguishes any error and precludes appellate review[.]” Id.
Here, it is clear that Fuentes waived any challenge to his
Guidelines range, including the eight-level enhancement. He
explicitly agreed to the enhancement in his written plea
agreement. He was provided an opportunity to object to or
disagree with the Guidelines calculation at his change of plea
hearing, in his sentencing memorandum, and at his sentencing
hearing. In all three instances, Fuentes affirmatively agreed
with the Guidelines range and made no objections. At both
hearings, the court specifically pointed out and explained the
aggravated felony enhancement and confirmed that Fuentes
understood and agreed that it applied. Moreover, in his
sentencing memorandum, Fuentes stated that he specifically
agreed that he qualified for the eight-level enhancement
“because he was deported in August of 2010 following a
burglary conviction that meets the definition of an aggravated
felony in Section 101(a)(43) of the Immigration and Nationality
Act.” We do not believe that these repeated affirmations can be
considered negligent oversights that might qualify as forfeiture.
It is also significant that Fuentes raised an objection at
sentencing to a factual characterization set forth in the PSR,
and still chose to forgo a challenge to the Guidelines calculation. We have previously found that objecting to certain
parts of a PSR, but not the later-challenged Guidelines range
constitutes “the paragon of intentional relinquishment.” Brodie,
507 F.3d at 531; see also United States v. Armour, 804 F.3d 859,
865 (7th Cir. 2015) (citing Brodie and finding waiver where

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defendant objected to conditions of supervised release, but not
the applicable Guidelines range).
We are persuaded, therefore, that Fuentes intentionally
relinquished his right to challenge the Guidelines range here,
particularly in light of his numerous affirmative statements of
agreement with the enhancement and the calculation. As such,
we are precluded from reviewing his sentence.
III. CONCLUSION
For the foregoing reasons, the sentence is affirmed.