USA v. Mario Mendoza-Valles
Filed Nonprecedential Disposition PER CURIAM. AFFIRMED. Diane P. Wood, Chief Judge; William J. Bauer, Circuit Judge and Frank H. Easterbrook, Circuit Judge. [6863129-1]  [17-1013]
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
Argued August 8, 2017
Decided August 22, 2017
DIANE P. WOOD, Chief Judge
WILLIAM J. BAUER, Circuit Judge
FRANK H. EASTERBROOK, Circuit Judge
UNITED STATES OF AMERICA,
Appeal from the United States District
Court for the Northern District of
Illinois, Western Division.
No. 15 CR 50040
Philip G. Reinhard,
Mario Mendoza-Valles does not know how to take “no” for an answer. He is a
citizen of Mexico who repeatedly has come to the United States without authorization,
and has repeatedly (we are told a dozen times) been removed back to Mexico. Although
he has not been prosecuted for several of his illegal reentries, the present case
represents his fifth felony conviction for violating 8 U.S.C. § 1326. The most recent of
those earlier convictions earned him 19 months in a federal prison; he last was removed
from the United States in September 2010.
In August 2015, Mendoza-Valles was caught again in the United States, this time
as a result of an arrest for driving without a license. The immigration authorities found
out about the arrest; he was indicted for yet another violation of section 1326(a) and
(b)(1); and he pleaded guilty. Before his sentencing hearing, the probation office
prepared the usual report. The responsible officer used the 2015 edition of the U.S.
Sentencing Guidelines and calculated an advisory range of 15 to 21 months’
imprisonment, based on an offense level of 10 and a criminal history category IV
(reflecting almost exclusively his repeated immigration offenses). The offense level
included a four-level upward adjustment that applies to persons who unlawfully
reenter the United States after a prior removal, see U.S.S.G. § 2L1.2(b)(1)(D) (2015 ed.).
Without that adjustment, the advisory imprisonment range would have been 6 to 12
At each of two presentencing status hearings, the district judge warned
Mendoza-Valles that he was considering a sentence above the advisory range, for the
obvious reason that Mendoza-Valles is a serial violator of the U.S. immigration laws. In
response, Mendoza-Valles’s lawyer argued that nothing in U.S.S.G. § 2L1.2 directs the
sentencing court to assess a harsher sentence if the defendant has more than one
conviction for illegal reentry. The judge did not think that a good enough reason to
refrain from tailoring the sentence to Mendoza-Valles’s personal circumstances, as the
judge is entitled—indeed, required—to do under 18 U.S.C. § 3553(a). He chose instead a
sentence of 36 months’ imprisonment, 15 months above the top of the advisory range.
By way of explanation, the judge stated that he had heard over 500 illegal reentry cases,
yet had never encountered a defendant who so persistently violated the prohibition
against returning. Because the recent 19-month sentence had failed to deter MendozaValles’s illegal actions, the judge concluded that a within-range sentence would not be
adequate. Although the statutory maximum is 10 years, the judge opted for greater
lenience and imposed the three-year (36 month) sentence.
On appeal, Mendoza-Valles challenges only the reasonableness of his sentence.
But his basic argument misunderstands the nature of federal sentencing in the wake of
United States v. Booker, 543 U.S. 220 (2005). The sentencing guidelines are advisory. That
means, as the Supreme Court held in Spears v. United States, 555 U.S. 261 (2009), that the
district court (after correctly calculating the advisory range) is free to disagree with that
advice, whether because it thinks the advice bad for the particular defendant, or if it
wishes to exercise its authority “to reject and vary categorically from the … Guidelines
based on a policy disagreement with those Guidelines.” Id. at 266. The fact, therefore,
that there are certain technical differences between the 2015 and the 2016 version of
U.S.S.G. § 2L1.2, and that neither version adds additional offense levels for successive
convictions of the statute, is beside the point.
The judge here did everything he was supposed to do: he calculated the
guidelines range by the book (and Mendoza-Valles does not argue otherwise); he
examined the factors under 18 U.S.C. § 3553(a), placing special weight on MendozaValles’s history and characteristics, the need for deterrence, and the need to protect the
public from further crime, see § 3553(a)(1), (2)(B) and (C); and he chose a sentence
designed to serve those purposes and at the same time respect the statutory limits. We
have no hesitation in holding that the resulting sentence was a reasonable one—indeed,
if anything it strikes us as lenient. We hope, as did the district judge, that MendozaValles will get the message this time and keep his promise to make a new life in Mexico.
The judgment of the district court is AFFIRMED.
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