United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

Argued May 28, 2009

Decided July 17, 2009

Before

WILLIAM J. BAUER, Circuit Judge

JOEL M. FLAUM, Circuit Judge

MICHAEL S. KANNE, Circuit Judge

No. 08-2886

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

JULIO ORTEGA-VARGAS,

Defendant-Appellant.

Appeal from the United States District

Court for the Eastern District

of Wisconsin.

No. 2:07-cr-00264-CNC-1

Charles N. Clevert, Jr., 

 Judge.

O R D E R

Julio Ortega-Vargas was convicted of illegally reentering the United States after

being deported subsequent to committing an aggravated felony, in violation of 8 U.S.C.

§§ 1326(a) and (b)(2), and sentenced to 53 months’ imprisonment. He appeals his sentence,

which we affirm. 

Ortega-Vargas, a Mexican citizen, illegally entered the United States in 1988 as a teenager.

In 1993, he was convicted of battery for severely beating his girlfriend. He later beat the same

woman, violating a court order to avoid contact with her. Also in 1993, he was fined for

resisting or obstructing an officer. In 1998, Ortega-Vargas was convicted of disorderly conduct

and sentenced to 90 days in jail. That same year, he was convicted on three counts of

NONPRECEDENTIAL DISPOSITION

 To be cited only in accordance with Fed. R. App. P. 32.1
No. 08-2886 Page 2

It appears that Ortega-Vargas may have provided his real name when he was booked 1

at the police station. 

manufacturing and delivering cocaine. An immigration judge ordered Ortega-Vargas

removed from the United States in 1999 because of his drug trafficking convictions. He was

removed to Mexico in 2000. 

In 2002, Ortega-Vargas illegally reentered the United States. He was arrested in November

2003 in connection with a controlled narcotics purchase and identified himself as Gabriel S.

Cucique, giving a false date of birth as well. In May 2004, he was convicted in a Wisconsin 1

state court of possession with intent to deliver cocaine and marijuana; he was sentenced to four

years’ imprisonment.

The Bureau of Immigration and Customs Enforcement (ICE) knew of Ortega-Vargas’

identity and location by 2004 at the latest, but for some reason did not notify the United States

Attorney’s Office of his return to the United States until August 2007. In October 2007,

Ortega-Vargas was indicted on a single count of being found in the United States in violation

of 8 U.S.C. § 1326. He eventually pleaded guilty. 

Ortega-Vargas made two main arguments at his sentencing hearing that also form the

bases for this appeal. First, he claimed that if the government had not waited so long to

prosecute him, he could have requested, and may have received, a federal sentence that ran

concurrently with his ongoing state sentence, which had concluded by the time he was

sentenced in his federal case. Ortega-Vargas argued that he should receive a reduced sentence

because of this lost opportunity. His second argument was that the district court should

consider the disparity between sentencing in districts with and without so-called fast-track

programs for illegal reentry defendants who quickly plead guilty and waive certain rights

(Wisconsin does not have a fast-track program). After briefing and a hearing, the district court

rejected both arguments for a reduced sentence. 

On appeal, Ortega-Vargas acknowledges that we review a district court’s sentence for

reasonableness. United States v. Vaughn, 433 F.3d 917, 924 (7th Cir. 2006). But he argues that

the district court misunderstood the law surrounding these two issues so that it did not realize

its options and the case must be remanded for a proper sentencing analysis. As to the lost

opportunity to seek a concurrent sentence, Ortega-Vargas argues that the district court was

wrong when it stated that if Ortega-Vargas had been charged when first discovered by ICE,

so that there was no prosecutorial delay, the Guidelines at that time “generally called for as

a matter of policy a consecutive sentence so there would be incremental punishment.” Read

in context, however, the district court was simply observing that Ortega-Vargas’ drug crimes
No. 08-2886 Page 3

Ortega-Vargas argues that the Guidelines’ offense level calculation takes into account 2

the prior convictions of an illegal reentry defendant, citing U.S.S.G. § 2L1.2. But § 2L1.2 only

considers the drug crimes that preceded Ortega-Vargas’ deportation, not the ones committed

after his return. Neither does U.S.S.G. § 5G1.3(b) apply because the most recent drug

convictions did not increase the offense level for the illegal reentry.

and reentry crime are not related so that they might naturally be punished concurrently. Its

very next sentence states: “This is not a case where your client’s drug offense . . . was part

and parcel of the re-entry case.” This is a reasonable observation. We have stated “that

every separate violation of law deserves a separate sanction, so that no violation shall

go unsanctioned.” United States v. Hill, 48 F.3d 228, 232 (7th Cir. 1995). It is true that the drug

convictions are completely independent of the illegal reentry conviction and while this does

2

not preclude a concurrent or partially concurrent sentence, see id. at 232-33, it was not

unreasonable to consider. 

The district court next observed that Ortega-Vargas was attempting to avoid detection by

using an alias in connection with his most recent drug case and “would, in effect, be given a

reward if he were to receive a concurrent sentence for the illegal re-entry.” Ortega-Vargas

sought the benefit of a reduced sentence on the basis that he lost the opportunity to request a

concurrent sentence when he was discovered too soon, but tried too late, for his liking. The

district court was not wrong to consider this when denying Ortega-Vargas’ request for a

reduced sentence. 

Finally, the court went on to state that “as a practical matter, given the background that

has been spread on the record and set forth in the presentence report, at least in this Court it’s

not likely that a concurrent sentence would have been imposed.” On this basis, the court

decided not to reduce Ortega-Vargas’ sentence based on the lost opportunity to request a

concurrent sentence that the district court likely would not have given anyway because of

Ortega-Vargas’ background. The district court considered Ortega-Vargas’ argument and did

not indicate that it was precluded from reducing his sentence based on prosecutorial delay,

but it ruled on the merits to deny a reduction in this case.

Ortega-Vargas’ second argument is that the district court falsely believed it was prohibited

from considering the fast-track disparity because Ortega-Vargas had a prior battery conviction,

which the government characterized as a “crime of violence” that might prevent OrtegaVargas from receiving a fast-track disposition even in some districts that utilize fast-track

programs. Ortega-Vargas claims that his battery conviction is not a “crime of violence” as that

term is relevant to fast-track programs and that, even if it was, it would not preclude him from

receiving a fast-track disposition. We need not resolve this argument because the record does

not indicate that the district court felt prohibited from reducing Ortega-Vargas’ sentence to
No. 08-2886 Page 4

The government reminded the district court that Ortega-Vargas’ battery conviction 3

was actually a misdemeanor, to which the court responded: “Yes. It was a misdemeanor, but

it certainly was a case where the defendant kicked a woman in the face and knocked out her

teeth. It’s a violent crime. And I can’t overlook the facts associated with that particular

offense.” 

account for this disparity. The court listened to and engaged Ortega-Vargas’ argument, but

ultimately ruled on the merits 

that the defendant in this case because of his criminal history and

because of the fact that he has a prior violent felony as well as 3

drug convictions, especially the one which landed him in jail

recently here in Wisconsin, does not warrant a four level

reduction in terms of the guidelines or in connection with any

sentence that might be imposed. And so I am rejecting your fast

track argument. 

Again, this does not demonstrate that the district court thought itself to be precluded from

considering the fast-track argument, only that it was not inclined to grant a further sentencing

reduction in this case because of Ortega-Vargas’ history. Because the district court rejected the

proposed reduction on the facts of this particular case and the history of this particular

defendant, we do not need to consider any effect Kimbrough v. United States, 552 U.S. 85 (2007),

may have had on United States v. Martinez-Martinez, 442 F.3d 539 (7th Cir. 2006) (district court

not unreasonable in refusing to reduce sentence based on fast-track disparity), or United States

v. Galicia-Cardenas, 443 F.3d 553 (7th Cir. 2006) (error to reduce sentence based on fast-track

disparity).

It is clear from the record that the district court considered Ortega-Vargas’ legal

arguments, but ultimately ruled on the merits of the case in front of it. The court simply found

that, because of his criminal history, Ortega-Vargas should not receive a further-reduced

sentence. Ortega-Vargas does not argue that the court lacked the authority to exercise its

discretion in this way. We AFFIRM.