In the

United States Court of Appeals

For the Seventh Circuit ____________

No. 04-2986

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

ANGEL LECHUGA-PONCE,

Defendant-Appellant.

____________

Appeal from the United States District Court

for the Eastern District of Wisconsin.

No. 03 CR 215—William C. Griesbach, Judge.

____________

ARGUED JANUARY 19, 2005—DECIDED MAY 17, 2005

____________

Before CUDAHY, MANION, and EVANS, Circuit Judges.

MANION, Circuit Judge. On February 27, 2004,

Angel Lechuga-Ponce pleaded guilty to illegal reentry into

this country after deportation. The district court sentenced

Lechuga-Ponce to 70 months’ imprisonment. On appeal

Lechuga-Ponce challenges only his sentence. We order a

limited remand.

I.

On December 18, 1997, Angel Lechuga-Ponce was convicted of aggravated assault in connection with drunk driv-
2 No. 04-2986

ing in Hall County, Georgia. Two years later, LechugaPonce, a citizen of Mexico, was deported to Mexico. At some

point, however, Lechuga-Ponce reentered the United States

without official permission. While in Wisconsin, he was

arrested and convicted on March 7, 2003, of felony drunk

driving by a Wisconsin state court and sentenced to three

years’ imprisonment.

While in prison, officials with the Bureau of Immigration

and Customs Enforcement “found” Lechuga-Ponce, and he

was indicted by a grand jury for illegal reentry after deportation for an aggravated felony. 8 U.S.C. § 1326(a) and (b)(2).

Lechuga-Ponce pleaded guilty pursuant to a plea agreement. In the plea agreement and at the change of plea

hearing, he admitted to the 1997 Georgia conviction.

At a sentencing hearing, the presentence report recommended a sentencing range of 77-96 months based on a

sentencing enhancement of 16 levels because the underlying

felony was a crime of violence. See U.S.S.G. § 2L1.2(b)(1)(A)(ii).

Lechuga-Ponce moved for, and received, a downward departure because he argued that the sentence overstated the

severity of his crime. The district court ultimately sentenced

Lechuga-Ponce to 70 months’ imprisonment. This appeal

followed.

II.

Lechuga-Ponce does not challenge his conviction, only his

sentence. Much of Lechuga-Ponce’s argument relates to the

enhancement of his sentence due to his 1997 Georgia conviction being classified as a crime of violence. See id. Briefs

were filed in this case after the Supreme Court’s decision in

Blakely v. Washington, 542 U.S. ___, 124 S. Ct. 2531 (2004),

and prior to the Court’s decision in United States v. Booker,

___ U.S. ___ , 125 S. Ct. 738 (2005). In his brief, Lechuga-
No. 04-2986 3

1 We note that oral argument in this case was held shortly after

Booker was decided and counsel for Lechuga-Ponce conceded that

much of his argument was mooted by the Court’s decision in that

case.

Ponce argues that the enhancement was unconstitutional

because the fact of his prior conviction was not proven

beyond a reasonable doubt.1

This argument is flawed in two key respects. First,

Lechuga-Ponce’s prior conviction was, in effect, proven

beyond a reasonable doubt—in his plea agreement and at

the change of plea hearing, Lechuga-Ponce admitted the

prior conviction. See Blakely, 124 S. Ct. at 2537, quoted in

Booker, 125 S. Ct. at 749 (“the ‘statutory maximum’ for

Apprendi purposes is the maximum sentence a judge may

impose solely on the basis of the facts reflected in the jury verdict

or admitted by the defendant.”) (emphasis in original). Second,

even assuming Lechuga-Ponce had not admitted to the 1997

conviction, the fact of a prior conviction need not be proven

beyond a reasonable doubt. Almendarez-Torres v. United

States, 523 U.S. 224, 243 (1998). Nothing in the Supreme

Court’s recent sentencing decisions suggests otherwise. In

fact, quite the contrary—both Booker and Blakely reiterate the

Court’s earlier holdings that the fact of a prior conviction

need not be proven beyond a reasonable doubt. Booker, 125

S. Ct. At 756 (“Any fact (other than a prior conviction) which

is necessary to support a sentence exceeding the maximum

authorized by the facts established by a plea of guilty or a

jury verdict must be admitted by the defendant or proved to

a jury beyond a reasonable doubt.”) (emphasis added);

Blakely, 124 S. Ct. at 2536 (quoting Apprendi v. New Jersey, 530

U.S. 466, 490 (2000) (“Other than the fact of a prior conviction,

any fact that increases the penalty for a crime beyond the

prescribed statutory maximum must be submitted to a jury,
4 No. 04-2986

and proved beyond a reasonable doubt.”) (emphasis

added); see also United States v. Rosas, ___ F.3d ___ , 2005 WL

674846, at *3 (7th Cir. Mar. 24, 2005) (per curiam). But see

Shepard v. United States, ___ U.S. ___, 125 S. Ct. 1254, 1264

(2005) (Thomas, J., concurring) .

Lechuga-Ponce’s equal protection argument has been

overtaken by subsequent events. His argument on this point

envisioned an outcome to Booker different than that reached

by the Court. Lechuga-Ponce anticipated that a defendant,

such as he, who was eligible only for criminal history

enhancements would be subject to mandatory enhancements while a defendant who was eligible for enhancements

because of certain facts concerning his crime would be

subject to discretionary enhancements. Lechuga-Ponce thus

expected that some enhancements would be mandatory,

while others would be discretionary—an equal protection

violation in Lechuga-Ponce’s view. But that is not what

happened. The Supreme Court held that the guidelines, in

their entirety, were advisory.

The fact that the sentencing guidelines are now advisory

does, however, entitle Lechuga-Ponce to a limited remand.

This court has recently held that a defendant is entitled to a

limited remand where a district court sentenced a defendant

under the guidelines and where this court cannot be assured

that the district court would have arrived at that same

sentence if it had treated the guidelines as advisory. United

States v. Castillo, Nos. 02-3584 & 02-4344, slip op. at 31 (7th

Cir. May 3, 2005) (quoting United States v. White, No. 03-

2875, slip op. at 13 (7th Cir. May 3, 2005) (“ ‘[M]ere mandatory application of the Guidelines—the district court’s belief

that it was required to impose a Guidelines sentence’ . . .

constitutes Booker error.”)); United States v. Paladino, 401 F.3d

471, 483-84 (7th Cir. 2005). This limited remand is to take

place even where, as here, the district court did not engage
No. 04-2986 5

in any improper fact-finding. See Castillo, slip op. at 31

(noting that defendant’s “sentence relies solely upon facts

admitted by him.”).

Lechuga-Ponce’s final argument is that the district court

erred when it failed to recognize that when sentencing him

it had the discretion to adjust his sentence downward for

the fourteen months he was in state custody from the time

he was found by immigration authorities (May 2003) until

he was sentenced (July 2004). Lechuga-Ponce relies principally on the Fifth Circuit’s decision in United States v.

Barrera-Saucedo, 385 F.3d 533 (5th Cir. 2004). In that case the

court held that a district court has the discretion to depart

downward from a guideline range to account for time a

defendant spent in state custody until the defendant is

transferred to federal custody. Id. at 537. The idea is that

time spent in state custody is time that defendant could

otherwise spend in federal custody to serve his federal sentence concurrently with his state sentence. Other circuits

have reached the same conclusion. United States v. Los Santos,

283 F.3d 422, 428-29 (2d Cir. 2002); United States v. SanchezRodriguez, 161 F.3d 556, 564 (9th Cir. 1998) (en banc);

United States v. Saldana, 109 F.3d 100, 104-05 (1st Cir. 1997).

Lechuga-Ponce has a fundamental problem, however. He

is asking this court to find that the district court erred when

it held that it had no discretion to depart downward to

account for state custody, but Lechuga-Ponce never asked

the district court to make such a downward departure.

Without such a request, Lechuga-Ponce has waived his

argument. See United States v. Covarrubias, 65 F.3d 1362, 1372

(7th Cir. 1995).

III.

We direct a limited REMAND of Lechuga-Ponce’s sentence

so that the district court may determine whether it would
6 No. 04-2986

have sentenced him differently had it known that the sentencing guidelines are advisory rather than mandatory. We

retain appellate jurisdiction pending the outcome of this

remand.

A true Copy:

Teste:

 _____________________________

Clerk of the United States Court of 

Appeals for the Seventh Circuit 

USCA-02-C-0072—5-17-05