In the

United States Court of Appeals

For the Seventh Circuit ____________________

No. 16-3872

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

JESUS SANCHEZ-LOPEZ,

Defendant-Appellant.

____________________

Appeal from the United States District Court for the

Western District of Wisconsin.

No. 3:16-cr-00061-wmc-1 — William M. Conley, Judge.

____________________

ARGUED APRIL 26, 2017 — DECIDED JUNE 2, 2017

____________________

Before WOOD, Chief Judge, and RIPPLE and SYKES, Circuit 

Judges.

PER CURIAM. Jesus Sanchez-Lopez pleaded guilty to unauthorized presence in the United States after removal, 

see 8 U.S.C. § 1326(a), and was sentenced to twenty-four 

months’ imprisonment—a term ninety days above the 

properly calculated guidelines range. Mr. Sanchez-Lopez

contends that the district court erred when, in an effort to deter future illegal reentry by Mr. Sanchez-Lopez, it deviated 
2 No. 16-3872

from the Guidelines and sentenced him to a lengthier term 

than the sentence he had served the last time he was convicted 

of the same offense. Because the district court thoroughly explained its reasons and acted well within its discretion, we affirm the sentence. 

I

BACKGROUND

Mr. Sanchez-Lopez came to the attention of immigration 

authorities after local police arrested him for retail theft at a 

Home Depot in June 2016. Mr. Sanchez-Lopez was indicted 

for illegally reentering the United States after removal, 

see 8 U.S.C. § 1326(a), and pleaded guilty shortly thereafter.

A probation officer compiled a report detailing 

Mr. Sanchez-Lopez’s long history of criminal activity in and 

removal from the United States. He first entered the country

without authorization and settled in Wisconsin in 1994. The 

majority of his convictions over the years were driving-related: four DUIs, one hit-and-run accident, and three charges 

of driving with a suspended license. His criminal history, 

however, also includes convictions for battery, sexually assaulting an eleven-year-old child, and criminal escape. 

Mr. Sanchez-Lopez first was removed in January 2010, but 

Border Patrol agents arrested him in Arizona only seven 

months later. Mr. Sanchez-Lopez was convicted of attempted 

reentry after removal, sentenced to eighteen months’ imprisonment, and removed for the second time in November 2011. 

Mr. Sanchez-Lopez told the probation officer that he had 

reentered the United States, despite the risk of criminal prosecution and removal, because his common-law wife suffered 
No. 16-3872 3

serious work-related injuries and needed care. Mr. SanchezLopez said that he returned to Wisconsin sometime in 2013 

but could not remember the date. His wife told the district 

court that he had returned in January 2014. If Mr. SanchezLopez returned to the United States after October 2013, his 

convictions for battery and sexual assault of a child fall outside the ten-year period factored into his criminal-history 

score. Taking a cautious approach, the probation officer excluded those convictions when calculating his criminal history category, but noted that the court might wish to consider 

those convictions nonetheless.

With respect to Mr. Sanchez-Lopez’s offense, the probation officer employed a base offense level of eight, see U.S.S.G. 

§ 2L1.2(a), and Mr. Sanchez-Lopez received a four-level upward adjustment because he had been removed after a conviction for a felony, see id. § 2L1.2(b)(1)(D). After a two-level 

decrease for acceptance of responsibility, id. § 3E1.1(a), 

Mr. Sanchez-Lopez’s total offense level was ten. When combined with Mr. Sanchez-Lopez’s criminal history category of 

IV, this yielded a guidelines range of fifteen to twenty-one 

months’ imprisonment. If the judge had believed that 

Mr. Sanchez-Lopez entered the country during or before October 2013—and his convictions for battery and sexual assault 

thus factored in to his criminal-history score—his guidelines 

range would have been twenty-one to twenty-seven months.

The district judge began the sentencing hearing by expressing misgivings about the appropriateness of a sentence 

within the guidelines range:

The difficulty that I’m having with that 

range is that the defendant has reentered after 
4 No. 16-3872

receiving a sentence of 18 months from the District Court in Arizona. I understand, to the defendant’s credit, that he reentered and has not 

offended, as far as we know, again. Hopefully 

that includes not drinking and not driving 

while drunk as well as no further battery offenses.

But I’m offsetting that against the fact that 

the defendant benefits by a favorable calculation ... in terms of his criminal history as well 

as, as I say, the fact that it would seem some 

graduated penalty is appropriate for reentry, 

notwithstanding the defendant’s representation 

that he did so solely to assist his girlfriend ... .[1]

The Government then requested that the court sentence 

Mr. Sanchez-Lopez to twenty-one months’ imprisonment, the 

top of the guidelines range, arguing that a graduated penalty

is appropriate given his prior conviction for the same offense. 

Mr. Sanchez-Lopez’s counsel made no specific sentencing recommendation to the court. Counsel pointed out, however,

that Mr. Sanchez-Lopez had not been convicted of any new 

crimes since returning to the country (the retail theft charges 

having been dropped after he was picked up by immigration 

authorities) and urged the court to consider that his wife’s illness prompted his return.

After a short allocution by Mr. Sanchez-Lopez, the court

explained the rationale behind its decision to impose a 

twenty-four-month sentence. The court said it wanted to give 

Mr. Sanchez-Lopez some credit for having cared for his wife 

 1 R.21 at 4–5.
No. 16-3872 5

after returning to the United States and for not having “engaged in at least serious criminal conduct.”2 But, the court explained, Mr. Sanchez-Lopez’s inability to control himself 

while drinking made him a danger to society, and, according 

to the court, his “noble reason for returning” was offset by the 

seriousness of having reentered the country after twice being 

removed.3 The court also considered Mr. Sanchez-Lopez’s 

“very lengthy criminal record,” including his convictions for 

battery and sexual assault of a child that, because of their age, 

were excluded from the guidelines calculation.4 It then elaborated on its reason for deviating ninety days above the guidelines imprisonment range:

As previously noted, the present offense is 

the defendant’s second criminal conviction for 

illegal reentry after deportation. And having 

been sentenced to 18 months the first time, the 

Court is concerned about sending a message if 

not to those who reenter this country for lots of 

economic and other hardship reasons, at least 

sending a message to this defendant that he 

simply has to make a life in Mexico, notwithstanding whatever pulls there may be for him to 

attempt to return again to this country.

Taking into consideration the nature of the 

offense as well as the defendant’s personal history and characteristics, I am persuaded that a 

custodial sentence slightly above the guideline 

 2 Id. at 11.

3 Id.

4 Id. at 12.
6 No. 16-3872

range is reasonable and no greater than necessary to hold the defendant accountable, protect 

the community, provide the defendant the opportunity for rehabilitative programs and 

achieve parity with the sentences of similarlysituated offenders.[5]

 

II

DISCUSSION

Mr. Sanchez-Lopez challenges the district court’s ninetyday variance above his guidelines imprisonment range. Rather than attacking the sentence as substantively unreasonable, he argues that the court erred by taking into account his 

previous § 1326(a) sentence because “there is no recognized 

sentencing factor that a person must serve a higher sentence 

for a later offense ... for no other reason than that it took place 

afterwards.”6 Mr. Sanchez-Lopez contends that the court

failed to make an individualized assessment of the circumstances of his crime, but instead “treated the notion of incremental punishment as a general policy matter with scant regard for whether it was appropriate in this case.”7

We cannot accept this contention. Right from the start the 

district judge told Mr. Sanchez-Lopez what troubled him 

about the guidelines range, then handled the hearing succinctly, crisply, and carefully. The court thoughtfully considered Mr. Sanchez-Lopez’s personal characteristics, including 

 5 Id. at 14–15.

6 Appellant’s Br. at 6–7.

7 Id. at 11.
No. 16-3872 7

the nature of his previous convictions, the fact that he had not 

committed “serious offenses” since reentering, his reason for 

returning to Wisconsin, and the danger posed to society by 

his many arrests for drunk driving. But the court honed in on 

one particular concern in fashioning an appropriate sentence—the need to deter Mr. Sanchez-Lopez from continuing 

to enter the country illegally—and that decision was entirely 

proper given that 18 U.S.C. § 3553(a)(2)(B) specifically instructs sentencing courts to consider the need “to afford adequate deterrence to criminal conduct.” See United States v. Perez-Molina, 627 F.3d 1049, 1050–51 (7th Cir. 2010) (affirming 

sentence more than double the guidelines range that was imposed based on “the particular need to deter [the defendant] 

from further reentry”); United States v. Huffstatler, 571 F.3d 

620, 622, 624 (7th Cir. 2009) (rejecting reasonableness challenge to sentence substantially above guidelines range where 

district judge cited fact that previous sentences had not deterred defendant and need to protect society from future serious crimes). The district court acted well within its discretion 

in concluding that Mr. Sanchez-Lopez could best be deterred 

by serving a longer sentence than he received the last time he 

committed the same offense.8

 8 Furthermore, there is no presumption that an above-guidelines sentence 

is unreasonable, as long as the increase rests on factors particularized to 

the individual defendant. See United States v. Hallahan, 756 F.3d 962, 982 

(7th Cir. 2014); see also United States v. McKinney, 543 F.3d 911, 913–914 

(7th Cir. 2008) (affirming above-guidelines sentence where judge found 

explicitly that lower sentence would not provide adequate deterrence or 

sufficient punishment). The court was not required to specifically use the 

word deterrence, since it said more than enough to explain its reasoning. 
8 No. 16-3872

Mr. Sanchez-Lopez also contends that the district court 

“simply ignore[d] the fact that the defendant had not committed a serious crime in the past decade.”9 That assertion is incorrect; the court stated specifically that “the only offset” to 

Mr. Sanchez-Lopez’s long criminal history “is that he has not 

apparently committed a major crime since he returned” most 

recently.10 More importantly, however, Mr. Sanchez-Lopez

incurred three convictions for driving with a suspended license, his fourth DUI, and his previous illegal reentry conviction within ten years of this offense. We consider these “serious” crimes. 

Mr. Sanchez-Lopez makes one additional argument, but it 

is not supported by the record. At sentencing, defense counsel 

asserted that Mr. Sanchez-Lopez’s sentence should not exceed 

his previous term because, according to counsel, the guidelines ranges for § 1326(a) crimes had decreased in recent years 

and “it’s probably likely that Mr. Sanchez-Lopez received a 

guideline sentence in Arizona.”11 Mr. Sanchez-Lopez now argues that the district court erred by failing to consider his argument that, under the current Guidelines, his 2010 sentence 

would have been lower, “thereby setting a lower baseline for 

any comparative sentence.”12

The plea agreement from Mr. Sanchez-Lopez’s 2010 conviction—which is publicly available—shows this assertion to 

be incorrect. Mr. Sanchez-Lopez entered into a “fast track” 

plea agreement pursuant to U.S.S.G. § 5K3.1, under which he 

 9 Appellant’s Br. at 10. 

10 R.21 at 7.

11 Id. at 7–8.

12 Appellant’s Br. at 7.
No. 16-3872 9

benefited from a four-level reduction in his offense level.13

Based on his criminal-history category of V (the battery and 

child sexual assault convictions were included at that time), 

the plea agreement bound the district court to an eighteenmonth term of imprisonment. See Fed. R. Crim. P. 11(c)(1)(C). 

In other words, Mr. Sanchez-Lopez did not receive a guidelines sentence in 2010, as counsel contends, but instead took 

advantage of a substantial downward variance. He also benefited in the present case from the fact that the amendments 

to the 2016 Guidelines had not yet taken effect. Under those 

amendments, Mr. Sanchez-Lopez would have received a 

four-level increase for his previous § 1326(a) conviction, see 

U.S.S.G. § 2L1.2(b)(1)(A), which would have raised his guidelines range to twenty-seven to thirty-three months—even 

with the “favorable calculation”14 of his criminal-history 

score. 

CONCLUSION

The judgment of the district court is affirmed.

AFFIRMED

 13 United States v. Sanchez-Lopez, No. 4:10-cr-02209-RCC-JCG (D. Ariz Oct. 

26, 2010) (Plea Agreement).

14 R.21 at 4.