# United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

Argued January 30, 2013

Decided March 22, 2013

Before

DANIEL A. MANION, Circuit Judge

ILANA DIAMOND ROVNER, Circuit Judge

DIANE P. WOOD, Circuit Judge

No. 11

‐ 3470

UNITED STATES OF AMERICA,

Plaintiff–Appellee

,

v.

JORGE BACA

‐ BACA,

Defendant–Appellant

. Appeal from the United States District

Court for the Northern District of Illinois,

Eastern Division.

No. 11 CR 364

‐ 1

Charles R. Norgle, Judge

O R D E R

Jorge Baca

‐ Baca challenges his 57

‐ month prison sentence for being in the United

States without permission after removal. See 8 U.S.C. § 1326(a). He contends that the district

court mistakenly thought that it could not disagree, as a matter of discretion under 28 U.S.C.

§ 3553(a), with the 16

‐ level upward adjustment under U.S.S.G. § 2L1.2(b)(1)(A)(ii) and thus

refused to impose a sentence below the guidelines range. We agree and remand for

resentencing. NONPRECEDENTIAL DISPOSITION

To be cited only in accordance with

Fed. R. App. P. 32.1No. 11

‐ 3470 Page 2

Baca

‐ Baca, a Mexican citizen, was a child when he entered the United States with his

mother. According to his lawyer, his mother eventually became a naturalized United States

citizen but never sought “legal status” for her son. Baca

‐ Baca eventually became involved in

gang activity. At age 17 he was arrested for possessing a handgun and ammunition, and at

age 18 he was arrested again after he and two others beat up a 13

‐ year

‐ old. The victim

suffered internal bleeding, a head injury, and a broken jaw. These arrests resulted in 1996

convictions for unlawful use of a weapon and aggravated battery, for which Baca

‐ Baca

received concurrent, three

‐ year prison terms. He was paroled in June 1997 and removed

from the United States the following month, but within two years he had returned to the

United States illegally. In late 2000 he was arrested again after police acting on a tip found a

quantity of marijuana, a scoped rifle, and fraudulent identification documents in his

apartment. That arrest resulted in a 2001 conviction for possession of cannabis and another

three

‐ year sentence. He was paroled in August 2001 and removed to Mexico again days

later, but he was back before October 2002 when he obtained an Illinois driver’s license

using an alias. Baca

‐ Baca’s lawyer would not let him discuss his gang affiliation with the

probation officer, but in a document combining counsel’s objections to the presentence

report with her sentencing memorandum, she asserted that Baca

‐ Baca had “settled down

entirely” after his 2001 conviction, “disassociated from the gang,” married, had children,

and pursued work as a carpenter and tattoo artist.

In 2011 Baca

‐ Baca gave two tattoos to a 13

‐ year

‐ old girl who presented him with

identification showing her age as 21. The defendant recognized the ID to be fake and

accepted a gift card as payment but, according to defense counsel, Baca

‐ Baca “never would

have guessed” that the girl “was only thirteen .” The girl’s parents called police, which led to

a misdemeanor charge of applying a tattoo to a minor and the discovery that Baca

‐ Baca

previously had been deported. Baca

‐ Baca later pleaded guilty to violating § 1326(a).

The probation officer calculated a total offense level of 21: a base offense level of 8,

U.S.S.G. § 2L1.2(a), plus 16 levels because Baca

‐ Baca had previously been removed after

conviction for a felony crime of violence, id. § 2L1.2(b)(1)(A)(ii), minus 3 levels for

acceptance of responsibility, id. § 3E1.1. With a criminal history category of IV, Baca

‐ Baca’s

guidelines imprisonment range was 57 to 71 months.

In her combined sentencing memorandum and objections to the presentence report,

defense counsel argued, for several reasons, that Baca

‐ Baca should be sentenced below the

guidelines range to 24 months. One reason, counsel insisted, is that the 16

‐ level upward

adjustment is not only empirically flawed but also “disproportionate to any actual danger”

posed by Baca

‐ Baca because he purportedly threw only one punch. Citing a district court

opinion and a law review article, counsel asserted that the Sentencing Commission hadNo. 11

‐ 3470 Page 3

abandoned its “ ‘institutional role’ in setting standards” and that the adjustment “may have

been based on the suggestion of one commissioner.”

Baca

‐ Baca repeated his argument about the 16

‐ level increase at the sentencing

hearing. In response the prosecutor cited United States v. Aguilar

‐ Huerta

, 576 F.3d 365 (7th

Cir. 2009), in telling the district judge incorrectly that the “Seventh Circuit has addressed

that many times,” and has said that judges “should not delve into the history of the 16

‐ level

enhancement.” The district court responded to the government: “Well, I think your

understanding of the law is correct. And the Court is compelled to follow the law. It is so

ordered.” Defense counsel later tried to clarify the government’s reference to Aguilar

‐ Huerta

, emphasizing the actual holding that district courts are not obligated to, but may

, consider the

history of the guidelines and may sentence below the range based on a policy disagreement

with a particular provision, see id

., 576 F.3d at 367–68. The court did not respond but instead

gave permission to the prosecutor to “interrupt for one second” to discuss an unrelated typo

in the presentence report. The court did not return to the subject of Aguilar

‐ Huerta

.

The district court adopted the probation officer’s guidelines calculations and

sentenced Baca

‐ Baca at the low end of the range to 57 months. After acknowledging that the

sentencing guidelines “are not mandatory” and instead “serve as guides to the Court,” the

judge commented on different arguments in mitigation asserted by Baca

‐ Baca, though not

the defendant’s contention about the 16

‐ level upward adjustment.

The court concluded by noting the defendant’s proposal for a 24

‐ month prison term:

If this was a first reentry after deportation, I would be more inclined, given

the totality of the circumstances here, to accept [defense counsel’s] position

that 24 months might be an appropriate sentence. But on a second occurrence,

and with the background of the defendant, I feel the Guideline range is fair

and reasonable.

On appeal Baca

‐ Baca argues that the district court committed procedural error:

Because the court agreed with the prosecutor’s statement that courts “should not delve into

the history of the 16

‐ level enhancement,” Baca

‐ Baca maintains, the court mistakenly

considered itself to be precluded from evaluating his argument that the impact of the

adjustment should be mitigated by reducing his prison sentence. Baca

‐ Baca conceded at

argument that the 16

‐ level adjustment was correctly applied to his guidelines calculation,

recognizing that district courts must accurately calculate the guidelines range and consider

that range before imposing a sentence, see Pepper v. United States

, 131 S.Ct. 1229, 1241 (2011);

Gall v. United States

, 552 U.S. 38, 49, 51 (2007); United States v. Ortega

‐ Galvan

, 682 F.3d 558,

561–62 (7th Cir. 2012). His position at sentencing, he insisted, was that the district court

should exercise its discretion to impose a below

‐ guidelines sentence in light of theNo. 11

‐ 3470 Page 4

considerations in 18 U.S.C. § 3553(a). He asks for a full remand for resentencing. We review

de novo an argument that the district court treated the guidelines as mandatory. United

States v. Rollins

, 544 F.3d 820, 839 (7th Cir. 2008).

The government acknowledges that it misrepresented the holding of Aguilar

‐ Huerta

at sentencing but maintains that there was no procedural error because Baca

‐ Baca’s counsel

corrected the misstatement. Alternatively, the government argues, any error was harmless

because the district court clearly stated that it considered the guidelines to be advisory and

that it had the power to impose a lower sentence.

Although no one (not even Baca

‐ Baca) contends that the district court was unaware

that the guidelines are now advisory, the record suggests that the court improperly cabined

its discretion by stating that it could not consider Baca

‐ Baca’s specific argument for rejecting

the 16

‐ level adjustment and that it was “compelled to follow the law.” District courts are

free to reject any guideline for policy reasons, so long as the court provides reasonable

justification for the sentence imposed. United States v. Corner

, 598 F.3d 411, 415 (7th Cir.

2010) (en banc). Not every argument needs to be entertained—as we have explained

repeatedly, Baca

‐ Baca’s argument attacking the empirical soundness of U.S.S.G.

§ 2L1.2(b)(1)(A)(ii) is one that the district court could have simply disregarded if it saw no

reason to second

‐ guess the Sentencing Commission’s recommendation. See United States v.

Garthus

, 652 F.3d 715, 721 (7th Cir. 2011); United States v. Moreno

‐ Padilla

, 602 F.3d 802,

813–14 (7th Cir. 2010); Aguilar

‐ Huerta

, 576 F.3d at 367–68. But rather than plainly stating its

rejection of Baca

‐ Baca’s argument, the district court appears to have “felt that there was an

outside constraint on [its] discretion that [it] was not free to set aside,” despite its generic

statement about the advisory nature of the guidelines. See United States v. Schmitt

, 495 F.3d

860, 864–65 (7th Cir. 2007).

The government argues that remand is unnecessary because any error was harmless.

But to find an error harmless, this court must be “convinced the sentence would have been

the same absent the error.” United States v. Glosser

, 623 F.3d 413, 419 (7th Cir. 2010). The

district court, as the government points out, explained its decision not to issue a below

‐ guidelines sentence by referring to Baca

‐ Baca’s history of violent crime and repeated

unlawful entry into the United States, after considering mitigating factors under § 3553(a).

But this discussion bears on the reasonableness of the sentence overall, and proving that a

sentence would be the same absent a procedural error “is not the same thing as proving that

the sentence was reasonable.” United States v. Abbas

, 560 F.3d 660, 667 (7th Cir. 2009). We

require “firm assurances” that a district court’s error did not affect its choice of sentence,

United States v. Zahursky

, 580 F.3d 515, 528 (7th Cir. 2009), and even though the district court

here could have imposed a within

‐ guidelines sentence, that does not answer the criticalNo. 11

‐ 3470 Page 5

question whether it would impose a different sentence, knowing that it could ameliorate the

impact of the 16

‐ level adjustment by going below the advisory range.

The judgment of the district court is therefore VACATED and the case is

REMANDED for resentencing.