In the

United States Court of Appeals

For the Seventh Circuit

No. 10-2427

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

JOSE GUADALUPE PEREZ-MOLINA,

Defendant-Appellant.

Appeal from the United States District Court 

for the Central District of Illinois.

No. 09-40092-001—Joe Billy McDade, Judge.

ARGUED NOVEMBER 9, 2010—DECIDED DECEMBER 3, 2010

Before POSNER, TINDER, and HAMILTON, Circuit Judges.

HAMILTON, Circuit Judge. Jose Guadalupe Perez-Molina

pled guilty to unlawful entry into the United States

following removal, see 8 U.S.C. §§ 1326(a) and (b)(1), and

was sentenced to 34 months in prison, more than twice

as long as the high end of the applicable sentencing

guideline range. On appeal Perez-Molina argues that the

court did not adequately justify imposing a sentence

above the guideline range. We affirm. The district court
2 No. 10-2427

acted well within its discretion by imposing a higher

sentence to deter the defendant from continued reentry

and criminal activity in the United States.

Perez-Molina has a history of unlawfully entering the

United States and committing crimes while here. He

was first removed to Mexico in 2004 after being convicted in Arizona courts twice for assaulting his girlfriend and once for theft. Within a week of that removal,

border patrol agents arrested him for illegal entry and

he was removed a second time. Two days later he was

again arrested in Arizona. In June 2008 he was removed

a third time. In October 2009 Illinois police arrested PerezMolina for burglary. He was convicted in state court

of burglary.

This time around, Perez-Molina was also charged with

and pled guilty to the federal crime of unlawful reentry

after an earlier removal following conviction for a felony. The government recommended a 16-month sentence, the high end of the applicable guideline range.

At the first sentencing hearing, the court stated its intention to sentence Perez-Molina to 36 months, expressing

concern that Perez-Molina would be likely to re-enter

the United States and commit further crimes. The court

added, “I don’t think a sentence of 10 to 16 months

[the calculated range] where he has already served

almost half of that will accomplish anything.” Citing

U.S.S.G. § 4A1.3, the guidelines’ policy statement

regarding upward departures for criminal history, the

court explained that an above-range sentence was

needed to deter Perez-Molina from continuing to enter
No. 10-2427 3

the United States illegally and from committing further

crimes here. Perez-Molina’s counsel objected that he

had no notice of the court’s intent to sentence above

the range. The court agreed to continue the hearing until

the following week to give the defense a further opportunity to address the issue. (Because the sentencing

guidelines are no longer mandatory, the district court

was not required to grant the continuance, see Irizarry v.

United States, 553 U.S. 708, 715-16 (2008), but the continuance was a reasonable and fair-minded response to

the objection.)

At the second hearing, the court reduced the planned

sentence to 34 months and reaffirmed that a sentence

greater than 16 months was needed to “encourage him

to live a law-abiding life and not get arrested or brought

to the attention of the police.” The court made clear that

the sentence was “not a criminal history departure” (a

term defense counsel had used), but simply a sentence

above the guidelines range based on the court’s authority

under 18 U.S.C. § 3553(a).

On appeal Perez-Molina argues that the district

court abused its discretion by not adequately justifying

its above-guideline sentence. When sentencing above

an applicable guideline range, a district court must

“consider the extent of the deviation and ensure that the

justification is sufficiently compelling to support the

degree of variance.” Gall v. United States, 552 U.S. 38, 50

(2007); United States v. Miller, 601 F.3d 734, 739 (7th

Cir. 2010). Perez-Molina argues that the district court’s

justifications for his sentence cannot be distinguished
4 No. 10-2427

from those we deemed insufficient in United States v.

Castro-Juarez, 425 F.3d 430 (7th Cir. 2005), also involving

a defendant convicted of unlawful entry after removal

following a felony conviction. In Castro-Juarez, the district

court failed to single out any factor in 18 U.S.C. § 3553(a)

that warranted an above-guideline sentence other than

concerns about criminal history encompassed by its reference to § 4A1.3, which did not justify sentencing the

defendant to more than twice the high end of the guideline range. 425 F.3d at 436-37.

Although district courts may apply the departure

guidelines by way of analogy in analyzing the § 3553(a)

factors, they are not bound by the guidelines. See

United States v. Johnson, 612 F.3d 889, 896 (7th Cir. 2010). In

Castro-Juarez, we looked to § 4A1.3 at the parties’ urging,

but we emphasized that United States v. Booker, 543 U.S.

220 (2005), required the court to base its sentence on

an analysis of the § 3553(a) factors. 425 F.3d at 436. Just

as sentencing judges may impose below-guideline sentences when they regard the guideline range as too

severe, see Gall, 552 U.S. at 56; Kimbrough v. United States,

552 U.S. 85, 111 (2007), judges may sentence above the

guidelines if they consider the range too lenient. See

United States v. McIntyre, 531 F.3d 481, 484 (7th Cir. 2008)

(affirming above-guideline sentence); United States v.

King, 506 F.3d 532, 536-37 (7th Cir. 2007) (concluding

challenge to above-guideline sentence would be frivolous); United States v. Spano, 476 F.3d 476, 480-81 (7th

Cir. 2007) (affirming above-guideline sentence). Moreover, unlike Castro-Juarez, the district court here relied

on more than criminal history to justify its above-
No. 10-2427 5

guideline sentence. Besides noting Perez-Molina’s extensive history of illegal entry and crime, the court commented upon his personal characteristics, see

§ 3553(a)(1)—including his search for a better life, his

family’s residing in the United States, and his ability to

earn money in the United States—and the particular need

to deter him from further reentry, see § 3553(a)(2)(B), since

there was “nothing for him in Mexico.” By considering

the other circumstances drawing Perez-Molina to the

United States, along with the need to deter him from

reentry and crime, the district court here adequately

justified its above-guideline sentence.

AFFIRMED.

12-3-10