# United States Court of Appeals

For the Seventh Circuit Chicago, Illinois 60604

Argued March 3 , 201 5 Decided March 11 , 2015

Before

RICHARD A. POSNER , Circuit Judge

MICHAEL S. KANNE , Circuit Judge

JOHN DANIEL TINDER , Circuit Judge

No. 14

- 2456

UNITED STATES OF AMERICA, Plaintiff

- Appellee ,

v

.

A GUSTIN RODRIGUEZ

- SÁNCHEZ

, Defendant

- Appellant

. Appeal from the United States District Court for the Eastern District of Wisconsin

.

No. 10

- CR

- 262

C.N. Clevert, Jr. , Judge

.

O R D E R
Agustin Rodriguez

- Sánchez, a Mexican citizen, pleaded guilty to unlawfully possessing a firearm as an illegal alien, 18 U.S.C. § 922(g)(5)(A). He was sentenced to time served plus three years’ supervised release. After he committed three Grade C violations , however, the district court revoked his supervised release and imposed an above

- guidelines sentence of 18 months’ imprisonment. See 18 U.S.C. § 3583(e)(3). Rodriguez

- Sánchez appeals, arguing that the court did not adequately explain its reason for senten cing him above the guidelines. Because the court’s explanation was sufficient, we affirm. NONPRECEDENTIAL DISPOSITION To be cited only in accordance with Fed. R. App. P. 32.1No. 14

- 2456 Page 2

Milwaukee police learned from a confidential informant that Rodriguez

- S á nchez, an illegal immigrant, kept a sawed

- off shotgun at his home. After obtaining a state search warrant, the police recovered a 12

- gauge shotgun and a box of cartridges. Rodriguez

- Sánchez was charged with possessing a firearm as an illegal alien, 18 U.S.C. § 922(g)(5)(A), and possessing a firearm that was not registered to him, 26 U.S.C. § 58 61(d).

By the time Rodriguez

- Sánchez was arrested for those offenses in November 2010, the Department of Homeland Security already had discovered his illegal status (through an earlier arrest) and had scheduled a court date for removal proceedings. So
t he government and Rodriguez

- S á nchez negotiated a plea agreement designed to expedite his removal from the United States. The parties asked to proceed without a presentence investigation report. Rodriguez

- Sánchez agreed to plead guilty to the § 922(g) charg e and to be removed from the country following removal proceedings. In exchange the government agreed to dismiss the registration charge. The parties further agreed to ask the court to impose a sentence of time served (about 6 months)

— well below his guidel ines range of 21 to 27 months

— followed by 3 years’ supervised release. The district court accepted Rodriguez

- Sánchez ’s plea and the parties’ sentencing recommendation and sentenced him to time served.

But Rodriguez

- Sánchez did not leave the country as exp ected. Following sentencing in June 2011, Rodri g uez

- Sánchez immediately began serving his term of supervised release but promptly was turned over to the custody of the U.S. Immigration and Customs Enforcement. For reasons unknown to the parties (and otherw ise unreflected in the record), ICE allowed Rodri g uez

- Sánchez to post bond a couple months later. A probation officer conducted an unscheduled home visit i n November 2012, and could not locate Rodriguez

- Sánchez . The officer told Rodri g uez

Sánchez ’s father, at whose house he resided, to tell his son to report to the probation office the next day. Rodri g uez

- Sánchez did not do so, making that missed appointment his fourth.

Rodriguez

- Sánchez ’s whereabouts went unknown for the next year and a half, until he wa s arrested in Grand Forks, North Dakota, i n April 2014. After the arrest, Rodriguez

- Sánchez was transferred to the Eastern District of Wisconsin, where he faced charges for three Grade C violations of his supervised release: failing to report (four times) to the probation office and absconding; twice failing to submit monthly supervision reports; and a citation for marijuana possession.

At his supervised release revocation hearing, the government and Rodriguez

Sánchez disputed whether the district judge should impose a prison sentence within orNo. 14

- 2456 Page 3

above the guidelines recommendation. The guidelines recommended a term of 4 to 10 months impris onment based on Rodriguez

- Sánchez ’s Grace C violations and criminal history category II. See U.S.S.G. § 7B1.4(a). The government asked for the 2

- year statutory maximum sentence, highlighting an ongoing pattern of involvement with firearms (he had a prior f irearms offense and was involved in a shooting while on supervised release), the need to deter him from committing future crimes because he continues to engage in criminal conduct, and the seriousness o f his flight from authorities. The government pointed to U.S.S.G. § 7B1.4 application note 4, which suggests that an above

- guidelines sentence may be warran ted in resentencing a defendant like Rodriguez

- Sánchez who initial ly received a downward variance. Rodri g uez

- Sánchez ’s lawyer, in seeking a within

- guideli nes sentence, characterized the defendant’s behavior while on supervised release as insubstantial, noting that he had not engaged i n any serious criminal activity and that avoiding removal a second time was unlikely

.

The district court rejected both part ies’ sentencing recommendations and sentenced Rodriguez

- Sánchez to 18 months’ imprisonment, an above

- guidelines sentence that still was below the statutory maximum. The judge characterized Rodri g uez

- Sánchez ’s initial sentence of time served as a “cream puf f” sentence, and stressed that he “got an incredible, almost unbelievable break, and in the wake of that break it is difficult to follow a suggestion that [the defendant] be handled with kid gloves.” And despite the court’s expectation that the original se ntence would facilitate the defendant’s swift removal from this country, Rodriguez

- Sánchez not only stayed but absconded. Lastly, the judge recounted Rodriguez

- Sánchez ’s history involving violence, weapons, and drugs, the need to protect the public, and duty to deter others from committing similar violations.

On appeal Rodri g uez

- Sánchez argues that the district court did not sufficiently explain why it sentenced him eight months beyond the high end of the guidelines range. The sentence, in his view, was imposed only to compensate for the lenient sentence (merely time served) set at his initial sentencing, instead of being based on the factors set forth in 18 U.S.C. § 3553(a). Considering each of the § 3553(a) factors, Rodriguez

- Sánchez insists, is “something the district court did not do.”

But the court said enough. As required by 18 U.S.C. § 3583(e), the district court discussed several of the § 3553(a) factors. See United States v. Carter, 408 F.3d 852, 854 (7th Cir. 2005). We have repeatedly stated that the court need not discuss each factor in checklist form. See, e.g. , United States v. Pollock, 757 F.3d 582, 590

– 91 (7th Cir. 2014); United States v. Washington, 73 9 F.3d 1080, 1081 (7th Cir. 2014); United States v. Hodge, 729 F.3d 717, 721 (7th Cir. 2013). And though the discussion was brief, it was adequate toNo. 14

- 2456 Page 4

justify the upward variance. See Gall v. United States, 552 U.S. 38, 46

– 47 (2007); United States v. Snyder
, 635 F.3d 956, 960

– 61 (7th Cir. 2011). The court explained that Rodriguez

- Sánchez ’s absconding was particularly egregious, given its intention that the earlier lenient sentence of time served would expedite his removal. See 18 U.S.C. § 3553(a)(1). The cou rt also noted that the sentence was necessary to protect the public in light of the defendant’s history involving violence, weapons, and drugs, see id. § 3553(a)(1), (a)(2)(C), and to deter others from committing similar violations of supervised release, s ee id. § 3553(a)(2)(B). And the court considered the kind of sentences available when it explained why it reject ed Rodriguez

- Sánchez ’s request for a guidelines sentence and the government’s request for the statutory maximum. See id. at § 3553(a)(3), (a)(4)

. Moreover, the commentary to policy statement U.S.S.G. § 7B1.4 , which sets forth the prison range applicable upon revocation in the guidelines, suggests that an above

- guidelines sentence may be warranted when the original sentence resulted from a downwa rd variance. U.S.S.G. § 7B1.4 app. n.4; see United States v. Clay, 752 F.3d 1106, 1109 (7th Cir. 2014); United States v. Thornhill, 759 F.3d 299, 313 n.14 (3d Cir. 2014); United States v. Hergott, 562 F.3d 968, 970 (8th Cir. 2009); United States v. Verkhog lyad, 516 F.3d 122, 129

– 30 (2d Cir. 2008); see also 18 U.S.C. § 3583(d)(3) (directing district court to impose term of reimprisonment consistent with policy statement s ). Although the district court did not refer to this policy statement when explaining Rodriguez

Sánchez ’s sentence, its many references to the defendant’s initial lenient sentence echo § 7B1.4’s rationale.

AFFIRMED.