In the

United States Court of Appeals

For the Seventh Circuit

No. 08-4302

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

JUAN A. MORENO-PADILLA,

Defendant-Appellant.

Appeal from the United States District Court 

for the Northern District of Illinois, Eastern Division.

No. 08 CR 416-1—Rebecca R. Pallmeyer, Judge.

ARGUED SEPTEMBER 18, 2009—DECIDED APRIL 8, 2010

Before EASTERBROOK, Chief Judge, and WILLIAMS and

TINDER, Circuit Judges.

TINDER, Circuit Judge. Appellant Juan A. Moreno-Padilla

was indicted on one count of illegal reentry in violation

of 8 U.S.C. § 1326(a) & (b)(2). He pleaded guilty and was

sentenced to eighty months’ imprisonment followed by

three years of supervised release. Moreno-Padilla now

challenges his sentence. He disputes two findings

affecting the calculation of his criminal history and
2 No. 08-4302

the application of a 16-level enhancement pursuant to

U.S.S.G. § 2L1.2(b)(1)(A). We affirm.

I. Background

Juan A. Moreno-Padilla is a citizen of Mexico. He is not

a lawful permanent resident or citizen of the United

States, but he has lived in the United States essentially

continuously since his childhood. Federal officials found

Moreno-Padilla living in Chicago with his parents and

sister in 2004, and he was deported to Mexico. He

returned to the United States illegally in January 2008.

He returned to Illinois upon his reentry, and on March

14, 2008 pleaded guilty to an aggravated DUI offense.

He was sentenced to eighteen months in state prison.

Officers at the Stateville Correctional Facility became

suspicious about Moreno-Padilla’s immigration status

early on in his incarceration and, on March 18, 2008,

alerted federal immigration officials to his presence.

Immigration officials placed a detainer on him and took

him into custody upon his May 19, 2008 release from

Stateville. On May 23, 2008, the federal government filed

a criminal complaint in the district court against MorenoPadilla alleging illegal reentry, and on June 11, 2008, a

federal grand jury indicted him on one count of illegal

reentry in violation of 8 U.S.C. § 1326(a) & (b)(2).

After Moreno-Padilla’s guilty plea to the indictment’s

only charge on October 1, 2008, a Presentence Investigation

Report (“PSR”) was prepared using the 2008 Sentencing

Guidelines in effect at the time. The PSR assessed Moreno-
No. 08-4302 3

Padilla’s base offense level at 8, pursuant to U.S.S.G.

§ 2L1.2(a). Sixteen levels were added pursuant to U.S.S.G.

§ 2L1.2(b)(1)(A)(ii) because Moreno-Padilla had prior convictions that qualified as “crime[s] of violence.” Three

levels were subtracted in recognition of Moreno-Padilla’s

acceptance of responsibility and timely notification of his

intent to enter a plea, U.S.S.G. § 3E1.1(a) & (b), leaving

Moreno-Padilla with an offense level of 21.

The PSR’s computation of Moreno-Padilla’s criminal

history requires a more detailed discussion. MorenoPadilla was convicted of aggravated battery on April 17,

1991. He was sentenced to fifty-four months in prison

for that offense on May 21, 1991. In June 1991, while

imprisoned for the April 1991 offense, Moreno-Padilla

was convicted of another aggravated battery offense.

He received a sentence of fifty-one months for the

second 1991 conviction, set to run concurrently with his

previous sentence. Moreno-Padilla was released from

prison on January 24, 1992, and began a term of supervised parole. On March 28, 1992, while he was on parole,

Moreno-Padilla was arrested and charged with yet

another aggravated battery, this time in connection with

a shooting incident in Chicago. He was reimprisoned in

the Illinois Department of Corrections on September 4,

1992. He pleaded guilty to the March 1992 aggravated

battery on November 2, 1992, and was sentenced to thirtysix months’ imprisonment. He was released from prison

on June 4, 1993, resumed parole, and was released from

that supervision on June 5, 1994.

The parties agree that the June 1993 release date is

accurate as to the November 1992 conviction. Moreno-
4 No. 08-4302

Padilla insists that the June 1993 release date is accurate

only as to the November 1992 conviction. The government,

on the other hand, claims that because Moreno-Padilla

was on parole when he committed the March 1992 offense,

his September 1992 reimprisonment stemmed, at least in

part, from a revocation of his parole on the 1991 convictions. It goes on to assert that because Moreno-Padilla

was not released from confinement until June 1993, the

June 1993 release date is applicable to all three aggravated battery convictions. The release date applicable

to the 1991 convictions is particularly important in

light of U.S.S.G. § 4A1.2(e)(1), which restricts the reach

of the PSR’s criminal history calculation to convictions

imposed or incarcerations served within fifteen years of

a defendant’s commencement of the instant offense.

Moreno-Padilla’s instant offense, illegal reentry, was

commenced in January 2008 when he crossed the

border into the United States. A release date prior to

January 1993 for the 1991 convictions would thus render

them irrelevant to Moreno-Padilla’s criminal history

calculation.

The PSR concluded that the three 1991-92 convictions

all counted for criminal history purposes. It calculated

Moreno-Padilla’s criminal history as follows:

• 3 points for the first 1991 aggravated battery conviction, pursuant to U.S.S.G.

§ 4A1.2(k)(2)(B)(i);

• 3 points for the second 1991 aggravated battery conviction, pursuant to U.S.S.G.

§ 4A1.2(k)(2)(B)(i);
No. 08-4302 5

• 3 points for the 1992 aggravated battery conviction, pursuant to U.S.S.G. § 4A1.2(e)(1);

• 8 points for miscellaneous other offenses, including 3 for the 2008 DUI conviction, pursuant

to U.S.S.G. § 4A1.1(a) & (c);

• 3 points pursuant to U.S.S.G. § 4A1.1(d) & (e)

because Moreno-Padilla was serving a sentence

of imprisonment when he committed the instant offense.

The PSR determined that Moreno-Padilla had twenty

criminal history points, which easily placed him in the

highest criminal history category, category VI.

With a criminal history in category VI and an offense

level of 21, Moreno-Padilla faced a Guidelines sentence

range of 77-96 months. In a sentencing memorandum

filed prior to his sentencing hearing, Moreno-Padilla’s

counsel raised two objections to the PSR’s Guidelines

calculations. First, he argued that Moreno-Padilla

should have received four points rather than six for the

1991 convictions because the sentences were concurrent.

Second, he argued that the one point added under

U.S.S.G. § 4A1.1(e) amounted to impermissible doublecounting. Moreno-Padilla also requested that the district

court consider the 18 U.S.C. § 3553(a) factors and issue

him a sentence below the recommended Guidelines

range. Additionally, he objected to the 16-level crime-ofviolence enhancement because of its harshness.

At his sentencing hearing, Moreno-Padilla informed the

district court that he was dissatisfied with his counsel’s
6 No. 08-4302

sentencing arguments and requested new counsel. The

court declined to provide Moreno-Padilla with a new

attorney but continued the hearing to permit MorenoPadilla to file a pro se memorandum raising his desired

sentencing arguments. In that document, which was not

provided to the government until the morning of his

sentencing hearing, Moreno-Padilla asserted that the

PSR erred when it included six criminal history points

for his 1991 aggravated battery convictions. He claimed

that he “never had any parole hearing or revocation of

parole” in connection with the 1991 offenses, and, therefore, the proper release date for them was January 24,

1992, rendering them too stale to be included in his criminal history calculation. Unlike his attorney, who argued

that the 1991 convictions should be included in the criminal history calculation but contribute fewer than the PSRrecommended six points, Moreno-Padilla wanted them

completely removed from consideration. He also challenged the PSR’s inclusion of three points for his 1992

battery because he was released from prison on June 3,

1993, barely more than fifteen years before his June 11,

2008 indictment, and asked for a “downward departure”

because the addition of three criminal history points

pursuant to U.S.S.G. § 4A1.1(d) & (e) in his view overstated his criminal history.

At the continued sentencing hearing, Moreno-Padilla

and his counsel emphasized the parole revocation argument Moreno-Padilla made in his pro se memorandum.

Moreno-Padilla’s attorney averred that parole revocation

without a hearing amounts to a violation of due process.

He conceded that he had not had an opportunity to review
No. 08-4302 7

any Illinois Department of Corrections records to verify

his client’s assertion that no revocation proceeding was

conducted, but maintained that attribution of the late

1992 imprisonment time to Moreno-Padilla’s 1991 convictions could have resulted only from an “automatic” parole

revocation, that is, one imposed without the requisite

hearing to determine the propriety of revocation.

The district court engaged Moreno-Padilla’s counsel in

a colloquy about the new line of argument, but it ultimately relied on the PSR and concluded that the 1993

release date was applicable to all three 1991-92 convictions. The district court then noted Moreno-Padilla’s

unrelated and relatively inconsequential factual objections

to the PSR, rejected his other Guidelines arguments, and

adopted the PSR’s Guidelines calculations. The government asked for a within-Guidelines sentence, and MorenoPadilla was given the opportunity to raise his 18 U.S.C.

§ 3553(a) arguments. Neither he nor his counsel brought

up his “downward departure” request, though they

argued that the 16-level enhancement pursuant to

U.S.S.G. § 2L1.2(b)(1)(A) was too harsh.

While sentencing Moreno-Padilla, the district court noted

as mitigating factors the age of Moreno-Padilla’s prior

convictions, his substance abuse problems, his strong

family ties, his previous testimony against gang leaders,

and the negative impact that a lengthy sentence and

probable deportation would have on his aging parents

and his two daughters. However, it also noted MorenoPadilla’s twenty criminal history points, his lengthy and

continuous criminal history dating back to his teenage
8 No. 08-4302

years, the seriousness of some of his past convictions, his

tax delinquency, and his general lack of gainful employment. Balancing these factors, the district court concluded that it would impose a within-Guidelines sentence of eighty months, to be followed by three years of

supervised release. The district court also recommended

that Moreno-Padilla receive substance abuse treatment

and agreed to recommend that he be incarcerated near

his family in Chicago.

II. Discussion

Moreno-Padilla argues that he received an inappropriately lengthy sentence. He advances two alternative

theories in support of this argument. First, he argues that

the district court incorrectly included six points for the

two 1991 aggravated battery convictions in his criminal

history calculation. He maintains that his sentences for

those crimes ended with his January 24, 1992 release, more

than fifteen years before he committed the instant

offense, because his parole was never revoked and his

return to Illinois Department of Corrections custody in

September 1992 was solely related to his March 1992

offense. Second, he argues that the district court failed to

consider two meritorious arguments he made in favor of

a lower sentence. The first argument he claims the

district court neglected to consider was that the addition

of three criminal history points pursuant to U.S.S.G.

§ 4A1.1(d) & (e) resulted in an overstatement of his criminal history. He concedes that the addition of these points

was legally correct, but asserts that his argument was
No. 08-4302 9

meritorious nonetheless because “this was not the type

of case the Commission had in mind” when it enacted

U.S.S.G. § 4A1.1(d) & (e). Moreno-Padilla also contends

that the district court failed to consider his argument

that U.S.S.G. § 2L1.2(b)(1)(A)’s 16-level enhancement

was too harsh. He further faults it for failing to address

his “Kimbrough-type argument.” See Kimbrough v. United

States, 552 U.S. 85 (2007). We review each of MorenoPadilla’s arguments in turn.

A. Six Criminal History Points for 1991 Convictions 

Moreno-Padilla argues that the district court should

have omitted the two 1991 aggravated battery convictions from his criminal history calculation because his

imprisonment ended fifteen years before he committed

the present offense. He contends that his parole for the

1991 offenses was never revoked and that any time he

served between January 24, 1992 and his sentencing for

the March 1992 offense was exclusively related to the

1992 offense. The district court entertained MorenoPadilla’s eleventh-hour arguments on this point, rejected

them, and adopted the PSR’s calculation of his criminal

history. We review the district court’s interpretation and

application of the Sentencing Guidelines de novo and its

factual findings for clear error. United States v. Severson,

569 F.3d 683, 689 (7th Cir. 2009).

Under U.S.S.G. § 4A1.1(a), a criminal defendant is

assigned three criminal history points for each prior

sentence of imprisonment exceeding thirteen months. The

temporal reach of U.S.S.G. § 4A1.1(a) is limited to prior
10 No. 08-4302

sentences imposed or served within fifteen years of the

defendant’s commencement of the offense for which

he or she is presently being sentenced. See U.S.S.G.

§ 4A1.2(e)(1). If a defendant has served time for a parole

revocation, the date of last release from confinement is

the date that controls for the purposes of U.S.S.G.

§ 4A1.2(e)(1). See U.S.S.G. § 4A1.2(k)(2)(B)(i). If a defendant’s parole was not revoked, he could not have

served time for a parole revocation, and his date of last

release from confinement would be that associated

with the termination of his incarceration.

For Moreno-Padilla, such a finding would mean that

his confinement for the 1991 aggravated batteries ended

in January 1992—sixteen years before his present offense—

and that his 1991 convictions are beyond the reach

of U.S.S.G. § 4A1.1(a) and cannot contribute to his accumulation of criminal history points. That is the very

contention Moreno-Padilla makes.

Moreno-Padilla does not allege that the revocation

process he received was constitutionally deficient. (His

counsel’s argument at sentencing mentioned an abuse

of due process, and his appellate briefs contain a truncated

discussion of the parole revocation due process requirements formulated in Morrissey v. Brewer, 408 U.S. 471

(1972), but he is not substantively contesting the procedural adequacy of the Illinois parole revocation process.)

Instead, he is effectively challenging the reasonableness

of the district court’s finding that his parole on the 1991

convictions was not revoked. In short, he disputes

whether revocation took place at all in his case. We con-
No. 08-4302 11

sider this argument because it is one contesting the existence of a historical fact, not a collateral challenge to a

prior revocation proceeding. See United States v. Lalonde,

509 F.3d 750, 767 (6th Cir. 2007) (“[A] defendant in a

sentencing proceeding may not collaterally challenge

the use of prior convictions or parole revocations for

purposes of criminal history calculation unless the challenge is based upon an alleged violation of the right to

counsel.”); cf. United States v. Reed, 94 F.3d 341, 343-44 (7th

Cir. 1996) (entertaining defendant’s argument that his

probation was never revoked).

In Moreno-Padilla’s view, he should not have to prove

that his parole was not revoked. Instead, he asserts, the

government must carry the burden of demonstrating

that his parole was revoked. He primarily rests this

argument on an Eighth Circuit case, United States v.

Covington, 133 F.3d 639, 643 (8th Cir. 1998), in which the

defendant successfully argued that he should not be

considered a career offender because his PSR did not

indicate whether he had been imprisoned for a parole

revocation or for a new, nonviolent offense. The court

remanded Covington’s case for resentencing because

“[o]nce a defendant objects to a factual allegation in a

presentence report” and the court has chosen to make

a finding on the matter, “the government must introduce evidence sufficient to convince the Court by a preponderance of the evidence that the fact in question

exists.” Covington, 133 F.3d at 643 (quotations omitted).

We recognize that Covington is good law in the Eighth

Circuit, but in our circuit, the allocation of burdens is different. See Atchison, Topeka & Santa Fe Ry. Co. v. Peña, 44
12 No. 08-4302

F.3d 437, 443 (7th Cir. 1994) (en banc) (“Our duty is to

independently decide our own cases, which sometimes

results in disagreements with decisions of the other

circuits.”), aff’d sub nom. Bhd. of Locomotive Eng’rs v.

Atchison, Topeka & Santa Fe R.R. Co., 516 U.S. 152 (1996).

We have long held that district courts may rely on

information contained in a PSR so long as it is well-supported and appears reliable. See United States v. Heckel,

570 F.3d 791, 795 (7th Cir. 2009); United States v. Salinas,

365 F.3d 582, 587 (7th Cir. 2004); United States v. Mustread,

42 F.3d 1097, 1101-02 (7th Cir. 1994). And when a court

relies on a PSR, “it is the defendant’s task to show the

trial judge that the facts contained in the PSR are inaccurate.” Mustread, 42 F.3d at 1101-02. That is, he or she

must produce some evidence that “calls the reliability

or correctness of the alleged facts into question”; a “bare

denial” is not enough. Id. at 1102 (quotation omitted).

Only when a defendant’s objection creates real doubt as

to the reliability of the information in the PSR does the

government have the burden of independently demonstrating the accuracy of the information. See id. Of course,

there are some situations in which this general rule

does not apply, such as where the PSR itself contains

nothing but a “naked or unsupported charge,” id. (quotation omitted), or “omits crucial information, leaving

ambiguity on the face of that document about the nature

of a defendant’s state sentences,” United States v. McNeil,

573 F.3d 479, 483 (7th Cir. 2009). This is not one of those

cases, however, so it was Moreno-Padilla, not the government, who bore the burden of demonstrating the
No. 08-4302 13

inaccuracy of the PSR. Moreno-Padilla failed to carry

that burden, both here and before the district court.

It is true that the twenty-five-page PSR prepared for

Moreno-Padilla’s sentencing does not list a specific date

of parole revocation or details about any revocation

procedures, but there is no doubt that the district court

was warranted in relying on its consistent statements

that Moreno-Padilla was released from custody from

the 1991 and 1992 offenses on June 4, 1993. The PSR

attributed three criminal history points to each of MorenoPadilla’s 1991 battery convictions with a reference to

U.S.S.G. § 4A1.2(k)(2)(B)(i), unequivocally implying that

revocation occurred. It accompanied these points with

the explanation that “in reference to a revocation of

parole, the date of last release from incarceration on

such a sentence is used to compute criminal history

points. The defendant was last released from incarceration in the [first 1991] case on June 4, 1993; therefore,

3 points are added.” The PSR further stated that MorenoPadilla’s 1992 offense “led to his not being discharged

from parole [on the 1991 convictions] until June 5, 1994.”

It also stated multiple times that Moreno-Padilla was in

the custody of the Illinois Department of Corrections

beginning September 4, 1992, two months before he

pleaded guilty to the 1992 offense, a fact that he does not

contest and one from which the district court could

reasonably infer that he was serving time due to a parole

revocation as of the date of his return to the Illinois Department of Corrections. Moreover, the September 4, 1992

imprisonment was included as part and parcel of the

entries for the 1991 aggravated battery convictions, and
14 No. 08-4302

it was conspicuously absent from the entry for the 1992

conviction with which Moreno-Padilla asserts it was

connected.

In response to the PSR’s numerous indications that a

revocation occurred, Moreno-Padilla offered only his

unsupported recollection that he never received a parole

revocation hearing and undeveloped allegations that the

Illinois Department of Corrections provided erroneous

information to the probation officer who prepared the

PSR. We recognize that it can be difficult to prove a

negative, but Moreno-Padilla made little, if any, effort

to do so here. His claim that his parole was never

revoked amounts merely to a “bare denial” of the sort

dismissed in Mustread. By failing to point to something

more, such as documentary evidence, see Heckel, 570 F.3d

at 796, or an inherent contradiction in testimony used to

determine his offense level, see United States v. Acosta, 85

F.3d 275, 283 (7th Cir. 1996), Moreno-Padilla has failed to

“call[ ] the reliability or correctness of the alleged facts

into question,” Mustread, 42 F.3d at 1102 (quotation omitted).

Because Moreno-Padilla’s arguments amount merely to

“bare denials” of the PSR’s accuracy and fail to call into

question the PSR’s reliability, we cannot conclude that

the district court clearly erred in relying on the

PSR. We therefore hold that the six points were

properly included in Moreno-Padilla’s criminal history

calculation.
No. 08-4302 15

B. Failure to Consider Arguments

Moreno-Padilla next argues that the district court erred

by failing to consider two of his arguments for a lower

sentence. The first argument he alleges the district court

failed to consider is that he should have received a “downward departure” because the three criminal history

points he received pursuant to U.S.S.G. § 4A1.1 (d) & (e)

resulted in an overstatement of his criminal history.

He also alleges that it failed to consider his request for

a lower sentence in light of the harshness of U.S.S.G.

§ 2L1.2(b)(1)(A)(ii)’s 16-level “crime of violence” enhancement.

Our review of sentencing decisions proceeds in two

steps. See United States v. Jackson, 547 F.3d 786, 792 (7th Cir.

2008). First, we ensure that the district court did not

commit any “significant procedural error,” examples

of which include failing to calculate, or improperly calculating, the applicable Guidelines range; treating the

Guidelines as mandatory; or failing to consider the 18

U.S.C. § 3553(a) factors. Id.; see also Gall v. United States,

552 U.S. 38, 49-50 (2007) (explaining the procedures a

court must follow during sentencing). Once we are convinced that the sentencing judge followed correct procedure, we then consider the substantive reasonableness of

the sentence. Jackson, 547 F.3d at 792. We presume that

within-Guidelines sentences are reasonable, United States

v. Mykytiuk, 415 F.3d 606, 608 (7th Cir. 2005), and we

review sentences only for abuse of discretion, see United

States v. Turner, 569 F.3d 637, 640 (7th Cir. 2009).
16 No. 08-4302

1. U.S.S.G. § 4A1.1(d) & (e) and

Overstatement of Criminal History

Pursuant to U.S.S.G. § 4A1.1(d), a criminal defendant

receives two criminal history points if he or she “committed the instant offense while under any criminal justice

sentence, including . . . imprisonment.” Pursuant to

U.S.S.G. § 4A1.1(e), a sister provision, a defendant

receives an additional criminal history point if he or she

committed the instant offense while imprisoned on a

sentence longer than thirteen months and has already

received two points under U.S.S.G. § 4A1.1(d). Because

Moreno-Padilla was serving an eighteen-month sentence

in state prison when he was discovered by federal immigration officials, he received points pursuant to both

these provisions. He asserts that he was simply “found”

by immigration officials while he was in prison for a

different offense and did not affirmatively commit

illegal reentry while in prison. Once he entered the Illinois

prison system, he was no longer able to bring his illegal

presence in the United States to an end. Therefore, he

contends, the addition of these three criminal history

points overstated his criminal history and rendered his

sentence excessive. In not explicitly addressing this

18 U.S.C. § 3553(a) argument, Moreno-Padilla argues,

the district court erred.

Moreno-Padilla does not dispute that his illegal reentry

offense was technically within the broad scope of U.S.S.G.

§ 4A1.1(d) & (e), and for good reason. Every circuit that

has examined the issue has approached it that way. See

United States v. Sopon-Leon, 328 F. App’x 181, 182 (4th
No. 08-4302 17

Cir. 2009) (per curiam) (unpublished); United States v.

Hernandez-Noriega, 544 F.3d 1141, 1142-43 (10th Cir. 2008);

United States v. Coeur, 196 F.3d 1344, 1346 (11th Cir. 1999)

(per curiam); United States v. Santana-Castellano, 74 F.3d

593, 598 (5th Cir. 1996); cf. United States v. Cano-Rodriguez,

552 F.3d 637, 639 (7th Cir. 2009) (per curiam) (allowing

counsel to withdraw because “it would be frivolous

for [the defendant] to claim that the district court committed plain error by imposing the points [pursuant to

U.S.S.G. § 4A1.1(d)] especially since there is no evidence

that federal authorities learned about his immigration

status before his state imprisonment began”); United

States v. Alba-Esqueda, 457 F.3d 859, 860-61 (8th Cir. 2006)

(“The crime of reentry under § 1326 is an ongoing offense

that continues until a person is discovered by authorities.

Accordingly, Alba-Esqueda was engaged in ‘relevant

conduct’ the entire time he was in the United States until

he was discovered. Because some of this relevant conduct

occurred while Alba-Esqueda was in prison and on

probation, the district court correctly added the two

criminal history points pursuant to § 4A1.1(d).” (citation

omitted)); United States v. Figuereo, 404 F.3d 537, 540-41

(1st Cir. 2005) (concluding that the district court did not

plainly err in applying the § 4A1.1(d) enhancement to

a defendant who was found in the United States while

imprisoned).

Nor does he suggest that immigration officials were

aware of his illegal presence prior to his DUI incarceration and waited to charge him with illegal reentry so as

to assess him three extra criminal history points. Instead,
18 No. 08-4302

he asserts that a case like his, in which he was simply

“found” while in state custody, should not be treated the

same as one in which a defendant actively commits a

crime like assault while incarcerated. He directs our

attention to United States v. Galvan-Zermeno, 52 F. Supp. 2d

922, 924 (C.D. Ill. 1999), wherein the district judge

asserted that “[t]his sort of circumstance should be distinguished from cases where a person actively commits a

criminal act while imprisoned.” He also points to United

States v. Contreras-Hernandez, 277 F. Supp. 2d 952, 955 (E.D.

Wis. 2003), for essentially the same support. He argues

that these cases demonstrate that his argument, raised

only in a single paragraph in his pro se memorandum,

was sufficiently substantial to have warranted more

overt consideration by the district court. We disagree.

District courts are required to review the 18 U.S.C.

§ 3553(a) factors and provide a record for us to review,

but they are not required to comprehensively discuss

each of the factors. United States v. Villegas-Miranda, 579

F.3d 798, 801 (7th Cir. 2009). They must “consider the

factors listed in § 3553(a) and address explicitly any substantial arguments” defendants make. United States v.

Martinez, 520 F.3d 749, 753 (7th Cir. 2008); see also VillegasMiranda, 579 F.3d at 801 (noting that a sentencing court

must “address all of a defendant’s principal arguments

that are not so weak as to not merit discussion” (quotation omitted) (emphasis added)). Indeed, we have held

that “the sentencing judge can discuss the application

of the statutory factors to the defendant not in checklist

fashion but instead in the form of an adequate statement
No. 08-4302 19

of the judge’s reasons, consistent with section 3553(a),

for thinking the sentence that he has selected is indeed

appropriate for the particular defendant.” United States v.

Dean, 414 F.3d 725, 729 (7th Cir. 2005). To that end, there

is no requirement that a district court extensively address

non-principal arguments, or “stock arguments that sentencing courts see routinely,” including “how [a defendant’s] criminal history category over-represents the

seriousness of his prior conviction.” United States v.

Tahzib, 513 F.3d 692, 695 (7th Cir. 2008).

The court comported with these requirements despite

its failure to explicitly mention Moreno-Padilla’s “downward departure” argument. The concept of “departures”

has become obsolete in our post-Booker sentencing framework, so such arguments are now placed in the context

of the 18 U.S.C. § 3553(a) factors. Turner, 569 F.3d at

640; United States v. Miranda, 505 F.3d 785, 792 (7th Cir.

2007). Moreno-Padilla’s argument about the overstating

effects of U.S.S.G. § 4A1.1(d) & (e), buried in an eleventhhour memorandum and not raised by anyone at the

sentencing hearing, including Moreno-Padilla himself,

cannot fairly be considered a “principal” argument.

Indeed, this argument would become significant only if

Moreno-Padilla’s previous argument regarding his lack

of parole revocation were successful: the three criminal

history points from U.S.S.G. § 4A1.1(d) & (e) would only

place Moreno-Padilla in an overstated criminal history

category if the other six were not included in the calculation. Cf. United States v. Pulley, ___ F.3d ___, No. 08-

3363, 2010 WL 537574, at *5 n.3 (7th Cir. Feb. 17, 2010)
20 No. 08-4302

(noting that “there is no separate need to address the

defendant’s position within a particular history category

separately from the individualized assessment of the

defendant”). At worst, the improper inclusion of these

points or failure to consider any overstating effect they

have would be harmless error, see United States v. Abbas,

560 F.3d 660, 666-67 (7th Cir. 2009), for even they were

removed from the calculation of his criminal history

score the other seventeen criminal history points MorenoPadilla has amassed would still place him squarely

within criminal history category VI, see U.S. Sentencing

Guidelines Manual Ch. 5, pt. A, at 396 (2008) (indicating

that offenders with thirteen or more criminal history

points fall into Category VI).

Moreover, the record indicates that the district court

gave meaningful consideration to the various § 3553(a)

subsections implicated by this argument. The court acknowledged Moreno-Padilla’s argument that “the guideline sentence is unduly harsh in this case” and explained

that it too was “concerned with the length of the sentence” the Guidelines prescribed for Moreno-Padilla.

It explained that there “really isn’t much in his history

that militates against a sentence that’s fairly severe,” and

determined, after recognizing its discretion to deviate

from the Guidelines, that “a guideline sentence is appropriate for this defendant” “for all the reasons that the

guidelines themselves acknowledge and recognize.” The

district court was not required to spell out its assessment of each factor, particularly as to non-principal

arguments such as this one; it sufficiently demonstrated
No. 08-4302 21

its consideration of Moreno-Padilla’s concerns. A district

court is never required to accept a defendant’s arguments for a lower sentence, United States v. Filipiak, 466

F.3d 582, 583 (7th Cir. 2006), and the district court here

went far enough in considering Moreno-Padilla’s argument.

We note that we agree with Moreno-Padilla to the

extent that he argues the district court could have given

more attention to his argument. The Guidelines are now

advisory, United States v. Booker, 543 U.S. 220 (2005), and

district courts are free to deviate from them at their

discretion, see United States v. Corner, ___ F.3d ___, No. 08-

1033, 2010 WL 935754, at *3 (7th Cir. Mar. 17, 2010)

(en banc). For instance, the district court might have

adopted Moreno-Padilla’s argument on policy grounds.

But a district court is never required to deviate from

the Guidelines; judicial discretion is a two-way street.

See id. (“No judge is required to sentence at variance with

a Guideline, but every judge is at liberty to do so.”).

Here, the district court plainly exercised its discretion,

and it concluded that the Guidelines sentence, which

Moreno-Padilla in this respect conceded was correctly

calculated, was appropriate.

2. Sixteen-Level Enhancement Pursuant to U.S.S.G.

§ 2L1.2(b)(1)(A)(ii)

Moreno-Padilla’s final argument is that the district

court failed to consider his contention that the 16-level

enhancement provided under U.S.S.G. § 2L1.2(b)(1)(A)(ii)
22 No. 08-4302

is too harsh. U.S.S.G. § 2L1.2(b)(1)(A)(ii) provides a

16-level increase to the base level of 8 for the offense of

unlawfully entering or remaining in the United States

when the defendant has a conviction for a felony that is

a “crime of violence.” Moreno-Padilla claims that the

district court did not consider his argument, and maintains that it was not frivolous because a scholarly article

decreed the 16-level increase an anomaly within the

Guidelines. He also invokes Kimbrough v. United States,

552 U.S. 85 (2007), asserting that the district court was

required to consider his argument and should have

varied his sentence downward in light of it.

Moreno-Padilla’s contention that the district court

neglected to address his argument is unavailing because

the record plainly shows that the district court did. The

district court stated:

And I am also conscious of the fact that we are

looking at this case, in some respects, as triggered

by the conduct Mr. Moreno engaged in many

years ago.

That’s the sense in which I think [MorenoPadilla’s counsel] is arguing that the guideline

sentence is unduly harsh in this case because

it reflects—or it’s based in part upon the fact that

Mr. Moreno was convicted years ago of violent

offenses. 

The guideline calculation in this case does contain—does include—does reflect a relationship

between a long-ago offense and what brings us

here today.
No. 08-4302 23

At the same time, however, the 20 criminal

history points that Mr. Moreno has earned relates

[sic] not just to the offense conduct long ago but a

total of 28—a number of convictions and 28

arrests, 15 [of] which resulted in convictions and

four of those which involved the use of a firearm.

Individuals were shot and injured in those offenses.

It is to Mr. Moreno’s credit that he testified in at

least one incident. But he himself was involved in

gun-violence incidents, and this is the reason that

he is looking at that very significant 16-point

enhancement.

. . . .

And I have to be concerned with the length of

the sentence, not only the impact it will have on

his family, some of whom I understand are prepared to move to Mexico to be with him, but there

is also the fact that previous custody sentences

have not apparently had the kind of impact we

hoped they would on Mr. Moreno. The fact that he

has previously been in custody on a number of

occasions didn’t stop him from coming back once.

And that’s one of the reasons that the sentence

guideline he is looking at, the guideline sentence

here, is so steep.

As is evident from the sentencing hearing transcript, the

district court did a thorough job of addressing MorenoPadilla’s concerns about the harshness of the 16-level
24 No. 08-4302

enhancement. The court acknowledged the argument

he was making and explained why it was unpersuasive

in light of his criminal history. Any further exposition

on the subject would have been unnecessary.

Moreno-Padilla’s cursory invocation of Kimbrough is

equally without merit. He argues that the Sentencing

Commission failed to fulfill its “institutional role” when

it prescribed the 16-level enhancement. He points out

that the enhancement does not take account of empirical

data, national experience, or input from a range of

experts in the field. See Kimbrough, 552 U.S. at 109. U.S.S.G.

§ 2L1.2(b)(1)(A) has been criticized on that basis before.

See United States v. Aguilar-Huerta, 576 F.3d 365, 367

(7th Cir. 2009) (collecting cases). But although “rejecting

a guideline as lacking a basis in data, experience, or

expertise” is proper in light of a district court’s discretion to reject guidelines as inconsistent with its penal

theories, id., a district court is not required to “delve into

the history of a guideline so that [it] can satisfy [it]self

that the process that produced it was adequate to

produce a good guideline,” id. at 368. The district court

here did enough to explain why it was following the

Guideline; the decision to follow the Sentencing Guidelines is within the court’s discretion just as the decision

to reject them is. Corner, 2010 WL 935754, at *3.

Moreno-Padilla has not demonstrated that the district

court misstepped at any point in its discussion of the 16-

level enhancement. We therefore affirm Moreno-Padilla’s

sentence on this ground as well. 
No. 08-4302 25

III. Conclusion 

For the foregoing reasons, we AFFIRM Moreno-Padilla’s

sentence.

4-8-10