United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 07-3089

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United States of America, *

*

Appellant, *

* Appeal from the United States

v. * District Court for the

* District of Minnesota.

Bismarck Guillen-Esquivel, *

also known as Luis Nieves Perez, *

*

Appellee. *

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Submitted: May 13, 2008

Filed: July 22, 2008

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Before LOKEN, Chief Judge, BYE and COLLOTON, Circuit Judges.

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BYE, Circuit Judge.

The government appeals the twenty-four month and seven-day sentence given

to Bismarck Guillen-Esquivel after he pleaded guilty to document trafficking in

violation of 18 U.S.C. § 1028(a)(3) and aggravated identity theft in violation of 18

U.S.C. § 1028A(a)(1). We reverse and remand for resentencing.

I

The Police Department in Worthington, Minnesota, received a tip indicating

Guillen-Esquivel was selling birth certificates and social security cards to others. As
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a result of the tip, immigration authorities began an undercover investigation. During

the investigation, a confidential informant purchased from Guillen-Esquivel three

separate birth certificates, with corresponding social security cards belonging to

people from Puerto Rico. A federal grand jury subsequently indicted GuillenEsquivel on one count of trafficking in identification documents, three counts of

selling social security cards, and three counts of aggravated identity theft. Pursuant

to a written plea agreement, he pleaded guilty to one count of document trafficking

and one count of aggravated identity theft.

The crime of aggravated identity theft requires a sentence of two years, which

must run consecutive to any other term of imprisonment imposed by the court at the

same time. See 18 U.S.C. § 1028A(b). In addition, the statute prohibits district courts

from considering the two-year consecutive sentence when imposing the other term

of imprisonment. Specifically, the statute provides:

[I]n determining any term of imprisonment to be imposed for the felony

during which the means of identification was transferred, possessed, or

used, a court shall not in any way reduce the term to be imposed for such

crime so as to compensate for, or otherwise take into account, any

separate term of imprisonment imposed or to be imposed for a violation

of this section[.]

Id. at § 1028A(b)(3).

Consistent with the requirements of the statute, the presentence report

calculated a separate advisory guidelines range of 10-16 months for the document

trafficking charge, and noted § 1028A required a consecutive two-year term of

imprisonment to be imposed along with whatever sentence the district court chose for

the document trafficking charge.
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At the sentencing hearing, the district court indicated it was varying from the

advisory guideline range of 10-16 months for the document trafficking charge by

imposing a seven-day sentence. The district court gave the following reasons for its

variance:

It appears to this Court that the guidelines sentence in conjunct with the

two-year mandatory sentence is excessive. It is excessive in light of the

nature of the offense and in light of the sentence that, ah, that it falls with

-- in light of the sentences imposed on the other defendants. This

gentleman was in the United States illegally. He was working. He was

paying taxes. The taxes were being taken out. The guy was here, as is

the background of virtually everyone in this courtroom, to find a job, to

find a way to raise a family, and to try and make a living. He was here

wrongly. The United States Congress has defined the circumstances

under which people are permitted to come to this country.

As is much in the news, there are what? 10, 12, 14 million people who

are similarly situated. That is not an excuse to break the law; I do not

regard it as an excuse to break the law. But in the time that he lived here,

he lived a law abiding life with the exception of two things, one being

here, for which he has come before this Court, and then he chose to

supplement his income, not by creating names out of a whole cloth, but

somebody supplied him the names of real people. That is a crime. The

others with whom, who were arrested, had very short sentences, which

the Court believed were prudential. Under these circumstances, to

sentence him to 16, or 10 to 16 months plus two years I think is

excessive in light of the experience of all of the other defendants. If this

man were occupied in a stand-alone situation, where he was not, where

he was doing this at his home when he had other places to be, he was just

helping out other friends and other colleagues where he was working.

Albeit illegally. Under those circumstances, the Court is of a mind to

impose upon him a seven-day sentence for the first offense, and a

two-year offense — two-year successive sentence as is mandated for the

second.
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I recognize that this is a variance. The reality of it is, is that we have got

a situation that is quite out of control. The United States government,

depending on which day, which year, which week, decides to make

whatever prosecution or investigative efforts it chooses. That is

extremely, and entirely the prerogative of the executive branch. But

what we have here, at least as I understand it, is a situation at Swift

where the company was, if not complicitous, they certainly knew what

was going on to a large extent. This is an industry that is replete, the

United States could happily turn around and go back and do it again, and

they'd be able to pick up dozens more just like these folks. Under these

circumstances, I believe that this sentence is appropriate. He will be

adequately punished. He is certainly going to be leaving the United

States, and I'm absolutely confident he will not return. And that will be

the sentence which I will impose.

Sent. Tr. at 8-10 (emphasis added).

The government filed a timely appeal, arguing in part the district court erred by

considering the two-year consecutive sentence for aggravated identity theft when

imposing the seven-day sentence for document trafficking. Guillen-Esquivel counters

by suggesting we should defer to the district court pursuant to Gall v. United States,

128 S. Ct. 586 (2007).

II

Section 1028A(b)(3) prohibited the district court from "in any way reduc[ing]

the term to be imposed for [document trafficking] so as to compensate for, or

otherwise take into account, any separate term of imprisonment imposed or to be

imposed for [aggravated identify theft]." The comments made by the district court

at the time of sentencing indicate the court did exactly that when it chose a seven-day

sentence for document trafficking. Twice the district court took into account the

twenty-four month sentence in concluding the overall sentence would be excessive if

it chose a sentence for document trafficking within the advisory guideline range. See
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Sent. Tr. at 8-10 ("[T]he guidelines sentence in conjunct with the two-year

mandatory sentence is excessive . . . Under these circumstances, to sentence him to

16, or 10 to 16 months plus two years I think is excessive") (emphasis added). The

statute required the district court to ignore altogether the twenty-four month sentence

when imposing a sentence for the document trafficking charge. Such clearly did not

happen. Under these circumstances, we have no choice but to reverse and remand for

resentencing.

Guillen-Esquivel argues the Supreme Court's recent decisions in Gall, United

States v. Booker, 543 U.S. 220 (2005), and Rita v. United States, 127 S. Ct. 2456

(2007), require us to defer to the district court's conclusion an overall sentence of two

years and seven days was "sufficient, but not greater than necessary" in this case to

comply with the purposes of sentencing set forth in 18 U.S.C. § 3553(a)(2). We

disagree.

Section 1028A(b)(3) limits the amount of discretion district courts can exercise

with respect to sentences for aggravated identity theft. The Supreme Court's recent

jurisprudence does not prohibit Congress from setting any limits on a sentencing

court's discretion. For example, we have recognized Congress can limit a sentencing

court's discretion through the use of mandatory minimum statutes because such

statutes do not implicate the Sixth Amendment problems addressed in Booker. See,

e.g., United States v. Gregg, 451 F.3d 930, 937 (8th Cir. 2006) (rejecting the claim

district courts have discretion to decide whether an overall sentence is reasonable, and

impose a non-Guidelines sentence, when a portion of the sentence results from a

statutory mandatory minimum). Guillen-Esquivel has not identified how

§ 1028A(b)(3) suffers from the same constitutional infirmities associated with a

mandatory guideline system. Thus, Gall, Booker, and Rita do not allow district courts

to ignore the limits placed upon their discretion by § 1028A(b)(3).
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III

We reverse and remand for resentencing. 

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