The Honorable William T. Lawrence, United States District



Court Judge for the Southern District of Indiana, sitting by

designation.

In the

United States Court of Appeals

For the Seventh Circuit

No. 08-2308

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

OCTAVIO VILLEGAS-MIRANDA, 

Defendant-Appellant.

Appeal from the United States District Court 

for the Northern District of Illinois, Eastern Division.

No. 07 CR 130—George W. Lindberg, Judge.

ARGUED MAY 7, 2009—DECIDED AUGUST 27, 2009

Before FLAUM and WILLIAMS, Circuit Judges, and

LAWRENCE, District Judge.



WILLIAMS, Circuit Judge. Octavio Villegas-Miranda

believes that the government intentionally delayed charging him with illegal reentry, a federal crime, while he
2 No. 08-2308

was in state custody on a domestic battery charge. This

delay, he claims, was designed to deprive him of the

opportunity to serve his federal sentence concurrent

with the remainder of his state sentence.

At sentencing, he asked the district court to lower

the federal sentence that it intended to impose so that

he could receive credit for the lost opportunity to serve

it concurrently with the end of his state sentence. In

support of this argument, he pointed to decisions from

several other circuits which recognize that a district

court may issue lower sentences to compensate for

such delays. Unfortunately for Villegas-Miranda, the

district court did not address this argument during his

sentencing hearing. Because we find that this argument

had legal and factual merit, under United States v.

Cunningham, 429 F.3d 673, 679 (7th Cir. 2005), the

district court was required to specifically address it. It

did not, so we remand this matter for resentencing.

I. BACKGROUND

Octavio Villegas-Miranda is a Mexican national who is

not a United States citizen. Since emigrating from Mexico

to the United States in 1990 as a youth, Villegas-Miranda

has been arrested sixteen times and convicted of twelve

crimes, including, among other things, domestic battery,

sale of narcotics, and driving under the influence. After

a conviction for domestic battery in June 2002, VillegasMiranda was deported to Mexico. After sneaking back

into the United States, he was convicted of violating

8 U.S.C. § 1326, which prohibits reentry into the United
No. 08-2308 3

States by a non-citizen previously convicted of an aggravated felony, and was again deported.

During his third trip to the United States, on May 6,

2006, Villegas-Miranda was again arrested for domestic

battery. He pleaded guilty in state court and was sentenced to thirty months’ imprisonment. Villegas-Miranda

was supposed to be paroled from state custody on February 9, 2007, but was held on a federal immigration

detainer until February 12, 2007, when a federal immigration officer arrived and once again charged him with

illegal reentry pursuant to 8 U.S.C. § 1326.

Villegas-Miranda pleaded guilty to illegal reentry

without a plea agreement. His Sentencing Guidelines

range was seventy-seven to ninety-six months’ imprisonment. It is undisputed that in his sentencing memorandum, and during his sentencing hearing, he made two

primary arguments in requesting a below-Guidelines

sentence: (1) his daughter was ill and he needed to be

with her; and (2) the district court should exercise its

discretion and issue a sentence at least nine months

below the bottom of the advisory Guidelines range to

effectively credit him with the time served in state

prison on the battery charge (his “concurrent sentences”

argument). The gist of Villegas-Miranda’s second argument was that if the government had charged him

with illegal reentry when he was arrested on May 6, 2006

(or any reasonable time prior to his release from state

custody), the district court would have been able to

sentence him concurrently with his state time. Since the

government did not do so, Villegas-Miranda lost the
4 No. 08-2308

opportunity to serve his state and federal sentences

concurrently, and he asked the district court to compensate for this by issuing a below-Guidelines sentence.

The district court acknowledged that it had “perused

[Villegas-Miranda’s] rather extensive sentencing memorandum” and found it to be “well drafted and very persuasive.” It then rejected Villegas-Miranda’s family situation argument because it found that his presence in the

household exacerbated the situation (by assaulting his

family members) rather than alleviating it. It stated that

a high, within-Guidelines sentence was appropriate

because of Villegas-Miranda’s extensive criminal

history and because he repeatedly reentered the United

States after being deported. The court sentenced him to

ninety months’ imprisonment and three years’ supervised

release. The court did not address Villegas-Miranda’s

second principal argument, that a below-Guidelines

sentence should be imposed to effectively credit him

with time served in state prison.

II. ANALYSIS

A. The District Court Was Required, But Failed to,

Address All Principal Arguments that Were “Not

So Weak As to Not Merit Discussion”

Villegas-Miranda argues that the district court’s failure

to respond to his argument that it should issue a belowGuidelines sentence to compensate him for the lost opportunity to serve his state and federal sentences concurrently, as a result of the government’s purported delay
No. 08-2308 5

in charging him with illegal reentry, requires us to remand

for resentencing. The government disagrees because it

contends that: (1) the district court adequately stated its

reasons for issuing Villegas-Miranda’s ninety month

sentence; and (2) Villegas-Miranda’s “concurrent sentences” argument was sufficiently weak so as to not

require a response from the district court.

We review a district court’s sentencing decisions for

reasonableness, but its sentencing procedures under a

non-deferential standard. United States v. Mendoza, 510

F.3d 749, 754 (7th Cir. 2007). A within-Guidelines sentence is presumed reasonable. United States v. Omole,

523 F.3d 691, 696 (7th Cir. 2008) (citing Rita v. United

States, 551, U.S. 338 (2007)). A sentencing court need not

comprehensively discuss each of the factors listed in 18

U.S.C. § 3553(a). United States v. Dean, 414 F.3d 725, 729

(7th Cir. 2005). Rather, it must give the reasons for

its sentencing decision and address all of a defendant’s

principal arguments that “are not so weak as to not

merit discussion.” United States v. Cunningham, 429 F.3d

673, 679 (7th Cir. 2005).

The government first contends, relying on United States

v. Millet, 510 F.3d 668 (7th Cir. 2007), that because

the district court gave sound reasons for its within-Guidelines sentence (Villegas-Miranda’s criminal history and

repeated illegal reentry into the United States), its failure

to address Villegas-Miranda’s “concurrent sentences”

argument does not merit remand. In Millet, we found that

a sentencing court gave an adequate statement of its

reasons for issuing a within-Guidelines sentence for
6 No. 08-2308

drug and conspiracy offenses, even though it did not

address each of the defendant’s arguments for a below-Guidelines sentence in detail or specifically address

each of the section 3553(a) factors because, among other

things, the court’s statements as a whole indicated

beyond a doubt that it considered all of the section 3553(a)

factors. Id. at 679-80.

Contrary to the government’s assertion, Millet does not

control here. Millet’s argument on appeal was that the

sentencing court erred by not specifically addressing

every section 3553(a) factor and/or by failing to respond

to each of his arguments for a lower sentence in detail. Id.

Dean and Cunningham foreclosed these questions; the

court need not discuss each section 3553(a) factor at

sentencing and need not respond to every pithy argument that a defendant raises, just the “principal” ones.

Dean, 414 F.3d at 729; Cunningham, 429 F.3d at 676-79

(citing United States v. Williams, 425 F.3d 478, 479 (7th

Cir. 2005)). Villegas-Miranda’s argument on appeal,

however, is not that the court did not adequately state

its reasons for imposing his sentence, but rather that it

failed to specifically address his principal argument for

a lower sentence. Cunningham addresses this question

as well. The court must state its reasons for rejecting a

defendant’s principal arguments if the arguments have

merit. Cunningham, 429 F.3d at 679 (“We cannot have

much confidence in the judge’s considered attention to

the factors in this case, when he passed over in silence

the principal argument made by the defendant even

though the argument was not so weak as not to merit

discussion, as it would have been if anyone acquainted
No. 08-2308 7

with the facts would have known without being told why

the judge had not accepted the argument. . . . A judge

who fails to mention a ground of recognized legal

merit (provided it has a factual basis) is likely to have

committed an error or oversight.”). Even if the sentencing court stated convincing reasons for the sentence

it imposed, we cannot find its silence in response to a

defendant’s principal argument to be harmless error

because we can never be sure of what effect it had, or

could have had, on the court’s decision. Id. Given that

there is no dispute that Villegas-Miranda’s “concurrent

sentences” argument was one of his two principal arguments, if it “was not so weak as to not merit discussion,”

the sentencing court was required to respond to it. See id.

Although the district court listened at length to VillegasMiranda’s “concurrent sentences” argument, we cannot

take on faith that it adequately considered the argument where it “passed it over in silence.” Id.

The government next contends that Villegas’s “concurrent sentences” argument is weak enough not to merit

discussion because: (1) it is not an argument of recognized

legal merit; and (2) it lacks a factual basis. Several circuits

have recognized that a district court has the authority

to issue a below-Guidelines sentence based on the delay

between the time federal immigration officials discovered that a defendant illegally reentered the United

States and the time that the government charged him

with illegal reentry. See, e.g., United States v. BarreraSaucedo, 385 F.3d 533, 537 (5th Cir. 2004) (holding that it

was “permissible for a sentencing court to grant a downward departure to an illegal alien for all or part of
8 No. 08-2308

time served in state custody from the time immigration

authorities locate the defendant until he is taken into

federal custody.”); United States v. Sanchez-Rodriguez, 161

F.3d 556, 562 (9th Cir. 1997) (en banc) (holding that a

downward departure may be granted based on a defendant’s lost opportunity to serve his federal sentence

concurrently with his state sentence due to the delay in

commencing federal proceedings after immigration

authorities discovered him in state custody); United

States v. Los Santos, 283 F.3d 422, 428-29 (2d Cir. 2002)

(holding same if defendant can show that the delay in

the federal prosecution was in bad faith or that it was

longer than reasonable); see also United States v. Saldana, 109

F.3d 100, 104 (1st Cir. 1997) (noting that it was “possible”

that a departure might be granted “where a careless or

even an innocent delay produced sentencing consequences so unusual and unfair that a departure” would

be warranted).

Our circuit has not definitively ruled on whether a

district court may give a defendant a lesser sentence

based on his lost opportunity to receive his federal time

concurrent with his state time. See United States v.

Lechuga-Ponce, 407 F.3d 895, 897-98 (7th Cir. 2005) (recognizing defendant’s argument that sentencing court

could have downward departed to reflect lost opportunity to serve concurrent sentences but refusing to

reach the merits because defendant did not raise this

argument before the sentencing court); United States. v.

Jimenez-DeGarcia, 256 F. App’x. 830, 832-33 (7th Cir. 2007)

(unpublished) (declining to reach merits of similar “concurrent sentences” argument where sentencing court
No. 08-2308 9

concluded that it could not reach this argument, but

stated that even if it could, it would not have reduced the

defendant’s sentence).

The government is correct that none of our sister

circuits have provided extensive reasoning for allowing

sentencing courts to reduce a defendant’s sentence

based on his lost opportunity to serve state time concurrently with the federal time he received for his illegal

reentry conviction other than that the Guidelines are

advisory. It is also correct that the congressional

purpose behind U.S.S.G. § 5G1.3 (which allows courts

to impose federal sentences concurrent with state sentences) is to prevent a defendant from serving duplicative

sentences for the same criminal act. See United States

v. Blackwell, 49 F.3d 1232, 1241 (7th Cir. 1995); but see

U.S.S.G. § 5G1.39(c) (“(Policy Statement) In any other

case involving an undischarged term of imprisonment,

the sentence for the instant offense may be imposed to

run concurrently, partially concurrently, or consecutively

to the prior undischarged term of imprisonment to

achieve a reasonable punishment for the instant offense.”). Here, as the government argued at length

during Villegas-Miranda’s sentencing hearing, VillegasMiranda’s state crime, domestic battery, and his federal

crime, illegal reentry, represent completely separate and

distinct crimes, and, as a result, reducing his sentence to

compensate him for the time he spent in state custody

would not further the policy behind U.S.S.G. § 5G1.3

(although this idea has not prevented our sister circuits

from allowing sentencing courts to reduce a defendant’s

sentence to credit him with state time served, nor does
10 No. 08-2308

it directly conflict with the Guideline’s policy statement).

In any event, all of these arguments are of no import

because the question before us is not whether the

district court should or can downward depart for this

reason (we take no position), but whether VillegasMiranda’s “concurrent sentences” argument has legal

merit such that the sentencing court needed to address

it. Given that several circuit courts have held that a sentencing court can downward depart for this reason, and

we have not explicitly ruled on it (and need not rule on

it here), a defendant is reasonable to believe that it

may succeed, and we find this argument to be legally

meritorious.

The government also argues that Villegas-Miranda’s

“concurrent sentences” argument lacks factual merit

because Villegas-Miranda does not have sufficient evidence tending to show that immigration authorities

knew of his illegal reentry prior to charging him, and

therefore he cannot prove that there was an intentional

delay. This argument is belied by the fact that immigration authorities immediately held him on a detainer

upon his release from state custody. Although the

issuance of this detainer and Villegas-Miranda’s release

from state prison occurring at the same time may be

pure coincidence, it is not unreasonable for a sentencing

judge to assume that the government had knowledge

of Villegas-Miranda’s location and simply chose to wait

for his release to bring federal charges. Further, VillegasMiranda argued at sentencing that he requested the

immigration detainer and other paperwork in an effort

to show that the government knew of his illegal reentry
No. 08-2308 11

around the time of his arrest, but never received a response from the government. The existence of an immigration detainer, while not necessarily the strongest

evidence that the government could have charged VillegasMiranda sooner, is enough of a factual basis for a district

court to conclude that a delay occurred, and, if it so

chooses, reduce Villegas-Miranda’s sentence to reflect

that time that he could have served concurrently.

In summary, Villegas-Miranda’s “concurrent sentences”

argument had legal and factual merit, and, given that

it was one of his principal arguments, Cunningham

dictates that the sentencing court needed to address it.

III. CONCLUSION

For the foregoing reasons, we VACATE Villegas-Miranda’s

sentence and REMAND this case to the district court

for resentencing.

8-27-09