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United States v. Aguilar-Calvo

United States Court of Appeals, Sixth Circuit

December 16, 2019

United States of America, Plaintiff-Appellee,
v.
Ediberto Aguilar-Calvo, Defendant-Appellant.

          Appeal from the United States District Court for the Middle District of Tennessee at Nashville. No. 3:18-cr-00149-1-Eli J. Richardson, District Judge.

         ON BRIEF:

          Molly Rose Green, R. David Baker, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Nashville, Tennessee, for Appellant.

          Byron M. Jones, UNITED STATES ATTORNEY'S OFFICE, Nashville, Tennessee, for Appellee.

          Before: NORRIS, MOORE, and DONALD, Circuit Judges.

          OPINION

          KAREN NELSON MOORE, CIRCUIT JUDGE

         Ediberto Aguilar-Calvo pleaded guilty to illegal reentry by a previously deported felon, and the district court sentenced him to thirty-eight months in prison, to run consecutive to an eight-month sentence for a supervised-release violation. Aguilar-Calvo now appeals this sentence on the ground that it is procedurally unreasonable. For the reasons set forth in this opinion, we AFFIRM the sentence of the district court.

         I. BACKGROUND

         On June 20, 2018, Ediberto Aguilar-Calvo was indicted for illegal reentry, in violation of 8 U.S.C. § 1326(a) and (b)(1). R. 1 (Indictment). He had been previously convicted of felony drug possession, assault, driving under the influence, and illegal reentry. R. 38 (Presentence Investigation Report ¶¶ 4-5, 23-27) (Page ID #165, 167-69). On November 19, 2018, Aguilar-Calvo entered a plea of guilty. In its sentencing memorandum, the government addressed the sentencing factors set forth in 18 U.S.C. § 3553(a), and stated the following in connection with the statute's requirement that the district court consider the "seriousness of the offense":

Many citizens of the United States have grown impatient with their government's seeming inability to deter undocumented immigrants, convicted of felonies in the United States and deported back to their home countries, from returning to the United States illegally. Those of us who are relatively more privileged may welcome the contributions of undocumented immigrants. Our neighbors who are less materially secure, however, who must compete more directly with undocumented immigrants for employment opportunities and social services, are not feeling so generous or welcoming. Those neighbors want our borders secured with physical barriers if our justice system does not suffice to enforce our duly enacted immigration policies. Those neighbors are impatient for action to protect their perceived economic interests, as promised by our duly enacted immigration policies.

R. 24 (Gov't Sent'g Mem. at 3-4) (Page ID #59-60). Aguilar-Calvo's sentencing memorandum argued that the district court should not consider such "extraneous, inflammatory, and idiosyncratic views" in sentencing him. R. 25 (Def. Sent'g Mem. at 3) (Page ID #66). In response to Aguilar-Calvo's sentencing memorandum, the government stated as follows:

The United States does not agree that these concerns are "extraneous" to the sentencing considerations in this case. These concerns are among the reasons that the advisory sentencing guidelines recommend a higher sentence for recidivist illegal reentries, like Mr. Aguilar-Calvo's. These concerns are among the reasons that the advisory sentencing guidelines recommend a higher sentence for illegal reentries by defendants who have a prior felony conviction for which they were sentenced to serve five years or more, as was Mr. Aguilar-Calvo.

R. 26 (Gov't Response to Def. Sent'g Mem. at 4) (Page ID #82). The district court heard argument on this issue at the sentencing hearing and then sentenced Aguilar-Calvo to thirty-eight months of imprisonment after a lengthy explanation of the basis for its sentence pursuant to 18 U.S.C. § 3553(a). Aguilar-Calvo objected to "any consideration of the Government's arguments about political debate about illegal immigration." R. 40 (Sent'g Hr'g Tr. at 63) (Page ID #244). He timely appealed his sentence.

         II. ...


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