United States v. Moreno-Padilla

In the

United States Court of Appeals
For the Seventh Circuit

No. 08-4302

U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.

JUAN A. M ORENO -P ADILLA,
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.

A RGUED S EPTEMBER 18, 2009—D ECIDED A PRIL 8, 2010

Before E ASTERBROOK, Chief Judge, and W ILLIAMS and
T INDER, Circuit Judges.
T INDER, 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 Moreno-
Padilla 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 con-
victions 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. Moreno-
Padilla 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 super-
vised 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 thirty-
six 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 convic-
tions. 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 ag-
gravated 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 bat-
t e ry con vic t ion, pursuant to U .S.S.G .
§ 4A1.2(k)(2)(B)(i);
• 3 points for the second 1991 aggravated bat-
t e ry conviction, p u rs u an t to U .S.S.G .
§ 4A1.2(k)(2)(B)(i);
No. 08-4302 5

• 3 points for the 1992 aggravated battery con-
viction, pursuant to U.S.S.G. § 4A1.2(e)(1);
• 8 points for miscellaneous other offenses, in-
cluding 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 in-
stant 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 double-
counting. 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-of-
violence 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 Moreno-
Padilla 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, there-
fore, the proper release date for them was January 24,
1992, rendering them too stale to be included in his crimi-
nal history calculation. Unlike his attorney, who argued
that the 1991 convictions should be included in the crimi-
nal history calculation but contribute fewer than the PSR-
recommended six points, Moreno-Padilla wanted them
completely removed from consideration. He also chal-
lenged 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 over-
stated his criminal history.
At the continued sentencing hearing, Moreno-Padilla
and his counsel emphasized the parole revocation argu-
ment 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 convic-
tions 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 ulti-
mately relied on the PSR and concluded that the 1993
release date was applicable to all three 1991-92 convic-
tions. 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 govern-
ment asked for a within-Guidelines sentence, and Moreno-
Padilla 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 Moreno-
Padilla’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 employ-
ment. Balancing these factors, the district court con-
cluded that it would impose a within-Guidelines sen-
tence 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 inappropri-
ately 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 crimi-
nal 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 Moreno-
Padilla’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 convic-
tions 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 Moreno-
Padilla’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 defen-
dant’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 ac-
cumulation 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 require-
ments formulated in Morrissey v. Brewer, 408 U.S. 471
(1972), but he is not substantively contesting the proce-
dural 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 exis-
tence 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 chal-
lenge 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 intro-
duce evidence sufficient to convince the Court by a pre-
ponderance 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 dif-
ferent. 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-sup-
ported 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 inaccu-
rate.” 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 demon-
strating 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. (quota-
tion 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 gov-
ernment, 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 Moreno-
Padilla’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 incar-
ceration in the [first 1991] case on June 4, 1993; therefore,
3 points are added.” The PSR further stated that Moreno-
Padilla’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 De-
partment 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 omit-
ted).
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 “down-
ward 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” enhance-
ment.
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 cal-
culating, 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 con-
vinced that the sentencing judge followed correct proce-
dure, 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 “commit-
ted 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 im-
migration 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 com-
mitted 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 incarcera-
tion 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 distin-
guished 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 sub-
stantial arguments” defendants make. United States v.
Martinez, 520 F.3d 749, 753 (7th Cir. 2008); see also Villegas-
Miranda, 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” (quota-
tion 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 sen-
tencing courts see routinely,” including “how [a defen-
dant’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 “down-
ward departure” argument. The concept of “departures”
has become obsolete in our post-Booker sentencing frame-
work, 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 eleventh-
hour 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 cal-
culation. 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 Moreno-
Padilla 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 ac-
knowledged Moreno-Padilla’s argument that “the guide-
line sentence is unduly harsh in this case” and explained
that it too was “concerned with the length of the sen-
tence” 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 appro-
priate for this defendant” “for all the reasons that the
guidelines themselves acknowledge and recognize.” The
district court was not required to spell out its assess-
ment 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 argu-
ments 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 argu-
ment.
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 main-
tains 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 [Moreno-
Padilla’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 con-
tain—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 of-
fenses.
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 pre-
pared 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 Moreno-
Padilla’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 discre-
tion 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 Guide-
lines 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 A FFIRM Moreno-Padilla’s
sentence.

4-8-10