In the
United States Court of Appeals
For the Seventh Circuit
No. 10-2748
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
E FRAIN G ARCIA-O LIVEROS, a/k/a
M IGUEL A NGEL O LIVEROS-L EON,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 09 CR 988-1—Blanche M. Manning, Judge.
A RGUED M ARCH 1, 2011—D ECIDED A PRIL 29, 2011
Before K ANNE, R OVNER, and W OOD , Circuit Judges.
P ER C URIAM. Efrain-Garcia Oliveros pleaded guilty to
being in the United States without authorization after
removal, 8 U.S.C. § 1326(a). In a written submission and
at sentencing, he requested a prison term below the
guidelines range on the grounds that his criminal
history category is overstated, and that his reasons for
returning to this country mitigate his illegal reentry. The
2 No. 10-2748
district court sentenced Garcia-Oliveros to 46 months in
prison, the bottom of the guidelines range, but did not
comment on his arguments in mitigation or give any
explanation for the choice of sentence. On appeal Garcia-
Oliveros principally argues, and the government con-
cedes, that the district court needed to say more to ex-
plain its sentence. Accordingly, we remand for resen-
tencing.
Garcia-Oliveros first entered the United States illegally
in 1996 or 1997, when he was 18. He followed his
parents, who came earlier and settled in Cary, Illinois.
In 2004 he was convicted of driving under the in-
fluence (as well as obstruction of justice for lying to
police about his identity). While on bond for that offense,
Garcia-Oliveros was arrested for selling about 10 grams
of cocaine to an undercover police officer. He pleaded
guilty to delivery of a controlled substance, a felony,
and was sentenced to 42 months’ imprisonment. He
was paroled after a little more than a year and removed
to Mexico in November 2005.
In late 2009 federal agents learned from an informant
that Garcia-Oliveros had returned to the United States
and was living with his parents. On December 6, 2009,
immigration authorities arrested him at the car wash
where he was employed. That same day agents executed
a search warrant at his parents’ home, where they
found a rusted but functional assault rifle in the garage,
and a magazine and ammunition for the gun in Garcia-
Oliveros’s bedroom. No charge relating to the gun was
brought against Garcia-Oliveros.
No. 10-2748 3
After Garcia-Oliveros pleaded guilty to the immigra-
tion crime, a probation officer calculated a total offense
level of 21, a Category III criminal history, and a guide-
lines imprisonment range of 46 to 57 months. The
offense level incorporates a 16-offense level increase
under U.S.S.G. § 2L1.2(b)(1)(A)(i) because Garcia-Oliveros
had been sentenced to more than 13 months on his
2004 drug offense. At sentencing he did not contest the
probation officer’s calculations, but, as he had done
already in a written submission, Garcia-Oliveros argued
for a sentence below the guidelines imprisonment
range on the grounds that the 16-level increase under
§ 2L1.2(b)(1)(A)(i) is excessive in his case, and that he
was motivated to return to the United States illegally
because he faced poverty in Mexico and was needed in
Illinois to help care for his ailing father and support
the family. The sentencing judge listened to defense
counsel’s presentation without comment, aside from
briefly asking about Garcia-Oliveros’s family and stating
that she would read letters of recommendation he had
offered to the court. But in pronouncing a sentence
within the guidelines range, and in her written state-
ment of reasons, the judge did not explain what con-
siderations had influenced her sentencing decision or, in
particular, what she thought about Garcia-Oliveros’
arguments in mitigation.
A sentencing court commits procedural error by not
adequately explaining its choice of sentence. United States
v. Schlueter, ___ F.3d ___, 2011 WL 814995, at *2 (7th Cir.
Mar. 10, 2011); United States v. Scott, 631 F.3d 401, 408 (7th
Cir. 2011); United States v. West, 628 F.3d 425, 431 (7th
4 No. 10-2748
Cir. 2010). A statement of reasons not only informs our
review of the sentence, but also promotes “the perception
of fair sentencing.” Gall v. United States, 552 U.S. 38, 50
(2007). A sentencing court is not required to explain its
view on every argument in mitigation or aggravation,
United States v. Miranda, 505 F.3d 785, 792 (7th Cir. 2007);
United States v. Acosta, 474 F.3d 999, 1003 (7th Cir. 2007),
but in this instance the district court did not address any
of Garcia-Oliveros’s arguments or give any reason at all
to explain the prison sentence imposed.
We have recognized that the need for explanation
typically is diminished when a sentence falls within the
guidelines range, United States v. Curby, 595 F.3d 794, 797
(7th Cir. 2010); United States v. Harris, 567 F.3d 846, 854 (7th
Cir. 2009), or when the arguments in mitigation are obvi-
ously without merit or so routine as to be “stock,” United
States v. Gary, 613 F.3d 706, 710 (7th Cir. 2010); United
States v. Pulley, 601 F.3d 660, 667 (7th Cir. 2010);
United States v. Tahzib, 513 F.3d 692, 695 (7th Cir. 2007).
The factors offered in mitigation here—economic hard-
ship, family circumstances, and the severity of a 16-
level increase under § 2L1.2(b)(1)(A)(i)—are not unusual.
See United States v. Moreno-Padilla, 602 F.3d 802, 810-14
(7th Cir. 2010); United States v. Aguilar-Huerta, 576 F.3d 365,
367-69 (7th Cir. 2009); United States v. Martinez, 520 F.3d
749, 753 (7th Cir. 2008); Tahzib, 513 F.3d at 695. Even so,
the district court still was required to explain why its
choice of 46 months is appropriate in light of the factors
in 18 U.S.C. § 3553(a). See 18 U.S.C. § 3553(c); Miranda, 505
F.3d at 792; United States v. Robinson, 435 F.3d 699, 700-01
(7th Cir. 2006). The record before us is too thin to discern
No. 10-2748 5
the considerations which motivated the district court’s
sentencing decision. In light of the sentencing judge’s
complete silence, we accept the government’s confession
of error and remand this case for resentencing.
Garcia-Oliveros’ sentence is V ACATED , and the case
is R EMANDED for resentencing.
4-29-11