In the
United States Court of Appeals
For the Seventh Circuit
No. 13-3765
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
JUAN CASTRO-ALVARADO,
Defendant-Appellant.
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 13-CR-415 — Virginia M. Kendall, Judge.
ARGUED MAY 22, 2014 — DECIDED JUNE 16, 2014
Before POSNER, FLAUM, and MANION, Circuit Judges.
MANION, Circuit Judge. Juan Castro-Alvarado1 was con-
victed of one count of illegal reentry in violation of 8 U.S.C.
§ 1326(a) and 6 U.S.C. § 202(4). He pleaded guilty and the
district court sentenced him to 77 months’ imprisonment—a
term at the bottom end of the advisory Guidelines. On appeal
he raises two challenges to his sentence. First, he argues that
1
We refer to Castro-Alvarado as “Castro” throughout this opinion.
2 No. 13-3765
the district court committed procedural error by not expressly
addressing his “fast-track disparity” argument at sentencing.
Second, he argues that his sentence was substantively unrea-
sonable in light of his proffered mitigation
factors—specifically, his rehabilitation from drug and alcohol
abuse, family and work history, and the remoteness of his
criminal history. We affirm.
I. BACKGROUND
Castro is a native and citizen of Mexico. He entered the
United States without inspection when he was approximately
14 years old. His criminal history is extensive. He was con-
victed of eleven offenses while he was in the United States
between 1979 and 2001. Six of his convictions were for drug
trafficking-related offenses. He was also convicted twice of
illegal entry. Castro was removed from the United States a
total of eight times in 1980, 1981, 1984, 1989, 1990, 1994, 1997
and 1998. He reentered illegally after his last removal on or
about May 5, 2000. He has used twenty-three identities in the
past in relation to encounters with law enforcement. On or
about April 6, 2013, he encountered immigration officials as
part of a Fugitive Operations program that uses public records
to locate illegal aliens. On May 15, 2013, the grand jury
returned a one-count indictment charging him with illegal
reentry pursuant to 8 U.S.C. § 1326(a). On August 29, 2013, he
changed his plea to guilty via a written plea agreement.
Using the 2012 Sentencing Guidelines, the probation officer
assigned a base offense level of 8 and a 16-level enhancement
under Guideline § 2L1.2(b)(1)(A), because Castro had been
convicted of a drug trafficking offense for which the sentence
No. 13-3765 3
imposed exceeded 13 months’ imprisonment. He had a total of
13 criminal history points, placing him in criminal history
category VI. Under the sentencing guidelines, his advisory
range was 77–96 months’ imprisonment.
The government filed a sentencing memorandum arguing
for a within-Guidelines sentence based on Castro’s criminal
record, immigration history, use of aliases, and risk of recidi-
vism. The government also cited the need for general deter-
rence. In response, Castro filed a sentencing memorandum
arguing for a below-Guidelines sentence based on “fast-track
disparity,” his rehabilitation from drug and alcohol abuse,
family and work history, and the remoteness of his criminal
history.
Castro’s sentencing hearing was held on November 25,
2013. At sentencing, there was no dispute regarding the
calculations or the advisory Guidelines range. Castro, however,
argued that his criminal history occurred many years ago and
that he had rehabilitated himself, as demonstrated by his
family circumstances and work history. Regarding the use of
aliases, he proffered that many of them were variations of his
last names. His attorney argued that based on her experience
in other districts, the fast-track program operated on a “case by
case” basis suggesting that the court should consider Castro’s
eligibility for a downward departure from the Guidelines
based on his circumstances. Castro also spoke and represented
to the court that he would not return to the United States. The
government replied that Castro was not supposed to be
working and given that he has used aliases, there were
concerns he may have been working under someone else’s
4 No. 13-3765
identity. Castro responded he was self-employed and using his
own identity.
The district court then considered the § 3553(a) factors. The
district court found that Castro’s history of drug dealing gave
it “significant pause … because not only then is someone here
illegally, but someone is here illegally who has been contribut-
ing to the demise of society … .” The court observed that
Castro was involved in drug trafficking for a prolonged period
of time into his adulthood. The district court acknowledged
Castro’s representation that he was rehabilitated by stating his
record did reflect he had changed. But the court expressed the
need to address the issue of general deterrence to others who
may be tempted to return illegally multiple times, and the
court found his immigration and criminal history demon-
strated that he was a recidivist who was likely to return.
Finally, the district court found that Castro’s use of aliases was
of concern because of the “impact on both society’s programs
for individuals as well as all of our work environment.” The
district court then imposed a sentence of 77 months’ imprison-
ment on Castro. This sentence was at the low end of Castro’s
range.
II. ANALYSIS
A. “Fast-track disparity”
“We review the district court’s interpretation and applica-
tion of the Guidelines de novo and findings of fact for clear
error.” United States v. White, 737 F.3d 1121, 1139 (7th Cir.
2013). A sentencing court commits procedural error where it
fails to calculate or improperly calculates the Guidelines range,
treats the Guidelines as mandatory, fails to consider the
No. 13-3765 5
§ 3553(a) factors, selects a sentence based on clearly erroneous
facts, or fails to adequately explain the basis for the chosen
sentence. United States v. Jackson, 547 F.3d 786, 792 (7th Cir.
2008); Gall v. United States, 552 U.S. 38, 51 (2007).
Castro’s first argument on appeal is that the district court
committed procedural error when it failed to explicitly address
his argument relating to “fast-track disparity.” Under the
Department of Justice’s fast-track program, when an illegal
reentry prosecution is initiated and the defendant promptly
pleads guilty, the United States attorney may—at his discre-
tion—recommend either an additional 2- or 4-level downward
departure pursuant to U.S.S.G. §5K3.1, in addition to the
standard 2-level downward departure for acceptance of
responsibility and 1-level downward departure for timely
notification of the intention to plead guilty authorized pursu-
ant to U.S.S.G. § 3E1.1(a),(b).2
Castro argues that because he filed no pre-trial motions and
entered a prompt guilty plea, “his readiness to save the
Government time and resources was more analogous to that of
defendants sentenced under the ‘fast-track’ procedures
established in some districts, but not in the northern district of
Illinois.” Appellant Br. 10. In response, the government points
out that “at the time of sentencing this district was participating
in a national fast-track program [and thus] defendant’s
argument has no basis in fact. The defendant’s argument was,
2
See Memorandum from Deputy Attorney General James M. Cole to All United
States Attorneys, Department Policy on Early Disposition or “Fast-Track”
Programs (Jan. 31, 2012), available at www.justice.gov/
dag/fast-track-program.pdf.
6 No. 13-3765
and continues to be based on the faulty premise that there is no
fast-track program in place in the Northern District of Illinois.”
Gov’t Br. 8–9 (emphasis added); United States v. Garcia-Ugarte,
688 F.3d 314, 317 n.1 (7th Cir. 2012) (recalling that on March 12,
2012 the United States Attorney for the Northern District of
Illinois implemented the fast-track program). Further, the
government argues that the program is discretionary and that
Castro was ineligible for the program on the basis of his
extensive criminal history. See United States v. Ramirez, 675 F.3d
634, 643 (7th Cir. 2011). In reply, Castro “agrees that the
statement at page 10 of his brief that this district did not then
have such a program was mistaken,” but disclaims that his
opening brief argues that he is entitled to fast-track treatment,
claiming instead that his opening brief merely asserts that he
“deserves recognition beyond the standard three points
[reduction].” Reply Br. 2.
Castro appears to be arguing that because the district court
failed to address his argument, his sentence should be reduced
to bring it in parity with the sentences of similarly situated
defendants who were granted a reduction under the fast-track
program. In support, he cites United States v. Reyes-Hernandez,
624 F.3d 405 (7th Cir. 2010), wherein we held that district
courts in non-fast-track districts are not precluded from
reducing a defendant’s sentence to avoid disparities with
sentences imposed on similarly situated illegal reentry defen-
dants in fast-track districts. Id. at 421–22. In Reyes-Hernandez,
the defendant was prosecuted in a district that did not imple-
ment the fast-track program, so he could not request the fast-
track reduction from the government. See United States v.
Anaya-Aguirre, 704 F.3d 514, 516 n.1 (7th Cir. 2013) (“[Until
No. 13-3765 7
January 2012] none of the districts in the Seventh Circuit had
fast-track programs.”). Thus, the district court’s exercise of
discretion in Reyes-Hernandez was in lieu of the government’s
exercise of discretion. Here, the district implemented the fast-
track program and Castro sought the benefit of that program,
but the government rejected Castro’s request for a reduction on
the basis of his “criminal history, and also the number of
removals that he’s had in the past.”
In districts where the fast-track initiative is implemented, it
is within the government’s discretion to determine a defen-
dant’s eligibility for a reduction under it. See, e.g., Garcia-Ugarte,
688 F.3d at 317 n.1; Reyes-Hernandez, 624 F.3d at 421 (“within
fast-track districts, the government must decide whether to
offer a defendant the opportunity to opt into the program, and
then the government must make a motion to the sentencing
judge requesting the departure.”). In this case, Castro effec-
tively sought a second bite at the apple by asking the district
court to exercise its discretion to effectively overturn the
government’s decision by reducing his sentence to reflect a
fast-track reduction. Under these circumstances, the district
court did not procedurally err by rejecting Castro’s fast-track
argument without expressly articulating its reason for doing
so. See Ramirez, 675 F.3d at 636 & 640 n.2 (resolving the
question of “when is a district court obliged to comment on a
fast-track argument“ and “hold[ing] that a district court need
not address a fast-track argument unless the defendant has
shown that he is similarly situated to persons who actually
would receive a benefit in a fast-track district.”) (emphasis in
original). As Ramirez makes clear, the “disparity” concerns
raised by Castro in this case are wholly inapplicable to him
8 No. 13-3765
because that concern relates to disparity as it may impact
defendants in non-fast-track districts.
B. Substantive reasonableness
Castro’s second argument on appeal is that the district
court imposed a substantively unreasonable sentence of 77
months’ imprisonment in light of his rehabilitation from drug
and alcohol abuse, family and work history, and the remote-
ness of his criminal history (notwithstanding his continued
illegal presence). We review the substantive reasonableness of
a defendant’s sentence for an abuse of discretion. United States
v. Dachman, 743 F.3d 254, 263 (7th Cir. 2014). Where, as here,
the district court sentenced the defendant to a within-guideline
range sentence, there is a presumption of reasonableness. Id.
“[S]o the burden [Castro] must overcome to prove its unrea-
sonableness is a hefty one.” Id. “To sustain the presumption, a
district court need provide only a justification for its sentence
‘adequate enough to allow for meaningful appellate review
and to promote the perception of fair sentencing.’” United
States v. Pilon, 734 F.3d 649, 656 (7th Cir. 2013).
Here, the district court considered both aggravating and
mitigating factors before imposing its sentence on Castro.
Dachman, 743 F.3d at 262.
On the aggravating side of the scale, the district court
expressed concern with Castro’s history of drug-trafficking and
the fact that it continued beyond his years as a young man, into
his thirties. The court also remarked on the adverse impact that
drug crimes have on the social fabric of society. Furthermore,
the court was understandably troubled by Castro’s repeated
No. 13-3765 9
disregard for United States immigration law and his failure to
learn from his mistakes. As the district court recognized,
[h]e hasn’t been deported once or twice or
three or four times. He’s been deported eight
times. What that means is that eight specific
judges have said, ‘Do not come back into this
country,’ … and he keeps coming back into
the country.
The district court was clear that Castro’s egregious criminal
history—including his many deportations and prior unlawful
reentry convictions—significantly influenced its determination
of Castro’s sentence.
On the mitigating side of the scale, it is clear that the district
court attributed credit to Castro for his work and family
history—refuting Castro’s precise argument to the contrary.
After identifying a host of aggravating factors, the district
court stated “[a]s far as his personal characteristics, I don’t
doubt that there’s been some type of rehabilitation in most
recent years when he appears to be a family man.” Although
it acknowledged Castro’s transformation to that of a “family
man,” the district court balanced that mitigating factor against
his drug trafficking history, undeterred practice of breaking
immigration laws, his particularly high likelihood of continued
recidivism, and his use of aliases. See United States v.
Marin-Castano, 688 F.3d 899, 905 (7th Cir. 2012) (“Not only did
the district court specifically address both general and specific
deterrence, the seriousness of illegal reentry and the need to
enforce laws which have been created to protect the public, but
10 No. 13-3765
it specifically referenced [the defendant], including his family
…”).
On balance, the district court found that Castro’s proffered
mitigation regarding his stable family life and good work
history was dwarfed by his twenty-plus-years-long record of
illegal activity in one form or another. The district court did not
abuse its discretion in reaching that conclusion. Like the district
court, we recognize that Castro has achieved some rehabilita-
tion and has put behind him some poor decisions that ad-
versely impacted his younger years. But Castro’s avoidance of
legal entanglements—a standard expected of everyone—does
not outweigh the other considerations discussed by the district
court at sentencing.
Finally, Castro argues that he is “not typical of Category VI
criminal history offenders” and that the “remoteness of his
criminal history” counsels towards a below-Guidelines
sentence because his drug trafficking convictions were all in
the 1990s and he has had no further encounters with the law in
the past thirteen years. Appellant Br. 19–22. Castro analogizes
his case to United States v. Amezcua-Vasquez, 567 F.3d 1050 (9th
Cir. 2009). Amezcua-Vasquez was an unusual case where a
permanent resident convicted of two crimes of violence in 1981
was removed twenty-five years later in 2006. Id. at 1052. Two
weeks later, he reentered the United States illegally and was
indicted under 8 U.S.C. § 1326(a). Id. Shortly after, Amezcua-
Vasquez pleaded guilty. Id. His advisory sentencing guideline
range was 46–57 months’ imprisonment, and he was sentenced
to 52 months. Id. at 1053. On appeal, the Ninth Circuit vacated
his sentence on substantive reasonableness grounds, holding
No. 13-3765 11
“that the district court abused its discretion when it applied the
Guidelines sentence to Amezcua without making allowances
for the staleness of the prior convictions and his subsequent
lack of any other convictions … .” Id. at 1055–56. The present
case is easily distinguishable from Amezcua-Vasquez. Other than
both involving illegal reentry prosecutions, they share little
else in common. In Amezcua-Vasquez, the defendant had two
convictions twenty-five years prior to his single illegal reentry
conviction, and he was sentenced to the higher end of his
Guideline range. Here, Castro has accumulated six drug
trafficking convictions, eight deportations, and two illegal
reentry convictions prior to the underlying one in this instance,
but was sentenced at the bottom of his Guideline
range—despite having lived in near-continuous violation of the
law for over four decades.
In sum, the district court did not abuse its discretion by
imposing a sentence on the lowest end of the advisory Guide-
lines on Castro. On the contrary, the district court properly
considered the applicable aggravating and mitigating circum-
stances presented by the parties and imposed a sentence
individually tailored for Castro based on the evidence and
arguments presented. Dachman, 743 F.3d at 262.
III. CONCLUSION
The district court did not commit procedural error by not
commenting on Castro’s “fast-track disparity” argument at
sentencing, and the bottom end of the advisory Guidelines
term of 77 months’ imprisonment imposed was not substan-
tively unreasonable, even in light of the mitigation factors
presented to the district court. For these reasons, we AFFIRM
Castro’s sentence.