In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 04-2986
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
ANGEL LECHUGA-PONCE,
Defendant-Appellant.
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Appeal from the United States District Court
for the Eastern District of Wisconsin.
No. 03 CR 215—William C. Griesbach, Judge.
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ARGUED JANUARY 19, 2005—DECIDED MAY 17, 2005
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Before CUDAHY, MANION, and EVANS, Circuit Judges.
MANION, Circuit Judge. On February 27, 2004,
Angel Lechuga-Ponce pleaded guilty to illegal reentry into
this country after deportation. The district court sentenced
Lechuga-Ponce to 70 months’ imprisonment. On appeal
Lechuga-Ponce challenges only his sentence. We order a
limited remand.
I.
On December 18, 1997, Angel Lechuga-Ponce was con-
victed of aggravated assault in connection with drunk driv-
2 No. 04-2986
ing in Hall County, Georgia. Two years later, Lechuga-
Ponce, a citizen of Mexico, was deported to Mexico. At some
point, however, Lechuga-Ponce reentered the United States
without official permission. While in Wisconsin, he was
arrested and convicted on March 7, 2003, of felony drunk
driving by a Wisconsin state court and sentenced to three
years’ imprisonment.
While in prison, officials with the Bureau of Immigration
and Customs Enforcement “found” Lechuga-Ponce, and he
was indicted by a grand jury for illegal reentry after depor-
tation for an aggravated felony. 8 U.S.C. § 1326(a) and (b)(2).
Lechuga-Ponce pleaded guilty pursuant to a plea agree-
ment. In the plea agreement and at the change of plea
hearing, he admitted to the 1997 Georgia conviction.
At a sentencing hearing, the presentence report rec-
ommended a sentencing range of 77-96 months based on a
sentencing enhancement of 16 levels because the underlying
felony was a crime of violence. See U.S.S.G. § 2L1.2(b)(1)(A)(ii).
Lechuga-Ponce moved for, and received, a downward de-
parture because he argued that the sentence overstated the
severity of his crime. The district court ultimately sentenced
Lechuga-Ponce to 70 months’ imprisonment. This appeal
followed.
II.
Lechuga-Ponce does not challenge his conviction, only his
sentence. Much of Lechuga-Ponce’s argument relates to the
enhancement of his sentence due to his 1997 Georgia con-
viction being classified as a crime of violence. See id. Briefs
were filed in this case after the Supreme Court’s decision in
Blakely v. Washington, 542 U.S. ___, 124 S. Ct. 2531 (2004),
and prior to the Court’s decision in United States v. Booker,
___ U.S. ___ , 125 S. Ct. 738 (2005). In his brief, Lechuga-
No. 04-2986 3
Ponce argues that the enhancement was unconstitutional
because the fact of his prior conviction was not proven
1
beyond a reasonable doubt.
This argument is flawed in two key respects. First,
Lechuga-Ponce’s prior conviction was, in effect, proven
beyond a reasonable doubt—in his plea agreement and at
the change of plea hearing, Lechuga-Ponce admitted the
prior conviction. See Blakely, 124 S. Ct. at 2537, quoted in
Booker, 125 S. Ct. at 749 (“the ‘statutory maximum’ for
Apprendi purposes is the maximum sentence a judge may
impose solely on the basis of the facts reflected in the jury verdict
or admitted by the defendant.”) (emphasis in original). Second,
even assuming Lechuga-Ponce had not admitted to the 1997
conviction, the fact of a prior conviction need not be proven
beyond a reasonable doubt. Almendarez-Torres v. United
States, 523 U.S. 224, 243 (1998). Nothing in the Supreme
Court’s recent sentencing decisions suggests otherwise. In
fact, quite the contrary—both Booker and Blakely reiterate the
Court’s earlier holdings that the fact of a prior conviction
need not be proven beyond a reasonable doubt. Booker, 125
S. Ct. At 756 (“Any fact (other than a prior conviction) which
is necessary to support a sentence exceeding the maximum
authorized by the facts established by a plea of guilty or a
jury verdict must be admitted by the defendant or proved to
a jury beyond a reasonable doubt.”) (emphasis added);
Blakely, 124 S. Ct. at 2536 (quoting Apprendi v. New Jersey, 530
U.S. 466, 490 (2000) (“Other than the fact of a prior conviction,
any fact that increases the penalty for a crime beyond the
prescribed statutory maximum must be submitted to a jury,
1
We note that oral argument in this case was held shortly after
Booker was decided and counsel for Lechuga-Ponce conceded that
much of his argument was mooted by the Court’s decision in that
case.
4 No. 04-2986
and proved beyond a reasonable doubt.”) (emphasis
added); see also United States v. Rosas, ___ F.3d ___ , 2005 WL
674846, at *3 (7th Cir. Mar. 24, 2005) (per curiam). But see
Shepard v. United States, ___ U.S. ___, 125 S. Ct. 1254, 1264
(2005) (Thomas, J., concurring) .
Lechuga-Ponce’s equal protection argument has been
overtaken by subsequent events. His argument on this point
envisioned an outcome to Booker different than that reached
by the Court. Lechuga-Ponce anticipated that a defendant,
such as he, who was eligible only for criminal history
enhancements would be subject to mandatory enhance-
ments while a defendant who was eligible for enhancements
because of certain facts concerning his crime would be
subject to discretionary enhancements. Lechuga-Ponce thus
expected that some enhancements would be mandatory,
while others would be discretionary—an equal protection
violation in Lechuga-Ponce’s view. But that is not what
happened. The Supreme Court held that the guidelines, in
their entirety, were advisory.
The fact that the sentencing guidelines are now advisory
does, however, entitle Lechuga-Ponce to a limited remand.
This court has recently held that a defendant is entitled to a
limited remand where a district court sentenced a defendant
under the guidelines and where this court cannot be assured
that the district court would have arrived at that same
sentence if it had treated the guidelines as advisory. United
States v. Castillo, Nos. 02-3584 & 02-4344, slip op. at 31 (7th
Cir. May 3, 2005) (quoting United States v. White, No. 03-
2875, slip op. at 13 (7th Cir. May 3, 2005) (“ ‘[M]ere manda-
tory application of the Guidelines—the district court’s belief
that it was required to impose a Guidelines sentence’ . . .
constitutes Booker error.”)); United States v. Paladino, 401 F.3d
471, 483-84 (7th Cir. 2005). This limited remand is to take
place even where, as here, the district court did not engage
No. 04-2986 5
in any improper fact-finding. See Castillo, slip op. at 31
(noting that defendant’s “sentence relies solely upon facts
admitted by him.”).
Lechuga-Ponce’s final argument is that the district court
erred when it failed to recognize that when sentencing him
it had the discretion to adjust his sentence downward for
the fourteen months he was in state custody from the time
he was found by immigration authorities (May 2003) until
he was sentenced (July 2004). Lechuga-Ponce relies prin-
cipally on the Fifth Circuit’s decision in United States v.
Barrera-Saucedo, 385 F.3d 533 (5th Cir. 2004). In that case the
court held that a district court has the discretion to depart
downward from a guideline range to account for time a
defendant spent in state custody until the defendant is
transferred to federal custody. Id. at 537. The idea is that
time spent in state custody is time that defendant could
otherwise spend in federal custody to serve his federal sen-
tence concurrently with his state sentence. Other circuits
have reached the same conclusion. United States v. Los Santos,
283 F.3d 422, 428-29 (2d Cir. 2002); United States v. Sanchez-
Rodriguez, 161 F.3d 556, 564 (9th Cir. 1998) (en banc);
United States v. Saldana, 109 F.3d 100, 104-05 (1st Cir. 1997).
Lechuga-Ponce has a fundamental problem, however. He
is asking this court to find that the district court erred when
it held that it had no discretion to depart downward to
account for state custody, but Lechuga-Ponce never asked
the district court to make such a downward departure.
Without such a request, Lechuga-Ponce has waived his
argument. See United States v. Covarrubias, 65 F.3d 1362, 1372
(7th Cir. 1995).
III.
We direct a limited REMAND of Lechuga-Ponce’s sentence
so that the district court may determine whether it would
6 No. 04-2986
have sentenced him differently had it known that the sen-
tencing guidelines are advisory rather than mandatory. We
retain appellate jurisdiction pending the outcome of this
remand.
A true Copy:
Teste:
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—5-17-05