In the
United States Court of Appeals
For the Seventh Circuit
No. 10-3042
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
JUAN P. L UA-G UIZAR,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 10 CR 71—George W. Lindberg, Judge.
A RGUED M AY 31, 2011—D ECIDED A UGUST 26, 2011
Before E ASTERBROOK, Chief Judge, and W OOD and
T INDER, Circuit Judges.
W OOD , Circuit Judge. After Juan Lua-Guizar pleaded
guilty to reentering the United States unlawfully
following his removal, he asked the district judge to
impose a sentence well below the range advised by
the sentencing guidelines. Lua-Guizar gave two argu-
ments in favor of this downward adjustment: (1) that
his “cultural assimilation,” as contemplated in a then-
2 No. 10-3042
pending amendment to the guidelines, made him eligible
for a lower sentence; and (2) that a lighter sentence was
necessary to avoid an “unwarranted sentencing dispar-
ity” based upon the fact that he was convicted in a
district without a “fast-track” program that would have
given him the opportunity to receive a lighter sentence
in exchange for waiving certain rights. The district court
was not persuaded by these points and imposed a sen-
tence at the bottom of the guidelines range. On appeal,
Lua-Guizar argues that the district court committed
procedural error in so ruling. We find nothing amiss,
however, and so we affirm.
I
Lua-Guizar first entered the United States from
Mexico as a three-year-old; he grew up in Los Angeles,
California. As a teenager, Lua-Guizar met his now-former
wife, Irma Gonzalez, with whom he has three daughters.
In January 2001, some time after his divorce, Lua-
Guizar was arrested for the importation and sale of a
significant amount of cocaine. Still in 2001 and while
out on bail, Lua-Guizar was twice arrested near Los
Angeles for driving on a suspended or revoked license.
He was placed on probation for each driving offense.
After being pulled over for failing to signal in January
2002, Lua-Guizar consented to a search of his car; in the
course of that search, more cocaine turned up. Lua-Guizar
pleaded guilty to possessing a small “personal use”
quantity of cocaine and received probation after 10 days
of imprisonment. In August 2002, Lua-Guizar was con-
No. 10-3042 3
victed of the 2001 importation and sale charge, for which
he was sentenced to three years of imprisonment.
Before Lua-Guizar could complete his sentence,
he was removed to Mexico in May 2004. Less than a
month later, Lua-Guizar returned to Los Angeles with-
out authorization, primarily to take care of his daughters
(who were eight, nine, and 10 years old at the time), one
of whom has cerebral palsy. Following yet another
traffic stop, Lua-Guizar was deported in 2007; again he
returned unlawfully in 2008. This time, Lua-Guizar
moved to Chicago, where he was eventually arrested
for possession of cocaine in December of 2009. Though
that charge was later dismissed, Lua-Guizar admits that
he used cocaine that day. The arrest also alerted the
authorities to Lua-Guizar’s unlawful presence in the
United States and led to an indictment for illegal reentry
in violation of 8 U.S.C. § 1326(a).
Lua-Guizar pleaded guilty to the charge alleged in the
indictment, with a plea agreement under which he pre-
served his right to challenge his conviction and sentence
on appeal. His presentence investigation report put his
offense level at 21 and his criminal history at category
III. This yielded an advisory guidelines range of 46 to 57
months. In response, Lua-Guizar offered two reasons
why the judge should impose a lighter sentence of
24 months.
First, Lua-Guizar pointed to the then-pending guideline
amendment authorizing district courts to consider a
downward adjustment of offense level based on a defen-
dant’s “cultural assimilation.” U.S.S.G. § 2L1.2 cmt. n.8
4 No. 10-3042
(2010); see Amendment 740, effective Nov. 1, 2010. Such
a move is appropriate where (1) the defendant has
formed cultural ties in the United States by living here
since childhood, (2) those cultural ties motivated the
illegal reentry, and (3) the downward adjustment will
not increase the risk to the public from further crimes
by the defendant. U.S.S.G. § 2L1.2 cmt. n.8. Lua-Guizar
noted that he has been in the United States since he was
a toddler and that he returned to the United States after
his removals to care for his young daughters. The risk of
his illegally reentering again, Lua-Guizar urged, was
significantly lower now that his daughters were older
(the girls were 14, 15, and 16 at the time of sentencing).
Lua-Guizar also provided an affidavit from his sister,
who said that she had both a job and a place to stay in
Mexico for her brother. Nonetheless, the district court
declined to adjust his sentence downward on this basis
because Amendment 740 was still pending and because
the court considered Lua-Guizar to be a risk to the
public in light of his criminal past.
Second, Lua-Guizar argued that he deserved a below-
guidelines sentence in order to remedy an alleged “unwar-
ranted disparity,” see 18 U.S.C. § 3553(a)(6), between
himself and other defendants convicted of unlawful
reentry but prosecuted in federal districts—like the
Southern District of California, where Lua-Guizar grew
up—that use “fast track” programs. Under such a
program, a defendant’s offense level may move down
as much as four levels if he agrees to waive, among
other things, his right to challenge his conviction either
on appeal or in collateral proceedings. See U.S.S.G. § 5K3.1
No. 10-3042 5
(2009); United States v. Reyes-Hernandez, 624 F.3d 405, 409-11
(7th Cir. 2010).
At the time of Lua-Guizar’s sentencing, the law of this
circuit prohibited judges from considering the disparity
caused by the absence of a fast-track program. See
United States v. Galicia-Cardenas, 443 F.3d 553, 555 (7th
Cir. 2006) (per curiam). Lua-Guizar nevertheless properly
preserved this point with an argument that the holding
of Kimbrough v. United States, 552 U.S. 85 (2007),
applied equally to this circumstance. The district court
declined to take this factor into account for three
reasons: first, it thought that any disparity was not “un-
warranted,” because Congress anticipated differences
among districts; second, it noted that the government
had not demonstrated its willingness to move for a de-
parture as required by section 5K3.1; and finally, even
assuming discretion under the guidelines, it found that
the guidelines range was “perfectly suitable to
Mr. Lua-Guizar’s offenses and his criminal history.” The
district court then sentenced Lua-Guizar to 46 months—
the bottom of the guidelines range. This appeal followed.
II
Lua-Guizar continues to pursue his cultural assimila-
tion and fast-track arguments on appeal. In each
instance, he asserts that the district court committed
procedural error—a matter that we review de novo.
United States v. Olmeda-Garcia, 613 F.3d 721, 723 (7th Cir.
2010). A sentencing judge must first calculate the ap-
plicable guidelines range, then apply the § 3553(a) factors,
6 No. 10-3042
and finally arrive at a reasonable sentence. See Gall v.
United States, 552 U.S. 38, 50-51 (2007); United States
v. Figueroa, 622 F.3d 739, 743 (7th Cir. 2010). A procedural
error occurs, for example, when the district court fails
to calculate the proper guidelines range, treats the guide-
lines as mandatory, bases its sentence on clearly er-
roneous facts, fails adequately to consider the sentencing
factors set out in § 3553(a), or provides an insufficient
explanation of its sentencing decision. Gall, 552 U.S. at
51; see United States v. Aljabari, 626 F.3d 940, 950 (7th
Cir. 2010). To provide an explanation that demonstrates
adequate consideration of the § 3553(a) factors, a district
court must say enough to allow meaningful appellate
review, but it need not mention every single factor, so
long as we have confidence that the sentencing process
was fair. See Gall, 552 U.S. at 50; Figueroa, 622 F.3d at 744.
Each case is different, however, and the “amount of
explanation needed in any particular case depends on the
circumstances.” United States v. Curby, 595 F.3d 794, 797
(7th Cir. 2010); see Rita v. United States, 551 U.S. 338,
357 (2007).
Here, before considering Lua-Guizar’s reasons for a
lighter sentence, the district court carefully analyzed
each of his prior crimes, some of which Lua-Guizar
wanted to exclude for sentencing purposes. For the co-
caine-related offenses, the court acknowledged that Lua-
Guizar was more likely an addict than a serious drug
dealer. Still, the court was “not convinced that the sub-
stance abuse problem mitigate[d] the gravity” of the
2001 and 2002 convictions, because the only thing that
seemed to end Lua-Guizar’s cocaine use was incarcera-
No. 10-3042 7
tion. Taking that into account, the court found
Lua-Guizar to be “at a high risk of returning to the use
of illegal drugs at such time as he is released from cus-
tody.” The district court acknowledged that his traffic
offenses were “considerably less serious than the two
drug-related crimes,” but not so insignificant that
they could be “ignored in sentencing.” This analysis
provided the backdrop for the district court’s response
to both of the reasons Lua-Guizar offered in support of
a lowered offense level.
On the cultural assimilation point, Lua-Guizar argues
that the court inadequately explained its reasons for not
giving him the downward adjustment. The record, how-
ever, does not bear this out. The judge explained that
“[t]he Court declines to consider Mr. Lua-Guizar’s
cultural assimilation to lower his sentence. First, the
amendment will not go into effect until later this year.
Second, the downward departure is authorized only if it,
quote, is not likely to increase the risk to the public of
further crimes of the defendant, end quote.” Viewed in
context, this explanation was sufficient. The first
reason relates directly to § 3553(a)(4)(A)(ii), which directs
judges to apply the guidelines “in effect on the date
the defendant is sentenced.” See United States v. Baretz,
411 F.3d 867, 874 (7th Cir. 2005). While the court could
have considered the pending amendment, it was not
required to do so. It thus committed no procedural error
by applying the guidelines in effect at the time of sen-
tencing.
The second reason comes directly from the language
of the then-pending amendment:
8 No. 10-3042
There may be cases in which a downward departure
may be appropriate on the basis of cultural assimila-
tion. Such a departure should be considered only in
cases where (A) the defendant formed cultural ties
primarily with the United States from having resided
continuously in the United States from childhood,
(B) those cultural ties provided the primary motiva-
tion for the defendant’s illegal reentry or continued
presence in the United States, and (C) such a departure
is not likely to increase the risk to the public from
further crimes of the defendant.
U.S.S.G. § 2L1.2 cmt. n.8 (2010) (emphasis added). Even if
the amendment had taken effect, the court would have
been obliged to consider subpart (C), which we have
emphasized. And it appears that this is exactly what it
did. The court explained that, in light of Lua-Guizar’s
track record, it found unpersuasive his argument that he
was unlikely to recidivate. Using the same risk-
based language as the pending application note, the
district court said that it was unconvinced that Lua-
Guizar would not again return to cocaine use, which
he had done even up to the day of his final arrest in
2009. In addition, the application note further advises
a sentencing court to consider the “seriousness of the
defendant’s criminal history,” and “whether the
defendant engaged in additional criminal activity after
illegally reentering the United States.” Id. The district
court did all that here. We find no procedural error in
its approach to Lua-Guizar’s cultural assimilation argu-
ment.
No. 10-3042 9
That leaves his argument based on the non-existence
of a fast-track procedure in the Northern District of
Illinois. His basic point was that the district court failed
to give this argument adequate consideration. Given the
lengthy discussion of the issue by the district court, which
quoted directly from section 5K3.1, it is plain that the
district court did not overlook this argument. What Lua-
Guizar is really saying, we believe, is that the court misun-
derstood its discretion to make adjustments on this
basis—a point that was not clear at the time of Lua-
Guizar’s sentencing. Compare Spears v. United States, 129
S. Ct. 840 (2009); United States v. Corner, 598 F.3d 411,
415 (7th Cir. 2010) (en banc) (holding that “district
judges are at liberty to reject any Guideline on policy
grounds—though they must act reasonably when using
that power”), with Galicia-Cardenas, 443 F.3d at 555 (lim-
iting a district judge’s discretion).
Fast-track procedures are not available in every district;
Congress has instead made their availability contingent
upon approval by the Attorney General. See Prosecutorial
Remedies and Tools Against the Exploitation of Children
Today Act of 2003, Pub. L. No. 108-21, § 401(m), 117 Stat.
650, 675. The Attorney General must designate a judicial
district for a specific crime, and such a designation is
reserved for offenses “whose high incidence within the
district has imposed an extraordinary strain on the re-
sources of that district as compared to other districts.”
H.R. Rep. No. 108-48, at 7 (2003). Most fast-track pro-
grams have been authorized for “illegal reentry after
deportation,” and all other crimes that are allowed to
receive fast-track disposition are immigration-related.
10 No. 10-3042
See Memorandum from David Ogden, Deputy Att’y
Gen., Dep’t of Justice, to U.S. Attorneys (May 29, 2009),
reprinted in 21 F ED. S ENT. R EP. 318, 337-38 (June 2009). Yet
even in a fast-track district, the downward departure is
not automatic. The request for a reduced sentence must
be made “[u]pon motion of the Government,” and the
district court is not required to grant such a request if
it considers the reduction to be inappropriate given the
facts of a particular case. U.S.S.G. § 5K3.1 (2009). The
Northern District of Illinois, where Lua-Guizar was
convicted, does not have an early disposition program, and
there are none in the Seventh Circuit. See Ogden, supra,
at 337-38; Reyes-Hernandez, 624 F.3d at 412. For these
reasons, the Sentencing Commission has recognized
that treating defendants differently on the basis of their
geography alone—a morally arbitrary factor—has the
potential to create unwarranted sentencing disparities
under § 3553(a)(6). See Reyes-Hernandez, 624 F.3d at 410-11
(citation omitted).
As we mentioned, at the time Lua-Guizar was sen-
tenced the law of this circuit prohibited a district
court from considering the lack of a fast-track option an
“unwarranted sentencing disparity” under § 3553(a)(6)
because, in setting up the system of district-by-district
authorization, Congress contemplated the disparity
based upon geography, which we reasoned precluded
a finding that such a disparity is “unwarranted.” Galicia-
Cardenas, 443 F.3d at 554. In light of Kimbrough, Spears, and
Corner, we switched course in Reyes-Hernandez, and held
that sentencing courts may consider the disparity in
applicable guidelines ranges between similarly situated
No. 10-3042 11
defendants in districts with a fast-track program and
districts without a fast-track program. 624 F.3d at 416-17;
see also United States v. Guajardo-Martinez, 635 F.3d 1056,
1062 (7th Cir. 2011). We explained further what kind of
showing would be necessary in our recent decision in
United States v. Sandoval Ramirez, Nos. 09-3932, 10-2190, 10-
2689, 2011 WL 2864417, at *5-*9 (7th Cir. July 20, 2011).
Here is the summary of our conclusion:
[A] defendant claiming entitlement to a lower sen-
tence because of a perceived fast-track “disparity”
must promptly plead guilty, agree to the factual
basis proffered by the government, execute an en-
forceable waiver of specific rights before or during
the plea colloquy, establish that he would receive a
fast-track sentence in at least one district offering
the program, and submit a thorough account of the
likely imprisonment range in the districts where he
is eligible, as well as a candid assessment of the num-
ber of programs for which he would not qualify.
Id. at *9. We recognize that this approach may be in some
tension with, and more extensive than, the showing
required in other circuits. See, e.g., United States v.
Arrelucea-Zamdio, 581 F.3d 142, 156-57 & n.13 (3d Cir. 2009)
(holding that defendant need only offer to accept a
plea agreement forfeiting rights as if in a fast-track district
and refusing to require “a more extensive showing”);
United States v. Rodriguez, 527 F.3d 221, 231 (1st Cir. 2008)
(holding that a defendant “cannot be expected to re-
nounce his right to mount a defense” by actually waiving
his rights in order to demonstrate a possible fast-track
12 No. 10-3042
disparity). We need not, however, resolve this tension in
order to dispose of this appeal. At a minimum, Sandoval
Ramirez sheds light on when a district court might be
at risk of abusing its discretion when it rejects a fast-
track argument. In the end, this is a discretionary factor
like many others. Nothing prevents a district court from
finding, as Congress did, that geographical disparity
alone is not a compelling reason to treat all defendants
as if they were in fast-track districts. See Reyes-Hernandez,
624 F.3d at 421.
The district court here did a remarkably good job
with this argument, considering the unsettled state of
the law at that time. It explicitly acknowledged the
premise of Lua-Guizar’s argument—that “he should be
sentenced with some recognition of the fast track juris-
dictions that provide for lower sentences than his pros-
ecution in this district” and wanted to “be sentenced as
if this were a fast track jurisdiction in order to avoid
a sentencing disparity.” The district court then re-
sponded to Lua-Guizar’s argument with three reasons
why it would not grant his request, but the final one
is dispositive:
Third, this Court, while recognizing that the sen-
tencing guidelines are advisory and that it would
have discretion to reduce Mr. Lua-Guizar’s sentence
on this basis if it chose to do so, does not believe
that Mr. Lua-Guizar’s sentence should be reduced
in recognition of the existence of other fast track
jurisdictions. The court believes that the sentencing
range reached by the use of the guidelines is perfectly
No. 10-3042 13
suitable to Mr. Lua-Guizar’s offenses and his criminal
history.
This was all the court needed to say. It specifically recog-
nized that it had the discretion to depart from the guide-
lines if it chose, but it found such a move to be unwar-
ranted. As we have emphasized, even in a district with
an early disposition program, a downward adjustment
is not automatic, and a defendant’s criminal history is an
appropriate factor to consider at this juncture. Guajardo-
Martinez, 635 F.3d at 1062. The district court committed
no error.
For these reasons, we A FFIRM the judgment of the
district court.
8-26-11