In the
United States Court of Appeals
For the Seventh Circuit
No. 11-1990
U NITED STATES OF A MERICA,
Plaintiff-Appellee,
v.
D AVID G ARCIA-U GARTE,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 1:10-cr-00441-1—John F. Grady, Judge.
A RGUED N OVEMBER 1, 2011—D ECIDED JULY 27, 2012
Before B AUER, FLAUM and SYKES, Circuit Judges.
B AUER, Circuit Judge. A Grand Jury indicted defendant-
appellant David Garcia-Ugarte on one count of illegal
reentry into the United States in violation of 8 U.S.C.
§ 1326(a). He pleaded guilty and was sentenced by
the district court to fifty-seven months in prison. This
appeal followed. We affirm.
2 No. 11-1990
I. BACKGROUND
In 1990, Garcia-Ugarte, a Mexican citizen, illegally
entered the United States. Between 1994 and 2005, he
was convicted of multiple crimes, including theft and
drug offenses, and was deported from the United States
twice. On June 29, 2009, the Circuit Court of Winnebago
County, Illinois convicted Garcia-Ugarte of attempted
aggravated kidnapping and sentenced him to four years
in prison. While serving that sentence, he was dis-
covered by immigration authorities during a routine
check of prison inmates. On January 5, 2011, after being
indicted by a federal Grand Jury, he pleaded guilty
to illegal reentry without a plea agreement.
At sentencing, after a sixteen-level enhancement pur-
s ua nt to U n it ed States Sentencing Guidelin e
§ 2L1.2(b)(1)(A), the district court correctly determined
Garcia-Ugarte’s offense level to be twenty-one and his
criminal history category to be IV. United States Sen-
tencing Commission, Guidelines Manual, § 2L1.2(b)(1)(A),
Sentencing Table (Nov. 2011). The corresponding Sen-
tencing Guideline range was fifty-seven to seventy-one
months in prison. U.S.S.G., Sentencing Table (Nov. 2011).
II. DISCUSSION
Garcia-Ugarte argues that the district court failed to
address two of his main arguments: that he was deprived
of the opportunity to argue for a concurrent sentence
and should therefore be given credit for time already
served on his attempted aggravated kidnapping con-
No. 11-1990 3
viction; and next, to avoid unwarranted sentencing dis-
parities, a below-Guidelines sentence is appropriate
to account for the lack of a fast-track program in
the Northern District of Illinois. Finally, Garcia-
Ugarte claims that the district court erred when it added
a sixteen-level enhancement to its sentencing calcula-
tion. We will review each of these arguments in turn.
This court reviews sentencing decisions for reason-
ableness under an abuse-of-discretion standard. United
States v. Booker, 543 U.S. 229, 264 (2005); Gall v. United
States, 552 U.S. 38, 41 (2007). Within-Guidelines sen-
tences are presumptively reasonable and will be
reviewed with deference to the district court. United
States v. Hurn, 496 F.3d 784, 790 (7th Cir. 2007) (citing
Rita v. United States, 551 U.S. 338, 346-48 (2007)).
At sentencing, Garcia-Ugarte requested the court grant
him credit for time already served in state prison. In
support, he cited U.S.S.G. § 5G1.3(c) which states that
an undischarged term of imprisonment may be imposed
to run “concurrently, partially concurrently, or consecu-
tively to the prior undischarged term of imprisonment
to achieve a reasonable punishment for the instant of-
fense.” U.S.S.G. § 5G1.3(c). In other words, Garcia-Ugarte
claims his time spent in a state penitentiary for at-
tempted aggravated kidnapping should result in a
lower sentence for his federal charge of illegal reentry.
Additionally, Garcia-Ugarte contends that because
federal immigration authorities delayed his prosecution,
he was deprived of the opportunity to seek a federal
sentence concurrent with his state sentence. A review
of the record indicates otherwise.
4 No. 11-1990
The sentencing transcript clearly shows that the
court heard arguments from both parties, that time was
dedicated to a recollection of § 5G1.3(c), and that both
the government and the court acknowledged the
advisory nature of the Guidelines, including § 5G1.3(c).
Garcia-Ugarte then reiterated his main point, claiming
he had been precluded from making a concurrent sen-
tencing argument because of the delay on the part of
the federal authorities. The court responded:
That raises the question of whether had you made
that argument it would have been successful with
this court, and let me give you my decision on that.
The state sentence for attempted aggravated kidnap-
ping is wholly different in kind from the offense
of illegal reentry. They have nothing whatever in
common. Concurrent sentences for these two dis-
parate offenses would result in a free pass for the
federal offense. So in no way would I reach the con-
clusion that justice requires or even permits concur-
rent sentences in this case. So I reject the argument
of the defendant that I should give him credit for
the fact that he was deprived of the opportunity to
seek concurrent sentences.
It is well-settled that, absent any procedural error
(such as improperly calculating the Guidelines, treating
the Guidelines as mandatory, failing to consider the
§ 3553(a) factors, or failing to sufficiently explain the
given sentence), we will look to see if the court abused
its discretion to determine whether or not the sentence
is reasonable. United States v. Sandoval, 668 F.3d 865,
No. 11-1990 5
868 (7th Cir. 2011) (citing Gall, 552 U.S. 38, 46 (2007);
Rita, 551 U.S. 338, 363-65 (2007)). Finding no pro-
cedural error, we are satisfied that the district court
sufficiently considered, adequately responded to, and
reasonably rejected Garcia-Ugarte’s request for credit
for time served and we uphold the court’s ruling
on this matter.
Next, Garcia-Ugarte claims the district court failed to
address his argument for a fast-track-type sentence.
Citing the lack of a fast-track program in the Northern
District of Illinois,1 Garcia-Ugarte tried to persuade
the court that this void should be given significant con-
sideration and that an appropriate sentence should
include a downward departure from the Guidelines.
Garcia-Ugarte also argued that significant, unwar-
ranted sentencing disparities exist between districts
that have fast-track programs and those that do not;
that had he been convicted and sentenced in a fast-
track district, he would have received a lesser sentence.
Garcia-Ugarte makes the same argument to this Court,
1
Effective March 1, 2012, in response to an earlier memoran-
dum issued by the Department of Justice dated January 30, 2012,
the Northern District of Illinois implemented a fast-track
program for illegal reentry cases. However, Garcia-Ugarte
was prosecuted, convicted, sentenced, and had appealed and
delivered oral arguments by November 1, 2011. For these
reasons, he is not entitled to consideration for fast-track sen-
tencing under the new policy. Given Garcia-Ugarte’s ex-
tensive criminal history, it is highly unlikely he would
prevail even if considered for the new policy on the merits.
6 No. 11-1990
further arguing that due to the lack of a fast-track
program in the Northern District of Illinois, the district
court falsely believed “[it] could [not] take [a fast-track]
argument into consideration.” We disagree, once again
finding Garcia-Ugarte’s claim to be contrary to evidence
in the record.
It is indeed true that a sentencing court may consider
the absence of a fast-track program, in conjunction with
the other § 3553(a) factors when determining a proper
sentence. United States v. Reyes-Hernandez, 624 F.3d 405,
417 (7th Cir. 2010). But, contrary to Garcia-Ugarte’s
claims, the sentencing transcript indicates that the
court was aware of its authority regarding fast-track
considerations. In its explanation for rejecting Garcia-
Ugarte’s argument, the court highlighted the sig-
nificance of Garcia-Ugarte’s criminal history and noted,
“the fact that the defendant had a violent felony convic-
tion would likely disqualify him from fast-track
treatment even in a district that has such a program.”
The court continued, “I’m not saying that in certain cases
it might not be appropriate to consider [the fast-track],
but I don’t consider this [case to be] one . . . in
which [the defendant] should be given any credit for
the fact that he’s not in a fast-track district.”
At the time of sentencing, fast-track programs were
not available everywhere and even in districts that
utilized them, such downward departures were not
automatic; a defendant’s criminal history would be an
appropriate factor for the court to consider. United States
v. Lua-Guizar, 656 F.3d 563, 568-69 (7th Cir. 2011). Here,
No. 11-1990 7
the record indicates that the court was also aware of its
own authority to consider fast-track-type sentences as
it saw fit. We find no error and uphold the lower
court’s ruling.
In Garcia-Ugarte’s final argument, he challenges the
sixteen-level enhancement imposed by the district court
pursuant to U.S.S.G. § 2L1.2(b)(1)(A). Garcia-Ugarte
claims that the sixteen-level enhancement was unwar-
ranted because no weapon was involved in his previous
conviction. While a firearms offense is listed as a
possible factor under § 2L1.2(b)(1)(A), it is not necessary
for the enhancement to apply. Subsection (i) however,
calls for a sixteen-level enhancement “[i]f the defendant
was previously deported, or unlawfully remained in
the United States, after . . . a conviction for a felony that
is a drug trafficking offense for which the sentence im-
posed exceeded 13 months[.]” U.S.S.G. § 2L1.2(b)(1)(A)(i).
The record shows that in 2002, Garcia-Ugarte was con-
victed of possession with intent to distribute marijuana
worth nearly $200,000 and for this, the defendant
was sentenced to seven years in prison, placing him
directly within the parameters of § 2L1.2(b)(1)(A) and
qualifying him for such an enhancement. Moreover,
as we have emphasized, sentences falling within the
Guidelines are presumptively reasonable, Rita, 551 U.S.
at 347. Garcia-Ugarte has failed to persuade us that
such an enhancement was unreasonable or unwarranted.
We reject Garcia-Ugarte’s argument and uphold the
sixteen-level enhancement.
8 No. 11-1990
III. CONCLUSION
For the reasons stated, we A FFIRM .
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