United States of America v. Nicolas Tostado-Sianez

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued February 27, 2007
Decided March 1, 2007
Before
Hon. DIANE P. WOOD, Circuit Judge
Hon. TERENCE T. EVANS, Circuit Judge
Hon. DIANE S. SYKES, Circuit Judge
No. 06-2460
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
NICOLAS TOSTADO-SIANEZ,
Defendant-Appellant.
Appeal from the United States District
Court for the Northern District
of Illinois, Eastern Division
No. 05 CR 1024
James B. Zagel,
Judge.
O R D E R
Nicolas Tostado-Sianez pleaded guilty to being in the United States without
permission after his removal to Mexico, based on multiple aggravated felony
convictions. See 8 U.S.C. §§ 1326(a), (b)(2). The district court calculated a guidelines
range of 70 to 87 months’ imprisonment and sentenced Tostado to 70 months. His
principal argument on appeal is that his personal situation is so unusual and so
compelling that the court should have selected a much more lenient sentence – possibly
even one as low as “time served.” He also argues that his criminal history was
overstated and that the absence of a “fast-track” program in the Northern District of
Illinois required a reduction in his sentence. While we acknowledge that Tostado’s
situation is indeed out of the ordinary and sympathetic, and a lower sentence may not
have been unreasonable, that is not the question we must answer here. Instead, we
must evaluate the sentence the district court chose, recognizing the considerable
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1

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No. 06-2460 Page 2
discretion the court has in the sentencing process. From that perspective, we cannot
say that the district court abused its discretion or that the sentence was an
unreasonable one. We therefore affirm.
I
Tostado’s current prosecution began with his arrest on October 29, 2005, by the
Elmwood Park, Illinois, police for driving on a suspended license and under the
influence of alcohol. Upon his release, he was taken into custody by Immigration and
Customs Enforcement (ICE). He was then charged with being in the United States
without permission after his removal to Mexico on March 31, 2000, following his
conviction in Illinois state court and service in state prison for attempted murder,
aggravated battery, and armed violence. See 8 U.S.C. §§ 1326(a). Tostado entered a
blind guilty plea to the one-count indictment for illegal re-entry.
During his presentence interview, Tostado stated that he returned to Chicago from
Mexico in June 2005 in order to attend the high school graduation of his daughter
Justina. Justina had been suffering from depression; she had been abusing alcohol and
had even attempted suicide. Her mother, Maurine Watco, had called Tostado in Mexico
and asked him to come up and help. Deeply concerned, he did so, despite the fact that
by this time he had a wife and two children in Mexico and despite the fact that he did
not have the permission of the U.S. Attorney General to re-enter. Tostado remained in
Chicago for a short period after the graduation in order to provide moral support
following Justina’s suicide attempt. His arrest at the end of October, approximately
four months after his re-entry, dashed that hope. Sadly, his efforts to save Justina also
failed. While he was incarcerated, she was killed in an auto accident in January 2006.
Her blood alcohol content was .21; Tostado believes that she committed suicide.
At sentencing, the court acknowledged the fact that Tostado had “suffered
significant trauma” from the loss of his father at a very early age and, more recently,
the death of his daughter Justina, and that he entered the country only to “come to the
aid” of his daughter. The court noted that Tostado “did pretty well in prison” and was
“a very different man” from the one he was when he committed the aggravated
felonies. The court also found, however, that Tostado engaged in a “spectacular display
of poor judgment” by getting behind the wheel of a car without a license and under the
influence of alcohol, particularly when he was in the country illegally and was putting
himself in a position to be arrested. As the court rightly pointed out, Tostado’s behavior
both violated the law and impaired the very purpose for which he returned to the
United States—to help his daughter—and the court questioned whether it could trust
Tostado not to engage again in such “impulsive action.” With all of this in mind, the
court sentenced Tostado to 70 months in prison. In imposing a sentence at the very
bottom of the guidelines range, the court stated that it believed the sentence took “due
account” of the “extraordinary circumstances” in which Tostado found himself.

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No. 06-2460 Page 3
II
On appeal, Tostado first asserts that the district court erred by declining to reduce
his criminal history category from V to IV. Tostado argues that his criminal history
category substantially over-represents the seriousness of his criminal past or the
likelihood he will commit further crimes, and thus that it was unreasonable for the
district court not to grant a one-level reduction pursuant to U.S.S.G. § 4A1.3(b). He
concedes that his earlier offenses were serious (as indeed they were), but he urges that
the reduction is nonetheless merited because he committed them 16 to 17 years before
his current offense, within a short span of time, and when he was only 19 years old—a
time when he was abusing drugs and alcohol, and was struggling with several
traumatic childhood incidents, including the murder of his father.
The sentencing guidelines as written give district courts the discretion to reduce a
defendant’s criminal history points if the criminal history category into which the
defendant otherwise falls “substantially over-represents the seriousness of the
defendant’s criminal history or the likelihood that the defendant will commit other
crimes.” U.S.S.G. § 4A1.3(b)(1). Such a reduction may be appropriate if the defendant
committed “two minor misdemeanor convictions close to ten years prior to the instant
offense and [there is] no other evidence of prior criminal behavior in the intervening
period.” Id., § 4A1.3 cmt. n.3; see also United States v. Bradford, 78 F.3d 1216, 1223–24
(7th Cir. 1996). Manipulating criminal history categories in order to arrive at a
different guidelines range, however, may be a needless complication ever since the
Supreme Court’s ruling in United States v. Booker, 543 U.S. 220 (2005). As long as the
initial category is properly calculated, so that the sentencing court may take
appropriate guidance from the resulting sentencing range, the court must in any event
consider the factors set forth in 18 U.S.C. § 3553 and impose a sentence that is
reasonable. United States v. Demaree, 459 F.3d 791, 795 (7th Cir. 2006). A sentence
that falls within the guidelines range is presumed reasonable. United States v.
Mykytiuk, 415 F.3d 606, 607–08 (7th Cir. 2005). Cf. United States v. Rita, 127 S.Ct. 551
(U.S. Nov. 3, 2006) (No. 06-5754) (granting writ of certiorari to decide whether
according a presumption of reasonableness to within-guidelines sentences is consistent
with Booker).
Because Tostado’s earlier offenses were violent felonies, it is not at all clear that he
would have qualified for a reduction in his criminal history even under the old regime.
For his part in several gang-related shootings, he was convicted on multiple counts of
attempted murder, aggravated battery, and armed violence. These offenses are far
more serious than others for which this court has upheld a district court’s refusal to
grant a reduction under § 4A1.3(b)(1). See United States v. Wurzinger, 467 F.3d 649,
654–55 (7th Cir. 2006) (affirming denial of reduction for defendant whose prior offenses
were carrying a switchblade knife and committing instant offense while on probation);
Bradford, 78 F.3d at 1223–24 (pre-Booker case affirming denial of reduction for
defendant previously convicted of three violent felonies). Moreover, the remoteness in

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No. 06-2460 Page 4
time of Tostado’s prior convictions is offset by the fact that he was incarcerated for ten
years from 1990 to 2000, which necessarily created a gap between offenses. See United
States v. Woodard, 408 F.3d 396, 398 (7th Cir. 2005).
Next, Tostado argues that the district court erred by declining to impose a below-
guidelines sentence based on extraordinary family circumstances and “cultural
assimilation.” He contends that it was unreasonable for the court not to reduce his
sentence under U.S.S.G. § 5K2.0 to account for the fact that he had lived in the United
States nearly all his life, that his daughter lived in the United States, and that he
entered the country only to help her struggle against alcohol abuse and depression.
Other than asserting generally that he has lived most of his life in the United States,
Tostado does not fully develop his “cultural assimilation” argument. We note as well
that it is in some tension with his argument that his entire family is now in Mexico,
and that he wants nothing more than to return to Mexico as soon as possible, never to
return again to the United States. Once again, even if the court here might have found
it useful to consider this ground for departure explicitly, it was well within its
discretion to decide that no such adjustment was warranted for Tostado.
Recognizing that this court has rejected arguments for sentencing adjustments
based on the existence or non-existence of fast-track programs, Tostado urges us to
revisit those decisions. See, e.g., United States v. Rodriguez-Rodriguez, 453 F.3d 458,
462–63 (7th Cir. 2006); United States v. Martinez-Martinez, 442 F.3d 539, 542–43 (7th
Cir. 2006). We decline to do so; Tostado has done what he needed to do to preserve this
issue for further review.
In the end, the argument that gives us most pause is the one based on his family
circumstances. We are troubled by the government’s inability to tell us at oral
argument what procedures a person in Tostado’s position was supposed to follow, when
a family emergency in the United States might well have persuaded the Attorney
General to grant permission for a limited re-entry. We are also troubled by the lack of
any specific finding on the question whether Tostado is likely ever to return to the
United States, now that his daughter has passed away and the rest of his family is in
Mexico. That said, we can see plainly from the sentencing record that the district court
took fully into account the fact that Tostado’s daughter lived in the United States and
that he entered the country only to help her. Despite these mitigating factors, the court
nonetheless concluded that Tostado’s serious criminal past and his poor judgment in
driving under the influence warranted a sentence within the guidelines range, albeit
at the bottom of that range. There is no basis in the record for concluding that the
sentence the court chose was an unreasonable one.
For these reasons, we AFFIRM the judgment of the district court.

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