United States of America v. Julio Ortega-Vargas

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued May 28, 2009
Decided July 17, 2009
Before
WILLIAM J. BAUER, Circuit Judge
JOEL M. FLAUM, Circuit Judge
MICHAEL S. KANNE, Circuit Judge
No. 08-2886
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
JULIO ORTEGA-VARGAS,
Defendant-Appellant.
Appeal from the United States District
Court for the Eastern District
of Wisconsin.
No. 2:07-cr-00264-CNC-1
Charles N. Clevert, Jr.,
Judge.
O R D E R
Julio Ortega-Vargas was convicted of illegally reentering the United States after
being deported subsequent to committing an aggravated felony, in violation of 8 U.S.C.
§§ 1326(a) and (b)(2), and sentenced to 53 months’ imprisonment. He appeals his sentence,
which we affirm.
Ortega-Vargas, a Mexican citizen, illegally entered the United States in 1988 as a teenager.
In 1993, he was convicted of battery for severely beating his girlfriend. He later beat the same
woman, violating a court order to avoid contact with her. Also in 1993, he was fined for
resisting or obstructing an officer. In 1998, Ortega-Vargas was convicted of disorderly conduct
and sentenced to 90 days in jail. That same year, he was convicted on three counts of
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1

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No. 08-2886 Page 2
It appears that Ortega-Vargas may have provided his real name when he was booked1
at the police station.
manufacturing and delivering cocaine. An immigration judge ordered Ortega-Vargas
removed from the United States in 1999 because of his drug trafficking convictions. He was
removed to Mexico in 2000.
In 2002, Ortega-Vargas illegally reentered the United States. He was arrested in November
2003 in connection with a controlled narcotics purchase and identified himself as Gabriel S.
Cucique, giving a false date of birth as well. In May 2004, he was convicted in a Wisconsin1
state court of possession with intent to deliver cocaine and marijuana; he was sentenced to four
years’ imprisonment.
The Bureau of Immigration and Customs Enforcement (ICE) knew of Ortega-Vargas’
identity and location by 2004 at the latest, but for some reason did not notify the United States
Attorney’s Office of his return to the United States until August 2007. In October 2007,
Ortega-Vargas was indicted on a single count of being found in the United States in violation
of 8 U.S.C. § 1326. He eventually pleaded guilty.
Ortega-Vargas made two main arguments at his sentencing hearing that also form the
bases for this appeal. First, he claimed that if the government had not waited so long to
prosecute him, he could have requested, and may have received, a federal sentence that ran
concurrently with his ongoing state sentence, which had concluded by the time he was
sentenced in his federal case. Ortega-Vargas argued that he should receive a reduced sentence
because of this lost opportunity. His second argument was that the district court should
consider the disparity between sentencing in districts with and without so-called fast-track
programs for illegal reentry defendants who quickly plead guilty and waive certain rights
(Wisconsin does not have a fast-track program). After briefing and a hearing, the district court
rejected both arguments for a reduced sentence.
On appeal, Ortega-Vargas acknowledges that we review a district court’s sentence for
reasonableness. United States v. Vaughn, 433 F.3d 917, 924 (7th Cir. 2006). But he argues that
the district court misunderstood the law surrounding these two issues so that it did not realize
its options and the case must be remanded for a proper sentencing analysis. As to the lost
opportunity to seek a concurrent sentence, Ortega-Vargas argues that the district court was
wrong when it stated that if Ortega-Vargas had been charged when first discovered by ICE,
so that there was no prosecutorial delay, the Guidelines at that time “generally called for as
a matter of policy a consecutive sentence so there would be incremental punishment.” Read
in context, however, the district court was simply observing that Ortega-Vargas’ drug crimes

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No. 08-2886 Page 3
Ortega-Vargas argues that the Guidelines’ offense level calculation takes into account2
the prior convictions of an illegal reentry defendant, citing U.S.S.G. § 2L1.2. But § 2L1.2 only
considers the drug crimes that preceded Ortega-Vargas’ deportation, not the ones committed
after his return. Neither does U.S.S.G. § 5G1.3(b) apply because the most recent drug
convictions did not increase the offense level for the illegal reentry.
and reentry crime are not related so that they might naturally be punished concurrently. Its
very next sentence states: “This is not a case where your client’s drug offense . . . was part
and parcel of the re-entry case.” This is a reasonable observation. We have stated “that
every separate violation of law deserves a separate sanction, so that no violation shall
go unsanctioned.” United States v. Hill, 48 F.3d 228, 232 (7th Cir. 1995). It is true that the drug
convictions are completely independent of the illegal reentry conviction and while this does2
not preclude a concurrent or partially concurrent sentence, see id. at 232-33, it was not
unreasonable to consider.
The district court next observed that Ortega-Vargas was attempting to avoid detection by
using an alias in connection with his most recent drug case and “would, in effect, be given a
reward if he were to receive a concurrent sentence for the illegal re-entry.” Ortega-Vargas
sought the benefit of a reduced sentence on the basis that he lost the opportunity to request a
concurrent sentence when he was discovered too soon, but tried too late, for his liking. The
district court was not wrong to consider this when denying Ortega-Vargas’ request for a
reduced sentence.
Finally, the court went on to state that “as a practical matter, given the background that
has been spread on the record and set forth in the presentence report, at least in this Court it’s
not likely that a concurrent sentence would have been imposed.” On this basis, the court
decided not to reduce Ortega-Vargas’ sentence based on the lost opportunity to request a
concurrent sentence that the district court likely would not have given anyway because of
Ortega-Vargas’ background. The district court considered Ortega-Vargas’ argument and did
not indicate that it was precluded from reducing his sentence based on prosecutorial delay,
but it ruled on the merits to deny a reduction in this case.
Ortega-Vargas’ second argument is that the district court falsely believed it was prohibited
from considering the fast-track disparity because Ortega-Vargas had a prior battery conviction,
which the government characterized as a “crime of violence” that might prevent Ortega-
Vargas from receiving a fast-track disposition even in some districts that utilize fast-track
programs. Ortega-Vargas claims that his battery conviction is not a “crime of violence” as that
term is relevant to fast-track programs and that, even if it was, it would not preclude him from
receiving a fast-track disposition. We need not resolve this argument because the record does
not indicate that the district court felt prohibited from reducing Ortega-Vargas’ sentence to

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No. 08-2886 Page 4
The government reminded the district court that Ortega-Vargas’ battery conviction3
was actually a misdemeanor, to which the court responded: “Yes. It was a misdemeanor, but
it certainly was a case where the defendant kicked a woman in the face and knocked out her
teeth. It’s a violent crime. And I can’t overlook the facts associated with that particular
offense.”
account for this disparity. The court listened to and engaged Ortega-Vargas’ argument, but
ultimately ruled on the merits
that the defendant in this case because of his criminal history and
because of the fact that he has a prior violent felony as well as3
drug convictions, especially the one which landed him in jail
recently here in Wisconsin, does not warrant a four level
reduction in terms of the guidelines or in connection with any
sentence that might be imposed. And so I am rejecting your fast
track argument.
Again, this does not demonstrate that the district court thought itself to be precluded from
considering the fast-track argument, only that it was not inclined to grant a further sentencing
reduction in this case because of Ortega-Vargas’ history. Because the district court rejected the
proposed reduction on the facts of this particular case and the history of this particular
defendant, we do not need to consider any effect Kimbrough v. United States, 552 U.S. 85 (2007),
may have had on United States v. Martinez-Martinez, 442 F.3d 539 (7th Cir. 2006) (district court
not unreasonable in refusing to reduce sentence based on fast-track disparity), or United States
v. Galicia-Cardenas, 443 F.3d 553 (7th Cir. 2006) (error to reduce sentence based on fast-track
disparity).
It is clear from the record that the district court considered Ortega-Vargas’ legal
arguments, but ultimately ruled on the merits of the case in front of it. The court simply found
that, because of his criminal history, Ortega-Vargas should not receive a further-reduced
sentence. Ortega-Vargas does not argue that the court lacked the authority to exercise its
discretion in this way. We AFFIRM.

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