United States of America v. Javier Armas-Calvillo

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued September 9, 2009
Decided September 18, 2009
Before
JOEL M. FLAUM, Circuit Judge
TERENCE T. EVANS, Circuit Judge
ANN CLAIRE WILLIAMS, Circuit Judge
No. 08‐4294
UNITED STATES OF AMERICA,
Plaintiff‐Appellee,
v.
JAVIER ARMAS‐CALVILLO,
Defendant‐Appellant.
Appeal from the United States
District Court for the
Western District of Wisconsin.
No. 08 CR 23
Barbara B. Crabb, Chief Judge.
ORDER
Javier Armas‐Calvillo has been removed from the United States twice, and after
serving his sentence for illegal reentry he’ll have one more to add to his tally. He was first
forced to leave after serving a Wisconsin sentence for sexual assault. He snuck back into the
country, only to be removed again after being convicted in Wisconsin in 2007 for
manufacturing and delivering marijuana. Undeterred, he came back to Wisconsin a third
time and was arrested again in 2008 on various drug charges. Soon after this arrest he was
indicted for unlawfully reentering the United States following an order of removal, 18
U.S.C. § 1326, an offense to which he pleaded guilty.
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1

-- 1 of 3 --

No. 08-4294 Page 2
A defendant‐‐like Armas‐Calvillo‐‐who was previously deported following a
conviction for a felony drug‐trafficking offense, faces a 12‐level increase in his sentencing
guidelines range. U.S.S.G. § 2L1.2(b)(1)(B). Relying on his 2007 drug convictions, the
probation officer recommended imposing this guidelines hike. Armas‐Calvillo objected,
since shortly before sentencing (but well after his second removal from the United States) he
managed to have the drug convictions vacated. It’s not that Armas‐Calvillo was innocent.
Rather, he was not properly advised of the immigration consequences of his pleas as
required under Wisconsin law. Wis. Stat. § 971.08(2). Noting that at the time of his removal
he was a convicted drug trafficker, and relying on our opinion in United States v.
Garcia‐Lopez, 375 F.3d 586 (7th Cir. 2004), the district court rejected this argument and
sentenced him to 30 months of imprisonment.
Armas‐Calvillo renews this objection before us, but he cannot escape the holding in
Garcia‐Lopez. In that case, the defendant was deported following a Wisconsin armed
robbery conviction before sneaking back into the United States. He also pleaded guilty to
illegal reentry and faced a higher guidelines range due to his prior conviction. But‐‐just like
Armas‐Calvillo‐‐Garcia‐Lopez obtained an order vacating his Wisconsin conviction after he
had been deported but shortly before sentencing because he received no warning about the
immigration conse‐ quences of his guilty plea. The district court declined to impose a
sentencing increase based on the vacated conviction, and the government appealed. Noting
that the plain language of the guidelines indicates that the appropriate inquiry is whether
the defendant had been convicted of a crime “at the time of deportation,” we reversed. Id. at
588 (emphasis in original). Armas‐Calvillo’s case is on all fours with Garcia‐Lopez. At the
time of his removal, Armas‐Calvillo was a convicted drug‐trafficker. The vacation of those
convictions, based on a minor procedural error, does nothing to change this fact.
Armas‐Calvillo tries to escape this precedent by pointing to 8 U.S.C. § 1101(a)(48)(A),
which defines a conviction as a formal judgment of guilt entered by a court. He argues that,
since his convictions have been vacated and the presumption of innocence restored, he is no
longer convicted, as defined by this statute. But this argument misses the point. The key to
the sentencing increase is temporal‐‐the plain language of the guidelines requires the court
to assess whether the defendant was removed after a drug‐trafficking conviction. When
Armas‐Calvillo was removed, he had two drug convictions‐‐even as defined by 8 U.S.C. §
1101(a)(48)(A)‐‐on the books. As we noted in Garcia‐Lopez, this case might come out
differently if the convictions were vacated upon a showing of actual innocence. 375 F.3d at
589. But those weighty concerns are not implicated here, and so we need not address them.
Armas‐Calvillo also argues that the district court violated his Sixth Amendment
rights when it, rather than the jury, found that he had prior convictions which were absent

-- 2 of 3 --

No. 08-4294 Page 3
from the indictment, exposing him to a higher sentence. But the Supreme Court has rejected
that argument, Almendarez‐Torres v. United States, 523 U.S. 224, 244 (1998), and unless or
until it changes course, we are bound by this precedent. See United States v. Stevens, 453 F.3d
963, 967 (7th Cir. 2006). Acknowledging the weight of Almendarez‐Torres, Armas‐Calvillo
tries to distinguish his case by again noting that his drug convictions have been vacated.
But we have already explained why that argument is unavailing, and mounting it again in
this context only raises a distinction without a difference. The district court was required to
properly calculate Armas‐Calvillo’s sentencing range under the guidelines, United States v.
Rivera, 463 F.3d 598, 602 (7th Cir. 2006), and considering the vacated convictions was
appropriately included in its calculus.
Accordingly, the judgment of the district court is AFFIRMED.

-- 3 of 3 --