Appeal from the United States District Court UNITED STATES OF AMERICA v. Juan Quinonez-Barraza

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued December 17, 2014
Decided December 22, 2014
Before
No. 14‐2096 Appeal from the
United States District Court
UNITED STATES OF AMERICA,
Plaintiff‐Appellee,
v.
JUAN QUINONEZ‐BARRAZA,
Defendant‐Appellant.
for the Northern District of Illinois,
Eastern Division.
No. 13 CR 5 ‐ 1
John W. Darrah,
Judge.
O R D E R
Juan Quinonez‐Barraza pleaded guilty to being in the United States without
authorization after his removal, see 8 U.S.C. § 1326(a), and was sentenced below the
guidelines imprisonment range to 51 months. He appeals his prison term, arguing that the
district court did not adequately explain why he should not receive an even lower
sentence on the ground that the upward adjustment he received because his removal
followed a drug‐trafficking conviction is too harsh. See U.S.S.G. § 2L1.2(b)(1)(A)(i). We
conclude that the district court addressed this argument adequately, even though the
court was under no obligation to do so. Accordingly, we affirm Quinonez‐Barraza’s
sentence.
ANN CLAIRE WILLIAMS, Circuit Judge
DIANE S. SYKES, Circuit Judge
DAVID F. HAMILTON, Circuit Judge
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with FED. R. A PP. P. 32.1

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Quinonez‐Barraza, a Mexican citizen, first came to the United States in 1973. In
1989 he was convicted in federal court of trafficking cocaine and sentenced to a total of
63 months’ imprisonment. Immigration authorities removed him in 1993 after his
release from prison. He returned and in 1998 was convicted by an Illinois court of
delivery of a controlled substance and was removed again in 2000 after his release from
prison. He returned to the United States a second time, and in October 2011 he was
arrested for a third drug offense and sentenced to 8 years’ imprisonment. While serving
that Illinois sentence, Quinonez‐Barraza pleaded guilty to the § 1326(a) violation.
A probation officer calculated a guidelines imprisonment range of 70 to
87 months, based on a total offense level of 21 and a criminal history category of V. The
offense level includes a 16‐level upward adjustment under § 2L1.2(b)(1)(A)(i). That
increase applied because Quinonez‐Barraza had been removed following a
drug‐trafficking conviction that counted in his criminal‐history score and resulted in a
prison sentence greater than 13 months. Quinonez‐Barraza did not object to this
increase or to any other aspect of the probation officer’s guidelines calculations. In fact,
in a “sentencing position paper,” defense counsel conceded that the probation officer’s
calculations were “technically correct.” He argued, though, that a below‐range sentence
was warranted on the ground that the “guidelines range, although properly calculated,
is based on an unduly harsh enhancement.” This is so, counsel asserted, because the
16‐level increase “under § 2L1.2(b)(1)(A) triples the base offense level of eight based on
conduct for which a defendant has already been punished.” And, counsel continued,
immigration crimes received very light sentences before there were guidelines, and
although since then the average sentence for all immigration offenses already had risen
sharply to 16 months, Quinonez‐Barraza faced a low‐end term four times that number
and 33 months longer than the “average” sentence imposed in all federal prosecutions.
The application of § 2L1.2(b)(1)(A) also leads to “double counting,” counsel insisted,
because “the provision looks to prior convictions to increase the base offense level,
when the criminal history provision under Guideline § 4A1.1 also counts the same
convictions for enhancing the criminal history category.” And “[m]ore troubling,”
counsel said, “is the fact that the 16‐level enhancement is not based on empirical
research.” In his position paper, though, counsel had only this to say about
§ 2L1.2(b)(1)(A) and Quinonez‐Barraza:
The unconsidered and problematic nature of the 16‐level increase
under Guideline § 2L1.2 underscores the need for careful consideration in
Quinonez‐Barraza’s case. Quinonez‐Barraza already served a six year
sentence for his 1998 drug offense. Yet that case now increases his

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recommended sentence from what would be a range of 9 to 15 months
without the enhancement (based on a base offense level of eight, minus
two for acceptance, and criminal history category V) to a range of 70 to
87 months’ incarceration with the 16‐level enhancement—a 61‐month
increase in the low end of the guidelines range. In addition,
Quinonez‐Barraza also faces the additional collateral consequence of
being forever banned from the United States where his[] children
currently reside. (Citation omitted.)
At the sentencing hearing, defense counsel added nothing more to this argument except
to say that “the defendant is not eligible for any of the normal good time release or
programs within the prison.”
The district court accepted the probation officer’s calculations. The court agreed
that the 16‐level increase lacks empirical support and acknowledged that
Quinonez‐Barraza has strong family ties in the United States. The court concluded,
however, that Quinonez‐Barraza’s life of serious crime in the United States, combined
with the absence of any deterrent effect of his previous terms of imprisonment, justified
a 70‐month sentence. But the court also recognized that Quinonez‐Barraza had
19 months remaining on a sentence in state prison before his projected parole date and
so imposed a 51‐month sentence to run consecutively to that state sentence.
As he summarizes his own argument, Quinonez‐Barraza contends that the
district court committed a procedural error by not stating why the court “felt the
guidelines were appropriate despite agreeing that there was little or no empirical
research to justify” the increase under § 2L1.2(b)(1)(A). According to Quinonez‐Barraza,
he didn’t argue in his sentencing position paper that the increase under § 2L1.2(b)(1)(A)
should never be applied but instead “took the position that the 16 point bump should
not be applied to Mr. Quinonez‐Barraza[] given the individualized facts and
circumstances of his case.” Quinonez‐Barraza does not contend, however, that the
district court failed to address his other arguments in mitigation: his “underprivileged
beginning,” his “nonviolent” criminal history, his strong ties to family and his family’s
willingness “to make things work” after he is released from prison and removed to
Mexico, his long employment record, his age, the sentence he was already serving in
state prison, and the collateral consequences associated with his § 1326(a) conviction.
Quinonez‐Barraza’s procedural argument is unsound for two reasons. First, the
district court did consider his contention about § 2L1.2(b)(1)(A), even agreeing that
“[t]here does not appear to be a great deal of—if any, empirical data” supporting the

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deterrent effect of tripling the base offense level when the defendant reenters after a
qualifying conviction. In addition, the district court used this consideration to justify a
lower sentence. After summarizing Quinonez‐Barraza’s arguments in mitigation,
including his argument concerning the absence of empirical support for
§ 2L1.2(b)(1)(A), the court concluded that “a sentence at the low end of the guideline
range is appropriate.” Thus, the record establishes that the district court considered
Quinonez‐Barraza’s arguments in mitigation, and he does not contend that the court’s
statement of reasons, on the whole, is inadequate to justify the below‐range sentence of
51 months. Nothing more is required. See United States v. Schmitz, 717 F.3d 536, 541 (7th
Cir. 2013); United States v. Marin‐Castano, 688 F.3d 899, 902 (7th Cir. 2012).
Second, although a sentencing court is free to entertain policy arguments about
specific guidelines, the court is never obligated to accept or act on a policy argument.
See United States v. McLaughlin, 760 F.3d 699, 707–08 (7th Cir. 2014); Schmitz, 717 F.3d at
542; United States v. Moreno‐Padilla, 602 F.3d 802, 813–14 (7th Cir. 2010). And contrary to
Quinonez‐Barraza’s premise, the district court’s acknowledgment that § 2L1.2(b)(1)(A)
lacks empirical support does not mean that the court rejected the 16‐level increase as
unsound or as inconsistent with the court’s own penal theories. See Moreno‐Padilla,
602 F.3d at 814. An objective critique of the Commission’s methodology is not the same
as rejection of the Commission’s result, and Quinonez‐Barraza cites no authority for his
presumption that one must lead to the other. As we explained recently, “the absence of
an empirical basis does not render a guidelines provision per se unreasonable or
irrational.” McLaughlin, 760 F.3d at 707.
More importantly here, a district court is not required to address a defendant’s
argument that a particular guideline provision is categorically unsound. See Schmitz,
717 F.3d at 542; United States v. Ramirez, 675 F.3d 634, 640 (7th Cir. 2011); Moreno‐Padilla,
602 F.3d at 814; United States v. Aguilar‐Huerta, 576 F.3d 365, 367–68 (7th Cir. 2009). That
understanding of the sentencing court’s procedural obligations applies to
§ 2L1.2(b)(1)(A). Quinonez‐Barraza insists that he did not make a “blanket challenge” to
§ 2L1.2(b)(1)(A), but rather focused on the “interplay” between the 16‐level increase and
his personal circumstances. For the most part, though, his contentions are transparently
categorical objections to the upward adjustment. He insists, for example, that
nonviolent offenses “should not be punished as severely as other more serious crimes,”
yet with the 16‐level increase, he faced a guidelines sentence that at the low end is more
than four times the average immigration sentence and thirty‐three months longer than
the average sentence in all federal criminal cases. This contention is not unique to
Quinonez‐Barraza; every defendant who receives the increase under § 2L1.2(b)(1)(A)(i)

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because of a nonviolent drug‐trafficking crime would have the same argument.
Quinonez‐Barraza also contends that the upward adjustment unfairly double‐counted
his underlying drug crimes by using those offenses to increase both his criminal‐history
score and base offense level. Again, that contention is not limited to Quinonez‐Barraza.
No defendant will face a 16‐level increase unless the conviction that triggers
§ 2L1.2(b)(1)(A) counts toward his criminal‐history score.
The rest of what Quinonez‐Barraza says—that the 16‐level increase is
unwarranted for defendants like him, who have positive employment records, a low
level of educational achievement, a nonviolent history, and strong family ties—has
nothing to do with § 2L1.2(b)(1)(A). As arguments in mitigation, employment,
educational deficits, and family ties concern the appropriateness of a sentence within
the guidelines range, but Quinonez‐Barraza never explains how there is “interplay”
between these contentions and § 2L1.2(b)(1)(A). And all of them, moreover, are “stock”
arguments that the district court was not required to address. See United States v. Cheek,
740 F.3d 440, 455–56 (7th Cir. 2014) (nonviolence); United States v. Chapman, 694 F.3d
908, 916 (7th Cir. 2012) (familial support and “history of gainful employment”); United
States v. Russell, 662 F.3d 831, 854 (7th Cir. 2011) (education).
AFFIRMED.

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