United States of America v. Jose Roche -Martinez

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 05-4618
U NITED S TATES OF A MERICA ,
Plaintiff-Appellee,
v.
J OSE R OCHE -M ARTINEZ ,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 04-CR-639-1—Harry D. Leinenweber, Judge.
____________
A RGUED S EPTEMBER 6, 2006—D ECIDED O CTOBER 19, 2006
____________
Before F LAUM , Chief Judge, and B AUER and P OSNER ,
Circuit Judges.
F LAUM , Chief Judge. Jose Roche-Martinez pleaded guilty
to being in the United States after being deported following
a conviction for an aggravated felony, in violation of
8 U.S.C. § 1326(a) and (b)(2). Special Agent Mark DeTolve
and Officer Constantino Poulakis arrested Roche-Martinez
in a garage behind his mother’s residence after entering the
property without a search warrant or an arrest warrant.
Roche-Martinez filed a motion to quash his arrest and
suppress illegally seized evidence. The district court denied
the motion and sentenced Roche-Martinez to 57 months in
prison, refusing to award Roche-Martinez a sentence below
the guideline range on the basis of his cultural assimilation

-- 1 of 9 --

2 No. 05-4618
or the lack of a fast-track program in the Northern District
of Illinois. Roche-Martinez appeals his sentence and the
district court’s denial of his motion to suppress. For the
following reasons, we affirm the judgment of the district
court.
I. B ACKGROUND
Jose Roche-Martinez came to the United States in 1974
with his mother, Sylvia Castro, who is a United States
citizen. His younger brother, wife, and three children are all
American citizens. On February 8, 2002, Roche-Martinez
was deported to Mexico based upon felony convictions for
residential burglary and the delivery of a controlled sub-
stance.
In April or May of 2004, Roche-Martinez illegally reen-
tered the United States with the help of a “coyote,” a guide
that undocumented immigrants pay to help them cross the
United States’ border with Mexico. On May 8, 2004, an
anonymous tip notified authorities that Roche-Martinez
was living at 4342 South Ashland Avenue in a garage
behind his mother’s house. On June 7, 2004, Immigrations
and Customs Enforcement (ICE) Special Agent Mark
DeTolve received a packet from his supervisor explaining
the anonymous tip. The packet contained the results of a
ChoicePoint database search, which listed 4342 South
Ashland Avenue as an address that Roche-Martinez
previously had used. Agent DeTolve discovered that Roche-
Martinez had not reentered the United States at any
legitimate point of entry, and had not applied for an
adjustment of status. Agent DeTolve requested a hard copy
of Roche-Martinez’s Alien-File, which contained an executed
warrant of removal with Roche-Martinez’s photograph.
On June 28, 2004, Agent DeTolve visited 4342
South Ashland to ascertain the layout of the property.
While in his vehicle, Agent DeTolve observed a person

-- 2 of 9 --

No. 05-4618 3
fitting Roche-Martinez’s description taking a mattress from
a vehicle parked behind the house toward the yard of the
residence. Agent DeTolve parked his vehicle and walked to
the back of the residence to confront the individual. How-
ever, the vehicle parked in the back of the residence was
gone before Agent DeTolve arrived.
On June 30, 2004, Agent DeTolve returned to 4342 South
Ashland Avenue to show the residence to his partner,
Officer Constantino Poulakis. They planned to arrest
Roche-Martinez the next day. On July 1, 2004, at approxi-
mately 6:30 a.m., the two officers arrived at the residence.
They found the gates to the residence locked, so they
entered a neighbor’s yard to get a better look at the 4342
South Ashland residence. From the yard next door, Agent
DeTolve observed that the back door of the residence was
open. Officer Poulakis hopped over the fence while Agent
DeTolve went to the back gate of 4342 South Ashland
Avenue. Officer Poulakis opened the gate for Agent
DeTolve. Officer Poulakis told Agent DeTolve that an “old
man” inside the house told him that Roche-Martinez was in
the garage. The officers knocked on the garage and a shed
attached to the garage.
Roche-Martinez’s wife opened the door and gave the
officers permission to enter. The officers observed Roche-
Martinez, his wife, his son, two beds, and a dresser. The
officers did not have a search warrant or an arrest warrant.
The parties stipulated that Sylvia Castro, Roche-Martinez’s
mother, did not give the officers permission to enter her
yard or residence.
Following Roche-Martinez’s arrest, the government
charged him with unlawfully being in the United States
after being previously deported, a violation of 8 U.S.C.
§ 1326(a). Roche-Martinez filed a motion to quash his arrest
and suppress evidence obtained during his arrest, alleging
that Agent DeTolve and Officer Poulakis had unlawfully

-- 3 of 9 --

4 No. 05-4618
entered the garage to arrest him. The district court found
that there were many ways the government could have
proven Roche-Martinez’s presence in the United States on
July 1 and denied Roche-Martinez’s motion. On August 9,
2005, Roche-Martinez pleaded guilty under
8 U.S.C. § 1326(a) and (b)(2), reserving the right to ap-
peal the denial of his motion.
Pursuant to recommendations from both sides, the
district court gave Roche-Martinez a three level reduction
for acceptance of responsibility. Prior to sentencing, Roche-
Martinez asked the district court to consider his cultural
assimilation and the lack of a fast-track program in the
Northern District of Illinois as two additional bases for a
downward adjustment. The district court denied both
requests and sentenced Roche-Martinez to 57 months
in prison, the low end of the guideline range.
On appeal, Roche-Martinez contends that the district
court erred in failing to invalidate his arrest and in fail-
ing to suppress the evidence regarding his identity, which
the government obtained while he was in custody. He
also contends that the district court erred by refusing to
award him a downward adjustment based on his cultural
assimilation or on the absence of a fast-track program.
II. D ISCUSSION
A.
When reviewing an appeal from a district court’s denial
of a motion to suppress, we review legal conclusions de novo
and findings of fact for clear error. United States v. Robeles-
Ortega, 348 F.3d 679, 681 (7th Cir. 2003) (citing United
States v. Yang, 286 F.3d 940, 944 (7th Cir. 2002)).
Roche-Martinez claims that because Agent DeTolve and
Officer Poulakis illegally entered his home on July 1, 2004,
all evidence of his presence in the United States on that day

-- 4 of 9 --

No. 05-4618 5
is the fruit of that illegal search and must be excluded.
Moreover, he argues that without the evidence of his
presence, the Court must quash his arrest. For purposes
of this appeal, we assume the entry was illegal.
This case is governed by New York v. Harris, 495 U.S. 14,
18 (1990), in which the Supreme Court held that unlawful
entry into the home of a criminal defendant does not make
the defendant’s subsequent detention unlawful if probable
cause existed to arrest the defendant. In Harris, the Court
“decline[d] to apply the exclusionary rule . . . because the
rule in Payton [which held that the Fourth Amendment
prohibits the police from effecting a warrantless and
nonconsensual entry into a suspect’s home in order to make
a routine felony arrest] was designed to protect the physical
integrity of the home; it was not intended to grant criminal
suspects . . . protection for statements made outside their
premises where the police have probable cause to arrest the
suspect for committing a crime.” Id. at 17.
The Court distinguished Brown v. Illinois, 422 U.S. 590
(1975), and its line of cases in which courts suppressed
statements made following arrests that lacked probable
cause. Harris, 495 U.S. at 18-19. Here, Agent DeTolve
and Officer Poulakis had probable cause to arrest Roche-
Martinez. ICE received an anonymous tip regarding Roche-
Martinez’s unlawful presence at 4342 South Ashland
Avenue. Agent DeTolve confirmed Roche-Martinez’s prior
deportation and failure to apply for reentry, reviewed
photographs of Roche-Martinez, and observed him on
June 28, 2004 at the Ashland address. Agent DeTolve also
verified that Roche-Martinez had used the Ashland address
prior to his 2002 deportation. Consequently, even though
Agent DeTolve and Officer Poulakis did not have a warrant
or consent to enter the residence, Roche-Martinez’s subse-
quent detention was lawful and the district court correctly
ruled that the evidence collected during Roche-Martinez’s
detention, namely, his identity, was admissible, and not

-- 5 of 9 --

6 No. 05-4618
tainted by the earlier unlawful entry into his mother’s
residence.
The Eighth Circuit has applied the Harris decision in a
case with comparable facts to those now before this Court.
See United States v. Villa-Velazquez, 282 F.3d 553 (8th Cir.
2002). In Villa-Velazquez, a Nebraska police department
received information that Villa-Velazquez had illegally
returned to the United States after being deported following
a felony conviction. An officer illegally entered Villa-
Velazquez’s home and arrested him without a search or an
arrest warrant. Villa-Velazquez moved to suppress the
identity information obtained after his arrest as fruits of
the poisonous tree.
On appeal from denial of his motion, the Eighth Circuit,
citing Harris, said that “an initial illegal arrest does not
require that the officers release and then re-arrest the
defendant in order to continue with legal-custody proceed-
ings.” Id. at 556 (citing Harris, 495 U.S. at 18). It then held
that identity information obtained after an arrest supported
by probable cause is admissible under Harris. Id. We agree
with the Eighth Circuit’s application of Harris in this
context.
Roche-Martinez claims that United States v. Johnson, 380
F.3d 1013 (7th Cir. 2004), requires reversal of the district
court’s ruling. In Johnson, police officers conducted two
illegal searches; one officer illegally searched under the
defendant’s car seat, and one officer illegally searched two
passengers. The illegal search of the passengers led police
to more evidence in the defendant’s trunk, which the
government used against the defendant. We held that the
inevitable discovery doctrine did not apply because the
source of the evidence used against the defendant, the
search of the passengers, was illegal itself. Id. at 1017.
Johnson does not apply here because the government was
lawfully aware of Roche-Martinez’s presence in the United

-- 6 of 9 --

No. 05-4618 7
States prior to, and independent of, the illegal entry.
Moreover, Roche-Martinez’s illegal presence could have
been proven absent the illegal entry. Once he was taken
outside the house, detained, and fingerprinted, he was
still present in the United States on July 1, 2004.
Though Harris precludes relief from Roche-Martinez’s
criminal conviction, we note, as did the district court, that
our holding in no way sanctions Agent DeTolve’s or Officer
Poulakis’ decision not to seek a search or an arrest warrant.
Justice Marshall, dissenting in Harris, warned that under
the Harris rule, a logical police officer will make a rational
choice to violate the Constitution rather than first obtaining
a search or arrest warrant, because the “evidence will be
admissible regardless of whether it was the product of [an]
unconstitutional arrest.” Harris, 495 U.S. at 32 (Marshall,
J., dissenting). There were no exigent circumstances here.
Agent DeTolve and Officer Poulakis spent several days
planning Roche-Martinez’s arrest. They surveyed his
residence twice over several days before arresting him and
Agent DeTolve observed Roche-Martinez outside the
residence on June 28, three days before the arrest. There
existed ample opportunity to obtain either a search or an
arrest warrant. Despite our unease regarding the facts of
this case, Justice Marshall’s opinion is not the law, and
Harris controls our decision.
B.
Roche-Martinez claims it was unreasonable under
18 U.S.C. § 3553 to sentence him within the guideline range
as calculated by the district court. In accordance with
United States v. Booker, 543 U.S. 220, 261 (2005), we review
a district court’s sentence to ensure it is reasonable. United
States v. Mykytiuk, 415 F.3d 606, 608 (7th Cir. 2005). A
sentence that is properly calculated under the sentencing
guidelines is presumptively reasonable. Id.

-- 7 of 9 --

8 No. 05-4618
Roche-Martinez argues that his sentence is unreason-
able because the district court refused to award him a
sentence below the advisory guideline range for his cultural
assimilation. The district court ruled that there was no
“basis for any lesser harm or cultural assimilation in
[Roche-Martinez’s] background that would be sufficient to
overcome his very serious criminal history as a person who
is not a citizen of this country and is here illegally.” Novem-
ber 16, 2005 Tr. at 11. Although case law indicates that
some courts have awarded downward departures based on
cultural assimilation, see United States v. Martinez-Alvarez,
256 F. Supp. 2d 917, 921 (E.D. Wisc. 2003); United States v.
Reyes-Campos, 293 F. Supp. 2d 1252, 1257 (M.D. Ala. 2003),
the district court was well within its discretion to consider
Roche-Martinez’s criminal past and deny him any down-
ward adjustment. Congress has recognized that society has
an increased interest in keeping aliens who have committed
crimes out of the United States following their deportation.
See United States v. Gonzalez, 112 F.3d 1325, 1330 (7th Cir.
1997) (noting that Guideline 2L1.2(b)(1)(A)’s aggravated
felony enhancement reflects the seriousness of the crime
committed, because “it [is] particularly troublesome to have
illegal aliens returning who are not just illegal aliens, but
also criminals.”). Therefore, the district court did not abuse
its discretion by deciding that Roche-Martinez’s prior
felonies outweighed his cultural assimilation.
Roche-Martinez also argues that his sentence is unrea-
sonable because the absence of a fast-track program in the
Northern District of Illinois has resulted in an unfair
sentencing discrepancy. We have already rejected this
argument. See United States v. Galicia-Cardenas, 443 F.3d
553, 555 (7th Cir. 2006) (“[W]e cannot say that a sentence
imposed after a downward departure is by itself reasonable
because a district does not have a fast-track program . . . .”);
United States v. Martinez-Martinez, 442 F.3d 539, 542 (7th
Cir. 2006) (“Given Congress’ explicit recognition that fast-

-- 8 of 9 --

No. 05-4618 9
track procedures would cause discrepancies, we cannot say
that a sentence is unreasonable simply because it was
imposed in a district that does not employ an early disposi-
tion program.”). Given this precedent, we find Roche-Marti-
nez’s argument without merit.
III. C ONCLUSION
For the above stated reasons, we A FFIRM the judgment of
the district court.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—10-19-06

-- 9 of 9 --