United States v. Acuna-Diaz

NONPRECEDENTIAL DISPOSITION To be cited only in accordance with FED. R. APP. P. 32.1

Argued February 4, 2025.

Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 1:22-CR-00298(1) Thomas M. Durkin, Judge.

Before DIANE S. SYKES, Chief Judge, FRANK H. EASTERBROOK, Circuit Judge, DORIS L. PRYOR, Circuit Judge.

ORDER

Manuel Acuna-Diaz pleaded guilty to reentering the country illegally and was sentenced to 57 months' imprisonment and one year of supervised release. He appeals only the imposition of supervised release, arguing that the district judge failed to justify that aspect of the sentence as serving a deterrent or protective end. But the judge's sentencing remarks show that he considered deterrence when imposing supervised release, so we affirm.

Acuna-Diaz, a Mexican citizen, has a history of illegally entering and committing other crimes in this country. In 2016 he was convicted in Illinois state court for possessing cocaine and voluntarily departed the United States five months later. He returned illegally the very next week and was arrested in mid-2017 by immigration officials. He was promptly convicted for that reentry and removed.

In 2021 Acuna-Diaz was arrested in Illinois for cocaine dealing and was sentenced in state court to four years' imprisonment. In 2022, he was convicted in another Illinois state court for a separate cocaine offense, with the sentence to be served concurrently with the one imposed in 2021.

In mid-2022 federal prosecutors charged Acuna-Diaz with one count of illegal reentry in violation of 8 U.S.C. § 1326(a). He pleaded guilty in a written plea agreement, in which he admitted to having entered the United States illegally three times.

The probation office prepared a presentence investigation report that calculated a guidelines range of 57 to 71 months' imprisonment (based on a total offense level of 19 and criminal-history category of V). The probation officer did not recommend supervised release, noting that the court ordinarily should not impose a term of supervised release in a case where it is not required by statute and the defendant is a removable alien who likely will be removed after imprisonment. See U.S.S.G. § 5D1.1(c). But if the court were to impose a term of supervised release, the probation officer recommended a series of conditions, both mandatory and discretionary.

Both parties submitted sentencing memoranda, and neither objected to the guidelines calculations in the presentence report. The government argued for a within-guidelines sentence as well as a year of supervised release to deter Acuna-Diaz from reentering during supervision. Acuna-Diaz argued for a sentence below the recommended range to align with sentences imposed on similarly situated defendants and to reflect personal mitigating circumstances (a troubled childhood and a caring relationship with his children). He noted that no term of supervision was recommended, but he added that if the court were to impose one, he would object to the condition that his probation officer be allowed to visit him in the workplace.

After hearing from both parties, the judge adopted the guidelines calculations in the presentence report and sentenced Acuna-Diaz to 57 months' imprisonment and one year's supervised release. The judge first discussed supervised release. Although the probation officer had not recommended supervision, the judge deemed it appropriate because a further reentry would violate Acuna-Diaz's conditions of release, which would permit a prompt sentence for that violation without an indictment. The judge then invited Acuna-Diaz's counsel to expand upon the objection to workplace visits; she declined. The judge then overruled the objection, anticipating that a probation officer would visit Acuna-Diaz's workplace only if he could not be reached by other means.

The judge next explained his assessment of the sentencing factors under 18 U.S.C. § 3553(a). The judge treated Acuna-Diaz's prior criminal convictions as aggravating factors and weighed them against his employment and the statements of family members attesting to his positive role in their lives. The judge also discussed the need to deter Acuna-Diaz from offending again, given his repeated history of illegal entry and the high likelihood that he would enter again.

On appeal, Acuna-Diaz argues that the judge did not adequately justify supervised release. Acuna-Diaz invokes U.S.S.G. § 5D1.1(c), which states that courts "ordinarily" should not impose supervised release against "a deportable alien who likely will be deported after imprisonment." He also highlights the commentary's proviso that supervision may be justified only if it would provide "an added measure of deterrence and protection based on the facts and circumstances of a particular case." Id. cmt. 5. In Acuna-Diaz's view, the judge considered neither deterrence nor protection but rather emphasized the need to expedite reimprisonment should he reenter the country again.

At the outset, we address the government's suggestion that Acuna-Diaz waived or forfeited his argument because he never objected in the district court to the imposition of supervised release. But a defendant normally need not object to preserve a claim of error that relates, as here, to the adequacy of an explanation of sentence. United States v. Martin, 122 F.4th 286, 289-90 (7th Cir. 2024).

As for the merits, Acuna-Diaz's argument that the judge did not adequately justify supervised release misconstrues the judge's remarks and ignores his reasons why the circumstances here are not "ordinary" within the meaning of § 5D1.1(c). The judge specifically stated that "specific deterrence really matters in this case because you've never been able to follow the law up to now." He also addressed general deterrence at greater length:

General deterrence, laws relating to immigration seem to have very little deterrent effect, but maybe it will become known to even a few people that if you sneak into the United States and commit crimes, it's just not going to be a quick deportation so

you can reenter and commit the same crimes over and over again.

To the extent Acuna-Diaz thinks that any discussion of deterrence was merely pretextual, the judge's remarks-read in context-amply reflect his recognition that Acuna-Diaz's repeated violations of immigration and drug laws necessitated supervised release as "an added measure of deterrence." U.S.S.G. § 5D1.1 cmt. 5.

AFFIRMED