United States v. Vega-Garcia, No. 17-50392 (5th Cir. 2018)
Annotate this CaseVega-Garcia was convicted on a guilty plea for being found in the United States following a prior deportation, 8 U.S.C. 1326. The pre-sentence report addressed Vega-Garcia’s prior conviction under Florida law for abuse of an elderly or disabled adult under the 2015 Guidelines then in effect and concluded that the conviction constituted a crime of violence (COV), warranting a 16-level increase under U.S.S.G. 2L1.2(b)(1)(A)(ii), which would yield a Guidelines range of 57-71 months. Vega-Garcia objected that it was not a COV, yielding only an 8-level increase under section 2L1.2(b)(1)(C), with a Guidelines range of 24-30 months. At sentencing, the district court applied the 2016 Guidelines; overruled Vega-Garcia’s objection, observed that Vega-Garcia had once again entered the U.S. unlawfully, despite previously serving a 60-month sentence for that offense; noted that Vega-Garcia had numerous uncounted offenses; and determined that an above-Guidelines sentence was necessary to dissuade Vega-Garcia from continuing to enter the country unlawfully. The Fifth Circuit affirmed a 72-month sentence. The government did not defend the determination that the Florida elder abuse statute qualified as a COV but argued harmless error. The district court considered the different potential Guidelines and concluded that the 72-month sentence was necessary because of Vega-Garcia’s recidivism.
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