United States v. Ortega-Galvan, No. 11-3115 (7th Cir. 2012)
Annotate this CaseDefendant-Appellee Ingrel Estiel Ortega-Galvan appealed his 41-month sentence for entering the United States without authorization after having been removed. The issue before the Seventh Circuit concerned whether and when a district judge could reduce a defendant's sentence after discovering an error in an earlier conviction, which left undisturbed, would support a higher sentence. The probation service calculated the defendant's criminal history as a category IV. The combination of a total offense level of 21 and a criminal history category of IV yielded a guidelines range of 57 to 71 months of imprisonment. Had it not been for a sexual felony Defendant committed as a teenager, his criminal history category would have been only II (based on a burglary and marijuana possession conviction), and his guidelines range (given his total offense level of 21) would have been 41 to 51 months instead of 57 to 71. Defendant should have been convicted of a misdemeanor, not a felony for the sex offense because he was 16. His lawyer asked the district judge to eliminate the 16-point felony enhancement from his total offense level and also eliminate the felony from his criminal history. These two adjustments would have brought his guidelines range from 57 to 71 months down to 0 to 6 months. The judge refused to make the first adjustment, but made the second, reducing the defendant's guidelines range to 41 to 51 months; and she sentenced him at the bottom of it. "Had the district judge in this case, in computing the defendant's total offense level, shaved points off because the felony conviction was erroneous, she would have been failing to treat the guidelines as 'the starting point and the initial benchmark,' because determining whether a conviction that affects the calculation of the total offense level is valid is not a permissible step in that computation." Upon review, the Seventh Circuit concluded that the district judge erred in "tinkering" with the guidelines range, but that the error was harmless. "[The judge gave Defendant the sentence she wanted to give him irrespective of the guidelines, and the sentence [was] consistent with sections 3553(a) and 3661 of the Criminal Code." Accordingly, the Court affirmed Defendant's sentence.
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