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United States v. Chagoya-Morales

United States Court of Appeals, Seventh Circuit

June 9, 2017

United States of America, Plaintiff-Appellee,
Jose Chagoya-Morales, Defendant-Appellant.

          Argued October 28, 2016

         Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. l:15-cr-00124-l - Samuel Der-Yeghiayan, Judge.

          Before Ripple, Kanne, and Rovner, Circuit Judges.

          Ripple, Circuit Judge.

         Jose Chagoya-Morales was charged with illegally reentering the United States after deportation, in violation of 8 U.S.C. § 1326(a) and 6 U.S.C. § 202(4). He entered a conditional plea of guilty; the district court sentenced him to forty-eight months' imprisonment. He now contends that the district court should have conducted an evidentiary hearing before denying his motion to suppress information related to his identity and his status as an illegal resident of the United States. Mr. Chagoya-Morales also challenges two aspects of his sentence: (1) whether the district court correctly increased his offense level by sixteen levels under the "crime of violence" enhancement in U.S.S.G. § 2L1.2(b)(1)(A)(ii); and (2) whether his forty-eight month sentence was procedurally sound and substantively reasonable.

         We affirm the judgment of the district court in all respects. The court correctly denied the motion to suppress; under these circumstances, the Fourth Amendment does not prohibit a police officer from requiring a person to identify himself, nor does it guarantee a defendant the right to conceal who he is during a criminal prosecution. The district court also correctly applied the career offender enhancement because Mr. Chagoya-Morales's prior Illinois aggravated robbery conviction is a crime of violence under U.S.S.G. § 2L1.2(b). Finally, the imposed sentence is procedurally sound and substantively reasonable. The district court correctly calculated Mr. Chagoya-Morales's guidelines range and appropriately justified a downward variance based on the relevant factors under 18 U.S.C. § 3553(a).




         Mr. Chagoya-Morales, a native and citizen of Mexico, illegally entered the United States sometime prior to April 2008. On April 9 of that year, the Circuit Court of Cook County, Illinois, convicted him of aggravated robbery and imposed a sentence of six years' imprisonment. Several months later, however, in August 2009, the federal government deported him to Mexico. After his removal, Mr. Chagoya-Morales did not obtain permission to reenter the United States.

         On January 16, 2015, officers with the Chicago Police Department ("CPD") conducted a traffic stop on a vehicle in which Mr. Chagoya-Morales was a passenger. Police reports indicate that the driver of the car, Cynthia Deantes, was stopped because the officers allegedly observed her using her cell phone while driving. As the officers approached Deantes's car, they smelled a strong odor of cannabis emanating from the vehicle, conducted a pat down search of Mr. Chagoya-Morales, and recovered a small plastic bag containing a small amount of marijuana from his sock. The officers then arrested Mr. Chagoya-Morales.

         At the police station, officers advised Mr. Chagoya-Morales of his Miranda rights and continued to question him. When the officers learned that Mr. Chagoya-Morales was in the country illegally and that he previously had been deported due to a past felony conviction, they contacted Immigration and Customs Enforcement. On March 11, 2015, a federal grand jury returned a one-count indictment, charging Mr. Chagoya-Morales with illegal reentry into the United States, in violation of 8 U.S.C. § 1326(a) and 6 U.S.C. § 202(4).[1] The record before us contains no indication that he was prosecuted for marijuana possession.


         Mr. Chagoya-Morales filed a motion to suppress. He contended that the traffic stop was illegal and that therefore the Government's knowledge of his name and his immigration status should be suppressed as "fruit of the poisonous tree."[2]To support his motion, Mr. Chagoya-Morales attached an affidavit of Deantes, the driver of the vehicle. Deantes and Mr. Chagoya-Morales maintained that the police officers had no reason to stop the vehicle: Deantes was not using her cell phone while driving; she was not accused of committing any other offenses; and there was no outstanding warrant for Mr. Chagoya-Morales.

         After considering the parties' briefs, the district court denied the motion to suppress. Basing its decision on United States v. Garcia-Garda, 633 F.3d 608, 616 (7th Cir. 2011), the court explained:

The Seventh Circuit has already rejected such a legal argument, explaining that "[t]he body or identity of a defendant or respondent in a criminal or civil proceeding is never itself suppressive as a fruit of an unlawful arrest, even if it is conceded that an unlawful arrest, search, or interrogation occurred." United States v. Garcia-Gar da, 633 F.3d 608, 616 (7th Cir. 2011) (internal quotations omitted) (quoting INS v. Lopez-Men-doza, 468 U.S. 1032, 1039-40 (1984)). The Seventh Circuit has made clear that a person "having previously been deported, and not having obtained the consent of the Attorney General" or Secretary of Homeland Security "to return, is a person whose presence in this country, without more, constitutes a crime, " and that "[h]is identity may not be suppressed."[3]

         Since the evidence at issue could not be suppressed, the court saw no reason to hold an evidentiary hearing on the motion to suppress. It was irrelevant whether the traffic stop was legal.

         Mr. Chagoya-Morales entered a conditional plea of guilty in which he admitted that he illegally had reentered the United States after a previous removal. The plea agreement specifically preserved his right to appeal the denial of his motion to suppress.


         Mr. Chagoya-Morales's plea agreement contained a preliminary calculation of his sentencing guidelines range. The agreement outlined that, pursuant to § 2L1.2(b)(1)(A)(ii) of the Guidelines, Mr. Chagoya-Morales's base offense level of eight would be increased by sixteen levels because he previously was removed after being convicted of a felony that constituted a crime of violence. The plea agreement also preserved Mr. Chagoya-Morales's right to appeal any issues related to sentencing.

         In the Presentence Investigation Report ("PSR"), the probation officer agreed with the preliminary determination in the plea agreement. The report concluded that Mr. Chagoya-Morales qualified for the sixteen-level enhancement under § 2L1.2(b)(1)(A)(ii) of the Guidelines because he had a felony conviction under Illinois law for aggravated robbery. Mr. Chagoya-Morales objected to this enhancement. He argued that, because aggravated robbery "is not specifically listed as a 'crime of violence' in FSG § 2L1.2, application note 1(B) (iii), it must satisfy the definition in the 'force clause' of § 2L1.2."[4] In his view, aggravated robbery did not constitute a crime of violence under the "force clause" because it did not have as one of its elements the use, attempted use, or threatened use of force.

         At his sentencing hearing, Mr. Chagoya-Morales reiterated this objection. The Government countered that the underlying aggravated robbery indictment had charged him with committing a robbery "by the use of force or by threatening the imminent use of force while indicating verbally or by [his] actions ... that [he] w[as] presently armed with a firearm or other dangerous weapon."[5] Such a crime, continued the Government, falls within the force clause's scope. The Government further contended that because the commentary to § 2L1.2 explicitly "defines crime of violence to include robbery, " there was "no question that ... aggravated robbery" implicates the same enhancement.[6]

          The district court concluded that the sixteen-level enhancement was applicable because aggravated robbery involved the "threatened use of physical force."[7] Specifically, the district court explained:

Illinois law defines a robbery as when a person-and this is in quotation mark[s]-knowingly takes property, ... from the person or presence of another by the use of force or by threatening the even use of force, end of quotation mark. Once again, the citation 720 ILCS 5/18-1.
And Illinois law, when you look at 720 ILCS 5/18-1, has small b, 1 and 2. In 2, it talks also about a person commits aggravated robbery when he or she knowingly takes property from the person or presence of another by delivering, and in parenthetical, various words to the victim without his or her consent or by threat or deception, comma, and for other [] th[a]n medical purposes, any controlled substance. Small b has also part one. A person commits aggravated robbery when he or she violates Subsection A while indicating verbally or by his or her actions to the victim that he or she presently armed with a firearm or other dangerous weapon including a knife, club, ax or bludgeon. This offense shall be applicable even though it is later determined that he or she had no firearm or other dangerous weapon including a knife, club, ax or bludgeon in his or her possession when he or she committed the robbery.[8]

         Based on this analysis, the district court agreed with the PSR's calculations, which set Mr. Chagoya-Morales's base offense level at eight, § 2L1.2(a), and applied a sixteen-level enhancement for deportation after a felony conviction for a crime of violence, U.S.S.G. § 2L1.2(b)(1)(A)(ii). Mr. Chagoya-Morales also received a three-level deduction for acceptance of responsibility. U.S.S.G. § 3El.l(a), (b). The resulting Guidelines range was fifty-seven to seventy-one months' imprisonment.

         Based on its evaluations of the factors set forth in 18 U.S.C. § 3553(a), the district court ultimately sentenced Mr. Chagoya-Morales to forty-eight months' imprisonment, nine months below the low end of the Guidelines range. The district court explicitly considered several factors, including Mr. Chagoya-Morales's arguments that he had a difficult childhood, had not been involved in a gang for a number of years, [9] and was not committing a serious crime at the time of the traffic stop. The court also considered Mr. Chagoya-Morales's claim that his status as an illegal immigrant subjected him to more restrictive conditions of confinement. The court also gave weight to the nature and seriousness of the offense, the need to deter Mr. Chagoya-Morales and others, and the need to protect the public. Mr. Chagoya-Morales now appeals his conviction and sentence.[10]



         Mr. Chagoya-Morales renews his claim that the district court erred in denying his motion to suppress without holding an evidentiary hearing. He also submits that the district court improperly applied the "crime of violence" enhancement. In his view, his prior aggravated robbery conviction does not qualify as a "crime of violence" following the Supreme Court's decision in Johnson v. United States, 559 U.S. 133 (2010) ("Johnson I"). Finally, Mr. Chagoya-Morales asserts that his forty-eight month sentence is unreasonable because the district court's reasoning is inconsistent with the factors set forth in § 3553(a). We address these issues in turn.


         We first examine Mr. Chagoya-Morales's argument that the district court erred in denying his suppression motion without a hearing. In his view, a hearing would have allowed him to develop evidence to support his contention that the officers' stop of the vehicle was not justified. He submits that, if the district court had held such a hearing and determined that the stop was illegal, the court would have suppressed information about his identity and his status as an illegal resident of the United States, the information that led to the present charges.

         The procedural and substantive standards governing our review of the denial of a motion to suppress are well-established. We decide legal questions de novo and review factual findings for clear error. United States v. Garcia-Garda, 633 F.3d 608, 612 (7th Cir. 2011).[11] The Fourth Amendment protects "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." U.S. Const, amend. IV. The exclusionary rule is the primary judicial remedy to deter Fourth Amendment violations. Utah v. Strieff, 136 S.Ct. 2056, 2061 (2016) (citing Mapp v. Ohio, 367 U.S. 643, 655 (1961)). The exclusionary rule, which permits trial courts to exclude unlawfully seized evidence, encompasses both the "primary evidence obtained as a direct result of an illegal search or seizure" and "evidence later discovered and found to be derivative of an illegality, " the so-called "'fruit of the poisonous tree.'" Segura v. United States,468 U.S. 796, 804 (1984). Because the exclusionary rule carries "significant costs, " the Supreme Court has held it to be applicable only "'where its deterrence benefits outweigh its substantial social ...

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