October 28, 2016
from the United States District Court for the Northern
District of Illinois, Eastern Division. No. l:15-cr-00124-l -
Samuel Der-Yeghiayan, Judge.
Ripple, Kanne, and Rovner, Circuit Judges.
Ripple, Circuit Judge.
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
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).
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
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.
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). The record before us contains no
indication that he was prosecuted for marijuana possession.
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."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.
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."
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
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
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.
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." 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.
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." 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
district court concluded that the sixteen-level enhancement
was applicable because aggravated robbery involved the
"threatened use of physical force." 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
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.
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,  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
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.
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.
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). 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 ...