United States v. Jose Angel Gutierrez-Silva

We consider a challenge to a 65-month sentence for an alien’s illegal reentry to the United States after deportation, imposed consecutively with an unserved state term, where the government had recommended that the federal sentence be for a shorter term and that it run concurrently with the state term.

I

Defendant-Appellant Jose Angel Gutierrez-Silva (“Gutierrez-Silva”) is a citizen of Mexico. Between August 26, 1998 and September 25, 2000, he twice entered the United States illegally, committed crimes, and was deported. After his second deportation, Gutierrez-Silva again illegally reentered the United States for a third time, and thereafter was arrested and charged with delivery of a controlled substance, methamphetamine. While Gutierrez-Silva was serving the resulting state court sentence on the drug charge, he was convicted in federal court of reentering the United States illegally, without the Attorney General’s consent in violation of 8 U.S.C. § 1326 (a). Appellant pleaded guilty. His offense level was calculated at 21 and his criminal history category at V, which together yielded a guideline imprisonment range of 70 to 87 months.

Gutierrez-Silva and the government entered…