United States District Court, M.D. Alabama, Southern Division
MYRON H. THOMPSON, District Judge.
Defendant Rodrigo Estavillo-Avendano pled guilty to illegal reentry, pursuant to 8 U.S.C. § 1326(a), (b)(2). The case is before this court for sentencing. Estavillo-Avendano has moved for a downward variance, and the government has requested a term of supervised release. For the reasons discussed below, the downward-variance motion is granted, and the supervised-release request is denied.
Estavillo-Avendano was born in Ciudad Acuña, Mexico, six miles across the border from Del Rio, Texas. Since he was an infant, he took frequent weekend trips across the border into Del Rio with his family to shop for groceries, buy his clothes, and spend nights with relatives. In his youth, he made trips almost daily to Del Rio to play on a little league baseball team, participate in the Boys and Girls Clubs, and, during his entire sixth-grade year, attend school. These trips were regular, and they were legal.
Although he continued to go to the United States most weekends, Estavillo-Avendano attended middle school and high school in Acuña. He was married during high school, at age 16, and he and his wife had their first son soon after.
After high school, when Estavillo-Avendano was 19 years old, he had what he calls a "lost year, " and he associated with the wrong people. He drifted away from his wife and son, and began to live for free with friends. These friends, however, were drug traffickers, and the free housing had strings attached. They soon asked him to pay his rent by driving a van across the border. The van contained over 26 kilograms of marijuana.
Border Patrol stopped the van at the border, and Estavillo-Avendano fled, dropping his border permit in the process. When he returned to his house and told the traffickers what happened, they beat him. After this experience, he reunited with his wife and son, who accepted him back into the home.
Estavillo-Avendano obtained another legal permit for crossing the border, which he used to continue to shop and visit family in the United States. However, 18 months after he abandoned the van, Border Patrol recognized his name and arrested him. He pled guilty to importation of marijuana and served 16 months in prison for his crime. Following his prison time, he was deported to Mexico.
For the next seven years, between 2004 and 2011, he worked to rebuild his life after prison. He worked two jobs to support his family. At one, he supervised Acuña's parks and green spaces; at the other, he worked on a government project planting trees and flowers along the border fence with the United States. Despite his substantial ties to family and friends across the border, he did not reenter the United States, still fearful from his deportation. His wife continued to visit Del Rio to see family. She also received medical care in the United States for a second pregnancy, and had their second son in a Del Rio hospital.
In 2011-almost a decade after his "lost year"-the Zetas cartel reinitiated contact with Estavillo-Avendano and attempted again to conscript him into drug trafficking. He refused. As he and his wife testified, the cartel members were persistent. They came to Estavillo-Avendano's home three times, as well as to the homes of his mother and mother-in-law.
Estavillo-Avendano and his wife began to worry about the safety of their family. Friends who lived ten to 20 blocks away had been killed by the same cartel members for refusing to cooperate, and young children of prominent community members had been targeted at school. Many families who were able fled, to avoid intimidation and violence. Estavillo-Avendano and his wife felt forced to make the same decision. They elected to reenter the United States rather than put their family at further risk.
They settled in Alabama. Estavillo-Avendano started a lawncare business, and his two children enrolled in school. After work, he would coach his older son's soccer team, help both of his kids with their schoolwork, and attend church with his family.
After Thanksgiving this past year, Estavillo-Avendano was arrested and charged with second-degree theft for shoplifting over $500 worth of children's clothes from a department store. He shoplifted because he did not have the money to buy Christmas presents for his children. While in jail, officers from Immigrations and Customs Enforcement (ICE) conducted an alienage interview, where he admitted that he did not have permission to be in the United States. His fingerprints were then submitted to ICE. He has been in custody since November 23, 2013, for a total of 298 days. Once he serves his sentence, he will face certain deportation. He is likely to confront the same intimidation and violence from the same drug traffickers when he returns to Mexico.
The parties raise two issues. First, Estavillo-Avendano moves for a downward variance from the Sentencing Guidelines range. Second, the government argues to impose a one-year term of supervised release on him after he completes his prison term.
A. Downward Variance
Estavillo-Avendano's conviction carries a maximum custodial sentence of 20 years. 8 U.S.C. § 1326(b)(2). As described below, the Guidelines range is 41 to 51 months. The government seeks 46 months in custody, and probation recommends 41 months. Estavillo-Avendano moves for a downward variance to 10 months-that is, time served.
1. Estavillo-Avendano's Guidelines Calculations
To determine a defendant's sentence, the court first calculates the total offense level under the United States Sentencing Guidelines. To do so, the court starts with the base level for the offense, and then determines whether any enhancements or reductions apply. The court then calculates the Guidelines sentence given the particular defendant's criminal history.
The Base Offense Level for reentry of removed aliens, 8 U.S.C. § 1326, is 8 points. USSG § 2L1.2(a). Estavillo-Avendano also received a 16-point enhancement because he had previously committed a drug-trafficking offense for which he received greater than 13 months in prison. Id . § 2L1.2(b)(1)(A). The relevant section states:
"(a) Base Offense Level: 8
"(b) Specific Offense Characteristic
(1) Apply the Greatest: If the defendant previously was deported, or unlawfully remained in the United States, after-
(A) a conviction for a felony that is (i) a drug trafficking offense for which the sentence imposed exceeded 13 months; (ii) a crime of violence; (iii) a firearms offense; (iv) a child pornography offense; (v) a national security or terrorism offense; (vi) a human trafficking offense; or (vii) an alien smuggling offense, increase by 16 levels if the conviction receives criminal history ...