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United States of America v. Juan Guajardo-Martinez

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ARGUED FEBRUARY 10, 2011

Before MANION, EVANS, and HAMILTON, Circuit Judges.

Juan Guajardo-Martinez, a 34-year-old Mexican national, pled guilty to illegal re-entry of a removed alien subsequent to a conviction for com-mission of an aggravated felony, in violation of 8 U.S.C. §§ 1326(a) and (b)(2). Guajardo was given a below-guidelines sentence and has appealed. We rejected defense counsel’s request to withdraw as appointed counsel pursuant to Anders v. California, 386 U.S. 738 (1967), and ordered briefing as to the district court’s consideration of the defendant’s prior arrests that led to neither a conviction nor a finding by the district court that the alleged unlawful conduct was proven by a preponderance of the evidence. Guajardo also argues on appeal that the district court erred in not granting a lower sentence based on the fact that the Northern District of Illinois does not have a “fast-track” program, because the judge’s decision was premised on the appellant’s criminal record, including the prior arrests not leading to conviction. While the district court erred in considering two of the defendant’s three arrests not leading to conviction, we find that there was no prejudice to defendant and no plain error. We affirm the district court’s judgment.

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