                               In the

United States Court of Appeals
                For the Seventh Circuit

No. 08-2308

U NITED S TATES OF A MERICA,
                                                     Plaintiff-Appellee,
                                   v.

O CTAVIO V ILLEGAS-M IRANDA,
                                                Defendant-Appellant.


              Appeal from the United States District Court
         for the Northern District of Illinois, Eastern Division.
              No. 07 CR 130—George W. Lindberg, Judge.



        A RGUED M AY 7, 2009—D ECIDED A UGUST 27, 2009




    Before
        FLAUM and W ILLIAMS,                    Circuit    Judges,   and
LAWRENCE, District Judge.
  W ILLIAMS, Circuit Judge.   Octavio Villegas-Miranda
believes that the government intentionally delayed charg-
ing him with illegal reentry, a federal crime, while he




  The Honorable William T. Lawrence, United States District
Court Judge for the Southern District of Indiana, sitting by
designation.
2                                             No. 08-2308

was in state custody on a domestic battery charge. This
delay, he claims, was designed to deprive him of the
opportunity to serve his federal sentence concurrent
with the remainder of his state sentence.
  At sentencing, he asked the district court to lower
the federal sentence that it intended to impose so that
he could receive credit for the lost opportunity to serve
it concurrently with the end of his state sentence. In
support of this argument, he pointed to decisions from
several other circuits which recognize that a district
court may issue lower sentences to compensate for
such delays. Unfortunately for Villegas-Miranda, the
district court did not address this argument during his
sentencing hearing. Because we find that this argument
had legal and factual merit, under United States v.
Cunningham, 429 F.3d 673, 679 (7th Cir. 2005), the
district court was required to specifically address it. It
did not, so we remand this matter for resentencing.


                  I. BACKGROUND
  Octavio Villegas-Miranda is a Mexican national who is
not a United States citizen. Since emigrating from Mexico
to the United States in 1990 as a youth, Villegas-Miranda
has been arrested sixteen times and convicted of twelve
crimes, including, among other things, domestic battery,
sale of narcotics, and driving under the influence. After
a conviction for domestic battery in June 2002, Villegas-
Miranda was deported to Mexico. After sneaking back
into the United States, he was convicted of violating
8 U.S.C. § 1326, which prohibits reentry into the United
No. 08-2308                                            3

States by a non-citizen previously convicted of an aggra-
vated felony, and was again deported.
   During his third trip to the United States, on May 6,
2006, Villegas-Miranda was again arrested for domestic
battery. He pleaded guilty in state court and was sen-
tenced to thirty months’ imprisonment. Villegas-Miranda
was supposed to be paroled from state custody on Feb-
ruary 9, 2007, but was held on a federal immigration
detainer until February 12, 2007, when a federal immigra-
tion officer arrived and once again charged him with
illegal reentry pursuant to 8 U.S.C. § 1326.
  Villegas-Miranda pleaded guilty to illegal reentry
without a plea agreement. His Sentencing Guidelines
range was seventy-seven to ninety-six months’ imprison-
ment. It is undisputed that in his sentencing memoran-
dum, and during his sentencing hearing, he made two
primary arguments in requesting a below-Guidelines
sentence: (1) his daughter was ill and he needed to be
with her; and (2) the district court should exercise its
discretion and issue a sentence at least nine months
below the bottom of the advisory Guidelines range to
effectively credit him with the time served in state
prison on the battery charge (his “concurrent sentences”
argument). The gist of Villegas-Miranda’s second argu-
ment was that if the government had charged him
with illegal reentry when he was arrested on May 6, 2006
(or any reasonable time prior to his release from state
custody), the district court would have been able to
sentence him concurrently with his state time. Since the
government did not do so, Villegas-Miranda lost the
4                                              No. 08-2308

opportunity to serve his state and federal sentences
concurrently, and he asked the district court to com-
pensate for this by issuing a below-Guidelines sentence.
  The district court acknowledged that it had “perused
[Villegas-Miranda’s] rather extensive sentencing memo-
randum” and found it to be “well drafted and very persua-
sive.” It then rejected Villegas-Miranda’s family situa-
tion argument because it found that his presence in the
household exacerbated the situation (by assaulting his
family members) rather than alleviating it. It stated that
a high, within-Guidelines sentence was appropriate
because of Villegas-Miranda’s extensive criminal
history and because he repeatedly reentered the United
States after being deported. The court sentenced him to
ninety months’ imprisonment and three years’ supervised
release. The court did not address Villegas-Miranda’s
second principal argument, that a below-Guidelines
sentence should be imposed to effectively credit him
with time served in state prison.


                     II. ANALYSIS
A. The District Court Was Required, But Failed to,
   Address All Principal Arguments that Were “Not
   So Weak As to Not Merit Discussion”
  Villegas-Miranda argues that the district court’s failure
to respond to his argument that it should issue a below-
Guidelines sentence to compensate him for the lost op-
portunity to serve his state and federal sentences con-
currently, as a result of the government’s purported delay
No. 08-2308                                                5

in charging him with illegal reentry, requires us to remand
for resentencing. The government disagrees because it
contends that: (1) the district court adequately stated its
reasons for issuing Villegas-Miranda’s ninety month
sentence; and (2) Villegas-Miranda’s “concurrent sen-
tences” argument was sufficiently weak so as to not
require a response from the district court.
   We review a district court’s sentencing decisions for
reasonableness, but its sentencing procedures under a
non-deferential standard. United States v. Mendoza, 510
F.3d 749, 754 (7th Cir. 2007). A within-Guidelines sen-
tence is presumed reasonable. United States v. Omole,
523 F.3d 691, 696 (7th Cir. 2008) (citing Rita v. United
States, 551, U.S. 338 (2007)). A sentencing court need not
comprehensively discuss each of the factors listed in 18
U.S.C. § 3553(a). United States v. Dean, 414 F.3d 725, 729
(7th Cir. 2005). Rather, it must give the reasons for
its sentencing decision and address all of a defendant’s
principal arguments that “are not so weak as to not
merit discussion.” United States v. Cunningham, 429 F.3d
673, 679 (7th Cir. 2005).
  The government first contends, relying on United States
v. Millet, 510 F.3d 668 (7th Cir. 2007), that because
the district court gave sound reasons for its within-Guide-
lines sentence (Villegas-Miranda’s criminal history and
repeated illegal reentry into the United States), its failure
to address Villegas-Miranda’s “concurrent sentences”
argument does not merit remand. In Millet, we found that
a sentencing court gave an adequate statement of its
reasons for issuing a within-Guidelines sentence for
6                                               No. 08-2308

drug and conspiracy offenses, even though it did not
address each of the defendant’s arguments for a be-
low-Guidelines sentence in detail or specifically address
each of the section 3553(a) factors because, among other
things, the court’s statements as a whole indicated
beyond a doubt that it considered all of the section 3553(a)
factors. Id. at 679-80.
   Contrary to the government’s assertion, Millet does not
control here. Millet’s argument on appeal was that the
sentencing court erred by not specifically addressing
every section 3553(a) factor and/or by failing to respond
to each of his arguments for a lower sentence in detail. Id.
Dean and Cunningham foreclosed these questions; the
court need not discuss each section 3553(a) factor at
sentencing and need not respond to every pithy argu-
ment that a defendant raises, just the “principal” ones.
Dean, 414 F.3d at 729; Cunningham, 429 F.3d at 676-79
(citing United States v. Williams, 425 F.3d 478, 479 (7th
Cir. 2005)). Villegas-Miranda’s argument on appeal,
however, is not that the court did not adequately state
its reasons for imposing his sentence, but rather that it
failed to specifically address his principal argument for
a lower sentence. Cunningham addresses this question
as well. The court must state its reasons for rejecting a
defendant’s principal arguments if the arguments have
merit. Cunningham, 429 F.3d at 679 (“We cannot have
much confidence in the judge’s considered attention to
the factors in this case, when he passed over in silence
the principal argument made by the defendant even
though the argument was not so weak as not to merit
discussion, as it would have been if anyone acquainted
No. 08-2308                                                  7

with the facts would have known without being told why
the judge had not accepted the argument. . . . A judge
who fails to mention a ground of recognized legal
merit (provided it has a factual basis) is likely to have
committed an error or oversight.”). Even if the sen-
tencing court stated convincing reasons for the sentence
it imposed, we cannot find its silence in response to a
defendant’s principal argument to be harmless error
because we can never be sure of what effect it had, or
could have had, on the court’s decision. Id. Given that
there is no dispute that Villegas-Miranda’s “concurrent
sentences” argument was one of his two principal argu-
ments, if it “was not so weak as to not merit discussion,”
the sentencing court was required to respond to it. See id.
Although the district court listened at length to Villegas-
Miranda’s “concurrent sentences” argument, we cannot
take on faith that it adequately considered the argu-
ment where it “passed it over in silence.” Id.
  The government next contends that Villegas’s “concur-
rent sentences” argument is weak enough not to merit
discussion because: (1) it is not an argument of recognized
legal merit; and (2) it lacks a factual basis. Several circuits
have recognized that a district court has the authority
to issue a below-Guidelines sentence based on the delay
between the time federal immigration officials dis-
covered that a defendant illegally reentered the United
States and the time that the government charged him
with illegal reentry. See, e.g., United States v. Barrera-
Saucedo, 385 F.3d 533, 537 (5th Cir. 2004) (holding that it
was “permissible for a sentencing court to grant a down-
ward departure to an illegal alien for all or part of
8                                                 No. 08-2308

time served in state custody from the time immigration
authorities locate the defendant until he is taken into
federal custody.”); United States v. Sanchez-Rodriguez, 161
F.3d 556, 562 (9th Cir. 1997) (en banc) (holding that a
downward departure may be granted based on a defen-
dant’s lost opportunity to serve his federal sentence
concurrently with his state sentence due to the delay in
commencing federal proceedings after immigration
authorities discovered him in state custody); United
States v. Los Santos, 283 F.3d 422, 428-29 (2d Cir. 2002)
(holding same if defendant can show that the delay in
the federal prosecution was in bad faith or that it was
longer than reasonable); see also United States v. Saldana, 109
F.3d 100, 104 (1st Cir. 1997) (noting that it was “possible”
that a departure might be granted “where a careless or
even an innocent delay produced sentencing con-
sequences so unusual and unfair that a departure” would
be warranted).
  Our circuit has not definitively ruled on whether a
district court may give a defendant a lesser sentence
based on his lost opportunity to receive his federal time
concurrent with his state time. See United States v.
Lechuga-Ponce, 407 F.3d 895, 897-98 (7th Cir. 2005) (recog-
nizing defendant’s argument that sentencing court
could have downward departed to reflect lost oppor-
tunity to serve concurrent sentences but refusing to
reach the merits because defendant did not raise this
argument before the sentencing court); United States. v.
Jimenez-DeGarcia, 256 F. App’x. 830, 832-33 (7th Cir. 2007)
(unpublished) (declining to reach merits of similar “con-
current sentences” argument where sentencing court
No. 08-2308                                              9

concluded that it could not reach this argument, but
stated that even if it could, it would not have reduced the
defendant’s sentence).
  The government is correct that none of our sister
circuits have provided extensive reasoning for allowing
sentencing courts to reduce a defendant’s sentence
based on his lost opportunity to serve state time con-
currently with the federal time he received for his illegal
reentry conviction other than that the Guidelines are
advisory. It is also correct that the congressional
purpose behind U.S.S.G. § 5G1.3 (which allows courts
to impose federal sentences concurrent with state sen-
tences) is to prevent a defendant from serving duplicative
sentences for the same criminal act. See United States
v. Blackwell, 49 F.3d 1232, 1241 (7th Cir. 1995); but see
U.S.S.G. § 5G1.39(c) (“(Policy Statement) In any other
case involving an undischarged term of imprisonment,
the sentence for the instant offense may be imposed to
run concurrently, partially concurrently, or consecutively
to the prior undischarged term of imprisonment to
achieve a reasonable punishment for the instant of-
fense.”). Here, as the government argued at length
during Villegas-Miranda’s sentencing hearing, Villegas-
Miranda’s state crime, domestic battery, and his federal
crime, illegal reentry, represent completely separate and
distinct crimes, and, as a result, reducing his sentence to
compensate him for the time he spent in state custody
would not further the policy behind U.S.S.G. § 5G1.3
(although this idea has not prevented our sister circuits
from allowing sentencing courts to reduce a defendant’s
sentence to credit him with state time served, nor does
10                                              No. 08-2308

it directly conflict with the Guideline’s policy statement).
In any event, all of these arguments are of no import
because the question before us is not whether the
district court should or can downward depart for this
reason (we take no position), but whether Villegas-
Miranda’s “concurrent sentences” argument has legal
merit such that the sentencing court needed to address
it. Given that several circuit courts have held that a sen-
tencing court can downward depart for this reason, and
we have not explicitly ruled on it (and need not rule on
it here), a defendant is reasonable to believe that it
may succeed, and we find this argument to be legally
meritorious.
  The government also argues that Villegas-Miranda’s
“concurrent sentences” argument lacks factual merit
because Villegas-Miranda does not have sufficient evi-
dence tending to show that immigration authorities
knew of his illegal reentry prior to charging him, and
therefore he cannot prove that there was an intentional
delay. This argument is belied by the fact that immigra-
tion authorities immediately held him on a detainer
upon his release from state custody. Although the
issuance of this detainer and Villegas-Miranda’s release
from state prison occurring at the same time may be
pure coincidence, it is not unreasonable for a sentencing
judge to assume that the government had knowledge
of Villegas-Miranda’s location and simply chose to wait
for his release to bring federal charges. Further, Villegas-
Miranda argued at sentencing that he requested the
immigration detainer and other paperwork in an effort
to show that the government knew of his illegal reentry
No. 08-2308                                             11

around the time of his arrest, but never received a re-
sponse from the government. The existence of an im-
migration detainer, while not necessarily the strongest
evidence that the government could have charged Villegas-
Miranda sooner, is enough of a factual basis for a district
court to conclude that a delay occurred, and, if it so
chooses, reduce Villegas-Miranda’s sentence to reflect
that time that he could have served concurrently.
  In summary, Villegas-Miranda’s “concurrent sentences”
argument had legal and factual merit, and, given that
it was one of his principal arguments, Cunningham
dictates that the sentencing court needed to address it.


                   III. CONCLUSION
  For the foregoing reasons, we V ACATE Villegas-Miranda’s
sentence and R EMAND this case to the district court
for resentencing.




                          8-27-09
