                           In the

United States Court of Appeals
              For the Seventh Circuit

No. 11-2646

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

G IRALDO T RUJILLO-C ASTILLON,
                                          Defendant-Appellant.


            Appeal from the United States District Court
                for the Eastern District of Wisconsin.
        No. 2:10-cr-00223-RTR-1—Rudolph T. Randa, Judge.



     A RGUED M ARCH 27, 2012—D ECIDED A UGUST 14, 2012




 Before F LAUM, W ILLIAMS, and T INDER, Circuit Judges.
  W ILLIAMS, Circuit Judge. Giraldo Trujillo-Castillon pled
guilty to one count of conspiring to use unauthorized
accounts and one count of aggravated identity theft.
He received an above-guideline, 48-month prison term
for the conspiracy, and a mandatory, consecutive 24-
month term for aggravated identity theft. Trujillo-
Castillon appeals the 48-month sentence, first arguing
that the court ignored his evidence in mitigation.
2                                              No. 11-2646

However, the court considered his lesser participation
in the conspiracy but found it was outweighed by the
severity of his crime and his underrepresented criminal
history. Trujillo-Castillon next contends that his Cuban
heritage was improperly factored into his sentence.
His argument finds support in the transcript, and we
cannot say with any reasonable certainty that his
national origin had no impact, so we vacate his sen-
tence and remand for resentencing.


                   I. BACKGROUND
  Giraldo Trujillo-Castillon and two co-defendants were
indicted for fraudulently using credit and gift card ac-
counts for purchases totaling $139,063.23. Count one
charged the trio with conspiring to violate 18 U.S.C.
§§ 1029(a)(2) and (3), which respectively prohibit inten-
tionally using an unauthorized access device, and know-
ingly possessing fifteen or more such devices with the
intent to defraud. 18 U.S.C. § 1029(b)(2). Counts two
and three alleged fraudulent use and possession of unau-
thorized access devices in violation of 18 U.S.C.
§§ 1029(a)(2) and (3). And count four charged aggravated
identity theft in violation of 18 U.S.C. § 1028A(a)(1).
  Trujillo-Castillon pled guilty to counts one (conspiracy)
and four (aggravated identity theft), and the remaining
counts were dismissed pursuant to his plea agreement.
His Presentence Investigation Report (“PSR”) revealed
that he was born in Cuba and fled to the United States
at seventeen years old. It calculated his offense level at
sixteen, and his criminal history category at four. His
No. 11-2646                                             3

recommended guideline range was 33 to 41 months in
prison for the conspiracy. He also faced a consecutive,
mandatory 24-month term for the aggravated identity
theft conviction.
  At sentencing, the government argued that
Trujillo-Castillon deserved a sentence at the top of the
guideline range because of his criminal history and
his general attitude toward crime. Pointing to the defen-
dant’s admission that he viewed fraud differently than
violent crimes, the government argued that “it may be
possible to explain his stated attitude because of his
Cuban heritage. . . . Maybe there is a different attitude
toward private property in Cuba.” The government
noted Trujillo-Castillon’s statement that his only friend
in the United States was his wife, and said that “if you
play by the rules, if you join us, if you become American,
[you] will have many [] friends in the United States.”
The government then turned to “why people should
come to the United States,” professing that “if he came
here because he thought it would be easy, then I would
simply suggest that he and others like him either wise
up, or don’t come.”
  Defense counsel did not object to this line of argu-
ment; instead, he responded in kind. He explained that
there is an “attitude” in Cuba that when you steal “you’re
pulling a Robin Hood type of act.” He suggested that
many Cuban immigrants have a hard time adjusting to
“the American way of life.” And he argued for a sen-
tence at the low end of the guidelines because Trujillo-
Castillon had “never challenge[d] the Government’s
4                                                  No. 11-2646

evidence or accusation” and the PSR adequately ac-
counted for the defendant’s criminal history. Counsel
highlighted the defendant’s departure from the con-
spiracy before most of the fraudulent transactions
occurred as evidence in mitigation, and requested a 33-
month sentence.
  The sentencing court began by finding that even though
Trujillo-Castillon’s “lesser participation in this offense . . .
mollifies the severity of the offense . . . that can’t be
divorced from [his criminal] history.” The court then
noted that the defendant had never successfully com-
pleted supervision and that he had “one of the worst
records” the court had “ever seen.” The court detailed
Trujillo-Castillon’s prior arrests and convictions for
theft, counterfeiting, and other fraud-related offenses. It
concluded that the defendant’s criminal history had
been substantially underrepresented.
  The court then turned to the defendant’s “characteris-
tics.” The court first explained that Trujillo-Castillon’s
“lifestyle” cannot “be blamed on Cuba.” It said that his
record was reminiscent of “when the Mariel people
came over here and created crime waves all over the
place”; “When [Fidel] Castro emptied his prisons, and
his psychiatric wards, and Jimmy Carter took them all
in.” The court continued that, unlike in Cuba, “in
America, private property is sacrosanct. It’s not the Gov-
ernment’s property. . . . And that’s the way we live in
America. And that’s why it’s a serious offense when
you do this.” The court inveighed that coming from
“deprived circumstances” does not “give anybody who
No. 11-2646                                                 5

comes from Cuba the right to . . . not value the very
constitutional rights that other citizens possess.” Finally,
before imposing Trujillo-Castillon’s sentence, the court
stated:
    You have a criminal history category of 4, but
    the Court’s view is that the sentencing guidelines
    don’t represent what the Court has just character-
    ized is your criminal history . . . it’s under-repre-
    sented. So when I look at the total circumstances
    of your history, coupled with the nature and
    severity of the crime, and even your lesser involve-
    ment in this offense, it is, as the Court has indi-
    cated, a pattern that requires that I go above
    the guidelines in this sentence. . . .
The court sentenced Trujillo-Castillon to 48 months in
prison for the conspiracy count, exceeding his guideline
range by seven months. He also received the mandatory
24-month prison term for aggravated identity theft, to
run consecutively. Judgment was entered, and this
appeal followed.


                      II. ANALYSIS
  Trujillo-Castillon advances two arguments on appeal.
First, he contends that the sentencing court overlooked
the evidence he presented in mitigation, particularly
proof that he left Wisconsin before the bulk of the fraudu-
lent transactions occurred. Second, he argues that the
court “allowed its passions and past experiences with
Cuban immigration and crime to negatively impact and
6                                               No. 11-2646

enhance [his] sentence.” The government disagrees.
We address each issue in order.


    A. The Sentencing Court Adequately Considered
       Trujillo-Castillon’s Mitigating Evidence
  We review de novo whether a district court followed
proper procedures in sentencing, including its consider-
ation of the 18 U.S.C. § 3553(a) factors and any evidence
in mitigation. United States v. Vallar, 635 F.3d 271, 277-
78 (7th Cir. 2011). If we find no significant procedural
error, we will review the substantive reasonableness of
the defendant’s sentence for an abuse of discretion.
United States v. Coopman, 602 F.3d 814, 819 (7th Cir. 2010).
We presume that a correctly calculated, within- or below-
guideline sentence is reasonable. See Rita v. United
States, 551 U.S. 338, 347 (2007) (within-guideline);
United States v. Wallace, 531 F.3d 504, 507 (7th Cir. 2008)
(below-guideline). But we do not presume that an
above-guideline sentence is unreasonable. United States
v. Reyes-Hernandez, 624 F.3d 405, 409 (7th Cir. 2010).
  Trujillo-Castillon claims the sentencing court did not
consider his “lesser participation” argument. A court
must address the defendant’s non-frivolous sentencing
claims by providing a “reasonable justification” for the
sentence imposed. Coopman, 602 F.3d at 818. The record
here shows that the sentencing court satisfied its duty
on this front. The court stated that “lesser participa-
tion does [mollify the severity of the offense] . . . [b]ut
that can’t be divorced from your history here.” It noted
No. 11-2646                                               7

that Trujillo-Castillon had never “complete[d] a suc-
cessful supervision” and had one of the worst criminal
records the court had ever seen. After reviewing the
sentencing transcript, we are confident that the court
considered Trujillo-Castillon’s evidence in mitigation
but simply assigned it lesser weight than the defendant
would have liked. See id. We find no error here.


  B. Remand Is Necessary to Ensure that Trujillo-
     Castillon’s Cuban Heritage Was Not a Factor in
     His Sentencing
  Trujillo-Castillon’s second argument is that his Cuban
heritage negatively affected his sentence. Because Trujillo-
Castillon did not object at sentencing, we review for
plain error. United States v. Anderson, 604 F.3d 997, 1001
(7th Cir. 2010). To prevail, the defendant must first
show that (1) there was error, (2) it was plain, and (3) it
affected his substantial rights. United States v. Moody, 664
F.3d 164, 166 (7th Cir. 2011). We will remand to avoid a
“miscarriage of justice,” which the Supreme Court has
defined as an error that “ ‘seriously affects the fairness,
integrity, or public reputation of judicial proceedings.’ ”
United States v. Day, 418 F.3d 746, 750 (7th Cir. 2005)
(quoting United States v. Olano, 507 U.S. 725, 746 (1993)).
  The guidelines make clear that race, sex, national
origin, creed, religion, and socio-economic status “are
not relevant in the determination of a sentence.” U.S.S.G.
§ 5H1.10; see also 28 U.S.C. § 994(d) (“The Commission
shall assure that the guidelines and policy statements
8                                               No. 11-2646

are entirely neutral as to the race, sex, national origin,
creed, and socioeconomic status of offenders.”). A sen-
tencing court’s discretion to consider such factors is
also constrained by the Constitution. See, e.g., Pepper v.
United States, ___ U.S. ___, 131 S. Ct. 1229, 1240 n.8 (2011)
(“Of course, sentencing courts’ discretion under § 3661
is subject to constitutional constraints”).
  In United States v. De La Cruz, we held that a sen-
tencing court’s reference to a defendant’s Cuban her-
itage did not require a remand. 870 F.2d 1192, 1196 (7th
Cir. 1989). Defense counsel in that case raised the issue
as support for a lesser sentence. The court, however,
“made it clear that he did not accept the defense
counsel’s characterization of De La Cruz as a political
prisoner from Cuba, but regarded him as a ‘big time’ drug
dealer who had been involved with other prominent
convicted Cuban drug traffickers.” Id.
  In a slightly different context, we vacated the de-
fendant’s sentence in United States v. Guzman, 236 F.3d
830, 833 (7th Cir. 2001), because the district court
departed downward 25 levels after finding that the de-
fendant’s “cultural heritage” as a Mexican immigrant
increased her likelihood of supporting her boyfriend’s
criminal activity. Id. Other courts have remanded for
resentencing when “a reasonable observer, hearing or
reading the quoted remarks, might infer, however in-
correctly, that [the defendant’s] ethnicity . . . played a
role in determining [his or] her sentence.” See, e.g.,
United States v. Leung, 40 F.3d 577, 586-87 (2d Cir. 1994)
(remanding where the sentencing court’s stated purpose
No. 11-2646                                               9

was to “generally deter others, particularly others in the
Asiatic community”).
  In this case, we think that both the government and
the sentencing court crossed the “very fine line of demarca-
tion separating presentencing statements regarding a
defendant’s relationship with a country or its residents
who have engaged in similar criminal activity there
and statements concerning the race or national origin
of the defendant which would violate his due process
guarantees.” De La Cruz, 870 F.2d at 1198. The govern-
ment should have forgone discussing Trujillo-Castillon’s
national origin in the first place. And although the
court did not expressly adopt the government’s posi-
tion, it did nothing to reasonably assure the defendant
that his Cuban heritage would not factor into its calculus.
See id. Instead, the court exacerbated the problem by
comparing the defendant’s conduct to the Mariel people
who emigrated from Cuba more than thirty years ago.
By lumping the defendant in with the Mariel people
and expressly contrasting the values held by Americans
with people, like the defendant, “who come[] from
Cuba,” the court arguably made Trujillo-Castillon’s
national origin a factor at sentencing. A reasonable ob-
server hearing or reading the remarks might certainly
think so.
  It is unclear from the record whether (or why) the
district court determined that the defendant’s criminal
history both outweighed his lesser participation and
supported an upward departure. Therefore, we cannot
be sure that the defendant’s sentence comports with the
10                                           No. 11-2646

valid consideration of the § 3553(a) factors only. See
United States v. Onwuemene, 933 F.2d 650, 652 (8th Cir.
1991) (remanding “[b]ecause we cannot say that the
district court would have imposed the same sentence
absent this impermissible consideration” of the
defendant’s status as a Nigerian immigrant). The gov-
ernment asks us to speculate, at the expense of
Trujillo-Castillon. But we shouldn’t have to, and we
won’t. Clarifying the basis for the defendant’s sentence—
or correcting the sentencing court’s erroneous consider-
ation of his national origin—requires only a brief
resentencing procedure. Leung, 40 F.3d at 586 n.2
(“[C]orrecting sentencing errors usually demands only
a brief resentencing procedure.”). We think that is a
very small price to pay.


                  III. CONCLUSION
  For the reasons stated above, we V ACATE the de-
fendant’s sentence and R EMAND for resentencing. Circuit
Rule 36 shall apply on remand.




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