In U.S. v. Gonzalez, No. 08-10008 (Dec. 12, 2008), the Court rejected challenges to a sentence of 50-months for a defendant convicted of illegal re-entry.
The defendant argued that error occurred because the sentencing court relied on a since-amended Guideline, § 2B1.2(b)(1)(A)(ii), and treated a prior bank robbery as a basis for a 16-level sentence enhancement. Reviewing for "plain error," the Court noted that the amended guideline gave the sentencing court discretion to impose a 16-level enhancement based on this prior offense. Thus, even though the enhancement was no longer mandatory, the error was not plain because nothing in the record suggested that the court would impose a lesser sentence on resentencing.
The Court also rejected the argument that the sentence was unreasonable. "In consideration of the § 3553(a) factors, the district court does not need to discuss or state each factor explicitly. An acknowledgment the district court has considered the defendant’s arguments and the § 3553(a) factors will suffice." Here, the district court satisfied these requirements.