In the

    United States Court of Appeals
             For the Seventh Circuit

Nos. 12-1964, 12-1965 & 12-1966

U NITED STATES OF A MERICA,
                                               Plaintiff-Appellee,
                               v.

JOSE JULIAN T OVAR-P INA,
                                           Defendant-Appellant.


          Appeals from the United States District Court
               for the Central District of Illinois.
                Nos. 11 CR 40103, 11 CR 40017,
           11 CR 40046—James E. Shadid, Chief Judge.


       A RGUED A PRIL 8, 2013—D ECIDED A PRIL 29, 2013




   Before E ASTERBROOK, Chief Judge, and B AUER and
S YKES, Circuit Judges.
  B AUER, Circuit Judge. Jose Tovar-Pina1 has made a
habit of coming to the United States illegally and com-



1
  Jose Tovar-Pina’s name is spelled “Tovar-Pena” in some
documents, and he has also used numerous other names,
including Julian Tovar-Pina, Oscar Orellana-Ayala, and
Fausto Lopez-Mora. We refer to the defendant-appellant
as “Tovar-Pina.”
2                         Nos. 12-1964, 12-1965 & 12-1966

mitting crimes. After his third deportation in 2008 and
subsequent unlawful return to the United States, Tovar-
Pina was arrested in November 2010 for using aliases
to cash stolen checks. He was later indicted in two
separate jurisdictions—one indictment related to his
unlawful return to the United States and the other
involved the stolen checks—and a petition was filed
to revoke the supervised release that accompanied
his 2008 deportation. The three cases were consolidated,
and Tovar-Pina pleaded guilty to various charges from
the two indictments and admitted that he violated the
conditions of his supervised release.
  At the consolidated sentencing hearing, the district
court sentenced Tovar-Pina to a total of 84 months’ im-
prisonment, followed by 36 months of supervised re-
lease. The district court based its sentence on two
separate Presentence Investigation Reports (PSR) pre-
pared for the unlawful reentry offense and the bank
fraud offenses. Neither party objected to the PSRs at the
time. The government and Tovar-Pina now both agree,
however, that (1) the prison sentence imposed for the
unlawful reentry offense and the bank fraud offenses
was based on an improper U.S. Sentencing Guidelines
range, and (2) this error affected Tovar-Pina’s sub-
stantial rights. We agree with the parties and vacate the
sentences at issue in Case Nos. 12-1964 and 12-1965
and remand for resentencing.


                  I. BACKGROUND
 Tovar-Pina is a Mexican native who first entered the
United States illegally sometime before June 1988.
Nos. 12-1964, 12-1965 & 12-1966                      3

Between that time and his first deportation in 1992,
Tovar-Pina was convicted of receiving stolen property,
stealing an automobile, attempting to pass a fraudulent
check, selling cocaine, and committing two forgeries
involving bank victims. By October 1994, he was back in
the United States. Upon his return, Tovar-Pina and four
other men burglarized roofing and construction com-
panies in Nebraska, took payroll checks, forged them,
and attempted to cash them. Tovar-Pina was convicted
of these crimes, as well as for unlawful reentry, and
deported to Mexico for the second time in 1999.
  By June 2005, Tovar-Pina had returned to the
United States. It was then that Tovar-Pina was again
arrested and convicted of charges related to a similar
scheme of burglarizing landscaping and construction
companies, stealing payroll checks, and fraudulently
cashing the checks at banks. A district court in the
Western District of Virginia sentenced Tovar-Pina to
concurrent 4-year prison terms, followed by 3 years of
supervised release, for the charges—bank fraud con-
spiracy and unlawful reentry. Tovar-Pina was de-
ported to Mexico for the third time in August 2008.
  Tovar-Pina made his way back into the United States
sometime before November 2010. That month, Tovar-
Pina and a partner stole blank checks from a number
of businesses around the Illinois-Iowa border. The two
men forged over forty checks, payable to seventeen dif-
ferent names, and presented them to various branches of
five banks. Three of the banks cashed the checks and
suffered a total loss of over $42,000; two banks sus-
pected fraud and refused to cash them.
4                           Nos. 12-1964, 12-1965 & 12-1966

  On November 24, 2010, Tovar-Pina and his partner’s
scheme was put to an end when they were arrested
after fleeing one of the banks that suspected fraud. This
conduct violated the conditions of Tovar-Pina’s super-
vised release in the Western District of Virginia, and a
petition to revoke his supervised release was issued
(the supervised release violation).2
  On January 12, 2011, a grand jury in the Southern
District of Iowa charged Tovar-Pina with unlawful
reentry after deportation (the unlawful reentry offense)
in violation of 8 U.S.C. §§ 1326(a) and 1326(b)(2). One
month later, on February 15, a grand jury in the Central
District of Illinois returned an eight-count indictment
against Tovar-Pina and his partner for their criminal
activity in November 2010. Tovar-Pina was named in five
counts—bank fraud, in violation of 18 U.S.C. § 1344 (Count
One); conspiracy to utter forged securities, in violation of
18 U.S.C. § 371 (Count Two); and uttering forged securities,
in violation of 18 U.S.C. § 513(a) (Counts Three, Five, and
Seven). These counts are collectively referred to as the
“bank fraud offenses.”
  In May 2011, the Western District of Virginia trans-
ferred jurisdiction of Tovar-Pina’s supervised release
violation to the Central District of Illinois, which
Chief Judge James E. Shadid accepted on May 18, 2011.



2
  The petition, filed on May 12, 2011, alleged two violations:
(1) the underlying conduct of the unlawful reentry offense
and the bank fraud offenses, and (2) Tovar-Pina’s failure to
pay restitution from his 2005 fraud conviction.
Nos. 12-1964, 12-1965 & 12-1966                              5

In October 2011, the parties consented, pursuant
to Federal Rule of Criminal Procedure 20(a), to the
transfer of the unlawful reentry offense from the
Southern District of Iowa to the Central District of Illi-
nois. At this point, all three cases—the unlawful re-
entry offense, the bank fraud offenses, and the supervised
release violation—were all before Chief Judge Shadid.
  On December 9, 2011, Tovar-Pina pleaded guilty to
the unlawful reentry offense and to three of the five
bank fraud counts, as well as admitted to violating
the conditions of his supervised release. (The govern-
ment later dismissed the other two bank fraud counts.)
A sentencing hearing for all three cases was set for
April 2012.
  Prior to Tovar-Pina’s sentencing hearing, the proba-
tion office prepared two PSRs, one for the unlawful
reentry case and one for the bank fraud case. The PSR
for the unlawful reentry offense had an offense level
of 13 and a criminal history category of IV, which set
the Guidelines range at 24 to 30 months’ imprisonment.
The PSR for the bank fraud offenses also had an
offense level of 13 and a criminal history category
of IV, which set the Guidelines range at 24 to 30 months.3
Neither Tovar-Pina nor the government objected to the
calculation of the PSRs. All parties involved failed to



3
  The PSR added 2 levels under U.S.S.G. § 2B1.1(b)(2)(A)(i)
based on the conclusion that the criminal activity involved ten
or more victims. Both parties now agree that the report did not
identify ten or more victims.
6                           Nos. 12-1964, 12-1965 & 12-1966

recognize that a single offense level should have been
calculated for both cases pursuant to U.S.S.G. ch. 3, pt. D,
as we discuss below.
  The probation office also prepared a violation memo-
randum for the supervised release violation. The
advisory Guidelines range for the violation was 24 to
30 months’ imprisonment because of the unlawful
reentry and bank fraud offenses and Tovar-Pina’s
criminal history category IV. The memorandum also
noted, however, that the statutory maximum sentence
was 24 months, citing 18 U.S.C. § 3583(e)(3). Neither
party objected to the violation memorandum.
  The parties reconvened for Tovar-Pina’s sentencing
hearing on April 13, 2012. Without objection, the
district court adopted the PSRs and their respective 24-
to 30-month Guidelines ranges for the unlawful re-
entry offense and the bank fraud offenses. It also adopted
the statutory maximum 24 months’ imprisonment Guide-
lines range for the supervised release violation.4 Both



4
  The government points out that this was also an error
because one of the original counts in the supervised release
violation case was unlawful reentry, in violation of 8 U.S.C.
§ 1326(a), which is a Class B felony. Pursuant to 18 U.S.C.
§ 3583(e)(3), the maximum statutory penalty for revocation
of supervised release on a Class B felony count is 36 months’
imprisonment. Tovar-Pina may have benefitted from
this error, and he has asked us to dismiss with prejudice
his challenge to the supervised release violation sentence
                                                (continued...)
Nos. 12-1964, 12-1965 & 12-1966                         7

parties were then given an opportunity to address
the court.
  The government detailed Tovar-Pina’s lengthy crim-
inal history of entering the United States illegally and
engaging in schemes involving theft and fraud.
The government then asked the court to impose con-
secutive 30-month prison terms for the unlawful
reentry offense and the bank fraud offenses, plus an
additional 24-month sentence for the supervised release
violation.5 Conversely, Tovar-Pina’s counsel asked the
court to sentence Tovar-Pina to no more than concur-
rent 24- to 30-month prison terms for the unlawful
reentry offense and the bank fraud offenses, plus an
unspecified sentence for the supervised release viola-
tion. Tovar-Pina’s counsel also asked the court to rec-
ommend to the Bureau of Prisons that Tovar-Pina
be housed at the Federal Correctional Institution in
Pekin, Illinois.
  The district court announced Tovar-Pina’s sentence
by first discussing the difference between illegal aliens
who come to the United States to “work legally, if they
can, to provide for families and themselves and to other-


4
  (...continued)
in Case No. 12-1966. Accordingly, we grant the dismissal
of Tovar-Pina’s appeal in that case.
5
   The government originally requested a 30-month prison
sentence for the supervised release violation but amended
its position when notified by the judge that the statutory
maximum was 24 months.
8                          Nos. 12-1964, 12-1965 & 12-1966

wise remain free from criminal conduct” and those
who come to the United States “illegally but also
to continue in an illegal purpose by conducting other
criminal conduct.” Tovar-Pina was deemed to be a
member of the latter group. Then, after a few addi-
tional remarks, the district court imposed a sentence
of 30 months’ imprisonment for the bank fraud of-
fenses,6 to run consecutively to a 30-month prison
term for the unlawful reentry offense and consecutively
to a 24-month prison term for the supervised release
violation, for a total of 84 months’ imprisonment. The dis-
trict court also ordered concurrent 3-year terms of super-
vised release on the unlawful reentry and bank fraud
offenses, plus $42,865.01 in restitution and special as-
sessments totaling $400. Tovar-Pina’s request to be placed
at the Pekin, Illinois Correctional Institution was declined.


                    II. DISCUSSION
  Tovar-Pina challenges his 84-month prison sen-
tence, comprised of Case Nos. 12-1964 (unlawful reentry
offense), 12-1965 (bank fraud offenses), and 12-1966
(supervised release violation). He contends the district
court committed plain error when it failed to determine a
single combined offense level for the unlawful reentry
offense and the bank fraud offenses, which led to a sen-


6
  The district court sentenced Tovar-Pina to 30 months’ im-
prisonment on each of the three bank fraud counts. The prison
terms were to run concurrently, however, so the total
prison sentence resulting from the bank fraud offenses was
30 months.
Nos. 12-1964, 12-1965 & 12-1966                       9

tence based on an improper Guidelines range. The govern-
ment concurs, and so do we.
  The Sentencing Guidelines instruct courts to deter-
mine a single offense level that encompasses all counts
of conviction for a given defendant, including those
“contained in the same indictment or information,” or
as relevant here, “contained in different indictments
or information for which sentences are to be imposed at
the same time or in a consolidated proceeding.” U.S.S.G.
ch. 3, pt. D, intro. comment. Two separate federal grand
juries returned indictments against Tovar-Pina—one
for the unlawful reentry offense and one for the bank
fraud offenses—but the district court was imposing
a sentence for both indictments at the same time and
in a consolidating proceeding. So, the district court
should have applied U.S.S.G. §§ 3D1.4-5 and deter-
mined a single offense level, which Tovar-Pina and the
government agree should have been 15 with a criminal
category IV, leading to a Guidelines range of 30 to
37 months’ imprisonment on each count, with all
counts running concurrently.
  That did not occur; the district court was presented
with a Guidelines range of 24 to 30 months’ imprison-
ment for each of the two offense groups. Accordingly,
when the district judge sentenced Tovar-Pina to two
consecutive 30-month prison terms, the sentence re-
mained within the Guidelines range the parties believed
to be correct, but in reality, this was 23 months above
the correct Guidelines range. The judge did not explain
this upward departure, and we have no way of
10                         Nos. 12-1964, 12-1965 & 12-1966

knowing whether the judge would have imposed the
same sentence but for the procedural error. We cannot,
therefore, presume the error was harmless. See United
States v. Love, 

, 997-98 (7th Cir. 2012). We
vacate Tovar-Pina’s sentence for the unlawful reentry
offense and the bank fraud offenses, and remand for
resentencing using the correct Guidelines range.
  The only issue left to decide is whether we should
apply Circuit Rule 36 and remand this case to a different
judge for resentencing. Tovar-Pina contends the original
sentencing judge cannot be impartial because of two
remarks made at his sentencing hearing:
 (1) I believe that [Tovar-Pina] is the poster child for
     an extended sentence for illegal aliens. His conduct
     makes it difficult for all who come here seeking
     only the opportunity to legally work and provide
     for their families.
 (2) This will be a first for me: With all due respect,
     I’m not going to make any recommendations as
     to your placement. You can be placed where the
     Bureau of Prisons wishes you to be placed.
But these statements do not produce the concerns we
voiced in prior cases where we have remanded to a
different judge for sentencing. The comments were not
unreasonably inflammatory, provocative, or dispar-
aging, cf. United States v. Bradley, 

, 398, 401
(7th Cir. 2010) (remanding to a different judge where
the sentencing judge told the defendant, among other
things, “You are the crabgrass on the lawn of life.”);
United States v. Figueroa, 

, 743-44 (7th Cir.
Nos. 12-1964, 12-1965 & 12-1966                         11

2010) (stating that the district judge’s “litany of inflam-
matory remarks undermined anything else that court
said during the [sentencing] hearing”); nor do they dem-
onstrate the judge would be unable to follow our in-
structions on remand. Cf. United States v. Thomas, 

, 167 (7th Cir. 1992) (using Rule 36 where the
district judge “said he was in a foul mood because he
didn’t like to redo sentences, didn’t like [this Court’s]
handing of the [defendant’s] first appeal, and didn’t like
the [G]uidelines”). Given Tovar-Pina’s repeated disregard
for the law, the comments demonstrate, at most, the
sentencing judge’s consideration of the requisite sen-
tencing factors and attempt to explain the rationale
behind the sentence imposed. We decline to invoke
Rule 36.


                   III. CONCLUSION
  For the aforementioned reasons, we V ACATE Tovar-
Pina’s sentence in Case Nos. 12-1964 and 12-1965, and
R EMAND for further proceedings consistent with this
opinion. We dismiss with prejudice Tovar-Pina’s appeal
in Case No. 12-1966.




                          4-29-13