NOT RECOMMENDED F OR F ULL-TEXT PUBLICATION F ile Nam e: 11a0548n.06 No. 10-4532 UNITED STAT ES COURT OF AP P EALS F OR THE S IXTH CIRCUIT

UNITED STAT ES O F AMERICA, Plaintif f-Appellee

,
v. JORGE VA ZQUEZ -G ALLARDO, Defendant-

Appellant. ) ) ) ) ) ) ) ) ) ) ) ON AP P E AL FROM THE UNI TED STATES DI STRI CT COURT FOR THE SOUTHERN DI STRI CT OF OH I O

O P I N I O N

BEFORE: WHITE and STRANCH, Circuit Judges; COHN, Distric t Judge. *

AVERN COHN, District Judge. This is a criminal case . Def endant- Appellant J org e Vazquez-Gallar do (“V azquez”) appea ls a 12-month above- Guidelines sent e n c e afte r pleading g uilty
to a one-c ount char g e o f I l l ega l R eentry afte r Removal, under 8 U.S.C. § 1326(a) (1) and (2). Vazquez arg ues that the district court err ed beca use it did not state a compelling justification for the above- Guidelines sentenc e on the rec ord and failed to consider cer tain mitigating fac tors. For the

rea sons set forth below, V azquez’s conviction is affirme d. I. BACKG ROUND Vazquez was arr ested fo r o perating a motor vehicle while intox icated and car ry ing a

conce aled wea

pon. Whil e in a Columbus, Ohio jail following the arr est, an investigation uncover ed that Vazquez, a citizen of Mexi co, had been previously order ed remove d from the United States on
The Honor able Ave rn Cohn, United States District J udg e for the Easter

n District of * Michig an, sitting by

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two occa sions: by an immigra tion judge i n C l ev eland, Ohio; and by a district court judge in the Southern District of Texas. At the time of the Columbus, Ohio arr est, he had not applied or rec eived permission to ree nter the United States. Vazquez’s criminal h i s t o ry includes a conviction for attempting to illega lly ree nter the United States in 2009, and for driving without an operator’s license in 2007. Vazquez was char g ed with an d enter ed a g uilty plea to one count of I lleg al Reentry afte r Removal under 8 U.S.C. § 1326(a) (1) and (2). Vazquez filed a sentenc ing memorandum reque sting

a s en t en ce of time serve d. Vazquez’s applicable Sentencing Guidelines rang e was zero to s i x months based upon an of fense level 6, cr iminal hist ory cate g ory I

. At Vazquez’s sentenci n g h ear ing, the Gover nment rec ommended at least a three -month
sentenc e for hi m . T h e d istrict court judge , howeve r, sentenc ed Vazquez to 12 months, to be followed by one y ear of supervised rele ase. The district court judge descr ibed his r ationale for the above- Guidelines sentenc e, as f ollows:
I have [previously ] o u t lined in g ener al terms the fac tors that the Court is called upon to consider in arr iving at a sentenc e, and I would now like to focus on the fac tors that I think are most signific ant i n t h i s ca s e. And they would include the seriousness of the offe nse and deter renc e, the need for the sentenc e to ref lec t the seriousness of the offe nse and to be sufficie n t l y s ignif icant to deter the defe ndant from further criminal activity of this kind. And in that connec tion, it seems rathe r obvious to the Court that [Vazquez ]’s previous trea tment by the courts have not been sufficie ntly

signific ant to deter

him from illega l entry

into the United States. And his prese nce in the U nited States repr esents a risk to the citizens of the United States, as is demonstrated by his criminal history

. He wa s p re v iously deporte d and remove d from the United States on May 1st of 2009, and he was then fo und by the ag ents of the I mmigration and Customs Enforc ement Ag ency in t h e

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Fr anklin County J ail, wher e he was being held on ch ar ges of operating a motor vehicle w hile intox icated a nd car ry ing a conce aled we apon. Ba ck in 2007, he had been o rd ered remove d by an I mmigration J udg e in Cleveland and wa s p h y s i cally remove d from the United States. He was, ag ain, encounte red in the United States in Texas on April 30th of 2009, and on May 1st of that y ear was convicted in the United States District Court for the Southern District of Texas of attempting to enter the United States illega lly and was ag ain order ed remove d from the United States. So, I think this d ef

en d an t well knew that he would be subject to criminal prosec ution and punishment if he should ag ain return to the United States. Neve rtheless, he did, and he involved himself in criminal activity , which included the possession of a fir ear

m. So, the Court believes that the sentenc e in thi s case should be sufficie nt to deter him, and the Court believes that prior leniency has not been sufficie nt to deter him from entering the Unit ed S tates. An d t h e C ourt believes that a variation from the g uideline sentenc e in this case is nece ssary to achie ve the pu rposes of his sentenc ing. Under the laws of the United States, the Court c ould se ntence [Vazquez ] of up to two y ear s of incar cer ation. I believe that a sentenc e of one y ear would serve the purpose of sentenc ing in this case, a nd I doubt that any lesser sentence would. So, I am g oing to impose a sentenc e of 12 months i n ca rc er at i o n in this case . That sentenc e will be followe d by a one- y ear

period of supe rvised re lease

. (District Court Doc. 28, pp. 7- 9). II. DISCUSS ION A. Firs t, V a zquez arg

ues that the district court err ed by imposing an above- Guidelines sentenc e. Particularly , Vazquez asser ts that the district court err ed by not stating a compelling justification for the above-Guidelines sentence on the record. Vazquez further asser ts that th e t h re e factors relied

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on by the district court – his c riminal history , two prior deporta tions, a nd the need for deter

renc e

–

are insufficient to wa

rra nt the 12-month sentence

. I n support, Vazquez cites to sever al case s wher e defe ndants with simil ar criminal histories, including illeg al ree ntries, rec eived within-Guidelines sentenc es that wer e later upheld as rea sonable

on appea l. See United St ates v. Rosas-Caraveo , 308 Fe d. App’x 267 (10th Cir. 2009) (upholding

a 57-month within-Guidelines sentenc e as rea sonable, reje cting appellant’ s claim that a downwar d depar ture was war

rante d); United States v. Rios-Alvino , 221 Fe d. App’x 8 7 3 (1 1 t h C i r. 2007) (upholding a 51-month sentenc e as rea sonable, reje cting appellant’ s reque st fo r a lower withinGuidelines sentenc e); United States v. Basulto-Pulido , 309 Fe d. App’x 945 (6th C i r. 2 0 0 9 ) (upholding a 70-month sentenc e as rea sonable, d en y i n g ap pellant’s arg ument for a downwar d varia nce) ; United States v. Brissett , 375 Fe d. App’x 473 (6th Cir. 2 0 1 0 ) (u p holding a 13-month
sentenc e as rea sonable when district court judge considere d 3553(a) fac tors and wher e appellant had
two prior deporta tions, which acc ording to the district court judge require d a signific ant term of incar cer ation to promote respe ct for the law and to aff ord adequa

te deter renc e to criminal conduct)

. I n response , the Gover

nment asser

ts that the district court prope rly calc ulated the se ntence pursuant to the advisory Guidelines, g ave all parties the opportunity to prese nt their arg uments, considere d all rele vant sentenc ing fac tors under 18 U.S.C. § 3553(a) , and articula ted in detail on the

rec ord its rationale f

or imposing a

sentenc e outside of the a pplicable Guide lines rang e. Vazquez challeng es the substantive rea sonablene ss of his sentenc e, which is revie wed for an abuse of discretion. Unit ed S t a t es v. W alls , 546 F.3d 728, 736 (6th Cir. 2008); see also Gall v.

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United States , 552 U.S. 38, 51 (2007). The essenc e of a substantive-re asonable ness claim is whether the leng th of the sentenc e is “g reater than nece ssary ” to achie ve the sentenc ing g oals set forth in 18 U.S.C. § 3553(a)

. W

alls , 546 F.3d at 736

. “A sentenc e is substantively unrea sonable if the district
court selec ts the sentenc e arbitra rily , bases the sentenc e on impermissible f actor s, fails to c onsider pertinent § 3553(a) fac tors or g ives an unrea sonable amount of weig ht to any pertinent fac tor.” Id. (interna l quotation marks and alter ations omitt ed). As it rela tes to above- Guidelines sentenc es, the Court must “take into acc ount the totality of the circ u m s t an ce s .” Gall , 552 U.S. at 51. “Althoug h a sentenc e that falls within the Guidelines
rang e war rants a presumption of rea sonablene ss in t h i s ci rc uit, there is no presumption ag ainst a
sentenc e that falls outside of this rang e.” United States v. Herrera- Zuniga , 571 F.3d 568, 590 (6th Cir. 2009). “I f the sentenc ing judge elec ts ‘an ou t side-Guidelines sentenc e . . . he [or she] must consider the extent of the deviation and ensure t h at t h e justification is sufficie ntly compelling to support the deg ree of the varia nce.’ ” United States v. Trist an-Madrigal , 601 F.3d 629, 633 (6th Cir. 2010) (quoting Gall , 552 U.S. at 50). “Howe ver, ‘[t] he fac t that the appellate court might rea sonably have co n cl uded that a differ ent sentenc e was appropr iate is insufficient to justify reve rsal of the district court.’” Id. (quoting Gall , 552 U.S. at 51). Her e, the district court articula ted on the rec ord its rationale for imposing a sentenc e outside th e applicable Guidelines rang e. Particularly , the district court considere d Vazquez’s criminal history , which included an arr est for drunk driving and possession of a conce aled wea pon, his prior
two deporta tions and illega l ree ntries, and the need for deter renc e to protec t the public g iven his prior

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. Fur

ther, the district court g ave all parties an opportuni t y t o b e hear d at the sentenc ing hear ing, and stated that the sentenc ing fac tors wer e among the considerations that led it to rea ch the imposed sentence

. Moreove r, while Vazquez cites sever al opinions upholding within-Guidelines sentenc es as

rea sonable, he fails to cite authority in support of his arg ument, i.e., wher e an above- Guidelines
sentenc e was found to be unrea sonable. I ndeed, the case s relied on by Vazquez seem to more rea dily support the Gover

nment’s asser

tion that Vazquez’s sentenc e should be upheld as rea sonable g iven that eac h reje cted a

n appellant’ s arg

ument that their re spective se ntence s were too long. Thus, the district court d i d n o t abuse its discretion in imposing the above- Guidelines
sentenc e. B. Vazquez f

urther arg ues that the district c ourt err ed by failing to consider cer tain mitigating fac tors: he worke d leg itimately in construction while in the United States; at the time of sentenc ing he had not y et been convicted of the rec ent drunk driving offe nse; and t he car ry ing a conce aled

wea pon char g e wa s dismis sed. Relating to a dis trict court’s obligation when it comes to mitigating fac tors, Rita v. United States , 551 U.S. 338 (2007) addre sses the issue of what con s titutes a sufficie nt explanation for
purposes of apply ing the 18 U.S.C. § 3553(a) fac tors in sentenc ing a defe ndant. A sentenc ing court should “set forth enoug h to satisfy the appellate court that [i t] has considere d the parties’ arg uments and has a rea soned basis for exercising [i ts] own leg al decisionmaking authority .” Id. at 356. “The

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appropr iateness of brevity or leng th, concise ness or detail, when to write, what to say , depends upon circ umstances.” Id. “Sometimes a judicial opinion responds to ever y arg ument; sometimes it does
not

. . . . The law leave s much, in this respe ct, to the judge ’s own profe ssional judgme nt.” Id. What is require d is a rec ord that demonstrates that the sentenc ing court “ade quately considere d the rele vant § 3553(a) fac tors” in imposing a sentenc e. United States v. Liou , 491 F.3d 334, 339 (6th Cir. 2007). Her e, in his sentenc ing memorandum, Vazquez submitt ed § 3553 mitigating fac tors for the district court’s considera tion , including the fac tors he curr ently arg ues wer e not considere d: the h i s tory and char acte ristics of the defe ndant, under § 3553(a) (1), which encompa sses his wor k history ; and the nature and circ umstance of the offe nse, under § 3553(a) (1), which encompa sses the
status of his criminal offe nses. (District Court Doc. 21, p. 2). Particul ar l y , t h e sentenc ing memorandum descr ibes that Vazquez “mig rate d to the United States illega lly at the ag e of 18 to seek work and contribute financ ially to the family .” ( Id. at 4). I t g oes on to descr ibe that Vazquez “found work in the United States in construction” and that “[i] n the course o f wo rk i ng sever al y ear s in construction [Vazquez ] helped his fathe r purcha se a small piece of land in Mexi co.” ( Id. ). Relating
to the driving while intox icated and conce aled wea pon offe nses, the sentenc ing memorandum states that the “Carry

ing a C oncea led W eapon c harg e wa s dismis sed and the [driving whil e int ox icated] char g es re main pending with a cour t date of D ece mber 16, 2010.” ( Id. at 3). During the sentenc ing hear ing, the district court stated that he had revie wed the sentenc ing memorandum. (Distri ct C o u rt Doc. 28, pp. 4-5). Relating to the specific fac tors set forth in the
sentenc ing me morandum, which he considere d in arriving at a se ntence , the district court stated:

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[I ]n arr iving at a sentenc e, the Court is called upo n t o co n s i d er the – in addition to the g uidelines – the nature and circ umstances of the offe nse; the history and char acte ristics of t h e defe ndant; the need for the sentenc e to ref lect the seriousness of the offe nse an d t o promote respe ct for the law; and to provide just punishment; and to aff

ord ade quate de terre nce a nd to protect the public f

rom more crimes by the defe ndant, as well as to provide the defe ndant with any educational or vocational training or medical car e or corr ectional trea tment in the most eff ective manner . Now, with those and any other fac tors, which may be unique to this case , the Court w ould be please d to ha ve the comments of counsel reg arding the appropr iate sent en ce , an d I would note that I have rec eived a Sentencing Memorandum from defe nse counse l, which is helpful. ( Id. at 5).
Ba sed on the above, we find that the district court adequately consid er ed Vazquez’s straig htforwa

rd arg uments reg arding his work history and the circ umstances of his criminal history when a rriving at the above -Guidelines se ntence

. C. Finally , Vazquez asser

ts that the district court err ed by not considering the lack of a fast-tra ck
prog ram in the Southern District of Ohio. I n support, he relies on United S t a t es v. CamachoArellano , 614 F.3d 244 (6th Cir. 2010), in which this circ uit rema nded a case to the district court for

rese ntencing when the district court failed to consider fast-tra ck fac tors raised by the appellant. Id. at 250. Her e, Vazquez’s arg ument that a fast-tra ck fac tor should have been considere d is raised for the first time on appea l. L ikewise, hi s ar gu ment that this Court should find that the district court

err ed by failing to consider a

fac tor neve r broug ht before it lacks merit.

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III. CONCLUSION For all of the a

bove re asons, we AF F IRM Vazquez’s sentenc e.

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