NOT RECOMMENDED F OR FUL L -TEXT PUB L I CATI ON File Na me: 12a0422n.06 No. 11-3425 UNI TED STATES COURT OF A PPEAL S FOR THE SI XTH CI RCUI T UNI TED STATES OF AMERI CA, Plaintiff-Appellee ,
v. SAMI R HERNANDEZ -SANCHEZ , Def endant- Appellant. ) ) ) ) ) ) ) ) ) ON APPEALFROM THE U NI TED STATES DI STRI CT COURT FOR THE SOUTHERN D I STRI CT OF OHI O

Be fore : KEI TH, MARTI N, and GIBB ONS, Circuit J udg es.

PER CURI AM. Samir Her nandez-Sanc hez appea ls his sentenc e imposed afte r he pled g uilty
to being unlawfully in the United State s af t er deportation in violation of 8 U.S.C. § 1326(a)

. Her nandez-Sanc hez was arr ested in Fe bruar y 2010. I t was subsequently deter mined that Her nandez-Sanc hez was remove d from the United States in Aug ust 2005, J anuar y 2007, October 2007, and Marc h 2009. Under a 2005 immigration order of remova l, Her nandez-Sanc hez w a s barr ed from re -entry

into the United States for twe nty y ear s. Pursuant to a plea agree ment, Her nandez-Sanc hez’s base offe nse level under the advisory
sentenc ing g uidelines was eig ht. The parties ag ree d that this level was not binding upon the district
court. The g overnme nt rec ommended a reduc tion of two lev el s for acc eptanc e of responsibility under USSG § 3E1.1(a)

. Her nandez-Sanc hez acknow ledg ed that he fac ed a statutor y m ax imum punishment of two y ear s of imprisonment, followed by one y ear of supervised rele ase. The districtNo. 11-3425 - 2 - court acc epted the g uilty plea , b u t defe rre d acc eptanc e of the plea ag ree ment until afte r the
sentenc ing he aring

. A t s e nte n c in g , H e r

n a ndez-Sanche z objected to the enhanc ement of his senten c e b y f o u r le v e ls for a prior fel o n y co n viction in Texas. The enhanc ement was permitted under USSG § 2L 1.2(b)( 1)(D) , and ra ised his total offe nse level to ten, following the two-leve l reduc tion for

acc eptanc e of responsibility

. Wit h this o ff ense level, and a criminal history cate g ory of I I I , Her nandez-Sanc hez ’s ad v i sory g uideline rang e of imprisonment would have been ten to six teen months. Howeve r, the district court followed the sug g estion in Application Note 7 to that g uideline provision, and applied a downwar d depar ture to the base level that would have been rea ched without the § 2L 1.2(b)( 1)(D) enhanc ement. The result was an a dvisory sentenc ing guideline ra

ng e of two to eig ht months of imprisonm ent. I n light of Her

nandez-Sanc hez’s history and persona l char acte ristics, the district court found that a sentenc e of two to eig ht months of imprisonment was insufficient to protec t the citizens of the United States. The court sentenc ed Her nandez-Sanc hez to eig hteen months of impriso n m en t

. Her nandez-Sanc hez objected to the senten ce o n the basis that the court had failed to provide adequate re asons for imposing a sente nce a bove the a dvisory

sentenc ing g

uidelines rang e. On appea l, Her

nandez-Sanc hez argues that his sentenc e is proce dura l l y an d substantively

unrea sonable. He contends that the district court failed to provide adequate rea sons for its varia nce and that the court failed to consider cer tain mitigating fac tors when it imposed a sentenc e above the g uidelines rang e. We revie w sentenc es imposed by the district court for rea sonablene ss, which has both a proce dural and a substantive component. Gall v. United States , 552 U.S. 38, 51 (2007). Procedur al

err ors i nclude inst ance s whe re a s en t encing court “fail[s] to calc ulate (or improperly calc ulat[es] )No. 11-3425 - 3 - t h e Gu idelines rang e, treat[ s] the Guidelines as mandatory , fail[s] to consider the [18 U.S.C.] § 3553(a) fac tors, selec t[ s] a sentenc e based on clea rly err oneous fac ts, or fail[s] to adequatel y explain the chosen sentenc e.” Id

. “The essenc e of a sub stantive-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) .” United St ates v. T ristan-Madrigal , 601 F.3d 629 , 632-33 (6th Cir. 2010). “A
sentenc e may be substantively unrea sonable if the district court selec ts the sentenc e arbitra rily , bases the sentenc e on impermissible fac tors, fails to consider per t i n en t § 3553(a) fac tors or g ives an

unrea sonable amount of weig ht to any pertinent fac tor.” United States v. Vowell , 516 F.3d 503, 510 (6th Cir. 2008) (alter ations and i n t ernal quotation marks omitted). We revie w a sentenc ing deter mination for rea sonablene ss under a defe rential abuse- of-discr etion standard. United States v. Studabaker , 578 F.3d 423, 430 ( 6th Cir. 2009). The dist rict court considere d sever al relevant section 3553(a) fa ct o rs , such as the need for just punishment, the need to protec t the public, the fac t that Her nandez-Sanc hez had committed this

s am e o ff en s e m ultiple times, his behavior during his arr ests, and his use of a false identity in hi s attempt to esca

pe dete ction. The district cour t provided an a dequate explanation for the sente nce. The court was not require d to exhaustively explain why an alternative sentenc e was not chosen. See United States v. Simmons , 587 F.3d 348, 360 (6th Cir. 2009). Fur ther, the district court considere d the parties’ arguments and set forth sufficie nt rea sons for its decision. See United States v. HerreraZuniga , 571 F.3d 568, 587 (6th Cir. 2009); see also Rita v. United States , 551 U.S. 338, 356 (2007). I n assessing substantive rea so nablene ss, we ex amine whether the leng th of t he sentence is “suff icient, but not gr eate r than ne cessa ry , to c omply with the purposes” of sentenc ing. 18 U.S.C. § 3553(a) ; United States v. Alexande r , 543 F.3d 819, 822 (6 t h C ir. 2008). The district court considere d a number of s ec t i o n 3553 fac tors in rea ching its decision. Given the district court’sNo. 11-3425 - 4 - consideration of these fac tors, Her nandez-Sanc hez’s sentenc e was substantively rea sonable and was not gr eate r than ne cessa

ry to comply

with the purposes of the statute. The district cour

t’s judgme nt is affirmed.