NOT RECOMMENDED F OR F ULL-TEXT PUBLICATION F ile Nam e: 11a0727n.06 No. 09-2622 UNITED STAT ES COURT OF AP P EALS F OR THE S IXTH CIRCUIT

UNI TED STATES OF AMERI CA, Plaintiff-Appellee ,
v. L I Z ARDO CHAVEZ -ARMAS, Def endant- Appellant. ) ) ) ) ) ) ) ) ) ON APPEAL FR OM T HE UNI TED STATES DI STRI CT COURT FOR T HE EASTERN DI STRI CT OF MI CHI GAN O P I N I O N

BEF ORE: GI BB ONS and SUTTON, Circ uit J udg es; ADAMS, District J udg e. * J OHN R. ADAMS, District J udg e. Def endant L izardo Chavez-Armas appea ls from his sentenc e of 57 months imprisonment. We AFF I RM the district court’s sentenc e. I

. Def endant L izardo Chavez-Arma s is a Guatama lan citizen who came to the United States when he was six y ear s old. He has a leng thy criminal history and has been deporte d from the United States three times: on October 4, 200 0, Aug ust 27, 2007, and Dec ember 16, 2008. On April 29, 2009, Chavez-Arma s attempted to illega lly ree nter t he United States and was taken into custody

. He pleade d g uilty to an i n fo rm ati on char g ing him with unlawful ree ntry afte r deporta tion afte r conviction for a

n ag g ravated fe lony

in violation of 8 U.S.C. § 1326.

T h e H o n o r a b l e J o h n R

. A d a m s , U n i t e d S t a t e s D i s t r i c t J u d g e f o r t h e N o r t h e r n D i s t r i c t o f O h i o , s i t t i n g b y * d e s i g n a t i o n .No. 09-2622

United States v. Chave

z-Armas During his g uilt y p l ea colloquy , Chavez-Arma s acknow ledg ed his understanding that the district court would calc u l at e the appropr iate advisory sentenc ing g uidelines, would consider the sentenc ing guide lines in imposing a sentence , could g o above or below the sentenc ing guide lines, would consider all the fac tors in 18 U.S.C. § 3553(a) (2), and wou l d m ake the final decision reg arding the advisory g uideline rang e and the ul timately -imposed s entenc e. There afte r, ChavezArmas and the g overnme nt filed sentenc ing memoranda and Chavez-Arma s repl i ed t o the g overnme nt’s sentenc ing me morandum. During the sentenc ing hear ing, Chavez-Arma s relied on both his written and oral arg uments when reque sting that th e co u rt both vary and depar t downwar d from the sentenc ing g uidelines. Chavez-Arma s arg ued that his criminal history was over- repr esente d and that the g uidelines did not consider the unique circ umstances surroundin g h i s motivation for ree ntering the United States. Specifica lly , Chavez-Arma s highlig hted that his re -e n t ry was nece ssary in order to sign a birth

cer tificate and bond with his newbor n son. Chavez-Arma s arg

ued that he intended only to stay in the United States for a

month. After hear ing arg ument from both the g overnme nt and Chavez-Armas , t h e d i strict court sentenc ed Chavez-Arma s to 57 months im p ri sonment, the bottom of the calc ulated advisory g uideline ra

ng e. Chave z-Armas now a ppeals his sentenc e. I I

. Under United States v. Bostic , the sentenc ing judge must a sk the parties whether either has any objections to the sentenc e that have not alre ady been raised. 371 F.3d 865, 872 (6th Cir. 2004). Her e, the district court did not specific ally make the Bostic inquiry

. During the proce eding , howeve r, - 2 -No. 09-2622

United States v. Chave

z-Armas Chavez-Arma s obj ec t ed t o the sentenc ing proce dure based upon the court’s failure to addre ss his arg uments. There fore , this Court revie ws the district court’s s en t en ci n g deter mination under a defe rential abuse- of-discr etion standard for rea sonablene ss. Gall v. United States , 552 U.S. 38, 46 (2007); United States v. Thomas , 498 F.3d 336, 339 ( 6th Cir. 2007). We “first ensure that the district court committed no signific ant proce dural err or, such as ... failing to consider the § 3553(a) fac tors

... or failing to adequately explain the chosen sentenc e[.] ” Gall , 552 U.S. at 51. Wit h respe ct t o this latter iss ue, the Supreme Court in Rita v. United States , 551 U.S. 338, 356 (2007), made clea r that a district court shou l d exercise its discretion in deter mining how much explanation is nece ssary and that “whe n a judge decide s simply to apply the Guidelines to a particula

r case , doing so will not nece ssarily require leng thy explanation.” A district judge , there fore , need only “set forth enoug h to satisfy the appellate court that he has considere d the parties’ arg uments and has a rea soned basis for exercising his own leg al decision making authority .” Id. I I I

. On appea l, Chav ez -A rm as arg ues that his 57 month sentenc e for unlawful ree ntry was proce durally

unrea sonable be cause the district court did not specif ically addre ss and reject four

of his arg uments for a

downwar d varia

nce. Chavez-Armas a

rg ues that: 1. The dist rict court failed to adequately addre ss defe ndant’s arg ument that i n this particula r case the advisory Guideline rang e under §2L 1.2 was g reater than nece ssary to achie ve §3553(a)’s p urposes and g rossly over- repr esente d Mr.Chavez-Ar mas’s history and off ense c onduct. 2. The district court did not addre ss the unique circ umstances of the offe nse conduct or the de fenda

nt’s motives for re turning to the United States. - 3 -No. 09-2622

United States v. Chave

z-Armas 3. The district cour

t did not addre ss the defendant’s cultural assim ilation arg ument for a downwar d varia

nce. 4. The district court never acknow ledg ed defe ndant’s non-fr ivolous arg ument that a varia nce should be g rante d to a ccount for the more sever e trea tment Chavez would endure in the Depa

rtment of Corre ctions as compar ed with a c itiz en inmate. Chavez-Arma s raised the first two arg uments above during the sentenc ing hear ing itself. The second two arg uments were raised in his sentenc ing me morandum. I n Rita , the Supreme Court explained that a sentenc ing judge ’s statement of rea so n s for a particula r sentenc e must demonstrate that he has considere d the arg ument s an d that he has a

rea son ab l e b as i s in executing his decision making authority

. Rita , 551 U.S. at 356. The district court, howeve r, is not require d to specifica lly state that it c onsidered and reje cted eac h of ChavezArmas’ s arg uments for a downwar d varia nce or depar

ture. Id. ; United States v. Berry , 565 F.3d 332, 340-41 (6th Cir. 2009). There is no question that the district court demonstrated its knowledg e o f t h e § 3553(a) fac tors. The district cour t expl icitly stated t hat i t had considered those fac tors when imposing the sentenc e. Specif

ically , the cour

t stated: “I have of course revie wed the file, the prese ntence repor t. I have considere d at some leng th the alway s persua sive arg uments made by y our lawy er, Miss Be ardslee

. And having done that, and paid particula r attention to 3553(a) , I find that the fac ts set out in the prese ntence repor

t and used in the calc ulat i o n o f the offe nse level and the criminal history cate g ory are acc urate and that the calc ulation itself of the sentenc ing g uideline rang e is acc urate , which as the parties know produce s a total offe nse level 21 and a criminal history cate g ory of I V and a g uideline rang e of 57 to 71 months.” Additionally , the court stated it had revie wed and considere d numerous letters written on behalf of Chavez-Arma s, including having a letter written in Spanish by Chavez-Arma s’s mother translated

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United States v. Chave

z-Armas in order to take it into consideration. Finally , the court stated that it had re ad C h av ez -Arma s’s sentenc ing me morandum and r eply

. As the rec ord makes clea r that the district court revie wed and considere d the prese ntence repor t, sentencing memoranda

and re ply , arg

uments by counsel, a

nd letters fr om Chavez-Armas’ s friends and family when determining his sentenc e, the court met its burden of showing that it had considere d the parties arg uments and had a “re asoned basis” for the sentenc e im posed. See Rita , 551 U.S. at 356. There is littl e doubt that t h e d i s t ri ct court could have g iven a leng thier explanation on the

rec ord for the sent en ce i m posed. I nstead, the lower court chose to adopt the fac ts set forth in the prese ntence repor

t and utiliz ed them to calc ulate the offe nse level. Chavez-Arma s was well awa re of these fac ts and calc ulations, and he in fac t raise d no objection to them. The district court then went on to note consideration of all of counsel’s arg uments befor e imposing sentenc e. I t is true that

eac h arg ument was not specific ally expressed and reje cted, but as noted above, the district court has

no such obliga tion. Acc ording ly , this Court find s that the sentenc e imposed was proce durally

rea sonable. I V. For the fore g oing r easons, we AFF I RM.

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