NOT RECOMMENDED F OR F ULL-TEXT PUBLICATION F ile Nam e: 11a0238n.06 No. 10-3148 UNITED STAT ES COURT OF AP P EALS F OR THE S IXTH CIRCUIT

UNITED STAT ES O F AMERICA, P laintif f-App ellee,

v. JOSE RAMIR

EZ-SORIA, Defendan t-Appellant. ) ) ) ) ) ) ) ) ) ON AP P EAL FROM THE UNITED STAT ES DIS TRICT C O U R T F O R T H E SOUTH ERN DISTRICT OF OHIO M E M O R A N D U M O P I N I O N

BEFORE: GU Y, CLAY and McK EAGU E, Circuit Judges. McK EAGU E, Circuit Judge. Def endant J ose Ramirez-Soria, a citizen of Mexi co, pleade d g uilty to having illega lly re- enter ed the United S tates af ter ha ving be en depor

ted, in violation of 8 U.S.C. § 1326. On Fe bruar y 11, 2010, he was sentenc ed to a prison term of 24 months a nd a twoy ear term of supervis e d rele ase. Def endant now appea ls, contending the sentenc e is proce durally and substantively

unrea sonable. T here is no dispute that the district court corr ectly calc ulated the applicable advisory S en t encing Guidelines rang e to be 21 to 27 months. The sentenc e imposed, within the advisory Guidelines rang e, is presumptively rea sonable. United States v. Haj-Hame d , 549 F.3d 1020, 1025 (6th Cir. 2 0 0 8 ). I n deter

mining whether defe ndant has rebutted this presumption, we revie w the sentenc e under the highly defe rential abuse of discretion standard. Gall v

. United States , 552 U.S. 38, 51-52 (2007)

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United States v. Ramire

z-Soria I Def endant contends the sentenc e is procedurally unrea sonable beca use the district court

err oneously believed it lacke d authority to depar t or vary downwar d from the Guidelines rang e and potentially sentenc e him to no more than time serve d. Yet, a d i s t ri ct judge is not require d to expli citly state his awa

rene ss of his discretion to impose a below-G uidelines sentenc e; his understanding is presumed “abse nt clea r evidenc e to the contra

ry .” United States v. Santillane , 540 F.3d 428, 431 (6th Cir. 2008). Thus, defe ndant has the burden of adducing clea r evidenc e that the district judge err oneously believed he lacke d discretion to impose a sentenc e below the Guidelines rang e. See United States v. Guest , 564 F.3d 777, 779 (6th Cir. 2009) (“[T]o justify a rema nd,

. . . an appellant must identify

a spec ific er

ror in the pr ocee dings be low.”). Fur ther, beca use defe ndant did not raise the issue in the district court, we revie w only for plain err or. United States v. Gabbard , 586 F.3d 1046, 1051 (6th Cir. 2009). To obtain relief under plain err or revie w, defe ndant must show “(1) err or (2) that was obvious or clea r, (3) that aff

ecte d his substan t i al ri g hts and (4) that aff ecte d the fairne ss, integ rity , or public reputa tion of the judicial proce eding s.” Id. (quoting United States v. Vonner , 516 F.3d 382, 386 ( 6th Cir. 2008) (en ba nc))

. I n the sentenc ing hear ing, the district court, upon lear ning that the Depa

rtment of Homeland Security held a de tainer on de fenda nt (so as to de port him imm ediately upon rele ase f

rom prison), ag ree d with defe ndant’s counsel that i t wo u l d be in ever y one’s interest if defe ndant wer e i m m ed i at el y deporte d. I n light of this expressed pref ere nce, defe ndant contends that the distric t court’ s d ec i s i o n to impose a prison sentenc e within the Guidelines rang e can only be viewed as

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z-Soria demonstrating the court’s err oneous belief that it lacke d discretion to impose a sentenc e below the Guidelines. Yet, the district judge also listened as the Assistant U.S. Attorney arg ued that, even though defe ndant had alre ady been detained for seven month s , i m m ediate deporta tion would not be sufficie nt punishment. The Assistant U.S. Attorney arg ued that def endant ha d been “ endang ering the l ives of U.S. citizens by driving on our roa ds under the inf luence of alc ohol” . . . and “without insurance ,” despite having “bee n remove d from this country on three pri o r occa sions” in the last fiftee n months. Id. The g overnme nt thus urg ed the court to impose a prison sentenc e at the low end of the Guide lines rang e for the purpose of

deter ring defe ndant and other s. 1 Concluding that it lac ked authority to order defe ndant’s immediate deporta tion, the district court went on t o co rre ctly calc ulate the applicable advisory Guidelines rang e and then considered the sentenc ing fac tors presc ribed at 18 U.S. C

. § 3553(a)

. I n considering “the nature and circ umstances of the offe nse and the history and char acte ristics of the defe ndant” under § 3553(a) (1), the court expressly reiter ated the circ umstances highlig hted by g overnme nt counsel. The court then d e te rmined that a prison sentenc e within the Guidelines rang e is “appr opriate” beca use it “wil l r e f

le c t the seriousness of the offe nse” (§ 3553(a) (2)( A)), “should adequately deter others from committing

s im il ar offe nses” (§ 3553(a) (2)( B) ), “[should] hopefully , protec t the public from any further criminal behavior on the part of this defe ndant” (§ 3553(a) (2)( C)), and “w i l l avoid any unwar rante d

I n fac t, defe ndant’s counse l, too, had just asked the cour t to c onsider imposing a

sentenc e 1 of 21 months, at the low end of the rang e, or to possibly consider vary ing downwar d to 18 months. - 3 -No. 10-3148

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z-Soria disparities in sentenc ing among defe ndants who commit simil ar offenses and have simil ar backg rounds” ( § 3553(a) (6)) . Sent. Tr. at 15. The court t h u s ad eq u ately explained the considerations that led to its deter mination that a prison sentenc e of 24 months was “suff icient, but not g rea ter than nece ssary .” 18 U.S.C. § 3553(a)

. The fac t tha t the court imposed a sentenc e in the middle of the Guidelines rang e, rathe r than at the low end, fur

ther underc uts de fenda

nt’s arg ument that the district judge sy mpathized with him , but felt obli gat ed to sentenc e within the Guidelines rang e. Clearly , if the sentenc ing judge had been moved to sentenc e defe ndant to the shortest permissible sentenc e (so as to acc eler ate the date of his deporta tion), but err oneousl y believed it lacke d authority to impose a below-Guidelines sentence, it would have sentenc ed defe ndant to no more than 21 months, at the low end of the rang e. That the court sentenced defe ndant above the low end of the ra ng e sug g ests the cour

t meant what it said in respe cting the § 3553(a) purposes of providing just punishment in rela tion to the seriousness of the offe nse, deter

ring others, protec ting the public, and avoiding unwar rante d sentenc ing disparities. I n other words, the sentenc ing judge ’s explanation confirms that he imposed a proce durally rea sonable sentenc e under the presc ribed sentenc ing considerations despite his persona l pref ere nce for a differ ent outcome. See G uest , 564 F.3d a t 780 (reje cting a similar ar g ument). Def endant has not, the ref

ore, r ebutted the pr esumption that the district judge was awa re of his discretion to impose a sentenc e below the Guidelines rang e. To the contra ry , as the g overnme nt points out, the rec ord aff

irmatively shows that the district judge fully understood that the Guidelines

are mere ly advisory and that he had the authority to sentenc e outside the Guidelines rang e. See Plea

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z-Soria Hea ring Tr. at 5-6; Sent. Tr. at 13. Acc ording ly , we conclude that defe ndant has fallen short of demonstrating any

proce dural e rror , much less plain er ror. II De fendant also contends that the s entenc e is substantively unrea sonable. I n revie wing for substantive unrea sonablene ss, we apply the abuse- of-discr etion standard, “tak[ing] into acc ount the totality of the c ircumstance s” with “due defe renc e to the district c ourt’s decision.” Gall , 552 U.S. at 51. The sentenc e may be deeme d substantively unrea sonable if the di s t ri ct co u rt chose the sentenc e arbitra

rily , g rounded the sentenc e on imperm i s s i b l e fac tors, or unrea sonably weig hed a pertinent fac tor. See United States v. Brooks , 628 F.3d 791, 796 (6th Cir. 2011). A sentenc e within the Guidelines rang e enjoy s a rebuttable presumption of rea sonablene ss. Id. The fac t that we might

rea sonably conclude a differ ent sentenc e would be appropr iate is insufficient to justify reve rsal. See Gall , 552 U.S. at 51. Def endant first contends that a fair consideration of the circ umstances of the offe nse—i.e.,
t h at h e re -entered the United States unlawfully in order to obtain employ ment so that he could support his wife and two children as wel l as his sister’s three children—de monstrates that a 24- month prison sentenc e is g rea ter than nece ssary . I nsofar as defendant’ s motivation for repea tedly

re- enter ing unlawfully may be a mitigating circ umstance, we note that the district judge considere d and expressed sy

mpathy for defe ndant’s desire to rejoin and support his family

. Yet, the district court was also duly cog nizant of defe ndant’s history of repe ated illega l re- entries and repe ated DUI offe nses. I n imposing a w ithin-Guidelines sentenc e, we cannot sa y that the di strict court we ighe d

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z-Soria these pertinent f

actor s unrea sonably or otherwise abused its discretion. Def endant has not succe eded in rebutting the pre sumption of reasona bleness. Def endant also contends that the 24-month sentenc e results in an unwar rante d sentenc ing d isparity , citing a simil arly situated defe ndant who was sentenc ed to a prison term o f o n l y 1 5 months. See United States v. Luciano-Guillermo , 305 F. App’x 511 (10th Cir. 2008). I n response , the g overnme nt points out that the defe ndant in Luciano-Guillermo was not simil arly situated. Yes, he rec eive d o n l y a 1 5 -month prison sentenc e for unlawful re- entry afte r three prior deporta tions. Howeve r, his sentenc e, too, was within the applicable advisory Guidelines rang e; the ran ge wa s lower beca

use the defe ndant’s criminal history cate g ory was lower. The g overnme nt c ontends the instant case is more compar able to United States v. Trist an-Madrigal , 601 F.3d 629 (6th Cir. 2010). I n Trist an-Madrigal , the defe ndant h ad been convicted of unlawful re- entry afte r three prior deporta tions and four prior drunk-dr iving convictions. T h e d i s t rict court varie d upwar d from the Guidelines ran ge t o i m pose a prison sentenc e of 36 months. We aff irmed over substantiveunrea sonablene ss objection, holding the court had not abused its discretion in deter mining that the defe ndant’s history showed him to be a dang erous individual from wh o m t h e public neede d protec tion. Id. at 634-35. Tog ether , these compar able case s illust rate and confirm the rea sonab l eness of the withinGuidelines sentenc e imposed in this ca s e. As we have previously observe d, “‘a voidance of

unwar rante d disparities was clea rly considere d by the Sentencing Commi ssion when setting the Guidelines rang es,’ and the district court’s very act of corr ectly ca l cu l at i ng and revie wing the advisory rang e indicates that a district judge ‘nec essar ily g ave signific ant weig ht and consideration - 6 -No. 10-3148

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z-Soria to the need to avoid unwarrante d disparities.’” United St ates v. Simmons , 587 F. 3d 348, 363 (6th Cir. 2009) (quoting Gall , 522 U.S. at 54). By rea sonably weig hing the appropr iate § 3553(a) fac tors and then s en t en ci ng defe ndant within the advisory Guidelines rang e, the district court thus adequately observe d the n ee d to avoid unwar rante d disparities—espec ially considering that defe ndant did not raise any such arg ument, fac tual or leg al, at the time of sent en ci n g . See id. (“A dequate ly explaining the rea sons for sentenc ing does not require expressly defe nding the abstrac t justifications for the sentenc ing rang e.”)

. The 24-month sentenc e has not been shown to be substantively

unrea sonable. III Acc ording ly , we reje ct defe ndant’s claims of err or. The judgme nt o f t h e district court is AF F IRMED

.

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