NOT RECOMMENDED F OR FUL L -TEXT PUB L I CATI ON File Na me: 12a0041n.06 No. 11-3013 UNI TED STATES COURT OF A PPEAL S FOR THE SI XTH CI RCUI T

UNI TED STATES OF AMERI CA, Plaintif f-Appellee ,

v. J UAN MARTI

NEZ -RENDON , Defendant-

Appellant

. ) ) ) ) ) ) ) ) ) ON APPEAL FR OM T HE UNI TED STATES DI STRI CT COURT FOR THE SOUTHERN DI STRI CT OF OH I O

O P I N I O N

BEF ORE: MERRI TT and COL E, Circuit J udg es; VARL AN, District Judge. * COL E, Circuit J udg e. Def endant- Appellant J uan Martinez-Rendon appea ls his sentenc e of forty -eig ht months’ imprisonment for illega lly ree ntering the U n it e d St a te s a f te r c o mm it

ti n g a felony , in violation of 8 U. S

. C

. § 1 326(b). The Presentenc e I nvestig ation Report (“PSR”) calc ulated an advisory rang e of ten to six teen months and rec ommended the maxi mum of six teen months, due to Martinez-Rendon’s rec idivism

. The district court issued an upwar d varia nce, imposing a sentenc e of forty -eig ht months, based on Martinez-Rendon’s repe tition of the instant offe nse, a series of prior

cr i mes that did not count toward his criminal history cate g ory , and the lack of reg ard for p u b l i c safe ty that this hist o ry d i s p lay ed. Martinez-Rendon challeng es this varia nce as unrea sonable, claiming that the district court incre ased his criminal history cate g ory without adequate explanation and double- counted his prior f elony conviction. We AFF I RM.

The Honora

ble Thomas A. Var lan, United States District J udg e for the Easter

n District of * Tenne ssee, sitting by

desig nation.United States v. Martinez- Rendon

No. 11-3013 I . BA CKGROUND On J une 2, 2010, Martinez-Rendon pleade d g uilty to one count of unlawful prese nce in the United States in violation of 8 U.S.C. §§ 1326(a) and (b)( 1). Section 1326(b)( 1) car ries a statutory maxi mum penalty of ten y ear s. Martinez-Rendon previously had bee n d ep orted on two separ ate

occa sions. His first deporta tion occur red in late 2 0 0 0 , afte r hi s third conviction for driving under the influence of alcohol (“D UI ”) and an attempted esca pe from custody

. He returne d to the United States and thereaf

ter pleaded guilty to fac ilit at i o n o f poss ession of over half a g ram of coca ine on J anuar y 10, 2003. Following a four-y ear period of incar cer ation and a fourth DUI conviction, Martinez-Rendon was ag ain deporte d in the fall o f 2 0 0 8

. I n October 2009, I mmigra tion and Customs Enforc ement (“I CE”) rec eived information indicating that Martinez-Rendon had returne d to the United States. I CE ag ents appre hended him on May 1, 2010. Upon appre hension, MartinezRendon cooper ated completely with the I CE ag ents, admitting to his true identity and his unlawful

ree ntry

. The PSR set forth a total offe nse level of ten and a criminal history cate g ory of three , y ielding a Guidelines se ntence of ten to six teen months. Ba sed on numerous offe nses not f actor ed into the criminal history calc ulation and Martinez-Rendon’s repe ated illega l ree ntries into the United States, the PSR rec ommended a sentenc e at the top of the Guidelines rang e, six teen months, and three y ear s of supervised rele as e. Taking the advisory and statutory rang es into acc ount, the district court considere d the fac tors enumer ated in 18 U.S.C. § 3553(a) and imposed an u p ward varia nce, sentenc ing Martinez -R endon to forty -eig ht months’ incar cer ation, followed by three y ear s of supervised r elea se. This appe al follows. - 2 -United States v. Martinez- Rendon

No. 11-3013 I I . ANAL YSI S Martinez-Rendon challeng es his sentenc e as both proce durally and substantively

unrea sonable. He claims that the district court arr ived at the above- Guidelines s en t en ce by incre asing his base offe nse level from ten to twenty -one. He contends that the court impermissibly relied on fac tors not countable toward an “upwa rd depar ture,” and “double counted” his prio r

narc otics conviction to justify an offe nse-leve l incre ase. Martinez-Rendon misses, howeve r, that a “var iance ” and a “depar

ture” are not two v er s ions of t he same thing. See United States v. Denny , 653 F.3d 415, 420-21 (6th Cir. 2011). I n this case , the district court upwar dly varie d, on the basis 1 of the discr etion aff

orded by United States v. Book er , 543 U.S. 220 (2005). A. Standard of Review We revie w the district court’s sentenc e for substantive and proce dural rea sonablene ss under

an abuse- of-discr etion standard. United States v. Martinez , 588 F.3d 301, 324 (6th Cir. 2009) (citing Gall v. United States , 552 U.S. 38, 56 (2007))

. We apply the same standard whether the district court imposed a sentenc e within or outside the advisory rang e established by the Guidelines. United States v. Herrera- Zuniga , 571 F.3d 568, 590-91 (6th Cir. 20 0 9 ). Un l i k e sentenc es within the Guidelines rang e, howeve r, sentenc es outside it car ry no presumption of rea sonablene ss. Id. at 582. We ensure that such sentenc es have sufficie nt support from the district court’s analy si s o f t h e § 3553(a) fac tors. United States v. Keller , 498 F.3d 316, 326 ( 6th Cir. 2007) (citing United States

An above- or below-G uidelines sentenc e is a “depar ture” wher e it is “base d on Chapter 5 1 of the Guidelines.” United States v. Jordan , 544 F.3d 656, 671 n.12 (6th Cir. 2008) (citing United States v. Cousins , 469 F.3d 572, 577 ( 6th Cir. 2006), rev’ d on other grounds by Irizarry v. U nited States , 553 U.S. 708 (2008)). A “var iance ” is based on the § 3553(a) fac tors. Id. - 3 -United States v. Martinez- Rendon

No. 11-3013 v. Davis , 458 F.3d 491, 496 (6th Cir. 2006), vacate d , 552 U.S. 1088 (2008))

. To aff irm, we must find the sentenc e both proc edura lly and substantively

rea sonable. Id. at 322. B. Proce dural Reasonableness Martinez-Rendon arg ues that the district court improperly calc ulated his sentenc e under the Guidelines, i g nored c lear Guidelines policy

direc tives, and failed to explain adequately its chosen sentenc e. We revie w the proce dural rea sonablene ss of the district court’s sentenc e by asce rtaining whether it: (1) proper ly calc ulated the applicable advisory Guidelines rang e; (2) considere d the other § 3 5 5 3 (a ) fac tors as well as t he parties’ arg uments for a sentenc e outs ide t he Guidelines rang e; and (3) ad eq u at ely articula ted its rea soning for imposing the particula r sentenc e chose n, including a ny reje ction of the pa

rties’ a rg uments for an outside-Guidelines sent e n c e a n d a ny d e c is io n to d eviate from the advisory Guidelines rang e. United States v. Barahona-M ontenegro , 565 F.3d 980, 983 ( 6th Cir. 2009) (quoting United States

v. Bolds , 511 F.3d 568, 581 (6th Cir. 2007)). The rec ord of the sentenc ing hear ing must ref lect that the court considere d the § 3553(a) fac tors. See United States v. Johnson , 640 F.3d 195, 203 (6th Cir. 2011). Section 3553(a) require s the court to “impose a sentenc e sufficie nt, but not g rea ter than

nece ssary ,” to satisfy the purposes of sentenc ing. Denny , 653 F.3d at 420 (quoting 18 U.S.C. § 3553(a) ) (inter

nal quotation marks omitted). These purposes include : [T] he need for the sentenc e imposed— (A) to ref lect the seriousness of the offe nse, to promote respect for the l aw, and to provide jus t p u n ishment for the offe nse; (B ) to aff ord adequate deter

renc e to criminal conduct; (C) to protec t t h e p u blic from further crimes of t h e d efe ndant; and (D) to provide the defe ndant with neede d educational or vocational training , medical car e, o r o th er corr ectional trea tment in the most effe ctive manne r;

- 4 -United States v. Martinez- Rendon

No. 11-3013 18 U.S.C. § 3553(a) (2). I n assessing this need, the district court must consid er “t h e n ature and circ ums t an ce s o f t he offe nse and the history and char acte ristics of the defe ndant,” 18 U.S.C. § 3553(a) (1), as well as the various available sentenc es and the policies behind them. Id. §§ 3553(a) (3)- (5). A re v iew of the rec ord, including the sentenc ing hear ing transcr ipt, establishes th at t h e district court did not abuse its discretion in deter mini n g Martinez-Rendon’s sentenc e. The PSR proper ly calc ulated, and the district court proper ly acc epted, Martinez-Rendon’s Guidelines rang e. The base offe nse level for v i o l at i n g 8 U.S.C. § 1326(b) is eig ht, afte r which Martinez-Rendon

rec eived a four- level enhanc ement for his previous felony conviction, and a two-leve l reduc tion for

acc eptanc e of responsibility

. His criminal history ref lects a series of misdemeanors committed more than ten y ear s ag o (which do not c ount towa rd his c riminal history cate g ory ), a drug offe nse, and a drunk-dr iving of

fense , y ielding a

criminal history

cate g ory of three

. T h e tr a n s c r ipt likewise shows that the court fully considere d the § 3553(a) fac tors. Reg ardi n g Martinez-Rendon’s history and char acte ristics, the court noted his multipl e illega l ree ntries into the United States and soug ht a sentenc e “suff iciently sever e to deter this defe ndant from further illega l entries into the Unit ed S tates.” (Tr. of Sentencing Hr’g , Dist. Ct. Doc k et No

. 25, at 8.) I t further found that Martinez-Rendon’s criminal history evince d “a lack of respe ct for the judicial sy stem and for the administration of justice,” espec ially g iven his multipl e prior drunk driving offe nses and his failure to enroll in an alcohol trea tment prog ram previously offe red to him. ( Id

. at 9.) Ba sed on the DUI s, the court conclude d that “this man’s prese nce in the United States prese nts a signific ant risk of injury to the innocent citizens of the Unit ed S t at es . ” ( Id. at 10.) The court considere d the - 5 -United States v. Martinez- Rendon

No. 11-3013 statutory rang e, which permits up to ten y ear s of i n ca rc er ation, and understood it to ref lect Congr ess’s view that “ther e may be ce rtain ca ses of illeg al entry by a convicted felon which could

wa rrant a sentenc e as sever e as 10 y ear s in prison.” ( Id. at 11.) Wit h this in mind, t h e co u rt sentenc ed Martinez-Rendon to forty -eig ht months’ incar cer ation, co u p led with three y ear s of supervised rele ase, in order to adequately convince Martinez-Rendon “that he is n o t t o i l leg ally

ree nter the United States, and he is not to continue committing offe nses in the United States.” ( Id. ) Martinez-Rendon does not arg ue that the district court fa i l ed to consider his mitigating evidenc e in imposing the sentenc e. Given the district court’s e x press a rticulation of the § 3553(a) fa ct o rs and the expli cit connec tions that the court drew betwee n those fac tors and the nee d fo r an above- Guidelines sentenc e, we conclude that the court imposed a proce durally rea sonable sentenc e. C. Substanti ve R easonablene ss Martinez-Rendon maintains that the court improperly double-c ounted h is narc otics

co n v i ct i on by considering it as part of the § 3553(a) analy sis, when it alre ady fac tored into his

cr i m inal history cate g ory . He further claims that the court impermissibly relied on his uncou n t ed misdem ea n o rs , beca

use Guidelines policy dictated that courts may consider them only in “ra re” circ umstances wher e the criminal history “substantially under- repr esents” the defe ndant’s criminal past. See U.S.S.G. § 4A1.3(a)( 1). The Supreme Court require s us to g ive district courts substantial latitude t o calculate sentenc es that they deem appropr iate. I ndeed, it has made clea r that “‘[n]o limit ation shall be place d

on the information’ a sentenc ing court may consider ‘conc erning the [d ef endant’ s] backg round, char acte r, and c onduct.’” Peppe r v. United States , 131 S. Ct. 1229, 1235-36 (2011) (alter ations in - 6 -United States v. Martinez- Rendon

No. 11-3013 orig inal) (quoting 18 U.S.C. § 3661) (re ly ing on this principle to strike down a statutory provision limit ing the information that district courts may consider in se ntencing ). As a c ardina l r

ule, the fac t tha t w e might rea sonably disag ree with the sentenc e imposed is insufficient to justify vaca ting a sentenc e imposed by a district court. Johnson , 64 0 F. 3 d at 2 02 (c i t i ng Gall , 552 U.S. at 51). We may not apply a presumption of unrea sonablene ss to aboveGuidelines sentenc es, b u t ra t her must examine the totality of the circ umstances and “g ive due defe renc e to the district court’s decision that the § 3553(a) fac tors, on a whole, justify the extent of the var iance .” Id. (quoting Gall , 552 U.S. at 51). We may find a sentenc e substantively unrea sonable if it appears t h at the district court has “sele ct[ed] the sentenc e arbitra rily , bas[ed] the sentenc e on impermissible fac tors, fail[ed] to consider pertinent § 3553(a) fac tors or giv[en] an unre asonable amount of we ight to any pertinent fac tor.” United States v. Martinez , 588 F.3d 30 1 , 328 (6th Cir. 2009) (quoting United States v. Colli ngton , 461 F.3d 805, 808 (6th Cir. 2006)). Where a sentenc e deviates from the Guidelines, we may “re quire some corr elation betwee n the extent of the varia nce and the justification for it,” but we may not apply a “rig id mathematica l formula that uses the perc entag e of a depar ture as the standard for deter mining the streng th of the justifications require d for a specific sentenc e.” Davis , 537 F.3d at 614 (quoting Gall , 552 U.S. at 47). Her e, the court did not rely on impermissible fac tors i n d et ermini ng Martinez-Rendon’s sentenc e. The district co u rt did not double count the narc otics conviction, beca use it proper ly considere d that conviction as part of Martinez -Rendon’s history and char acte ristics, under § 3553(a) (1). L ikewise, the district court used sound discretion in considering Martinez-Rendon’s - 7 -United States v. Martinez- Rendon

No. 11-3013 uncounted mis demea

nors as part of his history and in considering the need to promote respect for the law and protec t the public from Martinez-Rendon’s future crimes, pursuant to §§ 3553(a) (1) and (2), respe ctively

. The policy statement discourag ing courts from considering “out of time” convictions does not bind the court. K el l er , 4 9 8 F.3d at 319 (citing Booke r , 543 U.S. at 261). Rather, courts reta in broad discretion to “impose a sentenc e sufficie nt but not g rea ter than nece ssary to serve the § 3553(a) fac tors.” Davis , 537 F.3d a t 618. Given that the district court imposed an above- Guidelines sentenc e, the question is whether the court relied on fac ts that distinguish this instance of illega l ree ntry from the “mine run of case s” contemplated by the Guidelines. See Rita v. United States , 551 U.S. 338, 351 (2007). We ag ree with the district court that the rec ord supports the upwar d varia nce in this case . Whil e Martinez-Rendon’s

cr i m i n al history included only two non-immigration offe nses over the past ten y ear s, the rec ord

s u gges t s t hat Martinez-Rendon’s ability to keep his more rec ent crimes to a minimum follows as much from his four- y ear incar cer ation and two deporta tions as from any attempt at ref orm. Second, h i s four DUI s, while not commanding high sentence s, raise the infere nce that Martinez-Rendon’s

mere prese nce in this country may pose a dang er to himself and others. Finally , Martinez-Rendon’s persistenc e in driving while under the i nfluenc e of alcohol, coupled with his repe ated reentry into this country in defia

nce of court order s, evidenc es a lack of deter renc e from committin g fu t u re crimes. The Supreme Court has made clea r that few fac tors are “impermissible” in the sentenc ing context, see Pepper , 1 3 1 S

. C t. at 1240, and thus , it was not an abuse of di scre tion for the district court to re ly

on Martinez-Rendon’s pa st crimes in imposing an upw ard va rianc e.

- 8 -United States v. Martinez- Rendon

No. 11-3013 I I I . CONCL USI ON For the re asons stated a

bove, we AFF I RM the judgment of the district court.

- 9 -