*

The Honorable David A. Katz, United States District Judge for the Northern District of Ohio, sitting by

designation. 

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

File Name: 06a0319p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT _________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

EULIBES L. CRUZ,

Defendant-Appellant.

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No. 05-6746

Appeal from the United States District Court

for the Western District of Tennessee at Memphis.

No. 02-20146—Samuel H. Mays, Jr., District Judge.

Submitted: August 9, 2006

Decided and Filed: August 25, 2006 

Before: MOORE and SUTTON, Circuit Judges; KATZ, District Judge.*

_________________

COUNSEL

ON BRIEF: J. Patten Brown III, OFFICE OF THE FEDERAL PUBLIC DEFENDER FOR THE

WESTERN DISTRICT OF TENNESSEE, Memphis, Tennessee, for Appellant. Camille R.

McMullen, ASSISTANT UNITED STATES ATTORNEY, Memphis, Tennessee, for Appellee.

_________________

OPINION _________________

SUTTON, Circuit Judge. Eulibes Cruz challenges his 108-month sentence for one count of

interstate domestic violence and two counts of kidnaping on the ground that the district court

described its objective as issuing a sentence that was “reasonable.” Because the district judge

correctly calculated the guidelines range, adequately considered the § 3553(a) factors and

permissibly exercised his independent judgment in sentencing Cruz, any error in describing the

sentencing process in this manner was harmless. We affirm. 

I.

On March 28, 2002, hoping to reconcile with his estranged wife, Eulibes Cruz left his home

in Tennessee and traveled to Texas where his wife and her son from a previous marriage lived.

1
No. 05-6746 United States v. Cruz Page 2

Without warning, Cruz approached his wife while she was at work and tried to persuade her to

return to Tennessee with him. Mrs. Cruz managed to avoid answering his question at that point, and,

after leaving work, she called the police. Though the police searched for Cruz throughout the

evening, they failed to find him.

The next day, Cruz surprised his wife again—this time as she was leaving a grocery store

with her seven-year-old son. Cruz told her that he needed a ride to get his belongings so that he

could return to Tennessee, and as she got in her car he put “his arm around [her] neck” while holding

a knife. JA 107. He threatened that “he would kill [her],” and turned the knife towards her son

promising to hurt the boy if she did not cooperate. JA 110. Once in the car, Cruz drove his wife and

her son to Tennessee where the police (waiting for Cruz at his home) arrested him.

On October 18, 2002, a jury found Cruz guilty of one count of interstate domestic violence,

see 18 U.S.C. § 2261, and two counts of kidnaping, see id. § 1201. The district court calculated a

97–121 month range under the sentencing guidelines and sentenced Cruz to 108 months’

imprisonment. Our court affirmed the sentence. See United States v. Cruz, 101 Fed. Appx. 612 (6th

Cir. 2004). In the aftermath of United States v. Booker, 543 U.S. 220 (2005), we granted Cruz’s

petition for rehearing and remanded for resentencing. After holding a second sentencing hearing,

the district judge imposed the same sentence: 108 months. 

II.

After more than a year and a half of applying Booker, some kinks remain but the ground

rules for reviewing criminal sentences are becoming increasingly familiar. We review a sentence

for reasonableness. United States v. Williams, 436 F.3d 706, 707 (6th Cir. 2006). A sentencing

judge must appreciate the advisory nature of the guidelines, must calculate the guidelines’

recommendation correctly and must consider the § 3553(a) factors in exercising her independent

judgment about what sentence to impose, United States v. McBride, 434 F.3d 470, 476 (6th Cir.

2006), though “[s]uch consideration, . . . need not be evidenced explicitly” in some mechanical form,

Williams, 436 F.3d at 708. We give a properly calculated sentence within the guidelines, in which

the district judge adequately considered the § 3553(a) factors, a “rebuttable presumption of

reasonableness.” Id. 

In this instance, Cruz does not challenge the district judge’s appreciation of the advisory

nature of the guidelines, the judge’s calculation of the guidelines’ recommended sentence, the

judge’s consideration of the § 3553(a) factors or the fact that such a sentence is entitled to a

rebuttable presumption of reasonableness. What bothers Cruz is that the district judge observed that

the sentence he was imposing was a “reasonable” one, an observation that Cruz claims entitles him

to a third sentencing hearing. 

In one sense Cruz is right. “[A] district court’s job is not to impose a reasonable sentence”;

it “is to impose a sentence sufficient, but not greater than necessary to comply with the purposes of

section 3553(a)(2),” United States v. Foreman, 436 F.3d 638, 644 n.1 (6th Cir. 2006) (internal

quotation marks omitted), and reasonableness represents the standard of appellate review, not the

standard by which a district court imposes a sentence. But in another sense, he is wrong. Merely

by saying that the sentence he wishes to impose is “reasonable,” a district judge does not necessarily

commit reversible error. 

During Cruz’s second sentencing hearing, the district court used the word “reasonable” three

times in describing the sentencing process. See JA 41–42 (“And of course, the Guideline

calculations are just one step toward reaching a sentence that is reasonable. . . . The question is,

what is reasonable. That is what Booker says. The Guidelines aren’t mandatory any more. The

Court has the discretion to sentence anywhere within the statute.”) (emphasis added); JA 43 (“In
No. 05-6746 United States v. Cruz Page 3

looking at what a reasonable sentence would be in this case, the first question is, what is the

nature . . . and circumstances of the offense, how serious is it?”). While Cruz correctly notes that

“reasonableness” represents the appellate standard of review, not the standard by which district

judges exercise their independent judgment in applying the non-mandatory guidelines, the mistake

(an understandable one in the immediate aftermath of Booker) does not rise to the level of reversible

error.

Our court, like other courts of appeals, has developed several procedural requirements for

complying with Booker. Yet these procedural rules do not all rest on the same plane. Consider the

difference between a district judge who imposes a “reasonable sentence” and one who imposes a

sentence in accordance with “mandatory guidelines.” Both sentences contain procedural errors but

they assuredly are not of the same magnitude. The latter error rarely will escape reversal while the

former error, we recently held, does “not necessarily imply a reversible sentencing error.” United

States v. Davis, No. 05-6259, — F.3d —, 2006 WL 2346309, at *4 (6th Cir. Aug. 15, 2006).

During the sentencing hearing in Davis, the district court on six occasions described its

objective as imposing a “reasonable” sentence. Id. at *2–3. On appeal, we agreed that this view of

the district court’s post-Booker sentencing task was mistaken. Id. at *3. But we nonetheless upheld

the sentence given that the court had satisfied the other procedural requirements of post-Booker

sentencing and “[g]iven our repeated admonition that the focus of sentencing ‘is on substance rather

than form’ and . . . does not require any particular ‘magic words.’” Id. at *5 (quoting United States

v. Vonner, 452 F.3d 560, 568 & n.4 (6th Cir. 2006)). 

A similar conclusion applies here. The district judge’s thorough consideration of the

§ 3553(a) factors in this case confirms that he did not take his eye off the central sentencing

considerations before him. As Cruz concedes, he accurately calculated the guidelines’ sentencing

range and recognized that the range represented a recommendation, not a requirement. In looking

at “the nature and circumstances of the offense and the history and characteristics of the defendant,”

18 U.S.C. § 3553(a)(1), the judge noted that “Mr. Cruz doesn’t have a history of violence outside

his family,” but that “[w]ithin his family, he seems to have . . . engaged in some level of violence

and intimidation, at least to create an atmosphere of fear,” JA 44. He also found that the offense was

“extremely serious,” JA 43, because it involved “the use of force against Mr. Cruz’s wife and

stepson, who was then seven years old,” and included “[c]rossing the state line in the course of a

crime of violence,” “assault with a knife” and “threats on the life of Ms. Cruz and her child,” JA 44.

The judge considered the need “to afford adequate deterrence to criminal conduct,” 18

U.S.C. § 3553(a)(2)(B), recognizing that the sentence ought “to provide an adequate deterrence to

others who might be inclined to engage in kidnaping or interstate domestic violence,” JA 44. The

judge discussed the need “to protect the public from further crimes of the defendant,” 18 U.S.C.

§ 3553(a)(2)(C), by imposing a sentence that would “deter Mr. Cruz from engaging in that crime,”

JA 44. At the same time, the judge tried “to provide the defendant with needed . . . correctional

treatment in the most effective manner,” 18 U.S.C. § 3553(a)(2)(D), by choosing a sentence that

could “provide him with rehabilitation,” JA 44. And the judge acknowledged “the need to avoid

unwarranted sentence disparities among defendants with similar records who have been found guilty

of similar conduct,” 18 U.S.C. § 3553(a)(6), and imposed a sentence that he believed would “avoid”

that pitfall, JA 44–45.

On this record, the district court’s use of the word “reasonable” in describing the sentence

he wished to impose did not eclipse his thorough application of the § 3553(a) factors and his

exercise of independent judgment. While we agree with the defendant that the district court should

have described its duty as imposing “a sentence sufficient, but not greater than necessary, to comply

with the purposes set forth in paragraph (2),” 18 U.S.C. § 3553(a), we cannot agree with him that

the court’s reference to imposing a “reasonable” sentence under the § 3553(a) factors, as opposed
No. 05-6746 United States v. Cruz Page 4

to say an “appropriate,” “sensible,” or “fair” sentence under those factors, warrants a third

sentencing hearing. As Davis makes clear, a trial court’s invocation of the word “reasonable” does

not invariably plant the seeds of reversible error, and in this instance any error in describing the

sentencing process in this way was harmless. 

III.

For these reasons, we affirm.