NOT RECOMMENDED F OR F ULL-TEXT PUBLICATION File Na me: 12a1072n.06 No. 11-3827 UNITED STAT ES COURT OF AP P EALS F OR THE S IXTH CIRCUIT UNI TED STATES OF AMERI CA, Plaintiff-Appellee , v. LUI S DE AVI L A DE SANTIAGO, a ka L uis De Avila, Def endant- Appellant. ) ) ) ) ) ) ) ) ) ) ) ON APPEALFROM THE UNI TED STATES DI STRI CT COURT FOR THE N ORTHERN DI STRI CT OF OH I O OPI

NI ON

BEF ORE: MERRI TT, McKEA GUE, a nd STRANCH, Circuit J udg es.

PER CURI AM. Luis De Avila De Santiag o, a.k.a. L uis De Avila, appea ls the district court’s judgme nt imposi ng a sente nce of thirty -three months of imprisonment. De Santiag o pleade d g uilty to illega lly ree ntering the United States afte r being deporte d, in violation of 8 U.S.C. § 1326. The district court deter mined that De Santiag o’s base offe nse level was eigh t

. T h e court added eig ht levels beca use De Santiag o had been deporte d previously afte r conviction of an ag g ravated felony

. The court subt ra ct ed t h ree levels for acc eptanc e of responsibility , resulting in a total offe nse level of thirteen. Ba sed on the t o t al o ff en se level of thirteen and a cr i m i n al history cate g ory of V, the district court deter mined that De Santiag o’s g uidelines rang e of imprisonment was thirty to thirty -seve n m o n t h s . T h e court sentenc ed him to thirty -three months in prison.No. 11-3827

United States v. DeSantiago On appea l, D e Santiag o argues that his se ntence was unre asonable in two respe cts: (1) the district court failed to consider that his crime was motivated by the desire to be with his immediate family members, who are United States citizens; and (2) the court failed to consider the availability of other ty

pes of se ntence s and possible sentenc ing dispa rities. We revie w the sentenc e under a defe rential abuse- of-discr etion standard for rea sonablene ss, which has both a procedura l and a substantive component. United St a t es v. O’Georgia , 569 F.3d 281, 287 (6th Cir. 2009). When revie wing for proce dural unrea sonablene ss, we examine whether the district court failed to calc ulate or improperly calc ulated the g uidelines rang e, trea ted the Guidelines

as mandatory , failed to consider the § 3553(a) fac tors, selec ted a sentenc e based on clea rly err oneous fac ts, or failed to explain the sentenc e adequately

. United States v. W arman , 578 F.3d 320, 350 (6th Cir. 2009). “A sentenc e may be substantively unrea sonable if the district court selec ts the sentenc e arbitra rily , bases the sentenc e on impermissibl e fa ct o rs , fails to consider pertinent [18 U.S.C.] § 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) (interna l quotation marks and alterations omitted). We apply a rebuttable presumption of substantive rea sonablene ss to a within-Guidelines sentenc e. See W arman , 578 F.3d at 351. The district court did not abuse its discretion in imposing De Santiag o’s sentenc e. The rec ord does not support De Santiag o’s asser tion th at t h e district court failed to g ive proper weight to his persona l circ umstances. Be fore imposing the sentenc e, the district court rec og nized De Santiag o’s difficult family situation, but considere d it in light of his three previous deportations, at least two of whi ch o cc u rr ed af

ter the commission of a serious felony

. The court also discussed the § 3553(a) fac tors, including the need f or g ener al and spe cific de terre nce a nd the nee d to punish De Santiag o -2-No. 11-3827

United States v. DeSantiago for his actions. Fur

ther, g iven the straig htforwa rd nature of the case and the imposit ion of a withinGuidelines sentenc e, the district court was not require d to expli citly addre ss the availability of other ty pes of sentenc es or possible sentenc i n g disparities wher e the rec ord shows the court listened to

eac h argument, was awa

re of the defe ndant’s circ umstances, and took them into a ccount. See Rita v. United States , 551 U.S. 338, 356-57 (2007); United States v. Duane , 533 F.3d 441, 451- 52 (6th Cir. 2008). Acc ording ly , we a ffirm the district c ourt’s sentenc e.

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