NOT RECOMMENDED F OR FUL L -TEXT PUB L I CATI ON File Na me: 12a0205n.06 No. 11-1090 UNI TED STATES COURT OF A PPEAL S FOR THE SI XTH CI RCUI T

UNI TED STATES OF AMERI CA, ) ) Plaintiff-Appellee , ) APPEAL FROM THE U NI TED ) STATES DI STRI CT COURT v. ) FOR THE WES TERN DI STRI CT ) OF MI CHI GAN EL MER PORR AS-CHI

NCHI L L A, )

) Def endant- Appellant. )

BEF ORE: MERRI TT, ROGERS, Circuit J udg es; and POL STER, District J udg e. *

Dan Aaron P olster, District Judge. E lm e r Po r r a s - Ch inchilla challeng es the rea sonablene ss of the within-g uidelines prison sentenc e of 54 months that the district c ourt imposed following his plea of g uilty to unlawful ree ntry of a deporte d alien afte r remova l for an ag g ravated felony

. Be cause the district court’s se ntence was proc edura lly and substantively

rea sonable, we aff

irm. I. Elmer Porras-Chinchilla is a citizen of Guatema la without leg al status in the United States. He first illega lly enter ed the United States in Dec ember 1989 and trave led to L os Ang eles, California. I n May 1991, he was convicted of robber y in the first deg ree and attempted forc ible rape ,

T he Honor abl e Dan Aar on Pol st er , Unit ed Sta te s Dis tr ic t J udge for the Nort her n Dis tr ic t of Ohio , * si tt ing by des ignat ion

.for which he was sentenc ed to consec utive four- y ear prison terms on eac h count. I n September 1995,

howeve r, he w as re lease d from custody and depor

ted to Guatema la. I n November 1996, Porras-Chinchilla unlawfully ree ntere d the United States and trave led to Maine. I n M ay 1 9 9 7, he was convicted, in the U.S. District Court for Maine, of ree ntry of a deporte d alien subseque nt to an ag g rava ted fe lony conviction. At the sente ncing hear ing, PorrasChinchilla claimed that he enter ed the United States to be with his fathe r who Porras-Chinchilla thought was dy ing. The court sentenc ed him to 46 months in prison. I n J une 2000, he was rele ased and ag ain depor

ted to Guatema la. Porras-Chinchilla ree ntere d the U.S. illega lly a third time in 2004, at San Dieg o, California, and made his way to Gra

nd Rapids, Michig an, by 2006. On Aug ust 4, 2010, Porras-Chinchilla was

arr ested in Kent County , Michig an, for a traff ic offe nse. He identified himself to the arr esting office r

as J ose Caballer o-Mar

tinez, and told the officer he had ne ver be en in jail befor e. His true identity

was not deter

mined until he was fing erpr inted at the county jail. I mmigratio n an d Customs Enforc ement officia ls wer e there afte r contac ted, established his identity , and took him into fede ral custody on Aug ust 12, 2010. On October 12, 2010, Porras-Chinchilla enter ed a plea of g uilty to ree ntry of a deporte d alien afte r remova l fo r an ag g ravated felony , in violation of 8 U.S.C. §§ 1326(a) and (b)( 2). The prese ntence investigation re port (“PSI R”) calc ulated his sentenc ing g uidelines rang e as 46 to 57 months based upon a total off ense le vel of 21 a

nd a cr iminal hist ory

cate g ory of I I I

. Neither

party objected to the guidelines ca lculation in the PSI R. Prior to sentenc ing, Porras-Chinchilla filed a motion for a downwar d varia nce. There in, he pointed out that he came from very humble beg innings, his pare nts abandone d him and his siblings

2and he had to le ave school afte r fifth g rade to suppor t his siblings. He asser

ted that he came to the United S tates t his most rec ent t ime beca use of h i s d es i re t o support his family , and that he st ay ed longe r than intended due to his y oung est daug hter’s hear t condition. I n seeking leniency , he arg ued that his criminal history score overstate d the seriousness of his criminal backg round. Specifica lly , he noted that the three criminal history points attributable to his 1991 felonies wer e just two months short of being excluded i n calc ulating his criminal history cate g ory . He pointed out his positive attributes, supported by letters from his community , demonstrating his persona l reha bilitation from committing violent crimes as a y outh, and his rec ord of maintaining employ ment and supporting his family since then. He maintained that he lear ned his lesson and was not likely to return to the United States ag ain. At the s en t encing hear ing, Porras-Chinchilla’s counsel stated that Porras-Chinchilla came to the United States the first time to survive the political unrest and economy of Guatema la, and that he g ot caug ht up with the wrong crow d when he committed the violent 1991 felonies. Counsel asked the court to consider the amount of tim e t h at had elapse d since then and the fac t that PorrasChinchilla had turned himself around, becoming the sole support of his family

. Counsel asked the court to allow Porras-Chinchilla to return to Guatema la as soon as possible so that he could reunite with his wife and son, and use the skills in Guatema la that he develope d here in the United States. Counsel r eporte d that Porras-Chinchilla planned to le ave his y oung est daug hter with his mother, a U.S. citizen living in California, since the daug hter could not have the neede d hear t surg ery until she

rea ched a cer

tain ag e. Counsel contende d that Porras-Chinchilla had finally come to the rea liz ation that being in the United States was not an option, he was at pea ce wi th that rea liz ation, and he promised neve r to retur

n to this country

ag ain.
3The court responde d, “W el l , I ap p reciate the promise, but what is there in the history that

would lead the Court to believe that he is g oing to follow throug h with that, espec ially in light of the fac t that his family is g oing to be here ? ” Sent. Hr’g Tr. 7-8. Counsel repe ated that, while his history 1 sug g ested otherwise, P orra s-Chinchilla now understood that he no longe r had the opt ion to return to the United States, and that another illega l ree ntry would be trea ted more sever ely

. Fur thermore , he had co m e t o p eace with the fac t that his y oung est daug hter will live with her g randmother in California. The Court pointed out that Porras-Chinchilla had returne d to the U.S. in 2004 for family

rea s o n s and stated, “I ’m looking for something that’s differ ent this time that I can place some modicum of trust in the notion that the defe ndant is not g oing to return.” I d. 9. Porras-Chinchilla’s counsel responde d, “Your Honor, I honestly and truly believe what is differ ent this time is the fac t that he understands.” I d. Porras-Chinchilla persona lly apolog ized, said he had lear ned from his mistakes, and aske d for the c ourt’s for g iveness. I d. 10-11. The court explained its duty to impose a sentenc e sufficie nt, but not g reater than nece ssary , to comply with the purposes of sentenc ing set forth in 18 U.S.C. § 3553(a)

. The court acknow ledg ed that the starting point for fashioning a s en t en ce was the g uidelines rang e. Howeve r, the court

rec og nized that the guidelines are only advisory , the g uidelines rang e is one of the arr ay of fa ctors

war ranting consideration, and the court must make an individualiz ed assessment based on the fac ts prese nted. Sent. Hr’g Tr. 1 1 -1 2

. The court noted that it considere d all of Porras-Chinchilla’s arguments, including those prese nted in his motion for a downwar d varia nce. The court specific ally mentioned Porras-Chinchilla’s positive attributes supported by letters descr ibing him as respe ctful

o f o t h ers, compassionate, and willing to support his family

. The court noted that, if it were

T he c it at ion s a re to th e T ra nsc ri pt of the J anu ar y 18, 201 1 Se nte nci ng Hear ing, R. 26

. 1 4sentenc ing Porras-Chinchilla without the criminal history befor e it, a downwar d varia nce might be appropr iate. I d. 12-13. Wit h reg ard to the 1991 convictions, the court acknow ledg ed that t h o se crimes wer e committed when Porras-Chinchilla was a much y oung er man and that he had no history of committing violent crimes since then. Howeve r, the 1991 convictions wer e proper ly “within the four square s of the g uideline,” and the court saw no rea son to depar t due to the ag e of the convictions which wer e “ver

y serious convictions indeed.” I d. 13. The court was mindf u l o f t h e fa ct that a fede ral judge in Ma ine sentenc ed Porras-Chinchilla to 46 months when he illega lly returne d to the U.S. in the mid-1990s. The court saw littl e rea son to g ive Porras-Chinchilla a lighter sentenc e than the one imposed by the Maine judge “bec ause we are back here ag ain with the same behavior .” Sent. Hr’g Tr. 14. The court was conce rned that the circ umstances attending his two latest illega l ree ntries

wer e motivated by wanting to be with family – and the fac t that his y oung est daug hter was g oing to

rema in in the United S tates provided temptation for him to return. T he cour t observed that, when fac ed with t he dec ision to return bec ause of an ill family member, Porras-Chinchilla alway s made

a bad choice and returne d to the U.S. in utter disreg ard for the immigra tion laws of this country
. I d. 14-15. The court mentioned that Porras-Chinchilla g ave a false name to the office r who arr ested him for the traff

ic offe nse, observing that people who use false names tend to shield t h em s el v es from appre hension by local authorities. I d. 15-18. Given all the fac tors discussed, the court deter mined that a sentenc e toward the middle of the g u i d el i n e rang e was appropr iate and sentenc ed PorrasChinchilla to 54 months. The court asked Porras-Chinchilla if he had any leg al objections to the sentenc e imposed, to which counsel responde d, “No, y our Honor.” I d. The court then followed up: “Ar e y ou satisfied that I ’ve addre ssed all of y our arguments on the rec ord,” to which counsel responde d, “Ye s, y our Honor.” I d. Porras-Chinchilla now a ppeals his sentenc e.
5II.

“[A]ppellate revie w of sentenc ing decisions is l i m i t ed to deter mining whether they are ‘re asonable .’” United States v. Pritchett , 4 1 9 F. App’x 652, 654 (6 Cir. 2011) (quoting Gall v. t h United S t a t es , 552 U.S. 38, 46 (2007))

. Reasonable ness revie w involves both a proce dural and substantive component. Procedur al err ors include failing to calc ulate or improperly calc ulating the g uidelines rang e, trea ting the g uidelines as mandatory , failing t o co n s ider the § 3553(a) fac tors, selec ti n g a s entence based on clea rly err oneous fac ts, or failing to adequately explain the chosen sentenc e. Gall , 552 U.S. at 51. A sentenc e will be considere d substantively u n re as o n able if the court selec ts the sentenc e arbitra rily , bases the sentenc e on impermissible f actor s, fails to consider pertinen t § 3 5 5 3 (a) fac tors, or g ives an unrea sonable amount of weig ht to any pertinent fac tor. United States v. Conatser , 514 F.3d 508, 519-20 (6 Cir. 2008). I n revie wing a s en t ence for t h substantive rea sonablene ss, we must “take into acc ount the t otality of the c ircumstance s.” Id . “I f t h e s entence is within the Guidelines rang e, the appellate court may . . . apply a presumption o f

rea sonablene ss.” Id

. We g ener ally revie w all sentenc es under an abuse of di scre tion st an d ar d

. United St ates v. W a l l a ce , 597 F.3d 794, 802 (6 Cir. 2010) (citing Gall , 552 U.S. at 41 (inner quotation m ar k s t h omitted)). Howeve r, “[w]here a party has failed to object to a proce dural defe ct, we revie w claims of proce dural unrea sonablene ss for plain err or.” Id

. (citing United States v. Vonner , 516 F.3d 382, 385-86 (6 Cir. 2008) (en banc) ). To show plain err or, a party must demonstrate an err or that was

t h

6obvious or clea r, affec t ed his substantial rig hts, and aff ecte d the fairne ss, integ rity , or public reputa tion of judicial proce eding s. Id . (citing Vonner , 516 F.3d at 386). Porras-Chinchilla arg

ues that the sentenc ing court failed to adequately explain the sentenc e imposed and to sufficie ntly consider all of his rea sons for g ranting a downwar d varia nce. Be cause defe nse counsel failed to raise any specific proce dural objections to the announce d sentenc e afte r being g iven an opportunity by the district c ourt to do so, this argument is revie wed for plain err or. Id. (citing United States v. Bostic , 371 F.3d 865, 8 7 2 -7 3 (6 Cir. 2004)). In addre ssing this t h argument, the cruc ial question is w hether the rec ord makes clea r that the sentenc ing judge listened to the defe ndant’s arguments, considere d the supporting evidenc e, was fully awa re o f th e d e f

endant’ s circ umstances, and took them into acc ount when sentenc ing him. Vonner , 516 F.3d at 387. The

rec ord in this case demonstrates that the court considere d all the reasons Porras-Chinchilla articula ted for a downwar d varia nce including his family situation, his ties and responsibilities, his y oung est daug hter’s hear

t condition, the fac t that his first two felony convictions occur red long ag o, and the fac t that he had not be en char g ed with a ny violent c rime since then. Additionally , counsel for Porras-Chinchilla confirme d that the court addre ssed all of his arg uments on the rec ord. Finally , it is well settled that the sentenc ing court need not g ive the rea son for reje cting any and all arguments articula ted by

a def endant se eking a downwa rd var iance

. Id

. The re cord a lso makes clea r that the c ourt ade quately explained the chosen se ntence
. Whil e the court appre ciated the fac t that (save twice illega lly ree nteri n g t h is country ) PorrasChinchilla appea

red to have turned his life around, it was appar ent that the motive for his two prior illega l ree ntries was to be with his family during diffic u lt situations. Since hi s y oung est daug hter with hear t problems would now be stay ing with his mother i n California, the co u rt saw no rea son
7to believe Porra s-Chinchilla would not be tempted to r eturn to this country to visit her. A nd since

the previous 46-month sentenc e for illega lly ree ntering this co u n t ry obviously failed to deter him from illeg ally

enter ing the country

a third time, the court conclude d that a sente nce long er tha n 46 months was war

rante d. The court ultimately ch o s e a 54-month sentenc e that was within the g uidelin e ra n ge of 46 to 57 months. On t his rec ord, P orra s-Chinchilla cannot show that the court committed a proc edura l error

. A sentenc e will be deeme d substantively unreas o n ab l e i f the court selec ts the sentenc e arbitra rily , bases the sentenc e on impermissible fac tors, fails to consider pertinent § 3553(a) fac tors,

or g ives an unrea sonable amount of weig ht to any pertinent fac tor. Conatser , 514 F.3d at 519-20. A within-g uidelines rang e sentenc e is acc orded a presumption of rea sonablene ss. Vonner , 516 F.3d at 389. Porras-Chinchilla argues that the sentenc ing court committed r ever sible err or by using the 46-month sen tence d imposed by the District Court in Maine in his prior illega l ree ntry case as an impenetra ble “floor” below which t h e j u dg e ref used to g o in imposing the curr ent 54-month sentenc e. This argument is not borne out b y t h e rec ord. Among the fac tors to be considere d in deter mini n g a rea sonable sentenc e is the need for the sentenc e imposed “to aff ord adequate deter renc e to criminal conduct.” 18 U.S.C. § 3553(a) (2)( B)

. In the course of discussing all of PorrasChinchilla’s arguments for a varia nce a nd the § 3553(a ) fa ctors, the c ourt mere ly stated that i t felt the need to “be mindful” of the fac t that Porras-Chinchilla had alre ady serve d a 46-month sentenc e for the exact same criminal conduct and that the 46-month sentenc e was plainly insufficient to deter him from committing the cr ime ag ain. Sent. Hr’gTr. 13. Porras-Chinchilla also argues that it was err or for the sentenc ing court to use the previous 46- month sentenc e as a floor since there is nothing in the rec ord explaining why the district court in
8Maine chose 46 months as an appropr iate punishment, that sentenc e was imposed when the

sentenc ing guide lines were mandatory , and it is imposs ible to determine what sentenc e the Maine court might have imposed if the g uidelines had been advisory

. Ag ain, he misses the point. The 46- month sentenc e imposed on Porras-Chinchilla the last time he illega lly ree ntere d the United States, howeve r it was derive d and whateve r it was based upon, was obviously not long enoug h to achie ve the desired deter

rent eff ect. And the rec ord shows that the sentenc ing cour t wa s awa re that the g uideline rang e was advisory only and that it had the discretion to formulate an appropr iate sentenc e. Por ra s-Chinchilla asks t his court to vacate hi s sentenc e and rema nd the case t o the di strict court instructing it to decide his motion for a varia nce “without consideration of [hi s] prior rec ord.” Opening Br

. at 18-19. Porras-Chinchilla cites no case law t o s u p p ort such a novel instruction. Moreover, we have held that it is not substantively unrea sonable for a court to impose a leng thy sentenc e based upon one fac t (e.g ., the defe ndant’s criminal history) wher e that fac t bear s upon more than one of the § 3353(a) fac tors. U.S. v. Gunter , 620 F.3d 642, 647 (6 Cir. 2010) (inner quotation t h marks omitted). Her e, the court discussed Porras-Ch i n ch illa’s criminal history in rela tion to the seriousness of the offe nse, his rec idivist tendenc ies and the need to deter him from il l ega lly

ree ntering the country y et another time, along with the need to promote respe ct for the immigra tion laws g ener ally . 18 U.S.C. §§ 3553(a)(1) , (a) (2)( A), (a )(2) (B ). Porras-Chinchilla has failed to show that the court selec ted his sentenc e arbitra rily , based the sentenc e on impermissible fac tors, failed to consider per t i nent § 3553(a) fac tors, or g ave an

u nrea sonable amount of weig ht to any one pertinent fac tor. I n light of the presumpti o n o f

rea sonablene ss aff

orded a within-g uidelines sentenc e, P orra s-Ch i n ch i l la cannot show that the 54- month sentence imposed by the district court wa s substantively unrea sonable.
9III.

Be cause the district court’s se ntence is both procedur ally and substantively

rea sonable,

we AF F IRM

.

10