NOT RECOMMENDED F OR F ULL-TEXT PUBLICATION File Na me: 13a0256n.06 No. 11-1906 UNITED STAT ES COURT OF AP P EALS F OR THE S IXTH CIRCUIT UNI TED STATES OF AMERI CA, Plaintiff-Appellee ,
v. TOMAS J I MENEZ , Def endant- Appellant. ) ) ) ) ) ) ) ) ) ) ON APPEALFROM THE UNI TED STATES DI STRI CT COURT FOR THE E ASTERN DI STRI CT OF MI CHI GAN

BEF ORE: BOG GS, GI BB ONS, and COOK, Circ uit J udg es.

PER CURI AM. Tomas J imenez ap p ea ls the district court’s judgme nt of conviction and
sentenc e. J imenez pleade d guilty to illega l ree ntry afte r deportation, in violation of 8 U.S.C. § 1326(a)

. The district court deter

mined that J imenez’s base offe nse level was eig ht. The court added 16 levels under USS G § 2 L 1

. 2 (b )(1) (A) beca use J imenez was previously deporte d afte r being convicted of committing lewd acts upon a ch ild, which qualified as a crime of violence. The court subtracte d three levels for acc eptanc e of respo n s i b i l i t y , re sulting i n a tot al offense level of 21. Ba sed on the total offe nse level of 21 and a criminal-history cate g ory of I , J imenez’s guidelines rang e of imprisonment was 37 to 46 months. In J uly 2011, the district court sentenc ed J imenez to 37 months in prison.No. 11-1906

United States v. J

imenez On appea l, J imenez argues that his sentenc e was proce durally unrea sonable beca use, during the sentenc ing hear ing, the district court failed to consider a proposed amendment to the sentenc ing guidelines that subsequently went into eff ect in November 2011. Acc ording to J imenez, beca use his prior conviction occur

red in 1991 and did not result in the assessment of criminal-history points, the guidelines amendment would have reduc ed the six teen- level enhanc ement under § 2L 1.2(b)( 1)(A)
to twelve levels and reduc ed his ultimate guidelines rang e to 24 to 30 months. J imenez also argues that his sentenc e was substantively unrea s o n able beca use it was based in part on an offe nse-leve l enhanc ement that is now consider ed excessive by the SentencingCommi ssion. We revie w a sentenc e “under a defe rential abuse- of-discr etion standard for rea sonablene ss, which has both a proce dural and a substantive component.” United States v. O’Ge orgia , 569 F.3d 281, 287 (6th Cir. 2009). A sentenc e may be proce durally unrea sonable if the d i strict court improperly calc ulates the guidelines rang e, treats the guidelines as mandatory , fails to consider the 18 U.S.C. § 3553(a) fac tors, selec ts a sentenc e based on clea rly err oneous fac ts, or fails to adequately explain the chosen sentenc e. Gall v. United States , 552 U.S. 38, 51 (2007). “A sentenc e m ay be substantively unrea sonable if the district 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.” United States v. Vowell , 516 F.3d 503, 510 (6th Ci r. 2 0 0 8 ) ( internal quotation marks and alterations omitted). We apply a rebuttable presumption o f s u b s ta nti v e

rea sonablene ss to a within-g uidelines sentenc e. United States v. Vonner , 516 F.3d 382, 389-90 (6th Cir. 2008) (en ba

nc).

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United States v. J

imenez The district court did not abuse its discretion in imposing J imenez’s sentenc e. The sentenc e

was n o t rendered proce durally unrea sonable by the di strict court’s failure to addre ss the proposed amendment t o § 2L 1.2(b)( 1)(A) beca use J imenez did not raise the issue during the sentenc ing hear ing, the court was not obligate d to consider it sua sponte , and Congr ess did not later make the amendment retroa ctive. See 18 U.S.C. § 3553(a) (4)( A)(ii); USSG § 1B1.11( a). Contr ar y to J imenez’s argument, the case s he cites allow considerati o n b y t h e district court of the pending amendments to the guidelines but do not establish an obligation for the district court to apply those amendments. See United States v. Taylor , 648 F.3d 417 (6th Cir. 2011); United States v. Atkinson , 354 F. App’x 250 (6th Cir. 2009). Be cause J imenez’s sentenc e was based on a sentenc ing rang e that

was proper l y ca lculated under the guidelines in eff ect at the time of his sentenc ing, he has not

overc ome the presumption that his sentenc e wa s s ub s t antively rea sonable. See United States v. Massey , 663 F.3d 852, 861 ( 6th Cir. 2011), cert. de nied , 132 S. Ct . 2761 (2012). Acc ording ly , we a ffirm the district c ourt’s judg ment.

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