NOT RECOMMENDED F OR F ULL-TEXT PUBLICATION F ile Nam e: 11a0732n.06 No. 10-5268 UNITED STAT ES COURT OF AP P EALS F OR THE S IXTH CIRCUIT

UNITED STAT ES O F AMERICA, P laintif f-App ellee,

v. ARMIN SAMAYOA- BALTAZAR, Defendan t-Appellant. ) ) ) ) ) ) ) ) ) ON AP P EAL FROM THE UNITED STAT ES DIS TRICT C O U R T F O R T H E WEST ERN DISTRICT OF TENNES SEE

O P I N I O N

BEFORE: BOGG S a nd M c K EA G U E, Circuit Judges; and GOLDSMITH, District Judge. * McK EAGU E, Circuit Judge. Def endant Armin Samay oa-B altazar was arr ested in Shelby County , Tenne ssee, in connec tion with a vandalism char g e on J uly 12, 2009. I t was deter mined that defe ndant is a citizen of Guatema la who was in the Unites States illega lly

. On November 20, 2009, defe ndant pleade d g uilty to having illega lly re- enter ed the United States, in violation of 8 U.S.C. § 1326(a) and (b)( 2). The district court sentenc ed defe ndant to a prison term o f t h i rty -six months, followed by two y ear s of supervised rele ase. Def endant now challeng es the sentenc e as proce durally

an d s u b s t anti vely unrea sonable. Finding no abuse of discretion, we aff irm the judgme nt of the district court.

Honora bl e M ark A. Goldsmith, United States District J udg e for the Easter n District of * Michig an, sitting by

desig nation.No. 10-5268

United States v. Samay oa-Baltazar At the sent encing hear ing, the district court noted that neither party had objected to the prese ntence repor

t. The court there fore adopted the prese ntence repor t as its finding s of fac t. Evaluation of those fac ts under the Sentencing Gu idelines resulted in an adjusted offe nse l evel of 13 and a criminal history cate g ory of VI , y ielding an advisory Guidelines rang e of thirty -three to forty -one months. Commenting on defe ndant’s signific ant criminal history , including numerous theft and alcohol-r elated offe nses, the district court, in considering the sentenc ing fac tors presc ribed
at 18 U.S.C. § 3553(a) , observe d that a signific ant period of incar cer ation was neede d to achie ve just punishment and vindicate the law, and to deter others and protec t the public. R. 29, Sent. Tr. pp. 8-9. The court deter

mined that a prison sentenc e of three y ear s was appropr iate, a period slightly longe r than the low end of

the advisory

Guidelines ra

ng e. The court recog nized that defe ndant would be deporte d to Guatema la as soon as he is rele ased from prison and that this would aff ect his conditions of super vised rele ase. A. P roce dural Unreasonab leness We revie w the judgme nt of sentenc e under the abuse- of-discr etion standard. Gall v. United States , 552 U.S. 38, 46, 51 (2007). A sentenc e may be vaca ted under this standard only if it is found to be procedura lly or subs tantively unrea sonable. Id. at 51-52; United States v. Pe ebles , 624 F.3d 344, 347 (6th Cir. 2010). A sentenc e may be deeme d proce durally unrea sonable if the district court failed to calc ulate or improperly calc ulated the applicable ad v i s o ry Guidelines rang e, trea ted the Guidelines as mandatory , failed to c onsider the fac tors presc ribed at 18 U.S.C. § 3553(a) , selec ted the sentenc e based on err oneous fac ts, or failed to adequately explain the sentenc e. Gall , 552 U.S.

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United States v. Samay oa-Baltazar at 51; Pee bles , 624 F.3d at 3 4 7. Def endant contends the sentenc e imposed is proce durally

unrea sonable in three respe cts. 1 1. Unwarran ted Sentence Disparities First, defenda

nt contends the district court failed to expressly consider a ll of the § 3553(a) fac tors. I n particula

r, he contends the court failed to consider “the need to av o i d unwar rante d sentenc e disparities a mong defe ndants with similar r ecor ds who have been f ound g uilty

of similar conduct.” 18 U.S.C. § 3553(a) (6). As we have previously observe d, “ ‘avoida nce of unwar rante d disparit i es wa s clea

rly considere d by the Sentencing Commi ssion when setting the Guidelines rang es,’ and the district court' s very act of corr ectly calc ulating and revie wing the advisory rang e indicates that a district judge ‘nec essar ily g ave sig nificant we ight a nd consideration to the need to avoid unwar

rante d disparities.’” Uni t ed States v. Simmons , 587 F.3d 348, 363 (6th Cir. 2009) (quoting Gall , 552 U.S. at 54). By rea sonably weig hing the appropr iate § 3553(a) fac tors and then

s en t en ci n g defe ndant within the advisory Guidelines rang e, the district court thus adequatel y observe d the need to avoid unwar rante d disparities—espec ially considering that defe ndant did not

T he g overnme nt arg

ues that defe ndant’s proce dural unrea sonablene ss challeng es are 1 revie wable only for plain err or because he failed to properly asser t and preserve them below. We ag ree that defe ndant did not clea rly articula te any of these proce dural challeng es in the district court. I f the district court had corr ectly complied with the require ment set forth in United States v. Bostic , 371 F.3d 865, 872-73 (6th Cir. 2004) (re quiring the district court to expressly ask the parties whether they have any additional objections to the sentenc e tentatively announce d), then defe ndant would be deeme d to have forf

eited his rig ht to revie w of these proce dural challeng es except for plain err or. The rec ord shows, howeve r, that the district court, at the end of the sentenc ing hear ing, mere ly asked the parties whether there was “any thing else.” R. 29, Sent. T r. p. 10. This is insufficient to sa tisfy the Bostic require ment. United States v. Clark , 469 F.3d 568, 570 (6th Cir. 2006) (holding “any thing else” inquiry to be insufficient). We there fore revie w defe ndant’s proce dural objections under the ordinary abuse- of-discr etion standard. - 3 -No. 10-5268

United States v. Samay oa-Baltazar raise any such arg ument, fac tual or leg al, at the time of sentenc ing. See id. (“A dequate ly explaining the rea sons for sentenc ing does not require expressly defe nding the abstrac t justific at i o n s for the sentenc ing r ang e.”)

. 2. Deportation as Pu nish m ent Second, defe ndant contends the district court failed to expressly addre ss and explain why it reje cted his arg ument that his eventua l deporta tion repr esente d an element of punishment that should be taken into acc ount in deter mining the appropr iate prison sentenc e. S p ec i fi ca lly , defe ndant’s counsel a rg ued in the district cour

t as follows: Well, Your Honor, we’ re g oing to ask the court for a sentenc e below the g uidelines inasmuch as this is a case wher e the defe ndant can be sent back out of the country

. We know he has to be punished some for coming into the country wi t h o ut permission. R. 29, Sent. Tr. p. 4. This is the totality of the arg ument that defe ndant’s eventua l deporta tion should be conside red in de termining the leng th of his prison sentence

. Def endant made no further arg ume n t a n d c ited no leg al authority explaining why his eventua l deporta tion should justify a downwar d varia nce. The district court ac k n owledg ed that defe ndant would be deporte d to Guatema la u p o n re l ease from prison, presumably to live with family

. The court also acknow ledg ed the hardship cause d by deporta tion of an alien wh o entered without permission in order to work, but observe d that defe ndant’s signific ant criminal history rende red his

case “unusual” in a way “not favor able” to him. The court made no further mention of the deporta tion issue as i t went on to impose a sentence within the Guidelines rang e. I n other words, the district court deter

mined t h at a downwar d varia nce was not war

rante d beca

use a signific ant

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United States v. Samay oa-Baltazar period of incar cer ation was nece ssary to achie ve just punishment, deter o th e r s , a n d p r o te c t th e p u

b li c . The court’s failure to more expli citly addre ss the “depor tation arg ument” does not rise to the level of a proce dural violation or an abuse of discretion. Whil e we might pref er that the district court had expli citly addre ssed defe ndant’s arg ument that his deporta tion repr esente d puni s h m en t that

war rante d a varia

nce, the context and the rec ord make clea r the court’s rea soning. This is sufficie nt to enable meaning ful re v iew and defe at defe ndant’s claim that the sentenc e is proce durally

unrea sonable. United States v. Chiolo , 643 F.3d 177, 184-85 (6th Cir. 2011). “When a district court adequately explains why it imposed a particula r sentenc e, espec ially one within the advisory Guidelines rang e, we do not further require it t o ex h au stively explain the obverse

— why an alterna tive sentenc e was not selec ted in e very instance.” Id. at 185 (quoting United States v. Gale , 468 F.3d 929, 940 ( 6th Cir. 2006) (emphasis in Gale )). 3. Erron eous Fact Fin ding Third, defe ndant contends the district court based the sentenc e on a clea rly err oneous finding of fac t. I n sentenc ing defe ndant, the district court ref err ed to ¶ 42 of the prese ntence repor t, noting that defe ndant’s criminal history in v o lv e d an ag g rava

ted burg lary

. Parag raph 42 shows that althoug h defe ndant was orig inally char g ed with a g g rava ted burg lary , the char g e was subsequently amende d and he was actua lly convicted of ag g rava ted criminal trespass. To the extent the district court may have believed he was convicted of ag g rava ted burglar y , defe ndant contends the court relied on an

err oneous fa ct in imposing sentenc e. Neither party filed any objection to the prese ntence repor t and the district court adopted the repor t as embody ing its finding s of fact. Parag raph 42 clea rly shows that the agg rava ted burglar y - 5 -No. 10-5268

United States v. Samay oa-Baltazar char g e was amende d to ag g rava ted criminal trespass, a conviction that undisputedly ear ned defe ndant one of his fiftee n criminal histo ry points. The district court simply ref err ed to the conviction descr ibed in ¶ 42 as one of numerous conviction s co mprising a signific ant criminal history that resulted in a highe r advisory Guidelines rang e and made defe ndant’s sentenc ing unusual

am o n g i l l egal re- entry case s. I rre spective of the district court’s inacc urate ref ere nce to ¶ 42 as ref lecting an ag g rava ted burg lary conviction rathe r than an ag g rava ted criminal trespass conviction, the err or had no impact on the court’s Guidelines calc ulation, which has not been objected to. Nor is there any rea son to conclude it had any impact on the sentenc e ultimately imposed. Acc ording ly ,
we find that any “er

ror” was harmless and d o es n ot war rant rese ntencing

. See United States v. Anderson , 526 F.3d 319, 323- 24 (6th Cir. 2008). B. Su bstantive Unreasonableness Review for substantive unrea sonablene ss require s us to consider the totality o f the circ umstances with defe renc e to the district court’s instit utional advanta g e in evalua ting the defe ndant, making cre dibilit y deter minations, and assessing fac ts and insights not convey ed by the

rec ord. Ga l l , 552 U.S. at 51-52. A sentenc e may be deeme d substantively unrea sonable if the district court selec ted the sentenc e arbitra rily , based the sentenc e on an impermissible fac tor, failed to consider the relevant sentenc ing fac tors, or g ave unrea sonable weig ht to any pertinent fac tor. United States v. Hall , 632 F.3d 331, 335 (6th Cir. 2011). A prison sentence within the proper ly calc ulated advisory Gu i d el i nes rang e enjoy s a rebuttable presumption that it is substantively

rea sonable. United States v. Vonne r , 516 F.3d 382, 389 ( 6th Cir. 2008).

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United States v. Samay oa-Baltazar 1. Unwarran ted Sentence Disparities Def endant contends the district court’s failure to expressly consider the need to avoid

unwar rante d sentenc e disparities also rende rs the sentenc e substantively unrea sonable in two respe cts. Defen d ant acknow ledg es that his Guidelines rang e was proper ly calc ulated. He also acknow ledg es t hat hi s offe nse l evel was proper ly incre ased by eig ht levels pursuant to U.S .S.G. § 2 L 1.2(b)( 1)(D) , beca

use he had been previously deporte d afte r being convicted of an aggr av at ed felony

. Def

endant further acknow ledg es that his 2002 Mississ ippi conviction for felony shoplifting satisfies the definition of ag g rava ted felony under 8 U.S.C. § 1101(a) (43)( G), beca use he was subject to a term of imprisonment of at least one y ear . Yet, even though the district court proper ly incre ased his offe nse level by eig ht levels under the Guidelines, and even though the Guidelines are desig ned to eliminate unwar

rante d sentenc e disparities, see Simmons , 587 F.3d at 363, defe ndant contends the resultant sentenc e is substantively unrea sonable, (a) bec au s e shoplifting, under the laws of most states, would not be deeme d an ag g rava ted felony ; and (b) beca use shoplifting should not be lumped toge ther for equal trea tment with such violent offe nses as murder, rape and sexual abuse of a minor. See 8 U.S.C. § 1101(a)(43) (A). The “nee d to avoid unwar rante d sentenc e disparities” fac tor is desig ned to avoid disparities in sentenc es “among defe ndants with simil ar rec ords who have been found g uilty of simil ar conduct.” 18 U.S.C. § 3553(a) (6). I t is desig ned “to ensure nationally uniform sentenc es among like offe nders so a s to leave r oom to de part downwar d for those de fenda nts who are truly

deser ving of leniency .” United States v. Simmons , 501 F.3d 620, 624 (6th Cir. 2007). Def endant’ s arg ument is not that he has been punished more sever ely than other defe ndants nationally who illega lly r e-e ntere d - 7 -No. 10-5268

United States v. Samay oa-Baltazar afte r having been deporte d following conviction for an ag g rava ted felony

. Rather, his arg ument is that he should be punished less sever ely th an o t h er o ffenders who illega lly re- enter ed following conviction for a more serious ag g rava ted felony

. I n other words, defe ndant impliedly arg ues that he is among those deser

ving of a downwa

rd var iance beca

use he is truly

deser ving of leniency

. The trouble is that defe ndant did not move the district court for a downwar d varia nce on this g round. He did not p re s en t t his substantive arg ument below and did not make any showing that “other judge s have depar

ted from the same g uideline with respe ct to simil arly situated offe nders.” Simmons , 587 F.3d at 363. Nor has he supported his appellate arg ument with such a showing

. The district court was not, in the absenc e of such a showing , require d to defe nd the Sentencing Commi ssion’s abstrac t justifications for the senten cing Guidelines, see id. , and neither is the revie wing court. Nor has defe ndant otherwise demonstrated, considering the to t ali ty of the circ umstances, that his sentenc e inflicts such a disparate ly harsh punishment as to be substantively

unrea sonable. 2. Unreasonable Weighin g of Pertinent Factors a. Deportation as Punishment Def endant contends that his re quest for a var iance based on the arg ument that his eventual deporta tion constituted a form o f p u n i s h m ent that should be taken into acc ount in fashioning the appropr iate prison term was improperly ignor ed b y t h e d istrict court. I n eff ect, he arg ues t hat t he district court’s failure to g rant a downwar d varia nce from the advisory Guidelines ra n ge wa s an abuse of discretion and the resulting sentenc e substantively unrea sonable.

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United States v. Samay oa-Baltazar That his deporta tion is a pertinent sentenc ing co n s i d era tion, defe ndant arg ues, has been

rec ently confirme d by the Supreme Court in Padilla v. Kentucky , 130 S.Ct

. 1473, 1480-81 (2010). Padilla was decide d a month afte r defe ndant’s s en t encing and was not cited to the district court. Padilla does rec og nize that “depor tation is an integ ral part—indee d, sometimes the most important part—of the penalty that may be imposed on noncitizen defe ndants who plead g uilty to specifie d crimes.” Id. at 1480 (footnote omitt ed). Yet, the Padilla Court made this observa tion in a tot ally differ ent context. The Court held that a criminal defe nse counsel’s failure to a dvise his client that deporta tion would be a conseque nce of his pleading g uilty to a drug -traf ficking char g e could amount to ineffe ctive assistance of counsel. Padilla thus repr esents wea k authority for the proposition that the district court abused its discretion by deny ing a downwar d varia nce to a defe ndant with a leng thy criminal history who pleade d g uilty to illega l re- entry afte r having been deporte d following a felony conviction. On the other hand, our sister circ uits have frowne d on the notion that deporta tion should be considere d g rounds for a downwar d varia nce. The Second Circuit has held that it was “improper for
t h e d i strict court to fac tor deporta tion in as an ‘additional punishment’” and vacated a b el o wGuidelines sentenc e. United States v. W ills , 476 F.3d 103, 107-09 (2d Cir. 2007). See also United S t a t es v. Castro-Rivas , 254 F. App’x 742, 750-52 (10th Cir. 2007) (following W ills ). I n Un i t ed States v. Molina , 563 F.3d 676, 678-79 (8th Cir. 2009), the Eig hth Circuit held the district court did not plainly err in failing to consider that the defe ndant would be deporte d after serving his prison sentenc e. The Molina court noted, howeve r, t h at a s en t encing court would not nece ssarily be

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United States v. Samay oa-Baltazar prec luded from considering deporta tion in conjunction with the statutory sentenc ing fac tors. Id. at 679 n.3. We need not decide whether defe ndant Samay oa-B altazar’s eventua l deporta tion repr esents

an appropr iate sentenc ing consideration. Even assuming defe ndant proper ly asser ted and prese rved the issue, we find no abuse of discretion in the district court’s ref usal to acc ept defe ndant’s deporta tion as justification for a downwar d varia nce. The district court acknow ledg ed defe ndant’s impending deporta tion, but made clea r that it selec ted a prison sentenc e of thirty -six months based

on consi d er at i on of the § 3553(a) fac tors. Among these, the court deeme d the need for just punishment, vindication of the law, deter renc e of others, and protec tion of the public to be the most important, in light of defe ndant’s leng thy criminal history

. We cannot find this sentenc e, just three months above the low e nd of the Guide lines rang e, to be substantively unrea sonable. b. Defendant’

s Criminal

History Def endant contends the district court place d too much weig ht on his criminal history

. He does not contest the validit y of any of t he twenty -two convictions listed in the presentence repor t, but contends that most of the convictions are for rela tively minor theft and driving offe nses and wer e prec ipitated by a substance abuse problem that he has since overc ome. I rre spective of the nature of the convictions, twenty -two convictions in a span of less than six y ear s u n d en i ab l y constitutes a signific ant and troubling criminal history

. Considering the totality of the circ umstances, defe ndant falls fa r short of pe rsuading us that the sentenc e imposed is substantively unrea sonable.

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United States v. Samay oa-Baltazar c. Protec tion of the Public Finally , defe ndant arg

ues the district court place d too much weig ht on the need to protec t the public as justification for the sentenc e. This arg ument, too, deser ves only short shrift. The first three justifications g iven by the district court for imposing a period of incar cer ation are just punishment, vindication of the law, and deter renc e of others. Al l ar e appropr iate considerations. The court mentioned the need to protec t the public as well. I t is no less rele vant. The rec ord g ives no rea son to believe the district court place d undue or unrea sonable weig ht on this fa ctor. We find no abuse of discre tion. Acc ording ly , we overr

ule defe ndant’s claims of err or and AF F IRM the judgme nt of the district court.

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