                   NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                              File Name: 13a0579n.06

                                                   No. 12-3960                                        FILED
                                                                                                  Jun 14, 2013
                              UNITED STATES COURT OF APPEALS                               DEBORAH S. HUNT, Clerk
                                   FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA                                       )
                                                               )        ON APPEAL FROM THE
         Plaintiff/Appellee,                                   )        UNITED STATES DISTRICT
                                                               )        COURT FOR THE SOUTHERN
v.                                                             )        DISTRICT OF OHIO
                                                               )
MIGUEL ESPERICUETA-PEREZ                                       )
                                                               )
         Defendant/Appellant.                                  )


BEFORE: GRIFFIN and KETHLEDGE, Circuit Judges; ZATKOFF, District Judge.*

         ZATKOFF, Disrict Judge.

                                                 I. OVERVIEW

         On March 20, 2012, a grand jury in the United States District Court for the Southern District

of Ohio indicted Defendant-Appellant Miguel Espericueta-Perez (“Espericueta-Perez”) on a charge

of illegal reentry of an alien into the United States after previously being deported or removed

following a conviction for an aggravated felony offense in violation of 8 U.S.C. § 1326(a) and

(b)(2). (R. 10: Indictment, Page ID 13). Espericueta-Perez pleaded guilty to the charge. (R. 31:

Guilty Plea Hr’g., Page ID 77–81).

         On August 3, 2012, the district court sentenced Espericueta-Perez to 71 months of

imprisonment, followed by three years of supervised release, and a mandatory special assessment

of $100.00. (R. 32: Sent. Hr’g, Page ID 103–04.) Espericueta-Perez now appeals his sentence on



*
 The Honorable Lawrence P. Zatkoff, United States Senior District Judge for the Eastern District of Michigan, sitting
by designation.
No. 12-3960
United States v. Espericueta-Perez

procedural and substantive grounds. For the following reasons, we AFFIRM the judgment of the

district court.

                                            II. BACKGROUND

A. FACTUAL BACKGROUND

        Espericueta-Perez is a citizen and national of Mexico and has no legal status in the United

States. On April 27, 2005, at age twenty-two, Espericueta-Perez was convicted in Highland County

Court of Common Pleas in Ohio (“Ohio state court”) of gross sexual imposition in violation of Ohio

Rev. Code Ann. § 2907.95(A)(4), due to his recurring sexual activity with a twelve-year-old female,

which ultimately resulted in her impregnation.1 (PSR, p. 3, 5–6.) The Ohio state court imposed a

four-year sentence of incarceration for this offense and required Espericueta-Perez to register as a

sex offender for ten years. (Id. at 5–6.)

        On November 25, 2005, the Ohio state court granted Espericueta-Perez judicial release and

placed him on community control supervision with the directive that he participate in sex offender

treatment. (Id.) Thereafter, on December 20, 2005, Espericueta-Perez was removed from the

United States at the Laredo, Texas, port of entry. (Id. at 6). An absconder warrant was issued in the

event that Espericueta-Perez returned to the United States. (Id.)

        Sometime after his removal, Espericueta-Perez returned to the United States without

applying for or receiving permission to reenter from either the Attorney General of the United States




1
 This offense— gross sexual imposition— is an aggravated felony according to § 101(a)(43)(A) of the Immigration and
Nationality Act.

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United States v. Espericueta-Perez

or the Secretary of the Department of Homeland Security. 2 (Id.) Espericueta-Perez was arrested

on the absconder warrant on August 20, 2008, in Pennsylvania. (Id.) He was subsequently charged

and convicted in the Ohio state court of failing to register a change of address as required for a

sexually oriented offender and was sentenced to one year of incarceration. (Id.) Additionally, his

community control supervision was revoked and he was ordered to serve the residual balance of the

four-year term of imprisonment originating from the gross sexual imposition conviction. (Id.)

        Espericueta-Perez served his sentences at Chillicothe Correctional Institution in Ohio. While

housed at this institution, on January 12, 2009, Espericueta-Perez was encountered by Immigration

and Customs Enforcement (“ICE”) officers. (Id.) An ICE detainer was issued and on February 20,

2012, Espericueta-Perez was released from state custody and transferred to ICE custody. (Id.)

B. PROCEDURAL BACKGROUND

        On March 20, 2012, a grand jury for the United States District Court for the Southern District

of Ohio returned a single count Indictment charging Espericueta-Perez with illegally re-entering the

United States as a previously removed alien following a conviction for an aggravated felony offense,

in violation of 8 U.S.C. § 1326(a) and (b)(2). (R.10: Indictment, Page ID 13.) As a result of a plea

agreement, Espericueta-Perez pleaded guilty to the charge on April 26, 2012. (R. 31, Plea Tr., Page

ID 77–81.)

        Espericueta-Perez was then referred to the probation department for preparation of a

Presentence Investigation Report (“PSR”). The PSR calculated Espericueta-Perez’s total offense



2
 W hen Espericueta-Perez was interviewed by the probation department for purposes of drafting a presentence report,
he stated that, once removed, he remained in Mexico for approximately ten weeks.

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United States v. Espericueta-Perez

level to be 21 and his criminal history category to be IV, which under the United States Sentencing

Guidelines (“Guidelines”) provided an advisory range of 57 to 71 months of incarceration and one

to three years of supervised release.3 (PSR, p. 5–6.) The PSR recommended a sentence of 63

months of incarceration and three years of supervised release.4 (Id. at p. 13.)

         Espericueta-Perez and Plaintiff-Appellee United States of America (“the government”) filed

sentencing memoranda in which both parties concurred with the PSR’s Guidelines computations.

(R. 24: Def. Sent. Memo. p. 1; R. 25: Gov. Sent. Memo. p. 2.) Counsel for Espericueta-Perez

submitted that the nature and circumstances of the offense and his history and characteristics, the

types of sentences available, and the need for deterrence all justified a below Guidelines sentence.

(R. 24: Def. Sent. Memo. p. 2.) The government, on the other hand, concurred with the

recommended sentence. (R. 25: Gov. Sent. Memo. p. 3.)

         On August 3, 2012, the sentencing hearing was held by the district court. With neither party

otherwise objecting, the court adopted the factual findings and Guidelines calculations set forth in

the PSR. (R. 32: Sent. Hr’g, Page ID 95.) The district court then assessed the factors codified in

18 U.S.C. § 3553(a), as discussed below.

         The district court first noted the “seriousness” of Espericueta-Perez’s instant offense and the

“direct[] connect[ion] with his criminal history”—that is, his conviction of gross sexual imposition


3
 Espericueta-Perez’s total offense level of 21 comprised a base offense level of 8 for the illegal reentry charge, a 16-level
enhancement resulting from the gross sexual imposition conviction, and a 3-point reduction for acceptance of
responsibility.

4
  W e note that, though the “Recommended Sentence” for supervised release indicates “3 years,” the PSR elsewhere
states, “Since supervised release is not mandatory and the defendant will likely be deported upon release from
imprisonment, a term of supervised release is not recommended.” PSR, Sent. Recommend. at 2–3 (emphasis added).



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United States v. Espericueta-Perez

served as the aggravated felony element of 8 U.S.C. § 1326(b)(2). (R. 32: Sent. Hr’g, Page ID 100.)

The district court acknowledged that Espericueta-Perez was released early from his state sentence,

was deported, and yet returned to the United States soon thereafter despite “knowing that it was

illegal” to return and “knowing that the penalties for illegal reentry after having been convicted of

a felony would be severe.” (R. 32: Sent. Hr’g, Page ID 101.)

       The district court next discussed Espericueta-Perez’s background. The court found that

Espericueta-Perez was “raised by responsible parents,” “was not a victim of any abuse,” and “had

a good upbringing.” (R. 32: Sent. Hr’g, Page ID 101.) Accordingly, no circumstances about his

family history warranted a mitigated sentence. (R. 32: Sent. Hr’g, Page ID 102.) The court also

noted that while Espericueta-Perez’s stated reason for returning to the United States was to be with

his family, the PSR indicated some willingness on behalf of his children’s mother to relocate to

Mexico. (R. 32: Sent. Hr’g, Page ID 102.)

       Before imposing its sentence, the court lastly addressed Espericueta-Perez’s argument that

the applicable Guidelines range was not based upon empirical evidence. The court believed that

“regardless of how the [G]uidelines were arrived at,” the specific circumstances present in his

case—the seriousness of Espericueta-Perez’s felony offense, his disregard for the law, and his

expedited return to the United States—“suggest[ed] that [Espericueta-Perez] is not a person that is

easily deterred from, again, illegally entering the United States.” (R. 32: Sent. Hr’g, Page ID

102–03.)

       Eventually, the court fashioned a 71-month term of incarceration. (R. 32: Sent. Hr’g, Page

ID 103.) And, though the court intended that Espericueta-Perez be deported after imprisonment, his


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United States v. Espericueta-Perez

“previous violation” caused the court to also impose a three-year period of supervised release to

further deter his illegal reentry into the United States. (R. 32: Sent. Hr’g, Page ID 103.)

       The district court then asked if either party had objections to the announced sentence. (R.

32: Sent. Hr’g, Page ID 104.) Espericueta-Perez first objected to the court’s “characterization” of

his judicial release, principally arguing that there was insufficient evidence in the record to suggest

that he was released solely for deportation. (R. 32: Sent. Hr’g, Page ID 104.) The district court

clarified that, irrespective of why Espericueta-Perez was released early, he nonetheless received a

“reduced sentence for a very serious offense.” (R. 32: Sent. Hr’g, Page ID 105.) In further

response, the court not only viewed Espericueta-Perez’s decision to return to the United States as

a “lack of respect for the law” and a “lack of appreciation for the leniency” he received, but his

return also served as a factor in assessing whether he was a risk for repeated illegal reentry. (R. 32:

Sent. Hr’g, Page ID 105.)

       Espericueta-Perez also objected to the imposition of supervised release “based on the

provision advice found in Section 5D1.1(c) of the [G]uidelines.” (R. 32: Sent. Hr’g, Page ID 104.)

Espericueta-Perez timely appealed his sentence to this Court.

                                    III. LEGAL STANDARD

       A district court’s sentencing determination is reviewed “‘under a deferential abuse-of-

discretion standard,’ for reasonableness.” United States v. Bolds, 511 F.3d 568, 578 (6th Cir. 2007)

(quoting Gall v. United States, 522 U.S. 38, 46 (2007)). Reasonableness has both procedural and

substantive components. United States v. Jones, 489 F.3d 243, 250 (6th Cir. 2007). “In reviewing

for procedural reasonableness, a district court abuses its discretion if it ‘commit[s] [a] significant


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United States v. Espericueta-Perez

procedural error, such as failing to calculate (or improperly) calculating the Guidelines range,

treating the Guidelines as mandatory, failing to consider the [18 U.S.C.] § 3553(a) factors, selecting

a sentence based on clearly erroneous facts, or failing to adequately explain the chosen

sentence—including an explanation for any deviation from the Guidelines range.’” United States

v. Johnson, 640 F.3d 195, 201–02 (6th Cir. 2011) (quoting Gall, 522 U.S. at 51)).

       In reviewing for substantive reasonableness, this Court must consider the sentence imposed

in light of “‘the totality of the circumstances, including the extent of any variance from the

Guidelines range.’” Id. at 202 (quoting Gall, 522 U.S. at 51). A sentence may be substantively

unreasonable “if the district court chooses the sentence arbitrarily, grounds the sentence on

impermissible factors, or unreasonably weighs a pertinent factor.” United States v. Brooks, 628 F.3d

791, 796 (6th Cir. 2011). When a sentence falls within the applicable Guidelines range, the Court

affords it a rebuttable presumption of substantive reasonableness. Id.

                                         IV. ANALYSIS

       Espericueta-Perez attacks the district court’s sentence on three fronts, all of which

purportedly require that his sentence be vacated:

       1. The district court erred by imposing supervised release due to Espericueta-Perez’s
       pending deportation upon completion of his incarceration;

       2. The district court should not have set the length of sentence based on its
       disagreement with a state court’s sentence imposed in an unrelated case; and

       3. The 71-month term of incarceration was far greater than necessary to meet the
       purposes of sentencing and, therefore, was substantively unreasonable.

(Espericueta-Perez’s Br., p. 7.)



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United States v. Espericueta-Perez

A. PROCEDURAL REASONABLENESS

       i. THE DISTRICT COURT DID NOT ERROR BY IMPOSING SUPERVISED RELEASE

       Espericueta-Perez first challenges his supervised release as procedurally unreasonable in

light of Guidelines § 5D.1.1(c), and particularly application note 5 of that section. Section 5D1.1(c)

states, “The court ordinarily should not impose a term of supervised release in a case in which

supervised release is not required by statute and the defendant is a deportable alien who likely will

be deported after imprisonment.” U.S.S.G. § 5D1.1(c) (emphasis added). Application note 5 to this

section provides supplementary instruction to courts:

       Unless such a defendant legally returns to the United States, supervised release is
       unnecessary. If such a defendant illegally returns to the United States, the need to
       afford adequate deterrence and protect the public ordinarily is adequately served by
       new prosecution. The court should, however, consider imposing a term of
       supervised release on such a defendant if the court determines it would provide an
       added measure of deterrence and protection based on the facts and circumstances of
       a particular case.

U.S.S.G. § 5D1.1(c), application note 5 (emphasis added).

       Espericueta-Perez does not seriously contend that the Sentencing Commission’s choice of

the word “ordinarily” as used above equates to a mandatory prohibition against imposing supervised

release on defendants such as him. Rather, Espericueta-Perez submits that the record below

demonstrates his case is ordinary, and the district court highlighted no facts suggesting otherwise.

Thus, as Espericueta-Perez would have it, because the district court failed to “adequately explain”

its decision to impose three years of supervised release, see Johnson, 640 F.3d at 201–02, his

sentence was therefore procedurally unreasonable. We disagree.




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United States v. Espericueta-Perez

        From the outset at the sentencing hearing, the district court emphasized at great lengths

Espericueta-Perez’s criminal history and his return to the United States after deportation. As the

district court mentioned, the seriousness of Espericueta-Perez’s instant offense is intertwined with

his criminal history. That is, Espericueta-Perez is charged with illegal reentry into the United States

after deportation following a conviction of an aggravated felony—gross sexual imposition. The

lower court found, and we agree, that the circumstances of the state offense are “quite troubling.”

Further, the district court acknowledged that, despite Espericueta-Perez’s conviction for the state

offense, judicial release, and subsequent deportation, he expeditiously returned to the United States

fully apprised of the applicable penalties for illegal reentry following conviction of a serious felony.

All of this, the district court found, suggested that Espericueta-Perez is not “easily deterred.”

        To be sure, the district court sought to fashion a sentence “sufficiently severe” to deter

Espericueta-Perez from again illegally reentering the United States and to protect the public from

any further offenses he could commit. And, as part of its sentence, the district court ultimately

concluded that supervised release was warranted:

        Now, the Court also believes that it would be important to include as part of its
        sentence in this case a term of supervised release. And although it is the Court’s
        expectation and intention that the defendant be deported; nevertheless, in view of his
        previous violation, the Court believes that a sentence of supervised release would,
        again, be a deterrent to his further illegal reentry into the United States. So, I am
        going to impose a three-year period of supervised release.

Sent. Hr’g at 12 (emphasis added).

        Contrary to Espericueta-Perez’s assertions, the decision to impose supervised release was,

in fact, “adequately explained” by the district court during the course of the sentencing hearing.

Espericueta-Perez’s criminal history and otherwise undeterred disposition, as particularly discussed

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United States v. Espericueta-Perez

by the district court, extends credence to the district court’s conclusion that an added measure of

deterrence and protection—namely, supervised release—was compelled. This Court thus finds no

error.

         Indeed, other circuits are similarly aligned. To illustrate, the Court turns to the recently

decided cases of United States v. Valdez-Cruz, No. 12-13195, 2013 WL 674040 (11th Cir. Feb. 25,

2013), and United States v. Martinez-Berrios, No. 12-40041, 2012 WL 6634605 (5th Cir. Dec. 21,

2012) (per curiam). In Valdez-Cruz, it was noted that the lower court, by emphasizing the

importance of deterrence at the defendant’s sentencing, did not commit procedural error in imposing

a sentence that included supervised release. There, the defendant’s “disrespect for the law” by

failing to appear for a drug-trafficking offense, his subsequent evasion of arrest, and his “admitted”

illegal re-entry into the United States “only three months after deportation,” justified the lower

court’s conclusion that an added measure of deterrence and protection would be served by imposing

supervised release. Valdez-Cruz, 2012 WL 6634605 at *4.

         Likewise, in Martinez-Berrios, when confronted with a defendant—a deportable

alien—arguing that Section 5D1.1(c) militated against a term of supervised release in his case, the

5th Circuit found no error: “The district court’s particularized statements concerning Martinez’s

history of repeated immigration violations, though brief, were adequate to explain why a supervised

release term was appropriate to provide an ‘added measure of deterrence and protection’ in his

case.” Martinez-Berrios, 2012 WL 6634605 at *1 (quoting U.S.S.G. § 5D1.1(c), application note

5) (emphasis added).




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United States v. Espericueta-Perez

         Like the court in Martinez-Berrios, the district court in this case announced a particularized

explanation that supervised release would provide an added measure of deterrence and protection

based on the specific circumstances of Espericueta-Perez’s case. And, like in Valdez-Cruz, where

the court “emphasized the important of deterrence” based on the defendant’s conduct, the district

court here viewed Espericueta-Perez’s criminal history and undeterred behavior as warranting

something in addition to imprisonment. As such, the district court did not commit procedural error

by imposing a three-year term of supervised release.

      ii. THE DISTRICT COURT DID NOT CONSIDER AN IMPERMISSIBLE FACTOR WHEN
REFERENCING ESPERICUETA -PEREZ’S STATE SENTENCE 5

         Espericueta-Perez next submits that procedural error occurred at sentencing when the district

court, in determining the appropriate length of sentence in the instant matter, “considered” the

“leniency” granted by the Ohio state court. To bolster his position, Espericueta-Perez cites United

States v. Recla, 560 F.3d 539 (6th Cir. 2009), and United States v. Malone, 503 F.3d 481 (6th Cir.

2007). In ordering remand, the Recla court found that a district court’s consideration of a potential

future sentence reduction in forming an appropriate sentence would constitute procedural error.

Recla, 560 F.3d at 545–47. In Malone, the lower court considered the sentence the defendant likely

would have received had he been prosecuted in state court when deciding to depart downward from



5
 W hether consideration of an impermissible factor is categorized under the procedural or substantive reasonableness
prong is not fully settled within our Circuit. See United States v. Malone, 503 F.3d 481, 484 (6th Cir. 2007) (“Despite
being categorized in our cases under the substantive reasonableness prong, consideration of an impermissible factor— it
seems to us— more appropriately involves the procedural reasonableness prong; the challenge is more to the process by
which the district court arrived at the given sentence than to the substantive aspect of the sentence (i.e., the relationship
between the length of the sentence and the strength of the reasoning under § 3553(a)).”). Espericueta-Perez categorizes
his impermissible argument within the procedural reasonableness framework and we shall, for purposes of this appeal,
consider it as such.

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United States v. Espericueta-Perez

the applicable Guidelines range. Malone, 503 F.3d at 483. We ordered remand in Malone because

relying on such a factor was impermissible and resulted in a procedurally unreasonable sentence.

Id. at 486. Yet, both of these cases are inapposite here, as neither one is factually on point with the

circumstances of the instant case. And notably, Espericueta-Perez fails to cite any authority to

support his contention that a district court commits procedural error at a defendant’s sentencing by

considering a prior “lenient” state court sentence.

       Second, and more importantly, Espericueta-Perez’s argument—that a supposedly lenient

state court sentence is an impermissible factor to consider—wholly misconstrues the record. Our

review of the record reveals that the district court was chiefly focused on fashioning a sentence

sufficient to deter Espericueta-Perez from again illegally reentering the United States and to guard

citizens from future crimes. While it is true that the district court referenced the state court’s

apparent leniency, it did so to explain and support its overarching goal of including additional

measures of deterrence and protection in its sentence:

       [Espericueta-Perez] committed the offense of gross sexual imposition on a minor.
       The circumstances of that offense are quite troubling. It involved repeated sexual
       activity with a child 12 years of age, which resulted in impregnating that child. He
       received a significant sentence from the State court but was released early,
       apparently, because the State court felt that his impending deportation proceedings
       would afford some measure of assurance that he would no longer be a danger to the
       citizens of the United States. So, he was released early from that sentence. He very
       soon thereafter returned to the United States, knowing that it was illegal for him to
       do so and knowing the penalties for illegal reentry after having been convicted of a
       felony would be severe.

                                                 ***

       His activities, therefore, and his criminal history convince this Court that a sentence
       for this offense should be sufficient, number one, to deter him from again illegally
       reentering the United States and also sufficiently severe to serve as a protection to

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United States v. Espericueta-Perez

       the citizens of the United States from further criminal offenses by [Espericueta-
       Perez].

                                                 ***

       [T]his Court is satisfied that the specific circumstances of this case and, in particular,
       the things I recited about [Espericueta-Perez’s] offense, and in particular, the
       seriousness of his -- the crime that he committed and the leniency that he received
       before, which, obviously, resulted in a sentence which was not sufficient to deter him
       and the fact that he quickly returned to the United States again . . . suggest[s] that he
       is not a person that is easily deterred from, again, illegally entering the United States.

                                                 ***

       [T]hat reduction in sentence, that leniency, whatever the reason, was not -- was not
       reciprocated on his part. And he, obviously, returned to the United States soon
       thereafter, which certainly indicates a lack of respect for the law, a lack of
       appreciation for the leniency that he received and is a factor for this Court in
       determining whether he is a risk and the degree of that risk for, again, returning to
       the United States.

       So, whether that break was motivated -- that leniency was motivated by a hope that
       deportation would remove him for good, the Court would still arrive at the same
       sentence and, essentially, for the same reasons.

(R. 32: Sent. Hr’g, Page ID 100–03, 105.)

       As the record demonstrates, the district court discussed Espericueta-Perez’s early judicial

release only in the context of discussing the gravity of heightened deterrence and protection. Such

reference and discussion, made when carefully considering a range of relevant, permissible factors

under § 3353(a), does not escalate to the level of procedural error.

B. THE 71-MONTH TERM OF IMPRISONMENT WAS SUBSTANTIVELY REASONABLE

       Espericueta-Perez lastly challenges his 71-month term of incarceration as substantively

unreasonable. We find that Espericueta-Perez has failed to carry his burden of rebutting the

presumption of reasonableness afforded to the district court’s imposed sentence.

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        This Court “consider[s] the substantive reasonableness of the sentence imposed under an

abuse-of-discretion standard[,] . . . tak[ing] into account the totality of the circumstances, including

the extent of any variance from the Guidelines range.” Gall, 552 U.S. at 51; see United States v.

Jeross, 521 F.3d 562, 569 (6th Cir. 2008).          “A sentence may be considered substantively

unreasonable when the district court selects a sentence arbitrarily, bases the sentence on

impermissible factors, fails to consider relevant sentencing factors, or gives an unreasonable amount

of weight to any pertinent factor.” United States v. Conatser, 514 F.3d 508, 520 (6th Cir. 2008).

        A district court, provided it examines all the § 3553(a) factors, may place great weight on

one factor if doing so is warranted under the facts of the case. United States v. Zobel, 696 F.3d 558,

571–72 (6th Cir. 2012); accord United States v. Thomas, 2011 WL 4014345, *2 (6th Cir. 2011)

(unpublished) (quoting Gall, 552 U.S. at 57). Further, this Court has recognized that, “where a

district court explicitly or implicitly considers and weighs all pertinent factors, a defendant clearly

bears a much greater burden in arguing that the court has given an unreasonable amount of weight

to any particular one.” Thomas, 2011 WL 4014345, at *2 (internal quotation marks and citation

omitted). How a district court chooses to balance the applicable sentencing factors is beyond the

scope of our review. United States v. Sexton, 512 F.3d 326, 332 (6th Cir. 2008); United States v.

Ely, 468 F.3d 399, 404 (6th Cir. 2006).

        “A sentence that falls within a properly calculated guideline range is afforded a rebuttable

presumption of reasonableness, and it is incumbent upon the defendant to demonstrate that his

sentence is unreasonable.” United States v. Brogdon, 503 F.3d 555, 559 (6th Cir. 2007). This Court

has explained, “[i]n general, [this Court] . . . must give ‘due deference’ to the district court’s


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United States v. Espericueta-Perez

conclusion that the sentence imposed is warranted by the § 3553(a) factors.” Bolds, 511 F.3d at 581.

Hence, “[t]he fact that . . . [this Court] might have reasonably concluded that a different sentence

was appropriate is insufficient to justify reversal of the district court.” Id; accord United States v.

Vowell, 516 F.3d 503, 511 (6th Cir. 2008).

       Initially, Espericueta-Perez does not dispute the advisory Guidelines range applicable to him.

As previously mentioned, based on his offense level, enhancement, reductions, and criminal history

category, the PSR calculated a range of 57 to 71 months, which the district court expressly adopted

at the sentencing hearing. The district court ultimately sentenced Espericueta-Perez to 71 months

of imprisonment—squarely within the calculated range. We must, as a consequence, view the lower

court’s sentence with a presumption of reasonableness.

       Generally speaking, Espericueta-Perez argues a sentence of less than 71 months of

incarceration would have, among other things, reflected the seriousness of the offense and afforded

adequate deterrence. Specifically, he alleges the district court committed reversible error by: (1)

failing to adequately consider certain background facts during sentencing, for example, that he has

three children and a wife who is a United States citizen and that he has maintained employment in

the construction industry; (2) imposing the “largest sentence” for an immigration offense in the

Southern District of Ohio as compared to other sentences in immigration cases within that district;

and (3) failing to adequately consider at sentencing that the instant action involves his first— and

not repeated attempts of—reentry after deportation.

       We first mention that the district court was well apprised of the facts Espericueta-Perez now

presents to this Court, and the record clearly reveals as much. Regarding his background, the district


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United States v. Espericueta-Perez

court noted that Espericueta-Perez “was not a victim of abuse,” “was raised by responsible parents,”

and “had a good upbringing.” (R. 32: Sent. Hr’g, Page ID 101.) Thus, Espericueta-Perez’s familial

background did not impress upon the district court the need to mitigate his sentence. (R. 32: Sent.

Hr’g, Page ID 102.) Espericueta-Perez’s challenge that the district court did not adequately consider

his familial or employment background6 amounts to nothing more than disagreement with how the

court weighed and balanced the § 3553(a) factors. Yet, as this Court has explained, such a claim

does not present a viable challenge to Espericueta-Perez’s sentence. See Ely, 468 F.3d at 404.

         Espericueta-Perez also claims that the district court imposed the “largest sentence” for an

immigration offense in the Southern District of Ohio when compared to 94 other immigration cases

from that district.        Because of this, Espericueta-Perez labels his sentence as substantively

unreasonable. This claim is likewise divorced from legal merit.

         First, Espericueta-Perez’s brief is devoid of legal authority to support his assertion. In fact,

he only directs the Court to the Southern District of Ohio’s Fiscal Year 2011 Guideline Sentences

located on the United States Sentencing Commission’s website. Of the 94 immigration sentences

imposed, there is no discernable way to determine the charging mechanism involved—that is, the

Court is left to contemplate whether and to what extent those 94 defendants were convicted of

violating 8 U.S.C. § 1326(a), (b)(1), (b)(2), or any other immigration offense. Espericueta-Perez



6
 Although the district court did not specifically address Espericueta-Perez’s employment background at the sentencing
hearing, such a discussion was not necessary. See Johnson, 640 F.3d at 203 (“The district court ‘need not explicitly
reference each of the [§] 3553(a) factors’ in its sentencing determination; but there must be ‘sufficient evidence in the
record to affirmatively demonstrate the court’s consideration of them.’”) (citation omitted). The PSR provided a detailed
history of Espericueta-Perez’s life, including his employment background. The district court made clear during the
sentencing hearing that it had reviewed the PSR prior to the hearing. Thus, this Court is convinced that the district court
considered his employment when constructing the sentence.

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United States v. Espericueta-Perez

was convicted under 8 U.S.C. § 1326(b)(2), arguably one of the more serious immigration offenses

due to the required element of a prior aggravated felony. In any event, we find citation to the

Sentencing Commission’s records, without more, to be unpersuasive.

       Second, even accepting Espericueta-Perez’s apparent sentencing disparity argument at face

value, the district court unequivocally declared at the sentencing hearing that its sentence was

formed in consideration of the specific circumstances of this case. (R. 32: Sent. Hr’g, Page ID 102.)

See United States v. Corp, 668 F.3d 379, 392 (6th Cir. 2012) (“The mere fact that a defendant cites

other cases in which courts determined certain defendants to be deserving different sentences does

not demonstrate abuse of discretion in the instant case.”). The district court was deliberate in its

consideration of the § 3553(a) factors and identified those it found to be most relevant—the serious

nature and circumstance of Espericueta-Perez’s offense, his criminal history, his lack of respect for

the law, the need to protect the public from further criminal acts committed by him, and the need

to deter him from illegally returning to the United States. The district court’s proportionate

discussion of these factors shows that it did not “fail to consider relevant sentencing factors” or

“give[] an unreasonable amount of weight to any pertinent factor,” and instead considered the

“totality of the circumstances” when issuing Espericueta-Perez’s sentence. Conatser, 514 F.3d at

520.

       Espericueta-Perez last argues that the district court failed to properly consider that this case

involves only his first attempt of illegal reentry. The record here, however, shows that the district

court was undoubtedly aware that this was Espericueta-Perez’s first and only violation of 8 U.S.C.

§ 1326(a) and (b)(2).


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United States v. Espericueta-Perez

         In the end, Espericueta-Perez’s mere disagreement with how the court weighed the § 3553(a)

factors does not demonstrate that his sentence is unreasonable. Sexton, 512 F.3d at 332; Ely, 468

F.3d at 404. Espericueta-Perez’s arguments fail to overcome the rebuttable presumption of

reasonableness that the sentence enjoys because it falls within the applicable Guidelines range.

Therefore, we affirm the district court’s imposition of a 71-month term of incarceration and hold

that the length of his sentence is not “‘greater than necessary’ to achieve the sentencing goals set

forth in 18 U.S.C. § 3553(a).” United States v. Tristan–Madrigal, 601 F.3d 629, 632–33 (6th Cir.

2010).

                                       V. CONCLUSION

         For the reasons stated above, we AFFIRM the sentence imposed by the district court.




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