                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 13a0408n.06

                                           No. 12-1968                                 FILED
                                                                                    Apr 25, 2013
                          UNITED STATES COURT OF APPEALS                     DEBORAH S. HUNT, Clerk
                               FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA,                           )
                                                    )
       Plaintiff-Appellee,                          )       ON APPEAL FROM THE
                                                    )       UNITED STATES DISTRICT
v.                                                  )       COURT FOR THE WESTERN
                                                    )       DISTRICT OF MICHIGAN
IGNACIO SERNA-DENA,                                 )
                                                    )
       Defendant-Appellant.                         )




       BEFORE: COLE and McKEAGUE, Circuit Judges; ZOUHARY, District Judge.*


       PER CURIAM. Ignacio Serna-Dena appeals his sentence for illegal reentry into the United

States following his removal after an aggravated felony conviction. For the following reasons, we

affirm Serna-Dena’s sentence.

       Serna-Dena, a citizen of Mexico, pleaded guilty to illegal reentry, having been removed from

the United States following conviction of an aggravated felony, in violation of 8 U.S.C.

§§ 1101(a)(43)(B), and 1326(a) and 1326(b)(2). Serna-Dena admitted that he pleaded guilty in

Michigan state court to two drug-trafficking offenses in September 2009, that he was paroled and

deported in October 2010, that he returned to the United States and was deported again in February

2011, and that he was found in the United States in February 2012. Serna-Dena’s presentence report



       *
         The Honorable Jack Zouhary, United States District Judge for the Northern District of Ohio,
sitting by designation.
No. 12-1968
United States v. Serna-Dena

set forth a guidelines range of 46 to 57 months of imprisonment based on a total offense level of 21

and a criminal history category of III. Serna-Dena did not object to the presentence report, but

moved for a downward variance from the guidelines range, asserting that his prior drug case

disproportionately impacted his criminal history score. At sentencing, the district court denied the

request for a variance and, after considering the sentencing factors under 18 U.S.C. § 3553(a),

imposed a 48-month sentence.

        In this timely appeal, Serna-Dena contends that his sentence is substantively unreasonable

because the district court based the sentence on his common-law marriage, gave an unreasonable

amount of weight to that impermissible factor, and failed to account for his lack of criminal history.

We review the substantive reasonableness of the sentence for abuse of discretion. See Gall v. United

States, 552 U.S. 38, 51 (2007). “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 rebuttable presumption of

substantive reasonableness applies to Serna-Dena’s within-guidelines sentence. See United States

v. Evers, 669 F.3d 645, 661 (6th Cir. 2012).

        The record reflects that the district court did not give any weight to Serna-Dena’s common-

law marriage, much less base the sentence on his marital status. When defense counsel referred to

Serna-Dena’s “wife,” the district court merely corrected him: “Excuse me. It’s not a wife. It’s a

common-law arrangement.” The district court later expressed sympathy for Serna-Dena’s family:



                                                  -2-
No. 12-1968
United States v. Serna-Dena

“And this girlfriend, common-law wife I guess she’s denominated as, and the children that were

born, I feel sorry for them. I really do, because they didn’t ask for this. I presume they didn’t.”




                                                 -3-
No. 12-1968
United States v. Serna-Dena

       Serna-Dena cites United States v. Barahona-Montenegro, 565 F.3d 980, 985 (6th Cir. 2009),

in which this court vacated the defendant’s sentence as procedurally unreasonable, in part because

the district court failed to explain why it imposed a sentence above the advisory guidelines range,

and “what little explanation the district court did provide referenced irrelevant factors such as the

fact that Barahona-Montenegro had five children who had been born out of wedlock.” Here, in

contrast, the district court did not assign any significance to Serna-Dena’s marital status, but merely

corrected a statement by defense counsel. In addition, the court expressed sympathetic concern about

the effect of Serna-Dena’s illegal conduct and impending incarceration on his family. Far from being

irrelevant, this remark was responsive to Serna-Dena’s attempt to justify his illegal re-entry by

saying, “I did it for my kids, you know, my family.” The court’s statement thus related to its

assessment of Serna-Dena’s lack of respect for the law and to the need for deterrence.

       Serna-Dena contends the district court failed to consider his minimal criminal history,

thereby disregarding the disproportionate impact that his prior drug case had on his criminal history

score. In denying Serna-Dena’s request for a downward variance, the district court stated:

       [T]he variance [motion] says, well it was just one little tiny drug delivery. No, that’s
       not what it says here in the offense conduct. The offense conduct would have Mr.
       Serna-Dena as selling and having much more – and Paragraph 24, obviously,
       particularly the paragraph at the top of Page 6, which has here again not been
       objected to, that’s not a person who – a one-time shot of somebody doing someone
       a favor.

       And then when I look at the number of traffic violations and the number of times that
       Mr. Serna-Dena has been deported only to come right back, I find there is a deliberate
       pattern of clear disrespect, disobedience maybe is another word to use, of the laws
       of the United States. They just don’t apply to Mr. Serna-Dena. He just does
       whatever he feels like.


                                                 -4-
No. 12-1968
United States v. Serna-Dena

The district court explicitly considered Serna-Dena’s criminal history and found that his history was

not as minimal as he claimed.

       Serna-Dena has thus failed to rebut the presumption that his within-guidelines sentence is

substantively reasonable. Accordingly, we affirm.




                                                -5-
