                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 12a1221n.06

                                            No. 11-4324
                                                                                            FILED
                           UNITED STATES COURT OF APPEALS                               Nov 26, 2012
                                FOR THE SIXTH CIRCUIT                            DEBORAH S. HUNT, Clerk

UNITED STATES OF AMERICA,                              )
                                                       )
        Plaintiff-Appellee,                            )       ON APPEAL FROM THE
                                                       )       UNITED STATES DISTRICT
v.                                                     )       COURT FOR THE NORTHERN
                                                       )       DISTRICT OF OHIO
JOSE GERARDO GUERRERO-DAVALOS,                         )
                                                       )
        Defendant-Appellant.                           )
                                                       )



        BEFORE: BATCHELDER, Chief Judge; DAUGHTREY and ROGERS, Circuit Judges.


        PER CURIAM. Jose Gerardo Guerrero-Davalos appeals his sentence for illegal reentry into

the United States after his removal subsequent to an aggravated felony conviction. For the following

reasons, we affirm Guerrero-Davalos’s sentence.

        Guerrero-Davalos, a citizen of Mexico, pleaded guilty to illegal reentry by an alien who

previously had been removed from the United States subsequent to a conviction for an aggravated

felony, in violation of 8 U.S.C. § 1326(a) and (b)(2). Prior to sentencing, Guerrero-Davalos filed

a sentencing memorandum seeking a variance from the advisory guidelines range of 46–57 months

of imprisonment to a lower range of 12–25 months. Guerrero-Davalos asserted in relevant part that

a lower range was appropriate to avoid sentence disparities, citing the national and district sentencing

statistics for immigration offenses, and that his criminal history category of III overrepresented his

limited criminal involvement. At sentencing, the district court denied Guerrero-Davalos’s request
No. 11-4324
United States v. Guerrero-Davalos

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

to 51 months of imprisonment followed by three years of supervised release.

        In this timely appeal, Guerrero-Davalos challenges his sentence, asserting that the district

court failed to consider his arguments for a variance adequately and failed to explain the basis for

rejecting those arguments. We review the district court’s sentencing determination for procedural

and substantive reasonableness under a deferential abuse-of-discretion standard. United States v.

Battaglia, 624 F.3d 348, 350 (6th Cir. 2010).

        “[F]or a sentence to be procedurally reasonable, when a defendant raises a particular,

nonfrivolous argument in seeking a lower sentence, the record must reflect both that the district

judge considered the defendant’s argument and that the judge explained the basis for rejecting it.”

United States v. Gapinski, 561 F.3d 467, 474 (6th Cir. 2009) (internal quotation marks and brackets

omitted). The record reflects that the district court did both in this case.

        The district court specifically addressed Guerrero-Davalos’s argument regarding sentence

disparities. In rejecting that argument, the district court found that the cited sentencing statistics did

not take into account Guerrero-Davalos’s particular situation, specifically the 16-level enhancement

due to his prior drug trafficking offense. See USSG § 2L1.2(b)(1)(A)(i). The district court stated:

                And I received your memo and I’ve considered it. I think it loses. First of all,
        it makes an argument with regard to disparities, and under 3553(a)(6), that’s certainly
        a factor the Court has to consider. The biggest problem with that is trying to compare
        apples to apples and oranges to oranges, and we have such limited information to
        make that possible.

                 It is true that the typical sentences in the Sixth Circuit tend to be, and across
        the nation, tend to be lower, somewhere in the range of 20 months to 30 months, but
        that is not a good indicator of comparing similar cases to similar cases. The category

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United States v. Guerrero-Davalos

       is so broad, it doesn’t really take into account the current situation where you receive
       such a large offense level increase because of the prior felony drug conviction. So
       I appreciate the argument, but I don’t find it should succeed. So I’ll deny that—what
       I took to be a request for a variance.

Furthermore, we have held that avoiding unwarranted sentence disparities is an “unconventional

ground for challenging a within-guidelines sentence,” such as Guerrero-Davalos’s 51-month

sentence:

       The point of the guidelines is to decrease sentencing disparities, an objective
       furthered by a within-guidelines sentence, as opposed to a sentence that varies above
       or below the advisory guidelines range. The very thing [Guerrero-Davalos]
       presumably wants—a below-guidelines sentence—is more likely to create disparities
       than eliminate them. There is nothing wrong, to be sure, with a below-guidelines
       sentence. It is just that a request for one should not turn on § 3553(a)(6).

United States v. Swafford, 639 F.3d 265, 270 (6th Cir.), cert. denied, 132 S. Ct. 320 (2011)

(emphasis in original).

       Although the district court did not expressly mention Guerrero-Davalos’s argument that his

criminal history was overrepresented because he had only two convictions, the district court

implicitly considered and rejected his argument in finding that he had “a bad criminal record” that

warranted a longer sentence. See United States v. Petrus, 588 F.3d 347, 352 (6th Cir. 2009) (“We

have held that ‘a district court’s failure to address each argument [of the defendant] head-on will not

lead to automatic vacatur’ if the context and the record make the court’s reasoning clear.”); see also

United States v. Madden, 515 F.3d 601, 611-12 (6th Cir. 2008). In its discussion of the § 3553(a)

factors, specifically Guerrero-Davalos’s history and characteristics, the district court stated:

       He was previously removed from the United States on five occasions. So working
       against him is the fact that he’s apparently come back and forth, violating the law on
       a number of occasions.

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United States v. Guerrero-Davalos

       He’s had previous felony convictions for evading an officer, which was a serious
       offense. I think it gave him three points, but actually in reading the details of it, it
       appeared to be an extremely serious offense. The earlier offense was one in which
       the Defendant got into a high speed chase, over 100 miles an hour, trying to evade
       police officers. So in terms of his own background, that—that certainly works
       against him.

       His other background also works against him. He was arrested in 2011 in a case out
       of Cleveland for drug possession. So he was involved with that. He also, though,
       has some other serious problems. He was on a—I think at least a couple of
       occasions, he was under criminal charge, and the Government in some fast track
       effort apparently sent him back to Mexico and let the charges pass. Specifically,
       Paragraph 40 was a 2008 charge of possession of a controlled substance in Illinois
       that the Government decided not to press. Also serious—though, I don’t rely on it
       specifically—is Paragraph 36 where the Defendant was apparently charged with
       murder, but it again, seems to have involved some kind of drug transaction. And
       while the Defendant was not convicted of murder in that case, of a double homicide,
       it does appear that the background of it was that the Defendant was either involved
       with drug possession or was associating with people who were involved in drug
       possession.

       So in terms of his background, those are the things that jump out. He’s got a bad
       criminal record, and in 1999, a drug conviction also indicated—shows that he’s got
       association with potentially violent conduct. He was found with some kind of
       submachine gun at that time. So all of these speak that a longer sentence is needed.

The district court indicated that the seriousness of Guerrero-Davalos’s criminal history was

underrepresented rather than overrepresented: “I chose the 51 months especially because of the past

illegal reentries, because of the—the criminal history, at least arguably does not fully encompass

the—some of the violent conduct he’s been involved with in the past; and finally, because I think

that the sentencing level is needed to deter him from reoffending.”

       Guerrero-Davalos argues that the district court did not “fully” consider or address his

arguments. “The appropriateness of brevity or length, conciseness or detail, when to write, what to

say, depends upon circumstances. . . . The law leaves much, in this respect, to the judge’s own

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United States v. Guerrero-Davalos

professional judgment.” Rita v. United States, 551 U.S. 338, 356 (2007). The circumstances of this

case demonstrate that the district court adequately addressed Guerrero-Davalos’s arguments and

imposed a procedurally reasonable sentence.

       Guerrero-Davalos does not clearly challenge his sentence as substantively unreasonable. “The

essence of a substantive-reasonableness claim is whether the length of the sentence is ‘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). A rebuttable presumption of substantive

reasonableness applies to Guerrero-Davalos’s within-guidelines sentence. See United States v.

Evers, 669 F.3d 645, 661 (6th Cir. 2012). Guerrero-Davalos has failed to rebut that presumption.

The district court considered his arguments and the relevant sentencing factors under § 3553(a) and

imposed a sentence in the middle of the guidelines range. See United States v. Conatser, 514 F.3d

508, 520 (6th Cir. 2008).

       Accordingly, we AFFIRM Guerrero-Davalos’s sentence.




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