                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 13a0464n.06

                                            No. 12-5950                                   FILED
                                                                                      May 09, 2013
                           UNITED STATES COURT OF APPEALS                       DEBORAH S. HUNT, Clerk
                                FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA,                             )
                                                      )
       Plaintiff-Appellee,                            )
                                                      )       ON APPEAL FROM THE
v.                                                    )       UNITED STATES DISTRICT
                                                      )       COURT FOR THE EASTERN
EBODIO CISNEROS-LOPEZ,                                )       DISTRICT OF TENNESSEE
                                                      )
       Defendant-Appellant.                           )



       BEFORE: McKEAGUE and DONALD, Circuit Judges; LAWSON, District Judge.*


       PER CURIAM. Ebodio Cisneros-Lopez appeals through counsel the thirty-month sentence

imposed following his guilty plea to a charge of illegal reentry of a deported alien.

       At the sentencing hearing in this case, the district court adopted the presentence report

calculating Cisneros-Lopez’s guidelines range at 24 to 30 months. The district court noted that

Cisneros-Lopez had a lengthy and violent criminal history and asked counsel specifically to address

that issue in their argument. Cisneros-Lopez’s counsel responded by addressing “what I believe the

court is concerned with,” which was a charge of kidnapping of which Cisneros-Lopez had been

acquitted, while being convicted of interstate transport of a stolen vehicle. The district court agreed

that the facts related to that charge were “fairly disturbing.” The sentence ultimately imposed was




       *
       The Honorable David M. Lawson, United States District Judge for the Eastern District of
Michigan, sitting by designation.
No. 12-5950
United States v. Cisneros-Lopez

at the top of the guidelines range. The district court noted that a greater sentence might be necessary

for protection of the public, but that the government had not requested it.

        On appeal, Cisneros-Lopez argues that his sentence is substantively unreasonable because

the district court placed undue weight on the kidnapping charge of which he was acquitted fifteen

years earlier.

        We review a sentence in a criminal case for reasonableness under an abuse-of-discretion

standard. See United States v. Brooks, 628 F.3d 791, 797 (6th Cir.), cert. denied, 131 S. Ct. 3077

(2011). A sentence within the guidelines range is presumptively reasonable. United States v.

Simmons, 587 F.3d 348, 365 (6th Cir. 2009).

        Cisneros-Lopez’s argument that the district court gave undue weight to the kidnapping charge

of which he was acquitted is not supported by the sentencing transcript. It was defense counsel who

highlighted this incident. The presentence report shows that Cisneros-Lopez did have a lengthy and

violent criminal history, as the district court stated. He had two convictions for assault and two

convictions for domestic assault, and charges of rape and kidnapping that were dismissed because

the victim would not testify, as well as the acquittal for kidnapping which he references. The risk

to the public noted by the district court therefore was amply demonstrated by Cisneros-Lopez’s prior

record. See United States v. Tristan-Madrigal, 601 F.3d 629, 634-35 (6th Cir. 2010).

        The possibility that Cisneros-Lopez could have received a lower sentence does not establish

an abuse of discretion. United States v. Smith, 516 F.3d 473, 478 (6th Cir. 2008). Nothing presented

on appeal overcomes the presumptive reasonableness of Cisneros-Lopez’s within-guidelines

sentence. The district court’s judgment therefore is affirmed.

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