                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 11a0846n.06

                                            No. 10-5949

                           UNITED STATES COURT OF APPEALS
                                FOR THE SIXTH CIRCUIT
                                                                                           FILED
                                                                                      Dec 15, 2011
UNITED STATES OF AMERICA,                      )
                                               )                               LEONARD GREEN, Clerk
       Plaintiff - Appellee,                   )
                                               )
v.                                             )    ON APPEAL FROM THE UNITED
                                               )    STATES DISTRICT COURT FOR THE
EXGARDO ERAZO,                                 )    EASTERN DISTRICT OF TENNESSEE
                                               )
       Defendant - Appellant.                  )                     OPINION




       Before: CLAY, SUTTON, and STRANCH, Circuit Judges.

       JANE B. STRANCH, Circuit Judge.                Exgardo Erazo appeals the procedural and

substantive reasonableness of his sentence. We affirm.

       Erazo was convicted after a jury trial of several drug-related offenses for distributing large

amounts of cocaine and crack cocaine. Erazo’s attorney asked the court to vary downward from the

guidelines range of 151-188 months’ imprisonment and impose the mandatory-minimum sentence

of 120 months. Instead, the court imposed a within-guidelines sentence of 160 months. On appeal,

Erazo argues that (1) the court’s purported failure to consider the cocaine-base disparity argument

in his variance request was procedurally and substantively unreasonable and (2) “the fact that Mr.

Erazo has already been in jail for years and felt pressured to give information he did not have to the

government” makes his sentence “just too long and therefore substantively unreasonable.”
10-5949
USA v. Exgardo Erazo

       We review a sentence imposed by the district court for reasonableness. Gall v. United States,

552 U.S. 38, 46 (2007). “The question of whether a sentence is reasonable is determined using the

abuse-of-discretion standard of review.” United States v. Webb, 616 F.3d 605, 609 (6th Cir. 2010)

(citation omitted). When reviewing a sentence for procedural reasonableness, we look at three

factors: whether the district court “(1) properly calculated the applicable advisory Guidelines range;

(2) considered the other § 3553(a) factors as well as the parties’ arguments for a sentence outside the

Guidelines range; and (3) adequately articulated its reasoning for imposing the particular sentence

chosen.”   United States v. Bolds, 511 F.3d 568, 581 (6th Cir. 2007).             As for substantive

reasonableness, we consider whether the district court selected a sentence arbitrarily, based the

sentence on impermissible factors, failed to consider relevant sentencing factors, or gave an

unreasonable amount of weight to any pertinent factor. United States v. Holcomb, 625 F.3d 287,

293 (6th Cir. 2010). “A properly calculated advisory guidelines range represents a starting point for

substantive-reasonableness review because it is one of the § 3553(a) factors and because the

guidelines purport to take into consideration most, if not all, of the other § 3553(a) factors.” Id.

(citation omitted).

       We reject Erazo’s claim that the court erred in denying his cocaine-base disparity variance

request due to an impermissible factor, his status as an illegal immigrant. Most obviously, the court

did not actually reject his disparity argument. Although the court correctly overruled it as an

objection to the presentence report itself, the court did agree to “consider Defendant’s disparity

argument . . . as part of the Court’s consideration of the 3553 factors in this case.” After reviewing

those factors, the court stated its conclusion that the sentence imposed was appropriate “even taking

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10-5949
USA v. Exgardo Erazo

into consideration . . . the Defendant’s disparity argument.” Moreover, to whatever extent the court

did consider Erazo’s illegal presence, Erazo has failed to show how this was an abuse of discretion.

See United States v. Petrus, 588 F.3d 347, 356 (6th Cir. 2009) (sentencing court has discretion to

consider immigration status). Although Erazo might have wanted the court to weigh the factors

differently, we find no abuse of discretion in the manner in which the court evaluated Erazo’s

variance request.

       Finally, we find no merit to Erazo’s claim that his sentence is “just too long.” A district

court’s within-guidelines sentence is afforded a rebuttable presumption of reasonableness. United

States v. Sedore, 512 F.3d 819, 823 (6th Cir. 2008). A review of the record demonstrates that the

court did not abuse its discretion in its consideration of and weight given to pertinent factors.

       For the reasons stated above, Erazo’s sentence is AFFIRMED.




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