                       NOT RECOMMENDED FOR PUBLICATION
                               File Name: 15a0252n.06

                                         No. 14-3985
                                                                                     FILED
                                                                                 Apr 08, 2015
                                                                            DEBORAH S. HUNT, Clerk
                         UNITED STATES COURT OF APPEALS
                              FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA,                      )
                                               )
       Plaintiff-Appellee,                     )
                                               )
                                                   ON APPEAL FROM THE UNITED
v.                                             )
                                                   STATES DISTRICT COURT FOR THE
                                               )
                                                   SOUTHERN DISTRICT OF OHIO
CESAR RODRIGUEZ RENTERIA,                      )
                                               )
                                                                    OPINION
       Defendant-Appellant.                    )
                                               )
                                               )



       BEFORE:        SILER, MOORE, and STRANCH, Circuit Judges.

       JANE B. STRANCH, Circuit Judge.             Cesar Rodriguez Renteria appeals from the

criminal judgment imposing a sentence of 20 months of imprisonment for illegally re-entering

the United States without permission after a prior felony conviction. He contends that the

sentence is both procedurally and substantively unreasonable. Finding no error, we AFFIRM.

                                     I. BACKGROUND

       In June 2014, a grand jury returned an indictment charging Rodriguez Renteria, a

Mexican citizen, with illegal re-entry into the United States on or about May 25, 2014, after he

had been removed from this country in June 2010 following his conviction of a felony offense.

See 8 U.S.C. § 1326(a) & (b)(1). The indictment alleged that the defendant had been previously

convicted on May 26, 2010, in Cobb County, Georgia, of family violence battery and sentenced
No. 14-3985, United States v. Rodriguez Renteria


to serve one year in prison, with all but 35 days of the sentence suspended. The defendant pled

guilty to the federal indictment pursuant to a written plea agreement.

       At the sentencing hearing, the district court applied USSG § 2L1.2 and USSG § 3E1.1 to

set the defendant’s total adjusted offense level at 10, as agreed by the parties. The Presentence

Report (PSR) placed the defendant in criminal history category I by awarding one criminal

history point for his 2010 conviction for family violence battery. Because there were other

unresolved charges pending against the defendant in two states, however, the government urged

the court to depart upward to criminal history category II under USSG § 4A1.3. The government

argued that criminal history category I substantially underrepresented the seriousness of the

defendant’s criminal history and the likelihood that he would commit other crimes.

       The district court granted the motion over the defendant’s objection and placed him in

criminal history category II. At total adjusted offense level 10 and criminal history category II,

the applicable guideline range was 8 to 14 months. The court considered the sentencing factors

listed in 18 U.S.C. § 3553(a) and varied upward to impose a sentence of 20 months of

imprisonment, followed by three years of supervised release. The defendant now appeals.

                                II. STANDARDS OF REVIEW

       We will set aside a sentence if we conclude that the district court abused its discretion.

See Gall v. United States, 552 U.S. 38, 46 (2007). Our review requires us to examine both the

procedural and substantive reasonableness of the sentence chosen by the court. See United

States v. Robinson, 778 F.3d 515, 518 (6th Cir. 2015). The Sentencing Guidelines are “the

starting point and the initial benchmark” for sentencing, but the district court must consider the

§ 3553(a) sentencing factors within the context of the parties’ arguments about what an

appropriate sentence might be. Gall, 552 U.S. at 49–50. The sentence ultimately chosen by the



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court may be unreasonable if the court committed significant procedural error, “such as failing to

calculate (or improperly calculating) the Guidelines range, treating the Guidelines as mandatory,

failing to consider the 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.” Gall, 552 U.S. at 51. If the sentence is “procedurally sound,” we

inquire whether the sentence is substantively reasonable.           See id.    A sentence may be

substantively unreasonable if the district court acts arbitrarily in selecting the sentence, considers

impermissible factors, fails to take into account the § 3553(a) factors, or gives any pertinent

factor an unreasonable amount of weight. United States v. Griffin, 530 F.3d 433, 439 (6th Cir.

2008). Where the sentence imposed is outside the applicable guideline range, we may not

presume that the sentence is unreasonable, but we “may consider the extent of the deviation . . .

giv[ing] due deference to the district court’s decision that the § 3553(a) factors, on a whole,

justify the extent of the variance.” Gall, 552 U.S. at 51. The fact that we “might reasonably

have concluded that a different sentence was appropriate is insufficient to justify reversal of the

district court.” Id.

                                         III. ANALYSIS

        We turn first to the upward departure under USSG § 4A1.3(a)(2)(D).              Because we

conclude that the district court did not err procedurally by increasing the defendant’s criminal

history category from I to II, we will not set aside the sentence on this ground. Our affirmance

on this issue rests on the district court’s factual findings, the language of § 4A1.3 and its

commentary, and our own precedent.          We begin with the factual support for the upward

departure.




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       The PSR disclosed that, on June 17, 2013, the defendant, using the alias Cesar Vasquez,

was charged in Marietta, Georgia, with driving under the influence of alcohol and with having an

open container in his vehicle. The PSR also disclosed a second traffic stop of the defendant on

May 25, 2014, in Marysville, Ohio. The defendant, who was then using the alias Adan Valazco

Rodriguez, was charged with speeding, open container in the vehicle, no operator’s license, and

furnishing false information to a police officer.

       During the sentencing hearing, the probation officer produced to the district court for

examination certain documentation relating to the defendant’s 2013 arrest in Georgia and his

2014 arrest in Ohio. These materials established that a breathalyzer test administered to the

defendant during the Georgia traffic stop registered the defendant’s blood alcohol level as 0.231,

far above Georgia’s legal limit of 0.08. See Ga. Code Ann. § 40-6-391(a)(5). The defendant

was released on bond following his arrest, but he failed to appear in court and a warrant was

issued for his arrest in February 2014. The arrest warrant remains active. The documentation

further established that the police officer who conducted the traffic stop in Ohio thought the

defendant was under the influence of alcohol. Although the defendant admitted drinking beer,

the police officer did not complete field sobriety testing.

       After reviewing the documentation produced by the probation officer, the district court

found that the defendant absconded after he was released on bond following his June 2013 arrest

in Georgia, resulting in the issuance of a warrant for his arrest. According to the court, the

defendant’s disappearance explained why the Georgia court had not set a trial date, even though

the charges and the arrest warrant against the defendant remained active. Had the defendant not

absconded and had he been convicted of the Georgia DUI charge, the court found that the

probation officer would have assigned one point to that conviction, placing the defendant in



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No. 14-3985, United States v. Rodriguez Renteria


criminal history category II. The court was unwilling to allow the defendant’s decision to

abscond to work in his favor at his federal sentencing on the illegal re-entry charge. The court

specifically found that the Georgia charges and arrest warrant were pending when the defendant

was arrested in Marysville, Ohio in May 2014 and subsequently indicted federally in June 2014

on the illegal re-entry offense.

       Based on these factual findings, the district court granted the government’s request for an

upward departure under policy statement § 4A1.3 and raised the defendant’s criminal history

category from I to II. The policy statement lists five reasons why a court might appropriately

depart upward to a higher criminal history category. One of the specified reasons is that “the

defendant was pending trial or sentencing on another charge at the time of the instant offense.”

USSG § 4A1.3(a)(2)(D). The court determined that the plain language of the policy statement fit

the facts before the court.

       The district court also appropriately relied on the policy statement’s commentary, which

provides examples of circumstances warranting an upward departure in the defendant’s criminal

history category. One example is the “[c]ommission of the instant offense while on bail or

pretrial release for another serious offense.” USSG § 4A1.3, p.s., comment. (n. 2(A)(iv)). The

circumstances of the arrests in Georgia and Ohio support the district court’s expressed concerns

that the defendant’s operation of a motor vehicle while under the influence of alcohol poses

serious danger to citizens on the highways. Further, the defendant’s commission of multiple

crimes and his deception about his identity demonstrate potential recidivism and the likelihood

that he would commit further offenses of the same kind.

       The defendant urges us to set aside the upward departure, arguing as he did below that

the background commentary to § 4A1.3 authorizes an upward departure only “in the limited



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No. 14-3985, United States v. Rodriguez Renteria


circumstances where reliable information indicates that the criminal history category does not

adequately reflect the seriousness of the defendant’s criminal history or likelihood of

recidivism.” USSG § 4A1.3, comment. (backg’d). According to the defendant, his case does not

present “the limited circumstances” envisioned by § 4A1.3 because criminal history category I

did not substantially underrepresent his criminal history. He disclaims knowledge of any trial

dates that had been set in connection with the state charges in Georgia or Ohio. Because no trial

dates had been set, he contends that he was not “pending trial or sentencing on another charge at

the time of the instant offense” and § 4A1.3(a)(2)(D) does not apply. Further, he asserts that

nothing about the pending state charges show that he is likely to repeat those crimes.

       None of the defendant’s arguments persuade us that the upward departure was

procedurally unreasonable. We are bound by the district court’s factual findings, which are

based on record evidence and are not clearly erroneous. See Gall, 552 U.S. at 51. Further, when

we review the reasonableness of an upward departure under § 4A1.3, we take into account the

seriousness of the defendant’s prior criminal conduct, the likelihood of recidivism, prior similar

conduct the defendant committed as an adult that did not result in criminal conviction, lenient

sentences received for previous crimes, whether the sentence will deter future criminal conduct,

and the need to isolate the defendant from the community. See Griffin, 530 F.3d at 441. We

upheld a one-level upward departure under § 4A1.3 where a defendant ignored warrants,

committed new crimes while charges were pending against him, and engaged in other conduct

evidencing disrespect for law. United States v. Koeberlein, 161 F.3d 946, 952 (6th Cir. 1998).

Based on our precedent, the language and commentary of § 4A1.3, and the district court’s factual

findings, we uphold the upward departure of one level from criminal history category I to

category II.



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No. 14-3985, United States v. Rodriguez Renteria


       Having concluded that the sentence is free of procedural error, we next consider the

defendant’s argument that the 20-month sentence imposed is substantively unreasonable. With a

total adjusted offense level of 10 and a criminal history category of II, the applicable guideline

range for the defendant was 8 to 14 months. The defendant requested a sentence of 8 months;

the government recommended a sentence of 14 months.

       After applying the § 3553(a) sentencing factors, however, the district court determined

that a “modest” upward variance from 14 months to 20 months was necessary to “impose a

sentence sufficient, but not greater than necessary, to comply with the purposes” of sentencing.

R. 27, Page ID 72–73. The court articulated its concern that the defendant had repeatedly re-

entered the United States after removal by federal authorities and had engaged in criminal

activity each time he entered this country illegally. The defendant was first removed to Mexico

in June 2009, but he returned to the United States, committed a felony offense in Georgia, and

was removed from the country again in June 2010. The defendant returned to the United States

and was then arrested in Georgia in June 2013 and in Ohio in May 2014. Apprehended twice

with open containers of alcohol in his car, the court was concerned that the defendant’s drinking

and driving posed a serious risk to law-abiding citizens. A 20-month term of imprisonment was

necessary, the court explained, to underscore the seriousness of all aspects of the defendant’s

conduct, to deter the defendant from engaging in future alcohol-related conduct, to deter the

defendant from again re-entering the United States without permission, and to promote respect

for American law, particularly where it appeared to the court that previously-imposed sanctions

had not been sufficiently severe to command the defendant’s respect for law.

       The district court adequately explained the reasons for the upward variance, see United

States v. Herrera-Zuniga, 571 F.3d 568, 587 (6th Cir. 2009), and we affirm the court’s decision



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No. 14-3985, United States v. Rodriguez Renteria


to vary upward, see United States v. Tristan-Madrigal, 601 F.3d 629, 634–36 (6th Cir. 2010)

(affirming upward variance where defendant repeatedly re-entered country illegally and

committed DUI offenses posing danger to the public). The court relied on some of the same

facts to support the upward departure and the upward variance, but doing so did not undermine

the sentence. “[T]he same facts and analyses can, at times, be used to justify both a Guidelines

departure and a variance,” United States v. Grams, 566 F.3d 683, 687 (6th Cir. 2009) (per

curiam), and here, the district court separated its analyses of the § 4A1.3 upward departure from

the upward variance and adequately justified both. Although we might have decided on a

different sentence, that alone is insufficient to justify reversing the district court. See Gall,

552 U.S. at 51.

                                     IV. CONCLUSION

        Accordingly, we AFFIRM the judgment of the district court.




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