                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 17a0571n.06

                                        Case No. 17-1308

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT                                   FILED
                                                                                  Oct 06, 2017
                                                                             DEBORAH S. HUNT, Clerk
UNITED STATES OF AMERICA,                            )
                                                     )
       Plaintiff-Appellee,                           )        ON   APPEAL    FROM  THE
                                                     )        UNITED STATES DISTRICT
v.                                                   )        COURT FOR THE WESTERN
                                                     )        DISTRICT OF MICHIGAN
MANUEL IBARRA-RODRIGUEZ,                             )
                                                     )
       Defendant-Appellant.                          )                  OPINION


       BEFORE: KEITH, McKEAGUE, and STRANCH, Circuit Judges.

       McKEAGUE, Circuit Judge. Manuel Ibarra-Rodriguez pled guilty to illegal reentry

and received an above-Guidelines prison sentence of thirty months. He challenges his sentence

as procedurally and substantively unreasonable.          Finding neither plain error nor abuse of

discretion, we affirm.

                                                 I

       Manuel Ibarra-Rodriguez is no stranger to the criminal justice system. His presentence

report illustrates a troubling variety of adult convictions over a fifteen-year period: transporting

open intoxicants in 2000; driving under the influence of alcohol in 2000; driving without a valid

license in 2000, 2004, and 2005; possessing cocaine in 2002; operating while impaired in 2004;

providing false information to a police officer in 2004; operating while intoxicated in 2005;

assaulting and battering a friend in 2005; stealing another’s identity in 2008; committing
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United States v. Ibarra-Rodriguez
domestic violence in 2012; maliciously destroying property in 2012; and unlawfully reentering

the United States as a felon in 2013. R. 23, Presentence Report, at Page ID 57–61. Ibarra-

Rodriguez reentered the United States and managed to come into contact with authorities in

Michigan yet again in 2016, when he was arrested for possessing open intoxicants in a motor

vehicle. Id. at Page ID 61.

       After further investigation, a grand jury indicted Ibarra-Rodriguez with falsely claiming

lawful residency, in violation of 18 U.S.C. § 1546(a), using a social security number not assigned

to him, in violation of 42 U.S.C. § 408(a)(7)(B), and returning to the United States without

authorization after his prior removal as a felon, in violation of 8 U.S.C. § 1326(a), (b)(1). R. 11,

Indictment, at Page ID 14.

       Ibarra-Rodriguez knowingly and voluntarily pled guilty to the third count, illegal reentry

by a felon. R. 32, Plea Transcript, at Page ID 142. His Guidelines range was ten to sixteen

months, in part because several convictions were too old to factor into the calculation of his

criminal offense level. R. 23, Presentence Report, at Page ID 65.

       The district court served notice on the parties that it was considering an upward departure

under U.S.S.G. § 4A1.3 and an upward variance under 18 U.S.C. § 3553 based on Ibarra-

Rodriguez’s “overall criminal and law enforcement history,” “the need for specific deterrence,”

and “public protection.” R. 26, Notice, at Page ID 109. The district court finally noted it was

“evaluating” whether an enhancement under U.S.S.G § 2L1.2(b)(2)(D) should apply. Id. at Page

ID 109–10.1

       The district court ultimately determined that an upward departure of one level to

Category IV was appropriate because, in its view, Category III “understate[d]” the seriousness of

1
 Section 2L1.2(b)(2)(D) was first added in the November 1, 2016 revision of the Guidelines
Manual.
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United States v. Ibarra-Rodriguez
Ibarra-Rodriguez’s criminal history and “the recidivist risk . . . with this particular defendant.”

R. 33, Sentencing Transcript, at Page ID 167. The court also determined that a one-level

departure did not suffice to meet the sentencing factors under 18 U.S.C. § 3553(a); accordingly,

the court varied upward to offense level 13. The court did not, however, apply the enhancement

under § 2L1.2(b)(2)(D) at sentencing because it realized that the prior notice had referenced a

provision in the 2016 Guidelines, rather than the operative 2015 version. See supra note 1.

                                                 II

       Ibarra-Rodriguez first argues that his sentence is procedurally unreasonable and violates

the ex post facto clause because the district court “essentially applied” the incorrect Guidelines.

       “Failure to apply the correct Guidelines range generally constitutes plain error.” United

States v. McCloud, 730 F.3d 600, 603 (6th Cir. 2013).2 In this case, the district court referenced

the 2016 Guidelines on a few occasions over the course of the sentencing process. Nevertheless,

after a careful review of the record, we remain confident the court applied the correct 2015

version of the Guidelines.

       In support of his argument, Ibarra-Rodriguez first cites to the district court’s initial

notice, which was premised in part on the 2016, and not the 2015, version of the Guidelines. At

sentencing, however, the court candidly admitted that it had referenced “a different book,” i.e.,

the 2016 Guidelines Manual, when it drafted the notice. R. 33, Sentencing Transcript, at Page

ID 152.3 Hence, the court stated that its initial notice regarding the enhancement was “not really


2
  We generally review a procedural unreasonableness challenge for abuse of discretion. See,
e.g., United States v. Garcia-Robles, 562 F.3d 763, 766 (6th Cir. 2009) (citing Gall v. United
States, 552 U.S. 38, 51 (2007)). However, where, as here, the argument was not raised below,
we review for plain error. See, e.g., United States v. Beckman, 838 F.3d 731, 733 (6th Cir.
2016).
3
 The notice also stated that the court was “making no final decisions on any of these issues.” R.
26, Notice, at Page ID 110.
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United States v. Ibarra-Rodriguez
an issue,” and “we’re where the probation officer has the guidelines”—“the 2015 guidelines

rather than the 2016 guidelines.”      Id.   And, crucially, the court correctly scored Ibarra-

Rodriguez’s Guidelines range at sentencing—without objection. Id. at Page ID 152, 155; R. 29,

Statement of Reasons, at Page ID 119. Thus, the record shows that the error in the notice itself

had no impact at sentencing.

       Ibarra-Rodriguez cites to two other portions of the record where the district court

referenced the 2016 Guidelines.

       First, at sentencing, the district court observed that “the reality is under the current

Guidelines Manual, which does not technically apply, there would be an 8-point enhancement

that ties to the fact of multiple prior felony convictions preceding deportations.”          R. 33,

Sentencing Transcript, at Page ID 170–71. However, the court also noted that “[b]ut for a few

close shaves, there would be potentially even under the 2015 manual a potential 8-point

enhancement.” Id. at Page ID 171. When viewed in its proper context, the transcript shows the

court made these references to illustrate the gravity of Ibarra-Rodriguez’s criminal history and

not out of any mistaken reliance on an inapplicable enhancement.

       Second, in its statement of reasons, the district court noted as an “additional basis” for the

sentence, “A better measure of the level of offense is provided . . . by the current guidelines

which would have provided four separate 4-point enhancements based on two prior felonies

preceding prior removals.” R. 29, Statement of Reasons, at Page ID 122. Admittedly, this

statement walks closer to the line. However, it does not cross that line.

       The district court was entitled to explain that “the substance” of Ibarra-Rodriguez’s

criminal history warranted the imposition of a sentence “more serious than the 2015

enhancements permit.” Id. The fact that the court referenced a newer version of the Guidelines



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United States v. Ibarra-Rodriguez
for comparison purposes does not mean that the court made “an incorrect Guidelines

calculation.” Peugh v. United States, 133 S. Ct. 2072, 2083 (2013). The fact that the court’s

reasoning mirrored—as opposed to relied upon—the 2016 Guidelines does not mean that the

court improperly used those guidelines as the “framework for sentencing.” See id. at 2076.

Rather, the record clearly shows that the 2015 Guidelines were the “starting point” at sentencing.

See id. at 2083; R. 33, Sentencing Transcript, at Page ID 152; R. 29, Statement of Reasons, at

Page ID 119. The court then meticulously explained its independent reasons for arriving at a

thirty-month sentence.

         Perhaps sensing the weakness in his argument, Ibarra-Rodriguez argues the district court

“essentially applied the 2016 guidelines.” Appellant’s Brief at 6 (emphasis added). But, again,

just because the court imposed an above-Guidelines sentence that resembled one with a 2016

enhancement does not mean that the court applied that enhancement in arriving at its starting

point. Cf. Peugh, 133 S. Ct. at 2083. Accordingly, Ibarra-Rodriguez’s first argument lacks

merit.

                                                 III

         Ibarra-Rodriguez next asserts his sentence is substantively unreasonable, arguing that the

district court “failed to properly weigh [his] criminal history and relied on the inapplicable 2016

guideline manual.” Appellant’s Brief at 18. We review a challenge to an above-Guidelines

sentence for abuse of discretion, see Gall v. United States, 552 U.S. 38, 51 (2007), and find none

here.

         The district court specifically addressed the § 3553(a) factors, expressing serious concern

about Ibarra-Rodriguez’s criminal history and his danger to the public. The court thoroughly

recited its reasons for arriving at a thirty-month sentence—noting in particular the need to protect



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United States v. Ibarra-Rodriguez
others from the consequences of Ibarra-Rodriguez’s conduct, conduct that has included a

disturbing pattern of domestic violence and driving under the influence of alcohol. Moreover,

the court noted that Ibarra-Rodriguez’s prior sentence of ten months’ incarceration for an

identical offense “just a few years ago in this very building” did not deter his unlawful reentry.

       Ibarra-Rodriguez notes that several prior sentences “were relatively lenient,” and thus

argues the district court failed to consider those sentences “as a mitigating factor.” Appellant’s

Brief at 16. Yet, those lenient sentences actually bolster the court’s assessment that a Guidelines

sentence no longer sufficed. And Ibarra-Rodriguez’s attempts to minimize his prior offense

conduct were reasonably rebuffed by the court, which appropriately found his “repetition of

misconduct” troubling. R. 33, Sentencing Transcript, at Page ID 164 (emphasis added) (“Assault

and battery seems to be a recurring problem. Domestic violence seems to be a recurring

problem.”). The district court clearly intended to specifically deter Ibarra-Rodriguez from any

further pattern of unlawfully reentering the United States and endangering others.

       Ibarra-Rodriguez’s thirty-month sentence—above the advisory range of ten to sixteen

months—is “certainly harsh,” but it “is not ‘unreasonable.’” United States v. Herrera-Zuniga,

571 F.3d 568, 591 (6th Cir. 2009) (affirming a forty-eight month sentence for illegal reentry—

above the advisory range of twenty-four to thirty months—based on the defendant’s significant

criminal history, repeated recidivism, and other factors); see, e.g., United States v. Martinez-

Rendon, 454 F. App’x 503 (6th Cir. 2012) (affirming a forty-eight month sentence for illegal

reentry—above the advisory range of ten to sixteen months—based on the defendant’s prior

deportations and convictions for driving under the influence of alcohol and drug possession); see

also United States v. Solano-Rosales, 781 F.3d 345 (6th Cir. 2015) (affirming upward variance

based on prior removals and domestic violence convictions).



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United States v. Ibarra-Rodriguez
       “Regardless of whether we would have imposed the same sentence, we must afford due

deference to the district court’s decision to determine the appropriate length of the defendant’s

sentence, so long as it is justified in light of the relevant § 3553(a) factors.” Herrera-Zuniga,

571 F.3d at 591. In this case, the district court’s sentence is justified and not substantively

unreasonable.4

                                               IV

       Accordingly, having rejected Ibarra-Rodriguez’s arguments that his sentence is

procedurally and substantively unreasonable, we AFFIRM.




4
 Because we find the district court did not rely upon an inapplicable Guidelines Manual, Ibarra-
Rodriguez’s argument that such reliance was an improper factor fails. See supra Part II.
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