                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 16a0335n.06

                                        Case No. 15-3810
                                                                                       FILED
                          UNITED STATES COURT OF APPEALS                          Jun 17, 2016
                                                                              DEBORAH S. HUNT, Clerk
                               FOR THE SIXTH CIRCUIT


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


BEFORE: SILER, BATCHELDER, and GIBBONS, Circuit Judges.

       SILER, Circuit Judge. Defendant Jose Lopez-Rodriguez (“Lopez”) appeals the district

court’s application of a sixteen-level sentencing enhancement under the Guidelines on the

grounds that it was improperly applied to him, and that it produces a substantively unreasonable

sentence in every case. For the following reasons, we AFFIRM.

               FACTUAL BACKGROUND AND PROCEDURAL HISTORY

       Lopez, a Mexican citizen, was convicted in a Pennsylvania state court of four counts

related to drug trafficking and was sentenced to several years in state prison. Although he was

deported following his release from state custody in 2013, he was arrested in Columbus, Ohio,

less than two years later. Subsequently he pled guilty to the charge of illegal reentry of an alien

previously convicted of a felony.
Case No. 15-3810, United States v. Lopez-Rodriguez


          The presentence report (“PSR”) set Lopez’s base offense level at 8, then increased the

base offense level by 16 pursuant to USSG § 2L1.2(b)(1)(A) because his 2011 Pennsylvania

conviction was a drug trafficking offense for which the sentence imposed exceeded 13 months.

With the three-level reduction for a timely acceptance of responsibility, his total offense level

was 21. Given his criminal history category of II, the offense level corresponded to a Guideline

imprisonment range of 41 to 51 months.

          At sentencing, Lopez objected to the sixteen-level enhancement and claimed that he was

not guilty of the charges of which he had been convicted in Pennsylvania. When the district court

stated that “what you’re mostly mad about is that some judge in Allegheny County,

Pennsylvania, found you guilty of something you don’t believe you were guilty of,” Lopez

agreed.

          The district court overruled Lopez’s objection, explaining that he should have appealed

his state case and that he could not revisit the validity of the prior conviction at his federal

sentencing. Ultimately, the district court varied downward from the Guidelines range and

sentenced Lopez to 36 months’ imprisonment, five months below the bottom of his Guideline

level. When asked if either side had any objection to the sentence, the parties stated that they did

not.

                                           DISCUSSION

I.        Lopez’s As-Applied Challenge to § 2L1.2(b)(1)(A)

          Lopez first argues that “while the district court ultimately imposed a below-guidelines

sentence . . . . [t]he district court failed to adequately consider the history and characteristics of

the offender, and in particular the characteristics of the offender’s Pennsylvania felony offenses,”

which “resulted in a substantively unreasonable sentence.” We “consider the substantive



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Case No. 15-3810, United States v. Lopez-Rodriguez


reasonableness of the sentence imposed under an abuse-of-discretion standard.” Gall v. United

States, 552 U.S. 38, 51 (2007).1 Moreover, Lopez bears the weighty burden of rebutting the

sentence’s presumptive reasonableness. See United States v. Curry, 536 F.3d 571, 573 (6th Cir.

2008) (citing Gall, 552 U.S. at 51; Rita v. United States, 551 U.S. 338 (2007)).

       The district court did not abuse its discretion. Because Lopez had previously served time

in prison for a drug trafficking conviction,2 the probation officer recommended that Lopez should

receive a sixteen-level enhancement. Moreover, Lopez even “concedes that his Pennsylvania

drug conviction and sentence qualified for this enhancement.”

        Lopez’s claim that the district court “refus[ed] to look at the circumstances” of his prior

conviction—and thus “fail[ed] to consider pertinent 3553 factors”—lacks merit. In fact, he did

not assert particular mitigating circumstances surrounding his prior offenses; rather, he

essentially claimed that he was innocent of the crimes for which he was convicted, and that he

was at most a minor participant undeserving of the charges that were brought against him.

        Although the court may consider circumstances leading up to a crime, nothing—in

§ 3553(a) or elsewhere—obligates a court to pass judgment on whether a previous conviction

was valid. Aside from the normal “channels of direct or collateral review,” defendants generally

may not attack the validity of a prior conviction, except on the ground that it was “obtained in


       1
          The Government asserts that Lopez’s argument should be considered as a procedural
unreasonableness claim, given that the Supreme Court in Gall stated that “failing to consider the
§ 3553(a) factors” and “failing to adequately explain the chosen sentence” are both procedural
errors. 552 U.S. at 51. And because Lopez “did not mention the alleged error in response to the
district court’s invitation of objections after announcing its sentence,” the Government reasons,
“the plain error standard governs.” Since Lopez clearly cannot show that the district court abused
its discretion, however, we need not consider the even stricter plain error standard.
       2
          Lopez’s previous Pennsylvania state convictions were for being an employee of a
corrupt organization, for conspiracy, and for delivery/possession with intent to deliver a
controlled substance.
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Case No. 15-3810, United States v. Lopez-Rodriguez


violation of the right to counsel.” Daniels v. United States, 532 U.S. 374, 382 (2001). Thus, “a

prior conviction [that] has not been set aside on direct or collateral review . . . is presumptively

valid and may be used to enhance [a] federal sentence.” Id.

       Lopez’s reliance on United States v. Brissett, 375 F. App’x 473 (6th Cir. 2010), does not

avail him. Brissett concerned illegal reentry of a removed alien who claimed that “because the

enhancement [under USSG § 2L1.2] was ‘based on long-past prior felonies committed [while he]

was fleeing for his life,’ the district court was required to temper the enhancement’s impact

through a downward variance.” Id. at 477. Even though this court recognized that “the

sympathetic circumstances surrounding a defendant’s underlying conviction might conceivably

require mitigation of an enhancement under § 2L1.2(b),” the defendant in Brissett failed to

overcome the presumption of reasonableness that accompanied his sentence. Id. at 478. Such a

conclusion applies even more forcefully for Lopez and his presumptively valid prior conviction in

the instant case, as he does not have similar mitigating circumstances or stale convictions in his

favor. Lopez has failed to show that the district court abused its discretion in applying (and

varying below) a sixteen-level enhancement that he conceded was technically appropriate.

       Because the district court sufficiently considered Lopez’s § 3553(a) arguments and

correctly refused to entertain the argument regarding Lopez’s alleged innocence of his prior

conviction convictions, the sentence is not unreasonable on these grounds.

II.    Lopez’s Facial Challenge to § 2L1.2(b)(1)(A)

       Lopez’s other claim is a facial challenge that “th[is] Court should rule that [the sixteen-

level enhancement] does not result in reasonable sentences, even in typical cases.” Since this

claim was not raised at the sentencing, Lopez bears the even greater burden of establishing that




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Case No. 15-3810, United States v. Lopez-Rodriguez


the district court committed plain error in its below-Guidelines sentence. See United States v.

Rogers, 769 F.3d 372, 384 (6th Cir. 2014).

        According to the district court, “[i]n my mind, [the sixteen-level enhancement] is too

harsh a penalty. . . . I think the guidelines are a little too harsh in this regard.” Thus, the district

court stated, “I’m willing to give you a little break. You’re not going to think it’s much of a

break. I think it’s a big break.” The court then proceeded to give Lopez a 36 month sentence—

five months below the Guideline range of 41–51 months.

        Perhaps latching onto the district court’s feelings on this subject, Lopez raises a number of

policy arguments in his attempt to paint the provision in question as a flawed Guideline. However,

he has not provided a single authority stating that the district court was obligated to vary

downward even further than it did based on his policy disagreement with § 2L1.2. And as we

have previously stated, “the fact that a district court may disagree with a Guideline for policy

reasons and may reject the Guidelines range because of that disagreement does not mean that the

court must disagree with that Guideline or that it must reject the Guidelines range if it disagrees.”

United States v. Brooks, 628 F.3d 791, 800 (6th Cir. 2011).

        AFFIRMED.




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