                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 11a0548n.06
                                                                                               FILED
                                             No. 10-4532
                                                                                         Aug 08, 2011
                              UNITED STATES COURT OF APPEALS
                                                                                   LEONARD GREEN, Clerk
                                   FOR THE SIXTH CIRCUIT


UNITED STATES OF AMERICA,                                  )
                                                           )
        Plaintiff-Appellee,                                )         ON APPEAL FROM THE
                                                           )         UNITED STATES DISTRICT
v.                                                         )         COURT FOR THE SOUTHERN
                                                           )         DISTRICT OF OHIO
JORGE VAZQUEZ-GALLARDO,                                    )
                                                           )                            OPINION
        Defendant-Appellant.                               )
                                                           )
                                                           )

BEFORE: WHITE and STRANCH, Circuit Judges; COHN, District Judge.*

            AVERN COHN, District Judge. This is a criminal case. Defendant-Appellant Jorge

Vazquez-Gallardo (“Vazquez”) appeals a 12-month above-Guidelines sentence after pleading guilty

to a one-count charge of Illegal Reentry after Removal, under 8 U.S.C. § 1326(a)(1) and (2).

Vazquez argues that the district court erred because it did not state a compelling justification for the

above-Guidelines sentence on the record and failed to consider certain mitigating factors. For the

reasons set forth below, Vazquez’s conviction is affirmed.

                                        I. BACKGROUND

        Vazquez was arrested for operating a motor vehicle while intoxicated and carrying a

concealed weapon. While in a Columbus, Ohio jail following the arrest, an investigation uncovered

that Vazquez, a citizen of Mexico, had been previously ordered removed from the United States on

       *
       The Honorable Avern Cohn, United States District Judge for the Eastern District of
Michigan, sitting by designation.
No. 10-4532
United States v. Vazquez


two occasions: by an immigration judge in Cleveland, Ohio; and by a district court judge in the

Southern District of Texas. At the time of the Columbus, Ohio arrest, he had not applied or received

permission to reenter the United States. Vazquez’s criminal history includes a conviction for

attempting to illegally reenter the United States in 2009, and for driving without an operator’s license

in 2007.

        Vazquez was charged with and entered a guilty plea to one count of Illegal Reentry after

Removal under 8 U.S.C. § 1326(a)(1) and (2). Vazquez filed a sentencing memorandum requesting

a sentence of time served. Vazquez’s applicable Sentencing Guidelines range was zero to six

months based upon an offense level 6, criminal history category I.

        At Vazquez’s sentencing hearing, the Government recommended at least a three-month

sentence for him. The district court judge, however, sentenced Vazquez to 12 months, to be

followed by one year of supervised release. The district court judge described his rationale for the

above-Guidelines sentence, as follows:

                I have [previously] outlined in general terms the factors that the Court is
        called upon to consider in arriving at a sentence, and I would now like to focus on the
        factors that I think are most significant in this case. And they would include the
        seriousness of the offense and deterrence, the need for the sentence to reflect the
        seriousness of the offense and to be sufficiently significant to deter the defendant
        from further criminal activity of this kind. And in that connection, it seems rather
        obvious to the Court that [Vazquez]’s previous treatment by the courts have not been
        sufficiently significant to deter him from illegal entry into the United States.

               And his presence in the United States represents a risk to the citizens of the
        United States, as is demonstrated by his criminal history. He was previously
        deported and removed from the United States on May 1st of 2009, and he was then
        found by the agents of the Immigration and Customs Enforcement Agency in the


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United States v. Vazquez


        Franklin County Jail, where he was being held on charges of operating a motor
        vehicle while intoxicated and carrying a concealed weapon.

                Back in 2007, he had been ordered removed by an Immigration Judge in
        Cleveland and was physically removed from the United States. He was, again,
        encountered in the United States in Texas on April 30th of 2009, and on May 1st of
        that year was convicted in the United States District Court for the Southern District
        of Texas of attempting to enter the United States illegally and was again ordered
        removed from the United States.

               So, I think this defendant well knew that he would be subject to criminal
        prosecution and punishment if he should again return to the United States.
        Nevertheless, he did, and he involved himself in criminal activity, which included the
        possession of a firearm.

                So, the Court believes that the sentence in this case should be sufficient to
        deter him, and the Court believes that prior leniency has not been sufficient to deter
        him from entering the United States. And the Court believes that a variation from
        the guideline sentence in this case is necessary to achieve the purposes of his
        sentencing.

                Under the laws of the United States, the Court could sentence [Vazquez] of
        up to two years of incarceration. I believe that a sentence of one year would serve the
        purpose of sentencing in this case, and I doubt that any lesser sentence would. So,
        I am going to impose a sentence of 12 months incarceration in this case. That
        sentence will be followed by a one-year period of supervised release.

(District Court Doc. 28, pp. 7-9).

                                          II. DISCUSSION

                                                   A.

        First, Vazquez argues that the district court erred by imposing an above-Guidelines sentence.

Particularly, Vazquez asserts that the district court erred by not stating a compelling justification for

the above-Guidelines sentence on the record. Vazquez further asserts that the three factors relied



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United States v. Vazquez


on by the district court – his criminal history, two prior deportations, and the need for deterrence –

are insufficient to warrant the 12-month sentence.

       In support, Vazquez cites to several cases where defendants with similar criminal histories,

including illegal reentries, received within-Guidelines sentences that were later upheld as reasonable

on appeal. See United States v. Rosas-Caraveo, 308 Fed. App’x 267 (10th Cir. 2009) (upholding

a 57-month within-Guidelines sentence as reasonable, rejecting appellant’s claim that a downward

departure was warranted); United States v. Rios-Alvino, 221 Fed. App’x 873 (11th Cir. 2007)

(upholding a 51-month sentence as reasonable, rejecting appellant’s request for a lower within-

Guidelines sentence); United States v. Basulto-Pulido, 309 Fed. App’x 945 (6th Cir. 2009)

(upholding a 70-month sentence as reasonable, denying appellant’s argument for a downward

variance); United States v. Brissett, 375 Fed. App’x 473 (6th Cir. 2010) (upholding a 13-month

sentence as reasonable when district court judge considered 3553(a) factors and where appellant had

two prior deportations, which according to the district court judge required a significant term of

incarceration to promote respect for the law and to afford adequate deterrence to criminal conduct).

       In response, the Government asserts that the district court properly calculated the sentence

pursuant to the advisory Guidelines, gave all parties the opportunity to present their arguments,

considered all relevant sentencing factors under 18 U.S.C. § 3553(a), and articulated in detail on the

record its rationale for imposing a sentence outside of the applicable Guidelines range.

       Vazquez challenges the substantive reasonableness of his sentence, which is reviewed for an

abuse of discretion. United States v. Walls, 546 F.3d 728, 736 (6th Cir. 2008); see also Gall v.


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United States, 552 U.S. 38, 51 (2007). The essence of a substantive-reasonableness claim is whether

the length of the sentence is “greater than necessary” to achieve the sentencing goals set forth in 18

U.S.C. § 3553(a). Walls, 546 F.3d at 736. “A sentence is substantively unreasonable if the district

court selects the sentence arbitrarily, bases the sentence on impermissible factors, fails to consider

pertinent § 3553(a) factors or gives an unreasonable amount of weight to any pertinent factor.” Id.

(internal quotation marks and alterations omitted).

        As it relates to above-Guidelines sentences, the Court must “take into account the totality of

the circumstances.” Gall, 552 U.S. at 51. “Although a sentence that falls within the Guidelines

range warrants a presumption of reasonableness in this circuit, there is no presumption against a

sentence that falls outside of this range.” United States v. Herrera-Zuniga, 571 F.3d 568, 590 (6th

Cir. 2009). “If the sentencing judge elects ‘an outside-Guidelines sentence . . . he [or she] must

consider the extent of the deviation and ensure that the justification is sufficiently compelling to

support the degree of the variance.’” United States v. Tristan-Madrigal, 601 F.3d 629, 633 (6th Cir.

2010) (quoting Gall, 552 U.S. at 50). “However, ‘[t]he fact that the appellate court might reasonably

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

district court.’” Id. (quoting Gall, 552 U.S. at 51).

        Here, the district court articulated on the record its rationale for imposing a sentence outside

the applicable Guidelines range. Particularly, the district court considered Vazquez’s criminal

history, which included an arrest for drunk driving and possession of a concealed weapon, his prior

two deportations and illegal reentries, and the need for deterrence to protect the public given his prior


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United States v. Vazquez


history. Further, the district court gave all parties an opportunity to be heard at the sentencing

hearing, and stated that the sentencing factors were among the considerations that led it to reach the

imposed sentence.

       Moreover, while Vazquez cites several opinions upholding within-Guidelines sentences as

reasonable, he fails to cite authority in support of his argument, i.e., where an above-Guidelines

sentence was found to be unreasonable. Indeed, the cases relied on by Vazquez seem to more readily

support the Government’s assertion that Vazquez’s sentence should be upheld as reasonable given

that each rejected an appellant’s argument that their respective sentences were too long.

       Thus, the district court did not abuse its discretion in imposing the above-Guidelines

sentence.

                                                B.

       Vazquez further argues that the district court erred by failing to consider certain mitigating

factors: he worked legitimately in construction while in the United States; at the time of sentencing

he had not yet been convicted of the recent drunk driving offense; and the carrying a concealed

weapon charge was dismissed.

       Relating to a district court’s obligation when it comes to mitigating factors, Rita v. United

States, 551 U.S. 338 (2007) addresses the issue of what constitutes a sufficient explanation for

purposes of applying the 18 U.S.C. § 3553(a) factors in sentencing a defendant. A sentencing court

should “set forth enough to satisfy the appellate court that [it] has considered the parties’ arguments

and has a reasoned basis for exercising [its] own legal decisionmaking authority.” Id. at 356. “The


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appropriateness of brevity or length, conciseness or detail, when to write, what to say, depends upon

circumstances.” Id. “Sometimes a judicial opinion responds to every argument; sometimes it does

not . . . . The law leaves much, in this respect, to the judge’s own professional judgment.” Id. What

is required is a record that demonstrates that the sentencing court “adequately considered the relevant

§ 3553(a) factors” in imposing a sentence. United States v. Liou, 491 F.3d 334, 339 (6th Cir. 2007).

       Here, in his sentencing memorandum, Vazquez submitted § 3553 mitigating factors for the

district court’s consideration, including the factors he currently argues were not considered: the

history and characteristics of the defendant, under § 3553(a)(1), which encompasses his work

history; and the nature and circumstance of the offense, under § 3553(a)(1), which encompasses the

status of his criminal offenses. (District Court Doc. 21, p. 2). Particularly, the sentencing

memorandum describes that Vazquez “migrated to the United States illegally at the age of 18 to seek

work and contribute financially to the family.” (Id. at 4). It goes on to describe that Vazquez “found

work in the United States in construction” and that “[i]n the course of working several years in

construction [Vazquez] helped his father purchase a small piece of land in Mexico.” (Id.). Relating

to the driving while intoxicated and concealed weapon offenses, the sentencing memorandum states

that the “Carrying a Concealed Weapon charge was dismissed and the [driving while intoxicated]

charges remain pending with a court date of December 16, 2010.” (Id. at 3).

       During the sentencing hearing, the district court stated that he had reviewed the sentencing

memorandum. (District Court Doc. 28, pp. 4-5). Relating to the specific factors set forth in the

sentencing memorandum, which he considered in arriving at a sentence, the district court stated:


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United States v. Vazquez


                 [I]n arriving at a sentence, the Court is called upon to consider the – in
          addition to the guidelines – the nature and circumstances of the offense; the history
          and characteristics of the defendant; the need for the sentence to reflect the
          seriousness of the offense and to promote respect for the law; and to provide just
          punishment; and to afford adequate deterrence and to protect the public from more
          crimes by the defendant, as well as to provide the defendant with any educational or
          vocational training or medical care or correctional treatment in the most effective
          manner.

                 Now, with those and any other factors, which may be unique to this case, the
          Court would be pleased to have the comments of counsel regarding the appropriate
          sentence, and I would note that I have received a Sentencing Memorandum from
          defense counsel, which is helpful.

(Id. at 5).

          Based on the above, we find that the district court adequately considered Vazquez’s

straightforward arguments regarding his work history and the circumstances of his criminal history

when arriving at the above-Guidelines sentence.

                                                     C.

          Finally, Vazquez asserts that the district court erred by not considering the lack of a fast-track

program in the Southern District of Ohio. In support, he relies on United States v. Camacho-

Arellano, 614 F.3d 244 (6th Cir. 2010), in which this circuit remanded a case to the district court for

resentencing when the district court failed to consider fast-track factors raised by the appellant. Id.

at 250.

           Here, Vazquez’s argument that a fast-track factor should have been considered is raised for

the first time on appeal. Likewise, his argument that this Court should find that the district court

erred by failing to consider a factor never brought before it lacks merit.


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                                   III. CONCLUSION

       For all of the above reasons, we AFFIRM Vazquez’s sentence.




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