                                RECOMMENDED FOR FULL-TEXT PUBLICATION
                                     Pursuant to Sixth Circuit Rule 206
                                             File Name: 07a0112p.06

                       UNITED STATES COURT OF APPEALS
                                        FOR THE SIXTH CIRCUIT
                                          _________________


                                                   X
                              Plaintiff-Appellee, -
 UNITED STATES OF AMERICA,
                                                    -
                                                    -
                                                    -
                                                        No. 05-6078
          v.
                                                    ,
                                                     >
 RAMIRO TREJO-MARTINEZ,                             -
                           Defendant-Appellant. -
                                                   N
                     Appeal from the United States District Court
                  for the Western District of Kentucky at Louisville.
                 No. 04-00061—Edward H. Johnstone, District Judge.
                                            Argued: July 27, 2006
                                   Decided and Filed: March 23, 2007
         Before: MOORE and GIBBONS, Circuit Judges; ACKERMAN, District Judge.*
                                            _________________
                                                  COUNSEL
ARGUED: Scott T. Wendelsdorf, WESTERN KENTUCKY FEDERAL COMMUNITY
DEFENDER, INC., Louisville, Kentucky, for Appellant. Terry M. Cushing, ASSISTANT UNITED
STATES ATTORNEY, Louisville, Kentucky, for Appellee. ON BRIEF: Scott T. Wendelsdorf,
WESTERN KENTUCKY FEDERAL COMMUNITY DEFENDER, INC., Louisville, Kentucky,
for Appellant. Terry M. Cushing, Monica Wheatley, ASSISTANT UNITED STATES
ATTORNEYS, Louisville, Kentucky, for Appellee.
    GIBBONS, J., delivered the opinion of the court, in which ACKERMAN, D. J., joined.
MOORE, J. (p. 5), delivered a separate opinion concurring in part and concurring in the judgment.
                                            _________________
                                                OPINION
                                            _________________
        JULIA SMITH GIBBONS, Circuit Judge. Defendant-appellant Ramiro Trejo-Martinez
(“Trejo”) appeals the sentence imposed by the district court for his illegal reentry into the United
States following deportation in violation of 8 U.S.C. § 1326(a), (b)(2). The government argues that
we are without jurisdiction to hear Trejo’s appeal because the district court imposed a sentence
within the now advisory guidelines and Trejo does not challenge the district court’s underlying

        *
          The Honorable Harold A. Ackerman, United States District Judge for the District of New Jersey, sitting by
designation.


                                                        1
No. 05-6078           United States v. Trejo-Martinez                                          Page 2


guidelines calculations. As the government notes, we have not, as yet, identified explicitly the
jurisdictional basis for our review of sentences imposed within a correctly calculated guidelines
range. We hold today that in light of United States v. Booker, 543 U.S. 220 (2005), 18 U.S.C.
§ 3742(a) provides the necessary jurisdiction for our review of Trejo’s sentence. Accordingly, we
reject the government’s argument that we are without jurisdiction to hear the instant appeal.
However, because we further conclude that the sentence imposed by the district court was
reasonable, we affirm the decision of the district court.
                                                  I.
         On May 10, 2002, Trejo, a Mexican national illegally residing in the United States, was
removed following his conviction in Kentucky state court, after entry of a guilty plea, on a charge
of first degree sexual abuse. Trejo subsequently reentered the United States illegally. On November
15, 2004, Trejo pled guilty to unlawful reentry into the United States in violation of 8 U.S.C.
§ 1326(a), (b)(2). At sentencing, the district court determined that Trejo’s Criminal History
Category was III and his total offense level was 21: including a sixteen-level enhancement based
on Trejo’s prior sexual abuse conviction–a “crime of violence” under U.S.S.G. § 2L1.2(b)(1)(A)(ii).
As a result, the advisory sentencing range under the guidelines called for between forty-six and fifty-
seven months incarceration. The parties raise no objections to these calculations on appeal.
Following a hearing, the district court sentenced Trejo to forty-six months in prison, to be followed
by two years of supervised release.
         At sentencing, Trejo introduced evidence surrounding his prior conviction for sexual abuse.
According to Trejo, this evidence tended to mitigate the seriousness of the prior offense and
counseled in favor of a more lenient sentence than that recommended under the guidelines. Trejo
objected to the sixteen-level enhancement in particular because he claimed that the sexual conduct
giving rise to the charge, though involving a minor, was consensual. The district court considered
this evidence, but the court was ultimately unpersuaded that the facts of Trejo’s case warranted a
deviation from the guidelines recommendation. On appeal, Trejo argues that the facts and
circumstances of the instant offense and the prior sexual abuse conviction militate in favor of a
lighter sentence. Accordingly, argues Trejo, in light of Booker and the sentencing factors contained
in 18 U.S.C. § 3553(a), the sentence was unreasonable.
                                                  II.
        Before we reach the merits of Trejo’s appeal, we must first address the government’s
argument that we are without jurisdiction to review a sentence imposed within a correctly calculated
guidelines range. The jurisdiction of the courts of appeals to review criminal sentences is contained
in 18 U.S.C. § 3742. Section 3742(a) outlines the grounds upon which a defendant may rest his or
her challenge to an otherwise final sentence imposed by the district court and establishes our
jurisdiction for purposes of hearing an aggrieved defendant’s appeal. Under subsection (a)(1), the
courts of appeals have jurisdiction to review any sentence “imposed in violation of law.”
         Under Booker, an appellate court must review all sentences for “reasonableness,” irrespective
of whether they fall within the properly calculated guidelines range. See 543 U.S. at 261-62. This
reasonableness inquiry is to be guided by the sentencing factors set forth in 18 U.S.C. § 3553(a).
Id. Under the circumstances, we fail to see how Trejo’s challenge–namely, that the sentence
imposed was “unreasonable”–does not implicate § 3742(a)(1). The standard set forth in the law of
sentencing review, as established by the Supreme Court, is one of reasonableness, and any sentence
that is deemed unreasonable must necessarily be one imposed “in violation of law.” In reaching this
  No. 05-6078              United States v. Trejo-Martinez                                                     Page 3


  decision, we join every other court of appeals to have considered the matter.1 Having found that we
  may properly exercise appellate jurisdiction over Trejo’s challenge to his sentence, we must review
  the sentence imposed by the district court for reasonableness.
                                                           III.
           Post-Booker, the discretion of a sentencing court has been enhanced, and we review
  sentences for reasonableness. United States v. Jackson, 408 F.3d 301, 304 (6th Cir. 2005). Our
  reasonableness inquiry has both a procedural and a substantive component. See United States v.
  Webb, 403 F.3d 373, 383 (6th Cir. 2005). Thus, we examine not only the rationale underlying the
  district court’s chosen sentence, but also to the actual sentence imposed. Id.
          Trejo’s challenge to the district court’s sentence focuses on the evidence he presented
  surrounding the version of events he claims gave rise to his conviction, following a guilty plea, on
  a charge of first degree sexual abuse. As noted above, the district court relied on this prior
  conviction as a “crime of violence” in enhancing Trejo’s guidelines offense level under U.S.S.G.
  § 2L1.2(b)(1)(A)(ii). Trejo does not object to the district court’s guidelines calculations on appeal
  but instead argues that his sentence was “unreasonable under the facts of this case and the facts of
  [Trejo’s] prior offense.” It is not entirely clear from his brief whether Trejo objects merely to the
  procedures used by the district court–specifically, the extent to which it considered the evidence he
  presented–or whether he also objects to the punishment ultimately imposed. As we have no doubt
  as to the soundness of the district court’s decision, we will briefly address both the procedural and
  substantive reasonableness of Trejo’s sentence.
                                                           A.
          As noted above, the procedural component of our reasonableness inquiry examines the
  rationale supporting the district court’s sentence in order to ensure that the district court has
  adequately considered the relevant sentencing factors outlined in 18 U.S.C. § 3553(a). United States
  v. Dexta, 470 F.3d 612, 614-15 (6th Cir. 2006). Sentencing courts are no longer bound by the
  strictures of the sentencing guidelines, but they must consider the applicable guidelines range as one
  of a number of factors enumerated in § 3553(a). Jackson, 408 F.3d at 304. Procedural
  reasonableness aims to ensure that the district court explains its reasoning to a sufficient degree to
  allow for meaningful appellate review. Dexta, 470 F.3d at 614; United States v. Davis, 458 F.3d
  505, 510 (6th Cir. 2006). A court need not explicitly consider each of the § 3553(a) factors; a
  sentence is procedurally reasonable if the record demonstrates that the sentencing court addressed
  the relevant factors in reaching its conclusion. See United States v. McBride, 434 F.3d 470, 475-76
  & n.3 (6th Cir. 2006) (citing Webb, 403 F.3d at 383-85). Moreover, procedural reasonableness does
  not require that a district court provide a rote listing or some other ritualistic incantation of the
  relevant § 3553(a) factors. See United States v. Collington, 461 F.3d 805, 809 (6th Cir. 2006); see
  also United States v. Williams, 436 F.3d 706, 708-09 (6th Cir. 2006).
        Trejo does not challenge the district court’s guidelines calculations, and while he claims that
the district court failed to consider his “history and characteristics” and the facts surrounding his prior
conviction, this claim lacks merit. In fact, the district court explicitly rejected Trejo’s claim that his
commission of a sexual act with a minor, though undisputed, was not a “crime of violence” under the


           1
            See, e.g., United States v. Jimenez-Beltre, 440 F.3d 514, 517 (1st Cir. 2006) (en banc); United States v.
  Fernandez, 443 F.3d 19, 26 (2d Cir. 2006); United States v. Cooper, 437 F.3d 324, 327-28 (3d Cir. 2006); United States
  v. Montes-Pineda, 445 F.3d 375, 377-78 (4th Cir. 2006); United States v. Boscarino, 437 F.3d 634, 637 (7th Cir. 2006);
  United States v. Frokjer, 415 F.3d 865, 875 n.3 (8th Cir. 2005); United States v. Plouffe, 445 F.3d 1126, 1130-31 (9th
  Cir. 2006); United States v. Chavez-Diaz, 444 F.3d 1223, 1229 (10th Cir. 2006); United States v. Martinez, 434 F.3d
  1318, 1321 (11th Cir. 2006); United States v. Dorcely, 454 F.3d 366, 373 (D.C. Cir. 2006).
  No. 05-6078           United States v. Trejo-Martinez                                            Page 4


guidelines even though he alleged the act was consensual. Thus, any suggestion by Trejo that the
district court did not consider this evidence is untenable. Notwithstanding Trejo’s statements to the
contrary, there is nothing in the record to suggest that the district court failed to consider a relevant
§ 3553(a) factor. The sentencing court expressed a clear rationale for its decision, and there is no
foundation for a finding of procedural unreasonableness.
                                                    B.
       With respect to substantive reasonableness, the law of this circuit distinguishes between those
sentences that fall within a correctly calculated guidelines range and those that fall outside of it. Those
sentences falling into the former category, such as that imposed upon Trejo, are entitled to a rebuttable
presumption of reasonableness. United States v. Cruz, 461 F.3d 752, 754 (6th Cir. 2006); Williams,
436 F.3d at 708.
         Trejo’s apparent substantive objections to the district court’s sentence comprise his belief that
the facts and circumstances of his prior conviction warrant lenity. Accordingly, he argues, the district
court should have varied from the guidelines and imposed a lesser sentence. In passing sentence, the
district court acknowledged the advisory nature of the guidelines but determined that Trejo’s was not
a case that supported deviation from the guidelines recommendation. The district court was under no
obligation to accept Trejo’s version of events regarding his prior conviction. Even if the district court
were to do so, Trejo cannot point to any authority that would suggest that the district court was further
obligated to impose a sentence lower than the one ultimately imposed. According to the district court,
a sentence at the low end of the guidelines range–forty-six months–was sufficient to meet the
sentencing goals of deterrence, punishment, and incapacitation.
        Trejo points to nothing in the record that would suggest that the district court gave
inappropriate weight to the relevant sentencing factors or that the sentence imposed was otherwise
improper. The mere fact that Trejo desired a more lenient sentence, without more, is insufficient to
justify our disturbing the reasoned judgment of the district court. “The fact that the district court did
not give the defendant the exact sentence he sought is not a cognizable basis to appeal, particularly
where the district court followed the mandate of § 3553(a) in all relevant respects.” Dexta, 470 F.3d
at 616 (quoting United States v. Jackson, 466 F.3d 537, 540 (6th Cir. 2006)).
                                                   IV.
        For the foregoing reasons, we affirm the sentence imposed by the district court.
 No. 05-6078         United States v. Trejo-Martinez                                 Page 5


         _______________________________________________________________
          CONCURRING IN PART AND CONCURRING IN THE JUDGMENT
         _______________________________________________________________
       KAREN NELSON MOORE, Circuit Judge, concurring in part and concurring in the judgment.
I concur in Part II of the majority opinion. I also concur in the judgment.
