                NOT RECOMMENDED FOR FULL TEXT PUBLICATION
                           File Name: 11a0067n.06

                                           No. 09-4505                                    FILED
                                                                                      Feb 02, 2011
                          UNITED STATES COURT OF APPEALS                        LEONARD GREEN, 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
CHALINO SANCHEZ-MERCADO,                      )       OHIO
                                              )
       Defendant-Appellant.                   )

BEFORE: KENNEDY and MARTIN, Circuit Judges; and MURPHY, District Judge.1

       CORNELIA G. KENNEDY, Circuit Judge. Defendant-Appellant Chalino Sanchez-

Mercado challenges his 37 month within-Guidelines sentence for illegal reentry of a removed alien

as substantively unreasonable. He claims: (1) that the district court improperly considered the

presence of his family in the United States as an aggravating factor; and (2) that the district court

failed to consider relevant mitigating factors in imposing a custodial sentence. We conclude that the

district court did not abuse its discretion in imposing a within-Guidelines sentence after properly

considering the applicable sentencing factors in 18 U.S.C. § 3553(a). For the reasons that follow,

we AFFIRM.

                     FACTUAL AND PROCEDURAL BACKGROUND

       According to the Probation Office’s Presentence Investigation Report (“PSR”), in April 2009

Immigration and Customs Enforcement (“ICE”) found Sanchez-Mercado, a citizen of Mexico, at the



       1
        The Honorable Stephen J. Murphy, III, United States District Judge for the Eastern District
of Michigan, sitting by designation.
Hamilton County Justice Center in Cincinnati, Ohio.                  Local authorities had arrested

Sanchez-Mercado on a warrant, issued in Hamilton County, for a probation violation. ICE agents

determined that Sanchez-Mercado was an alien who previously had been removed from the United

States: once on January 3, 2002 and again on November 25, 2008. During his time in the United

States, Sanchez-Mercado had been convicted of crimes on three occasions: first for possession of

cocaine; second for driving without a license and driving under the influence of alcohol; and third

for possession and trafficking in marijuana. Sanchez-Mercado failed to obtain permission from the

government before reentering the United States at the time of his arrest.

        On June 8, 2009, Sanchez-Mercado pleaded guilty to illegal reentry of a removed alien in

violation of 8 U.S.C. § 1326(a)(1), (a)(2), and (b)(2). The Probation Office calculated, and the

district court accepted, his total offense level as 17 and determined that his criminal history category

was IV, which resulted in a Guidelines range of 37 to 46 months’ imprisonment.

        At the sentencing hearing held on December 3, 2009, Sanchez-Mercado requested a sentence

below the recommended Guidelines range based on his work ethic and his plan to move his family

to Mexico, where he intended to work on a farm with his father. Sanchez-Mercado suggested that

the district court construe his illegal reentry as a mitigating factor because he illegally reentered the

United States to see his family. The district court disagreed and sentenced Sanchez-Mercado to 37

months’ imprisonment. In declining to grant a variance from the Guidelines, the district court stated:

        This is not just a gentleman who twice reentered the United States illegally. He twice
        reentered the United States illegally and he’s got two felony convictions and a
        conviction for drunk driving. I see a distinction between someone who just came
        back to see their family and someone who comes back and commits other crimes in
        the United States. And for that reason, I think that he’s a perfect candidate for the
        guidelines.



                                                   2
When Sanchez-Mercado questioned whether the district judge imposed a higher sentence because

he had a family in the United States, the district judge explained that this fact “gives him an incentive

to try to reenter illegally again as he already has done previously”:

        I certainly wouldn’t penalize him for having a family here. I would just give him an
        ordinary guideline sentence if I feel that the guidelines are appropriate. And here
        he’s getting the bottom of the guidelines—because this is his third illegal reentry,
        because he’s been convicted of two significant felonies, and he has been convicted
        of driving drunk with a[n] alcohol content in his system that is huge and I think he’s
        a danger to the public. And I’d like to persuade and prevent him from, as best the
        Court can possibly do, from coming back here.

        The court entered its judgment on December 10, 2009. Prior to the entry of the written

judgment, Sanchez-Mercado appealed.

                                             ANALYSIS

        Sanchez-Mercado argues that the district court’s sentence was substantively unreasonable

for two reasons. He first contends that the district court impermissibly considered as an aggravating

factor the fact that his family resided in the United States when imposing its sentence and that absent

its consideration of this fact, it would have imposed a below-Guidelines sentence. Sanchez-Mercado

also challenges his sentence as excessive because of several supposed mitigating factors. For the

reasons set forth below, we reject Sanchez-Mercado’s arguments and affirm his sentence.

A. Standard of Review

        Sanchez-Mercado does not challenge the procedural reasonableness of his sentence, only its

substantive reasonableness. We recently had occasion to discuss the standard for a substantive

reasonableness challenge:

                This court reviews a district court’s sentence for reasonableness. United
        States v. Walls, 546 F.3d 728, 736 (6th Cir. 2008). Because [the defendant] does not
        challenge the procedural reasonableness of his sentence . . . this court need only


                                                   3
       “‘consider the substantive reasonableness of the sentence imposed under an
       abuse-of-discretion standard.’” Id. (quoting Gall v. United States, 552 U.S. 38, 51
       (2007)); see also United States v. Vallellanes, 339 F. App’x 579, 582 (6th Cir. 2009)
       (unpublished opinion) (bypassing the procedural-reasonableness analysis because the
       defendant did “not contend that his sentence [was] procedurally unreasonable”). 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). “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.” Walls, 546 F.3d at 736 (internal quotation marks and alterations
       omitted).
               In our substantive-reasonableness review, we must “take into account the
       totality of the circumstances, including the extent of any variance from the
       Guidelines range.” 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). . . . 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. at 51.

United States v. Tristan-Madrigal, 601 F.3d 629, 632-33 (6th Cir. 2010). Moreover, “[s]entences

imposed within a properly-calculated Guidelines range enjoy a rebuttable presumption of substantive

reasonableness on appeal.” United States v. Lapsins, 570 F.3d 758, 772 (6th Cir. 2009).

B. Sanchez-Mercado’s Sentence Is Substantively Reasonable

       Sanchez-Mercado first argues that in imposing a 37 month sentence, the district court

improperly increased his sentence because he has a family in the United States. This assertion is not

supported by the record.      At the sentencing hearing, the district court did not rely on an

impermissible factor in fashioning the sentence. Indeed, when Sanchez-Mercado questioned whether

the district judge imposed a higher sentence because he had a family in the United States, the district

judge unambiguously denied the allegation and clearly explained that the sentence imposed was a

result of a Guidelines calculation and after consideration of Sanchez-Mercado’s prior criminal



                                                  4
activities while living in the United States. Those considerations were properly evaluated in

imposing a custodial sentence.

       Sanchez-Mercado’s second argument, that his sentence was excessive because the district

court failed to consider mitigating factors, also fails. He contends that in addition to improperly

considering his family as an aggravating factor, the district court failed to consider that he had a

newborn child at the time of sentencing, that he had four other children that he promised that he

would bring to Mexico to raise, his alleged good employment record, and his speedy efforts to plead

guilty. However, Sanchez-Mercado’s sentence was within the Guidelines range and is presumptively

reasonable. Moreover, the district court properly considered the factors set forth in 18 U.S.C. §

3553(a). It was therefore not an abuse of discretion for the district court to impose a 37 month

sentence after considering both the proffered supposed mitigating factors as well as Sanchez-

Mercado’s criminal history and prior illegal reentries into the United States.

       For these reasons, we AFFIRM.




                                                 5
