                  NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                             File Name: 10a0705n.06

                                            No. 10-1293                                   FILED
                                                                                      Nov 15, 2010
                            UNITED STATES COURT OF APPEALS                       LEONARD GREEN, Clerk
                                 FOR THE SIXTH CIRCUIT


UNITED STATES OF AMERICA,                                 )
                                                          )
          Plaintiff-Appellee,                             )
                                                          )
v.                                                        )   On Appeal from the United States
                                                          )   District Court for the Western
RANULFO LUNA RUIZ,                                        )   District of Michigan
                                                          )
          Defendant-Appellant.                            )




Before:          BOGGS, COLE, and CLAY, Circuit Judges.

                 BOGGS, Circuit Judge. Ranulfo Luna-Ruiz is a 34-year-old citizen of Mexico who

pleaded guilty to a violation of 8 U.S.C. § 1326(a), being present in the United States after a prior

removal. The district court sentenced Luna-Ruiz to 18 months in custody, six months above the top

of the Guidelines range. We affirm.

                                                  I

          The underlying charge arose out of Luna-Ruiz’s return to the United States after being

deported in late 2008. However, Luna-Ruiz has a long, mostly unprosecuted, history of violating

immigration laws.

          Luna-Ruiz was first deported from this country on April 23, 2003, after he was apprehended

by the United States Border Patrol near the California-Mexico border. At the time, he was leading

four other persons across the border illegally.
No. 10-1293
United States v. Luna-Ruiz

       On thirteen separate occasions between January 25, 2003, and March 29, 2006, Luna-Ruiz

was intercepted at the border and returned to Mexico without being charged with any crime. Despite

this long record of unsuccessful border crossing, Luna-Ruiz managed to enter this country without

authorization on multiple occasions, as evidenced by his extensive arrest record in the United States.

       On July 31, 2004, Luna-Ruiz was stopped by police in White Plains, New York and was

charged with driving while intoxicated. After Luna-Ruiz failed to appear, a bench warrant was

issued in 2005, and Luna-Ruiz was arrested on March 28, 2008. He admitted to having consumed

twelve beers before driving the vehicle and pleaded guilty to a reduced charge of driving while

impaired.

       On March 25, 2008, Luna-Ruiz assaulted his brother-in-law in White Plains, New York.

Three months later, again in White Plains, he assaulted his 12-year-old sister, who reported to school

limping and with bruises on her legs. Luna-Ruiz pleaded guilty to these misdemeanor offenses and

spent 90 days in jail. Upon his release on September 27, 2008, Luna-Ruiz was deported to Mexico

for a second time.

       Ever persistent, Luna-Ruiz again returned to the United States and was arrested within a year

of his deportation, this time in Michigan on September 19, 2009, for forgery and counterfeiting. On

October 9, 2009, he was turned over to immigration authorities and was charged with illegal reentry

under 8 U.S.C. § 1326(a).

       The district court accepted his guilty plea on November 30, 2009. Based on the crime, which

had an adjusted offense level of 6, and Luna-Ruiz’s criminal history category of IV, the Guidelines

provided a recommended sentence of between 6 and 12 months in prison.

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       At the March 1, 2010, sentencing hearing, the district judge sentenced Luna-Ruiz to 18

months in custody, reasoning that, in light of his multiple uncharged illegal entries, his was not a

heartland case and a longer sentence was appropriate.

       Luna-Ruiz filed this timely appeal and argues that the district court’s above-Guidelines

sentence is both procedurally and substantively unreasonable. This court has jurisdiction to review

Luna-Ruiz’s sentence pursuant to 18 U.S.C. § 3742(a).

                                               II

       This court reviews a district court’s sentence for an abuse of discretion. United States v.

Barahona-Montenegreo, 565 F.3d 980, 983 (6th Cir. 2009) (citing Gall v. United States, 552 U.S.

38, 49 (2007) (“[T]he abuse-of-discretion standard of review applies to appellate review of all

sentencing decisions–whether inside or outside the Guidelines range.”)).

       The court must first consider whether the sentence is procedurally reasonable. Ibid. The goal

of procedural review is to ensure that the sentencing judge “has considered the parties’ arguments

and has a reasoned basis for exercising his own legal decisionmaking authority.” Rita v. United

States, 551 U.S. 338, 356 (2007). Procedural review involves a three-factor analysis: (1) whether

the court properly calculated the Guidelines range; (2) whether the court considered the § 3553(a)

factors and the parties’ arguments; and (3) whether the court adequately explained why it imposed

the chosen sentence. United States v. Bolds, 511 F.3d 568, 581 (6th Cir. 2007). Although the

district court must consider the § 3553(a) factors, it need not explicitly reference each factor. United

States v. Hernandez-Fierros, 453 F.3d 309, 312 (6th Cir. 2006). Rather, the court must “make an

individualized assessment based on the facts presented and . . . discuss all relevant statutory factors

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United States v. Luna-Ruiz

to facilitate reasonable appellate review.” United States v. Simmons, 587 F.3d 348, 358 (6th Cir.

2009) (internal quotations omitted).

        To help ensure that the district court has the opportunity to consider all relevant factors and

arguments at the sentencing hearing, the district court is required to “ask the parties whether they

have any objections to the sentence just announced that have not previously been raised.” United

States v. Bostic, 371 F.3d 865, 872 (6th Cir. 2004). If a defendant fails to raise an argument either

in response to the Bostic question or otherwise prior to the imposition of the sentence, then that

argument is reviewed on appeal for plain error, not reasonableness. United States v. Vonner, 516

F.3d 382, 385-86 (6th Cir. 2008) (en banc). To prove plain error, a defendant must show an obvious

error that affected his substantial rights and “affected the fairness, integrity, or public reputation of

the judicial proceedings.” Vonner at 386 (quoting United States v. Gardiner, 463 F.3d 445, 459 (6th

Cir. 2006)). In order to preserve reasonableness review of a particular argument, the objection must

be made with sufficient specificity to give the district court an opportunity to correct the error.

United States v. Simmons, 587 F.3d at 358 (holding that a general “object[ion] to the procedural,

substantive aspects” is insufficient to preserve a specific procedural argument for reasonableness

review).

        If the sentence survives procedural reasonableness review, then the court reviews the

sentence for substantive reasonableness. Barahona-Montenegro, 565 F.3d at 983. Substantive

review requires that the court “take into account the totality of the circumstances, including the

extent of any variance from the Guidelines range.” Gall v. United States, 552 U.S. at 51. If the

sentencing judge imposed an above-Guidelines sentence, the justification must be “sufficiently

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United States v. Luna-Ruiz

compelling to support the degree of the variance.” Id. at 50. However, due deference must be given

to the sentencing judge’s decision, and the fact that this court “might reasonably have concluded that

a different sentence was appropriate is insufficient to justify reversal.” Id. at 51.

                                                  III

       Luna-Ruiz argues that his sentence is procedurally unreasonable because the district court

speculated as to his risk of recidivism and failed to consider § 3553(a) factors that pointed towards

a lower sentence. However, in response to the district court’s Bostic question, Luna-Ruiz’s attorney

objected only to “the Court’s decision to vary above the guideline range.”

       We hold that Luna-Ruiz’s generic objection to the substance of the sentence was insufficient

to give the district court an opportunity to correct any potential procedural error. Simmons, 587 F.3d

at 358; United States v. Harmon, 607 F.3d 233, 238 (6th Cir. 2010) (“Because counsel’s response

to the Bostic question was too vague to give the district court an opportunity to correct its purported

procedural errors, we conclude that a plain-error standard of review applies to Harmon’s procedural

reasonableness arguments.”). By objecting to only the end result, Luna-Ruiz gave the district judge

no indication of any possible procedural oversight, let alone an indication with the degree of

specificity required to preserve reasonableness review. Bostic, 371 F.3d at 871 (“A party must

object with that reasonable degree of specificity which would have adequately apprised the trial court

of the true basis for his objection.”) (quoting United States v. LeBlanc, 612 F.2d 1012, 1014 (6th Cir.

1980)) (internal quotations omitted). Luna-Ruiz correctly notes that he objected to the upward

variance, and while that objection alerted the sentencing judge to the fact that he was unhappy with

the substantive result, thereby preserving his substantive arguments, it did not even allude to any of

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United States v. Luna-Ruiz

the procedural arguments he makes here. Because Luna-Ruiz did not alert the judge to these alleged

procedural infirmities, which, as contemplated by Bostic, would have given the judge the opportunity

to address and cure them, his procedural claims are subject to plain-error review.

       Luna-Ruiz raises two additional arguments as to why reasonableness review should apply

to his procedural claims. Neither of these arguments is convincing.

       First, Luna-Ruiz contends that his procedural claims are at the crossroads of substance and

procedure, and as a result, they should be reviewed for reasonableness, notwithstanding his failure

to object. Reply Br. of Defendant-Appellant at 1, United States v. Herrera-Zuniga, 571 F.3d 568,

579 (6th Cir. 2009) (noting confusion as to whether a district court’s misunderstanding of its

“authority to categorically reject the base offense level” prescribed by the Guidelines is a substantive

or procedural defect). In Herrera-Zuniga, the court applied plain-error review to the defendant’s

claim that the sentencing judge miscalculated the Guidelines range, but not to his claim that the court

misunderstood its authority. 571 F.3d at 579. The court reasoned that, because the sentencing judge

would not have cured this misunderstanding of the law “on the spot,” the purposes of requiring an

objection would not be furthered by applying plain error review. Id. at 581 n.7. Luna-Ruiz does not,

however, argue that the district court misunderstood its authority to depart from the Guidelines. As

such, Herrera-Zuniga does not control this case. Nor could its reasoning be extended to reach this

situation, as Luna-Ruiz does not argue that the judge had a misunderstanding of the law that could

not have been corrected at the hearing, but rather that the judge insufficiently considered the facts.

These are standard procedural claims, some of which were raised in Vonner itself. Vonner, 516 F.3d

at 388 (addressing defendant’s claim that the sentencing judge failed to analyze his arguments for

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United States v. Luna-Ruiz

a lower sentence). If Luna-Ruiz’s run-of-the-mill procedural claims overlap with the substance of

the decision, then so do all procedural claims, rendering the requirements of Bostic and its progeny

nugatory. See Simmons, 587 F.3d at 357 (expressing concern that Bostic could become “a

meaningless formality whereby certain magic words are uttered and any new claim may be raised

on appeal without consequence”).

        Second, Luna-Ruiz argues that an objection was unnecessary because it would have been

fruitless. Reply Br. of Defendant-Appellant at 2, United States v. Wolfe, 71 F.3d 611, 614 (6th Cir.

1995) (holding that de novo review applies to denial of allocution claims because an objection is

unlikely to result in an effective cure). Here, Luna-Ruiz argues that an objection to a district court’s

failure to consider a factor is unlikely to result in the court changing its mind, and as a result, an

objection should not be necessary. However, the appropriate inquiry in procedural review is whether

the district court considered all of the relevant factors and provided reasoning that an appellate court

can review. Rita v. United States, 551 U.S. at 356. Even if a district court is unlikely to change its

mind about the sentence it imposes, if it is made aware of a factor that it did not consider, it will have

an opportunity to fully consider and explain that factor, which is the touchstone of procedural

reasonableness review. Luna-Ruiz’s speculation as to the likelihood of a different substantive result

does not speak to the purpose of the requirement of raising a procedural objection. Further, there

is no stopping point to Luna-Ruiz’s argument. If an objection would be fruitless in this case, it

would be fruitless in virtually all sentencing cases, which again flies in the face of Bostic and

Vonner, decisions that are binding here.



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United States v. Luna-Ruiz

       Steps one and three of this court’s procedural reasonableness analysis are not at issue in this

appeal. Luna-Ruiz does not argue that the court improperly calculated the Guidelines range, nor

does he argue that the court insufficiently explained its reasons for imposing its chosen sentence.

Rather, Luna-Ruiz objects only to the court’s contemplation of the likelihood of recidivism and the

lack of full consideration of the § 3553(a) factors. These arguments speak only to the second factor

in the procedural reasonableness analysis, whether the judge considered the factors and the parties’

arguments. United States v. Bolds, 511 F.3d at 581.

       The record indicates that the sentencing judge considered every relevant § 3553(a) factor,

most of them explicitly. The sentencing judge explicitly considered “the nature and circumstances

of the offense” and “the history and characteristics of the defendant.” See 18 U.S.C. § 3553(a)(1).

The judge explicitly considered the “need to promote respect for the law,” the need “to provide

punishment,” and “the seriousness of the offense.” See 18 U.S.C. § 3553(a)(2)(A). The judge also

considered the need to deter Luna-Ruiz from reentering this country and the possibility of providing

him with educational, correctional, or medical treatment. See 18 U.S.C. §§ 3553(a)(2)(B), (D).

Indeed, Luna-Ruiz does not point to a factor that the judge did not consider, but rather argues that

the judge failed to consider adequately the facts that pointed towards a lesser sentence, specifically

that Luna-Ruiz is unlikely to again illegally reenter the United States because his family has moved

back to Mexico, that he owns a house in Mexico, and that his eyesight is failing, which, he argues,

would hamper any future attempts to reenter the country illegally.

       However, the sentencing judge explicitly considered that Luna-Ruiz’s family and house are

in Mexico, concluding that those connections may be insufficient to keep him in Mexico. And even

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though Luna-Ruiz did not raise any eyesight issues during his allocution, because the judge requested

medical treatment for Luna-Ruiz for his diabetes, the judge can be presumed to have fully considered

his medical problems as well. Luna-Ruiz argues that the judge “brushed over” these facts in one

sentence, but this hardly establishes plain error, even to the extent that it is true. Simmons, 587 F.3d

at 363 (holding that defendant’s argument that the district court failed to fully explain its

consideration of the factors “does not demonstrate [defendant’s] sentencing was marked by

‘significant procedural error,’ constituting plain error, such that a remand is necessary.”) (quoting

Gall, 552 U.S. at 51)). Here, the record clearly reflects that the judge considered the facts that Luna-

Ruiz now points to. That the judge did not reach the conclusion that Luna-Ruiz desired is not

unreasonable–and is certainly not plain error–particularly in light of his repeated illegal entries into

the United States.

        Similarly, the court’s concern that Luna-Ruiz, after being deported twice–the second time

less than one year before his arrest in Michigan–and otherwise sent back over the border an

additional thirteen times, might once again attempt to illegally enter the United States simply does

not rise to the level of a serious error that “affected the fairness, integrity, or public reputation of the

judicial proceedings.” Vonner, 516 F.3d at 386. Nor, had Luna-Ruiz properly preserved his

procedural claims, would the judge’s contemplation of recidivism be problematic under

reasonableness review. This court has upheld similar concerns with recidivism as reasonable when

the defendant illegally entered the country four times in less than eight years. United States v.

Tristan-Madrigal, 601 F.3d 629, 634-35 (6th Cir. 2010). Here, Luna-Ruiz illegally entered the



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United States at least seventeen times in less than seven years.1 Any argument that the judge

unreasonably speculated as to Luna-Ruiz’s risk of recidivism is, in light of his extensive record as

a serial law-breaker, simply wrong.

                                                  IV

       Luna-Ruiz also claims that his sentence is substantively unreasonable. First, he argues that

a within-Guidelines sentence would have been sufficient to serve the purposes of sentencing. Br.

of Defendant-Appellant at 13-14, United States v. Ortega-Rogel, 281 F. App’x 471, 74 (6th Cir.

2008) (holding an above-Guidelines illegal reentry sentence to be substantively unreasonable where

the defendant had a minimal prior criminal history and had only recently become involved with

illegal activity). Luna-Ruiz concedes that he has a more serious criminal history (category IV) than

the defendant in Ortega-Rogel (category I), but argues that the Guidelines reflect his more extensive

criminal history. However, although the Guidelines reflect the crimes that Luna-Ruiz was convicted

of, they notably do not reflect his many uncharged illegal entries. Accordingly, the sentencing judge

concluded that the number of times Luna-Ruiz had illegally entered the country made his case an

atypical one, and as a result, “the guidelines are [not] properly reflective of the statutory factors.”

       Luna-Ruiz presents no argument or authority that undermines this conclusion. In his reply

brief, Luna-Ruiz cites two unpublished cases in which this court upheld two illegal reentry sentences



       1
        Luna-Ruiz was intercepted at the border 13 times between January 2003 and March 2006.
In between two of these interceptions, he was arrested in New York, indicating an additional entry,
which was not intercepted. He was also deported once in 2003 and once in 2008, indicating two
more entries that were not intercepted. And, of course, he came back after the last deportation,
constituting a minimum of 17 illegal entries.

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that were within the Guidelines. Reply Br. of Defendant-Appellant at 7-8, United States v. Arias-

Arrazola, 254 F. App’x 500 (6th Cir. 2007) (upholding a within-Guidelines sentence where

defendant had been previously deported four times); United States v. Saavedra-Ibanez, 247 F. App’x

724 (6th Cir. 2007) (upholding a within-Guidelines sentence where defendant had been previously

deported two times).

       These cases are indicative of the weakness of Luna-Ruiz’s substantive objection. First, they

are not cases in which this court reversed above-Guidelines sentences, which would be helpful to

our inquiry. Rather, they are cases in which this court upheld within-Guidelines sentences, which

is not enlightening. Because this court reviews sentences only for an abuse of discretion, it must

frequently uphold sentences that it would have decided differently, particularly when the sentence

is within the Guidelines range. See Harmon, 607 F.3d at 240 (“A within-Guidelines sentence is

entitled to a rebuttable presumption of reasonableness.”). Thus, that the court upheld within-

Guidelines sentences does not speak to the question of whether it would have reversed above-

Guidelines sentences on the very same facts. As such, the cases do not affect our inquiry here.

Second, these cases do not involve defendants whose record of illegal entries even approaches that

of Luna-Ruiz. Luna-Ruiz cites no case in which a defendant so routinely violated this country’s

immigration laws.

       Significantly, this circuit has upheld above-Guidelines sentences for defendants with far

fewer illegal entries than Luna-Ruiz. In United States v. Caserez, where the defendant had been

previously deported three times and the Guidelines did not reflect those illegal entries, this court

upheld a sentence of 42 months, far above the Guidelines range of 15 to 21 months. 225 F.3d 660

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United States v. Luna-Ruiz

(table), 2000 WL 1033024, at *1-2 (6th Cir. July 18, 2000). And in Tristan-Madrigal, where the

defendant had three prior illegal reentries, this court upheld a 36-month sentence, again much further

above the Guidelines range of 15 to 21 months than the upward variance at issue here. 601 F.3d at

634-35.

       A case that comes even closer to the facts here is United States v. Orellana-Aleman. 355 F.

App’x 215 (10th Cir. 2009). In that case, the district judge, noting the defendant’s ten prior

unprosecuted illegal entries, sentenced the defendant to 24 months in custody, far above the

Guidelines range of one to seven months. Id. at 215-16. Yet the Tenth Circuit upheld the above-

Guidelines sentence, noting that the defendant’s history was more than sufficient to justify the

departure. Id. at 222.

       In comparison to these cases, the sentencing judge’s decision to vary above the top of the

Guidelines range by only six months appears merciful, and certainly not an abuse of discretion.

Luna-Ruiz’s sixteen prior unprosecuted illegal entries provided more than enough justification for

the judge’s decision to exceed the Guidelines range by six months, and as a result, the sentence was

substantively reasonable. See Gall, 552 U.S. at 51. This conclusion is particularly appropriate in

light of this circuit’s prior holdings that an upward departure, let alone a variance, is “expressly

encouraged” when the Guidelines do not adequately account for past criminal conduct. Herrera-

Zuniga, 571 F.3d at 583 (citing United States v. Barber, 200 F.3d 908, 912 (6th Cir. 2000)); Tristan-

Madrigal, 601 F.3d at 635-36 (sentencing judge has more discretion to vary than to depart from the

Guidelines, and may vary instead of departing when the Guidelines do not adequately reflect the

defendant’s criminal history).

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United States v. Luna-Ruiz

        Finally, Luna-Ruiz points to the disparity between his sentence and the sentences permitted

in a “fast-track” district to argue that his sentence is excessive. See U.S.S.G. §5K3.1 (“[T]he court

may depart downward not more than 4 levels pusuant to an early disposition program authorized by

the Attorney General . . . for the district in which the court resides.”). Luna-Ruiz cites no authority

to support this argument, nor could he. This court has repeatedly rejected this precise argument,

noting that fast-track defendants are not similarly-situated to other defendants, and any disparity is

thus not unwarranted for purposes of § 3553(a). E.g., United States v. Hernandez-Fierros, 453 F.3d

309, 313-14 (6th Cir. 2006); cf. United States v. Camacho-Arellano, 614 F.3d 244, 250 (6th Cir.

2010) (holding that a sentencing judge has the authority to grant a variance based on a fast-track

disparity).

                                                  V

        For the foregoing reasons, we AFFIRM the sentence of the district court.




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