                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 11a0238n.06
                                                                                           FILED
                                           No. 10-3148
                                                                                       Apr 18, 2011
                          UNITED STATES COURT OF APPEALS                        LEONARD GREEN, Clerk
                               FOR THE SIXTH CIRCUIT


UNITED STATES OF AMERICA,                                )
                                                         )         ON APPEAL FROM THE
       Plaintiff-Appellee,                               )         UNITED STATES DISTRICT
                                                         )         COURT FOR THE
v.                                                       )         SOUTHERN DISTRICT OF
                                                         )         OHIO
JOSE RAMIREZ-SORIA,                                      )
                                                         )            MEMORANDUM
       Defendant-Appellant.                              )              OPINION



BEFORE:        GUY, CLAY and McKEAGUE, Circuit Judges.

       McKEAGUE, Circuit Judge. Defendant Jose Ramirez-Soria, a citizen of Mexico, pleaded

guilty to having illegally re-entered the United States after having been deported, in violation of 8

U.S.C. § 1326. On February 11, 2010, he was sentenced to a prison term of 24 months and a two-

year term of supervised release. Defendant now appeals, contending the sentence is procedurally and

substantively unreasonable.

       There is no dispute that the district court correctly calculated the applicable advisory

Sentencing Guidelines range to be 21 to 27 months. The sentence imposed, within the advisory

Guidelines range, is presumptively reasonable. United States v. Haj-Hamed, 549 F.3d 1020, 1025

(6th Cir. 2008). In determining whether defendant has rebutted this presumption, we review the

sentence under the highly deferential abuse of discretion standard. Gall v. United States, 552 U.S.

38, 51-52 (2007).
No. 10-3148
United States v. Ramirez-Soria

                                                   I

       Defendant contends the sentence is procedurally unreasonable because the district court

erroneously believed it lacked authority to depart or vary downward from the Guidelines range and

potentially sentence him to no more than time served. Yet, a district judge is not required to

explicitly state his awareness of his discretion to impose a below-Guidelines sentence; his

understanding is presumed “absent clear evidence to the contrary.” United States v. Santillane, 540

F.3d 428, 431 (6th Cir. 2008). Thus, defendant has the burden of adducing clear evidence that the

district judge erroneously believed he lacked discretion to impose a sentence below the Guidelines

range. See United States v. Guest, 564 F.3d 777, 779 (6th Cir. 2009) (“[T]o justify a remand, . . . an

appellant must identify a specific error in the proceedings below.”).

       Further, because defendant did not raise the issue in the district court, we review only for

plain error. United States v. Gabbard, 586 F.3d 1046, 1051 (6th Cir. 2009). To obtain relief under

plain error review, defendant must show “(1) error (2) that was obvious or clear, (3) that affected his

substantial rights and (4) that affected the fairness, integrity, or public reputation of the judicial

proceedings.” Id. (quoting United States v. Vonner, 516 F.3d 382, 386 (6th Cir. 2008) (en banc)).

       In the sentencing hearing, the district court, upon learning that the Department of Homeland

Security held a detainer on defendant (so as to deport him immediately upon release from prison),

agreed with defendant’s counsel that it would be in everyone’s interest if defendant were

immediately deported. In light of this expressed preference, defendant contends that the district

court’s decision to impose a prison sentence within the Guidelines range can only be viewed as



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United States v. Ramirez-Soria

demonstrating the court’s erroneous belief that it lacked discretion to impose a sentence below the

Guidelines.

       Yet, the district judge also listened as the Assistant U.S. Attorney argued that, even though

defendant had already been detained for seven months, immediate deportation would not be

sufficient punishment. The Assistant U.S. Attorney argued that defendant had been “endangering

the lives of U.S. citizens by driving on our roads under the influence of alcohol” . . . and “without

insurance,” despite having “been removed from this country on three prior occasions” in the last

fifteen months. Id. The government thus urged the court to impose a prison sentence at the low end

of the Guidelines range for the purpose of deterring defendant and others.1

       Concluding that it lacked authority to order defendant’s immediate deportation, the district

court went on to correctly calculate the applicable advisory Guidelines range and then considered

the sentencing factors prescribed at 18 U.S.C. § 3553(a).           In considering “the nature and

circumstances of the offense and the history and characteristics of the defendant” under § 3553(a)(1),

the court expressly reiterated the circumstances highlighted by government counsel. The court then

determined that a prison sentence within the Guidelines range is “appropriate” because it “will reflect

the seriousness of the offense” (§ 3553(a)(2)(A)), “should adequately deter others from committing

similar offenses” (§ 3553(a)(2)(B)), “[should] hopefully, protect the public from any further criminal

behavior on the part of this defendant” (§ 3553(a)(2)(C)), and “will avoid any unwarranted




       1
       In fact, defendant’s counsel, too, had just asked the court to consider imposing a sentence
of 21 months, at the low end of the range, or to possibly consider varying downward to 18 months.

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United States v. Ramirez-Soria

disparities in sentencing among defendants who commit similar offenses and have similar

backgrounds” (§ 3553(a)(6)). Sent. Tr. at 15.

       The court thus adequately explained the considerations that led to its determination that a

prison sentence of 24 months was “sufficient, but not greater than necessary.” 18 U.S.C. § 3553(a).

The fact that the court imposed a sentence in the middle of the Guidelines range, rather than at the

low end, further undercuts defendant’s argument that the district judge sympathized with him, but

felt obligated to sentence within the Guidelines range. Clearly, if the sentencing judge had been

moved to sentence defendant to the shortest permissible sentence (so as to accelerate the date of his

deportation), but erroneously believed it lacked authority to impose a below-Guidelines sentence,

it would have sentenced defendant to no more than 21 months, at the low end of the range. That the

court sentenced defendant above the low end of the range suggests the court meant what it said in

respecting the § 3553(a) purposes of providing just punishment in relation to the seriousness of the

offense, deterring others, protecting the public, and avoiding unwarranted sentencing disparities. In

other words, the sentencing judge’s explanation confirms that he imposed a procedurally reasonable

sentence under the prescribed sentencing considerations despite his personal preference for a

different outcome. See Guest, 564 F.3d at 780 (rejecting a similar argument).

       Defendant has not, therefore, rebutted the presumption that the district judge was aware of

his discretion to impose a sentence below the Guidelines range. To the contrary, as the government

points out, the record affirmatively shows that the district judge fully understood that the Guidelines

are merely advisory and that he had the authority to sentence outside the Guidelines range. See Plea



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United States v. Ramirez-Soria

Hearing Tr. at 5-6; Sent. Tr. at 13. Accordingly, we conclude that defendant has fallen short of

demonstrating any procedural error, much less plain error.

                                                 II

       Defendant also contends that the sentence is substantively unreasonable. In reviewing for

substantive unreasonableness, we apply the abuse-of-discretion standard, “tak[ing] into account the

totality of the circumstances” with “due deference to the district court’s decision.” Gall, 552 U.S.

at 51. The sentence may be deemed substantively unreasonable if the district court chose the

sentence arbitrarily, grounded the sentence on impermissible factors, or unreasonably weighed a

pertinent factor. See United States v. Brooks, 628 F.3d 791, 796 (6th Cir. 2011). A sentence within

the Guidelines range enjoys a rebuttable presumption of reasonableness. Id. The fact that we might

reasonably conclude a different sentence would be appropriate is insufficient to justify reversal. See

Gall, 552 U.S. at 51.

       Defendant first contends that a fair consideration of the circumstances of the offense—i.e.,

that he re-entered the United States unlawfully in order to obtain employment so that he could

support his wife and two children as well as his sister’s three children—demonstrates that a 24-

month prison sentence is greater than necessary. Insofar as defendant’s motivation for repeatedly

re-entering unlawfully may be a mitigating circumstance, we note that the district judge considered

and expressed sympathy for defendant’s desire to rejoin and support his family. Yet, the district

court was also duly cognizant of defendant’s history of repeated illegal re-entries and repeated DUI

offenses. In imposing a within-Guidelines sentence, we cannot say that the district court weighed



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United States v. Ramirez-Soria

these pertinent factors unreasonably or otherwise abused its discretion. Defendant has not succeeded

in rebutting the presumption of reasonableness.

          Defendant also contends that the 24-month sentence results in an unwarranted sentencing

disparity, citing a similarly situated defendant who was sentenced to a prison term of only 15

months. See United States v. Luciano-Guillermo, 305 F. App’x 511 (10th Cir. 2008). In response,

the government points out that the defendant in Luciano-Guillermo was not similarly situated. Yes,

he received only a 15-month prison sentence for unlawful re-entry after three prior deportations.

However, his sentence, too, was within the applicable advisory Guidelines range; the range was

lower because the defendant’s criminal history category was lower. The government contends the

instant case is more comparable to United States v. Tristan-Madrigal, 601 F.3d 629 (6th Cir. 2010).

In Tristan-Madrigal, the defendant had been convicted of unlawful re-entry after three prior

deportations and four prior drunk-driving convictions. The district court varied upward from the

Guidelines range to impose a prison sentence of 36 months. We affirmed over substantive-

unreasonableness objection, holding the court had not abused its discretion in determining that the

defendant’s history showed him to be a dangerous individual from whom the public needed

protection. Id. at 634-35.

       Together, these comparable cases illustrate and confirm the reasonableness of the within-

Guidelines sentence imposed in this case. As we have previously observed, “‘avoidance of

unwarranted disparities was clearly considered by the Sentencing Commission when setting the

Guidelines ranges,’ and the district court’s very act of correctly calculating and reviewing the

advisory range indicates that a district judge ‘necessarily gave significant weight and consideration

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to the need to avoid unwarranted disparities.’” United States v. Simmons, 587 F.3d 348, 363 (6th

Cir. 2009) (quoting Gall, 522 U.S. at 54). By reasonably weighing the appropriate § 3553(a) factors

and then sentencing defendant within the advisory Guidelines range, the district court thus

adequately observed the need to avoid unwarranted disparities—especially considering that

defendant did not raise any such argument, factual or legal, at the time of sentencing. See id.

(“Adequately explaining the reasons for sentencing does not require expressly defending the abstract

justifications for the sentencing range.”). The 24-month sentence has not been shown to be

substantively unreasonable.

                                                III

       Accordingly, we reject defendant’s claims of error. The judgment of the district court is

AFFIRMED.




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