                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 13a0771n.06

                                            No. 12-6313                                   FILED
                                                                                   Aug 19, 2013
                           UNITED STATES COURT OF APPEALS                      DEBORAH S. HUNT, Clerk
                                FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA,                             )
                                                      )
       Plaintiff-Appellee,                            )
                                                      )      ON APPEAL FROM THE
v.                                                    )      UNITED STATES DISTRICT
                                                      )      COURT FOR THE MIDDLE
JULIO MOLINA-PORTILLO,                                )      DISTRICT OF TENNESSEE
                                                      )
       Defendant-Appellant.                           )
                                                      )



       BEFORE: BOGGS and McKEAGUE, Circuit Judges; BECKWITH, District Judge.*


       PER CURIAM. Julio Molina-Portillo appeals the district court’s judgment of conviction and

sentence.

       Molina-Portillo pleaded guilty to illegally reentering the United States after being deported

subsequent to a conviction for an aggravated felony, in violation of 8 U.S.C. § 1326(a) and (b)(2).

The district court determined that Molina-Portillo’s base offense level was eight. The court added

16 levels under USSG § 2L1.2(b)(1)(A)(i) because Molina-Portillo was previously deported after

being convicted of a felony drug-trafficking offense for which the sentence imposed exceeded 13

months. The court subtracted two levels for acceptance of responsibility, resulting in a total offense

level of 22. Based on the total offense level of 22 and a criminal history category of III, Molina-



       *
        The Honorable Sandra S. Beckwith, United States District Judge for the Southern District
of Ohio, sitting by designation.
No. 12-6313
United States v. Molina-Portillo

Portillo’s Guidelines range of imprisonment was 51 to 63 months. The district court imposed a

sentence of 51 months.

       On appeal, Molina-Portillo raises the following four arguments: (1) his sentence was

rendered substantively unreasonable by the district court’s refusal to vary downward from the

Guidelines to avoid a sentencing disparity with jurisdictions that have fast-track programs for

defendants convicted of illegal reentry; (2) his sentence was rendered substantively unreasonable by

the district court’s refusal to vary downward from the Guidelines on the basis that the offense-level

enhancement under § 2L1.2(b) is excessive and irrational; (3) his criminal history category

overrepresented the seriousness of his criminal history and his likelihood to recidivate; and (4) the

government abused its discretion by refusing to move for an additional one-level decrease in his

offense level based on his acceptance of responsibility.

       We review a sentence under a deferential abuse-of-discretion standard for reasonableness,

which has both a procedural and a substantive component. United States v. O’Georgia, 569 F.3d

281, 287 (6th Cir. 2009). To be substantively reasonable, a sentence must be proportionate to the

seriousness of the circumstances of the offense and offender and sufficient, but not greater than

necessary, to comply with the purposes of 18 U.S.C. § 3553(a). United States v. Vowell, 516 F.3d

503, 512 (6th Cir. 2008). A sentence may be substantively unreasonable if the district court selects

the sentence arbitrarily, bases the sentence on impermissible factors, fails to consider pertinent

sentencing factors, or gives an unreasonable amount of weight to any § 3553(a) factor. Id. at 510.

We apply a rebuttable presumption of substantive reasonableness to a within-guidelines sentence.

United States v. Vonner, 516 F.3d 382, 389 (6th Cir. 2008) (en banc).

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No. 12-6313
United States v. Molina-Portillo

       Molina-Portillo first argues that his sentence was rendered substantively unreasonable by the

district court’s refusal to vary downward from the Guidelines to avoid a sentencing disparity with

jurisdictions that have fast-track programs for defendants convicted of illegal reentry. We have

categorically rejected this argument in previous cases, see United States v. Hernandez-Fierros, 453

F.3d 309, 313 (6th Cir. 2006), and we do so again.

       Molina-Portillo next argues that his sentence was rendered substantively unreasonable by the

district court’s refusal to vary downward from the Guidelines on the basis that the offense-level

enhancement under § 2L1.2(b) is irrational and improperly double counted his prior drug trafficking

conviction, increasing both his offense level and criminal history score. Again, we have previously

rejected this argument. See id. at 312-13. Further, the district court explicitly considered Molina-

Portillo’s policy arguments and rationally determined that the enhancement was appropriate, given

the seriousness of the offense and Molina-Portillo’s history.

       Molina-Portillo next argues that his criminal history category overrepresented the seriousness

of his criminal history and his likelihood to recidivate. To the extent that Molina-Portillo is arguing

that the district court should have granted him a downward departure under USSG § 4A1.3(b), we

cannot review the district court’s decision because it recognized its discretion to grant a departure,

but declined to do so. See United States v. Santillana, 540 F.3d 428, 431 (6th Cir. 2008). To the

extent that Molina-Portillo is arguing that the district court should have varied downward from the

Guidelines, his challenge fails because the district court reasonably declined to do so, given Molina-

Portillo’s numerous prior controlled-substance offenses.



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No. 12-6313
United States v. Molina-Portillo

       Finally, Molina-Portillo argues that the government abused its discretion by refusing to move

for an additional one-level decrease in his offense level under USSG § 3E1.1(b) based on his

acceptance of responsibility. To prevail on this claim, Molina-Portillo must show that the

government acted arbitrarily or with an unconstitutionally impermissible motive. See United States

v. Collins, 683 F.3d 697, 704-05 (6th Cir.), cert. denied, 133 S. Ct. 571 (2012). He has presented

no evidence demonstrating that the government had an impermissible motive for withholding the

motion. Further, he has not shown that the government’s decision to withhold the motion was

arbitrary, given that he waited until several days before trial to plead guilty, causing the government

to expend resources on trial preparation. See id. at 707.

       Accordingly, we affirm the district court’s judgment.




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