               NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                          File Name: 15a0421n.06

                                          No. 14-4143

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT
                                                                                    FILED
                                                                              Jun 08, 2015
UNITED STATES OF AMERICA,                              )                  DEBORAH S. HUNT, Clerk
                                                       )
       Plaintiff-Appellee,                             )
                                                       )   ON APPEAL FROM THE UNITED
v.                                                     )   STATES DISTRICT COURT FOR
                                                       )   THE SOUTHERN DISTRICT OF
MIGUEL CANO-LOPEZ,                                     )   OHIO
                                                       )
       Defendant-Appellant.                            )
                                                       )


       BEFORE: GRIFFIN and DONALD, Circuit Judges; TARNOW, District Judge.


       PER CURIAM. Miguel Cano-Lopez appeals his sentence. We affirm Cano-Lopez’s

sentence of imprisonment but remand for resentencing limited to supervised release.

       Pursuant to a written plea agreement, Cano-Lopez, a Mexican citizen, pleaded guilty to

an information charging him with illegal reentry of a removed non-citizen in violation of

8 U.S.C. § 1326(a). Cano-Lopez’s presentence report set forth an advisory Guidelines range of

two to eight months of imprisonment. Varying upward from that range, the district court

sentenced Cano-Lopez to twelve months of imprisonment followed by two years of supervised

release. In this timely appeal, Cano-Lopez contends (1) that the district court imposed an illegal

term of supervised release and (2) that his twelve-month sentence of imprisonment is

substantively unreasonable.


       
         The Honorable Arthur J. Tarnow, Senior United States District Judge for the Eastern
District of Michigan, sitting by designation.
No. 14-4143, United States v. Cano-Lopez

       Cano-Lopez asserts, and the government concedes, that his two-year term of supervised

release exceeds the statutory maximum. Cano-Lopez’s illegal reentry conviction is a Class E

felony with a maximum term of supervised release of one year. See 8 U.S.C. § 1326(a);

18 U.S.C. §§ 3559(a)(5), 3583(b)(3). The district court therefore erred in imposing a two-year

term of supervised release.

       Citing United States v. Jones, 489 F.3d 243 (6th Cir. 2007), the government argues that a

resentencing hearing is unnecessary and that the appropriate remedy is to remand for the limited

purpose of entering a corrected judgment decreasing Cano-Lopez’s term of supervised release

from two years to one year. In Jones, this court held that the district court erred in sentencing the

defendant to two six-year terms of supervised release for his two firearms convictions—in excess

of the three-year statutory maximum. Id. at 253–54. However, that error was “simply oversight”

because the district court had previously sentenced the defendant to three-year terms of

supervised release for his firearms convictions and the defendant did not contest his sentence as

to nineteen other terms of supervised release for six years each. Id. at 254 n.4. Therefore,

amendment of the district court’s judgment is Jones was “ministerial in nature.” Id. at 253.

       Here, it is less clear whether the district court’s error was simply oversight because it did

not explain its reasoning. Specifically, the district court failed to address U.S.S.G. § 5D1.1(c),

which states that “[t]he court should not impose a term of supervised release in a case in which

supervised release is not required by statute and the defendant is a deportable alien who likely

will be deported after imprisonment.”1 We have held that the district court procedurally errs “in

failing to acknowledge the guidelines recommendation against supervised release embodied in

       1
         As this court has previously recognized, “using the term ‘alien’ to refer to other human
beings is offensive and demeaning. We do not condone the use of the term and urge Congress to
eliminate it from the U.S. Code.” Flores v. U.S. Citizenship & Immigration Servs., 718 F.3d
548, 551 n.1 (6th Cir. 2013); 1 IMMIGR. LAW AND DEFENSE § 2:16 (2015 ed.). Similarly, here, we
should urge the United States Sentencing Commission to eliminate the term from the Guidelines.
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No. 14-4143, United States v. Cano-Lopez

§ 5D1.1(c).” United States v. Solano-Rosales, 781 F.3d 345, 353 (6th Cir. 2015). When the

district court imposes supervised release contrary to the Guidelines recommendation, “the district

court’s explanation should directly address that section’s recommendation against supervised

release and provide the court’s reasoning for taking a different course of action in the case before

it.” Id. at 353–54. In light of the district court’s errors in imposing a term of supervised release

that exceeds the statutory maximum, and in failing to explain its reasoning, we remand for

resentencing.

       Cano-Lopez also asserts that his twelve-month sentence of imprisonment is substantively

unreasonable. We review the substantive reasonableness of Cano-Lopez’s sentence under a

deferential abuse-of-discretion standard. See Gall v. United States, 552 U.S. 38, 51 (2007). “A

sentence is substantively reasonable if it is ‘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).’” Solano-Rosales, 781 F.3d at 356 (quoting United States v.

Vowell, 516 F.3d 503, 512 (6th Cir. 2008)). Where, as in this case, the district court imposes a

sentence outside the Guidelines range, we “may consider the extent of the deviation, but must

give due deference to the district court’s decision that the § 3553(a) factors, on a whole, justify

the extent of the variance.” Gall, 552 U.S. at 51.

       Focusing on the need to protect the public from more crimes by Cano-Lopez and to deter

him from further illegal reentries, see 18 U.S.C. § 3553(a)(2)(B)–(C), the district court

determined that his criminal record and “his propensity for illegally reentering the United States”

required a modest upward variance from the Guidelines range. (RE 32, Page ID # 95–96).

Cano-Lopez contends that his criminal history is adequately stated—if not overstated—by the

Guidelines. Cano-Lopez received criminal history points for his prior convictions for breaking

and entering and illegal entry, but his disorderly conduct and traffic convictions, as well as his

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No. 14-4143, United States v. Cano-Lopez

outstanding warrant for failing to appear on traffic charges, did not factor into his criminal

history score. Cano-Lopez also argues that the Guidelines take into account his prior reentries.

Cano-Lopez received criminal history points for his 2009 misdemeanor conviction for illegal

entry, which resulted in a 180-day sentence and his subsequent removal. Cano-Lopez’s two

prior removals were not reflected in the Guidelines calculation.          Regardless, “[t]hat a

circumstance was addressed in the Guidelines . . . does not prevent the district court from

considering it under section 3553(a), so long as the court explains why the circumstance warrants

additional weight with regard to that particular defendant’s sentence.” United States v. Nixon,

664 F.3d 624, 626 (6th Cir. 2011); see United States v. Tristan-Madrigal, 601 F.3d 629, 636 n.1

(6th Cir. 2010). Given Cano-Lopez’s “propensity” to reenter the United States, even after a 180-

day sentence, the district court reasonably gave additional weight to the need to deter him from

further illegal reentries. See United States v. Flores-Midence, 558 F. App’x 595, 598 (6th Cir.

2014). The district court did not abuse its discretion in imposing an above-Guidelines sentence

of twelve months.

       For the foregoing reasons, we affirm Cano-Lopez’s twelve-month sentence of

imprisonment, but remand for resentencing as to the term of supervised release.




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