                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 07a0158n.06
                           Filed: February 27, 2007

                                            No. 05-6503

                           UNITED STATES COURT OF APPEALS
                                FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA,                          )
                                                   )
               Plaintiff-Appellee,                 )
                                                   )       ON APPEAL FROM THE UNITED
v.                                                 )       STATES DISTRICT COURT FOR
                                                   )       THE WESTERN DISTRICT OF
                                                   )       TENNESSEE
RAUL JARA,                                         )
                                                   )
               Defendant-Appellant.                )




BEFORE:        MARTIN and GUY, Circuit Judges, and Rose, District Judge.*

       ROSE, District Judge. Defendant-Appellant, Raul Jara, appeals the sentence imposed upon

him after his original sentence was vacated by the United States Supreme Court for reconsideration

in light of United States v. Booker, 543 U.S. 220 (2005). Jara claims that the district court has now

erred by sentencing him under the mistaken understanding that it was bound to impose a

“reasonable” sentence. Because the record reflects that the district court was guided by the factors

listed in 18 U.S.C. § 3553(a) in imposing a reasonable sentence, the district court should be affirmed.

I.     Factual Background

       In 2003, Defendant-Appellant Raul Jara pleaded guilty to aiding and abetting the attempted



       *
        The Honorable Thomas M. Rose, United States District Court for the Southern District
of Ohio sitting by designation.
                             United States v. Raul Jara, No. 05-6503

manufacture of methamphetamine in violation of 21 U.S.C. §§ 841(a)(1) & 846 and 18 U.S.C. § 2,

and to being an illegal alien in possession of a firearm in violation of 18 U.S.C. § 922(g). The

Presentence Report recommended a range of 135-168 months. J.A. 84-89. The district court

sentenced Jara to 135 months of imprisonment and three years of supervised release, and the court

imposed a $200 special assessment. Jara appealed this sentence, asserting that the district court

improperly denied him a reduction in his Sentencing Guidelines range for being a minor participant

in the offense. United States v. Jara, 96 Fed. Appx. 329 (6th Cir. 2004). When Jara filed a petition

for certiorari to the United States Supreme Court, that court vacated his sentence for reconsideration

in light of United States v. Booker, 543 U.S. 220, 125 S. Ct. 738 (2005). The Sixth Circuit further

remanded the case to the district court for resentencing.

       The district court held a resentencing hearing, allowing Jara to present additional evidence.

Jara’s wife testified that her husband did not use drugs when she met him, but that she had persuaded

him to procure methamphetamine for her, which she considered helpful to a mental illness from

which she suffered. J.A. 58. She further testified that she has since ceased taking drugs and that she

believed her husband would not become involved in drugs again. J.A. 59.

       After this testimony, the Court sentenced Jara:

               The Guideline calculations in this matter were a total offense level
               32, Criminal History Category I. The Court sentenced Mr. Jara
               originally to the low end of the Guideline range on Count 1 for 135
               months. And to 120 months on Count 2, which was the statutory
               maximum. I should say Count 6, it was. Count 2 135 months, and
               Count 6, 120 months. They ran concurrently for a total sentence of
               135 months. The Guidelines haven’t changed. The question is is a
               Guideline sentence reasonable in this case. Not only was Mr. Jara in
               possession of a substantial quantity of drugs, but he had a firearm

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              specifica[tion] under Count 6 in conjunction with those drugs, and
              therefore it drives this case. The case is not being driven by Mr.
              Jara’s personal criminal history. He is in Criminal History I and the
              only criminal history points are driving while license suspended,
              Third Degree.


                      So in looking at the significance of the crime, it is somewhat
              offset by his personal characteristics but specifically by his lack of
              criminal history, which is important to the Court, because I agree with
              Ms. Jara, from her testimony, this defendant is unlikely to commit
              further crimes, certainly further crimes of this sort. But it is
              extremely important to deter other conduct of this kind, and a
              significant sentence is necessary to do that.


                      The Court, in considering the criteria of 3553 also considered
              the Guideline sentence as an indication of reasonableness under
              3553[(a)(4)]. The Court has to consider unwarranted sentencing
              disparities in this matter.
                     Is a Guideline sentence reasonable or not? It’s the Court’s
              view that the Guidelines are the best guarantee in this case that the
              sentence imposed on the defendant as a Guideline sentence was not
              unreasonably disparate. And there is no restitution issue in this case.

                     I believe the Guideline sentence that the Court originally
              imposed is a reasonable sentence for the reasons I’ve stated. This is
              an extremely serious crime. Ms. Jara received the benefit of her
              cooperation or she would likewise have received a far more severe
              sentence.
                     The Guidelines have taken [into] account of the lack of
              criminal history that Mr. Jara had. And clearly because of the
              quantity of methamphetamine,1 his base offense level is high and his
              range is higher than it would have been. Also because of the
              possession of a dangerous weapon in this case. Mr. Jara has accepted
              responsibility, and the Court knows that.
                     For all those reasons, it is the Court’s view that a sentence of


       1
         The Presentence Report estimated the amount of methamphetamine related to the
offense to be between 1.5 kilograms to 5 kilograms. J.A. 71.

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               135 months as originally imposed is a reasonable sentence in this
               case. And when I say that, I am essentially saying that 135 months
               on…Count 2–and 120 on Count 6 concurrently for a total of 135
               months is appropriate and reasonable. Three years of supervised
               release on Count 2, two years on Count 6, both to run concurrently for
               three years. I will reimpose the conditions of supervised release with
               the additional condition that the defendant submit to DNA testing, as
               deemed appropriate. I assume the total assessment of two hundred
               dollars was paid. If not, it is reimposed.


J.A. 60-62.

II.    Standard of Review

       We review the sentencing decision of a district court for procedural and substantive

reasonableness and accord a sentence within the advisory guidelines range that satisfies the

procedural requirements of post-Booker sentencing a presumption of substantive reasonableness.

United States v. Williams, 436 F.3d 706, 708 (6th Cir. 2006); United States v. Richardson, 437 F.3d

550, 553-54 (6th Cir. 2006); United States v. Underwood, 188 Fed. Appx. 459, 460, 2006 WL

2381611, *1 (6th Cir. 2006). In contrast, in its role at sentencing, the district court must appreciate

the advisory nature of the Guidelines, must calculate the Guidelines' recommendation correctly and

must consider the § 3553(a) factors in exercising its independent judgment about what sentence to

impose, United States v. McBride, 434 F.3d 470, 476 (6th Cir. 2006), though “[s]uch consideration,

…need not be evidenced explicitly” in some mechanical form. United States v. Williams, 436 F.3d

706, 708 (6th Cir. 2006). “Moreover, even when a district court does misstate its task as that of

imposing a reasonable sentence, we review the sentence imposed under the standards explained

above.” United States v. Clark, 469 F.3d 568, 571 (6th Cir. 2006).



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III.   Analysis

       Defendant-Appellant asserts that the district court erred because “the court erroneously

perceived its duty under Booker to be that of imposing a ‘reasonable’ sentence.” App. Br. at 11. The

Sixth Circuit has rejected, however, claims that a district court committed reversible error by stating

that it was imposing a “reasonable” sentence when the record reflects that the district court arrived

at its sentence by utilizing the factors listed in 18 U.S.C. § 3553(a). See United States v. Jackson,

466 F.3d 537, 539 (6th Cir. 2006); United States v. Cruz, 461 F.3d 752, 754 (6th Cir. 2006) (“Merely

by saying that the sentence he wishes to impose is ‘reasonable,’ a district judge does not necessarily

commit reversible error.”); United States v. Boyd, 2006 WL 3307476, *2 (6th Cir. 2006); cf. United

States v. Cage, 458 F.3d 537, 541 (6th Cir. 2006) (“We decline to conclude that by using the term

‘reasonable’ or by acknowledging that the appellate court will apply a rebuttable presumption of

reasonableness to a sentence, the district court is itself applying that presumption.”).

       In the instant case, the district court closely followed the factors listed in 18 U.S.C. § 3553(a).

To wit, the district court considered 18 U.S.C. § 3553(a)(1), the nature and circumstances of the

offense:

               Not only was Mr. Jara in possession of a substantial quantity of drugs,
               but he had a firearm specifica[tion] under Count 6 in conjunction
               with those drugs, and therefore it drives this case. The case is not
               being driven by Mr. Jara’s personal criminal history. He is in
               Criminal History I and the only criminal history points are driving
               while license suspended, Third Degree.


J.A. 60. The district court considered 18 U.S.C. § 3553(a)(2):



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                             United States v. Raul Jara, No. 05-6503

                       So in looking at the significance of the crime, it is somewhat
               offset by his personal characteristics but specifically by his lack of
               criminal history, which is important to the Court, because I agree with
               Ms. Jara, from her testimony, this defendant is unlikely to commit
               further crimes, certainly further crimes of this sort. But it is
               extremely important to deter other conduct of this kind, and a
               significant sentence is necessary to do that.

Id.

       The district court considered 18 U.S.C. § 3553(a)(4):

               The Guideline calculations in this matter were a total offense level
               32, Criminal History Category I. The Court sentenced Mr. Jara
               originally to the low end of the Guideline range on Count 1 for 135
               months. And to 120 months on Count 2, which was the statutory
               maximum. I should say Count 6, it was. Count 2 135 months, and
               Count 6, 120 months. They ran concurrently for a total sentence of
               135 months. The Guidelines haven’t changed.


Id. The district court was cognizant of 18 U.S.C. § 3553(a)(6): “The Court has to consider

unwarranted sentencing disparities in this matter.” J.A. 61. “Ms. Jara received the benefit of her

cooperation or she would likewise have received a far more severe sentence.” Id. Finally, the court

also considered restitution, as required by 18 U.S.C. § 3553(a)(7). Id. In short, there is no relevant

sentencing factor which the district court failed to consider. The court imposed a sentence

reasonably calculated to “sufficiently, but not greater than necessary,...comply with the purposes set

forth in paragraph (2) of [18 U.S.C. § 3553(a)].” 18 U.S.C. § 3553(a).

IV.    Conclusion

       While the district court utilized the term “reasonableness” in sentencing Defendant-

Appellant, the record reflects that the district court sentenced Defendant-Appellant according to the

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                            United States v. Raul Jara, No. 05-6503

statutorily mandated factors. Therefore, the Court AFFIRMS the sentence of the district court.




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