                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 18a0497n.06

                                           No. 17-6432

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT
                                                                                     FILED
                                                                                Oct 05, 2018
UNITED STATES OF AMERICA,                               )
                                                                           DEBORAH S. HUNT, Clerk
                                                        )
       Plaintiff-Appellee,                              )
                                                        )    ON APPEAL FROM THE UNITED
v.                                                      )    STATES DISTRICT COURT FOR
                                                        )    THE EASTERN DISTRICT OF
PRISILIANO SOLIS-ROBLERO,                               )    TENNESSEE
                                                        )
       Defendant-Appellant.                             )


       BEFORE: SILER and KETHLEDGE, Circuit Judges; OLIVER, District Judge.*

       PER CURIAM. Prisiliano Solis-Roblero appeals his 18-month sentence for illegal reentry.

As set forth below, we AFFIRM Solis-Roblero’s sentence.

       Solis-Roblero, a native and citizen of Mexico, pleaded guilty to an indictment charging

him with illegally reentering the United States after removal pursuant to an immigration judge’s

order and subsequent to prior convictions for illegal reentry, in violation of 8 U.S.C. § 1326(a) and

(b). Solis-Roblero’s presentence report set forth a guidelines range of 21 to 27 months of

imprisonment based on a total offense level of 10 and a criminal history category of V.      Solis-

Roblero moved for a downward variance from that range, asserting in part that his wife had been

diagnosed with breast cancer and that he needed to work to obtain money for her treatment. The

district court granted Solis-Roblero’s motion and sentenced him to 18 months of imprisonment

followed by one year of supervised release.


*
 The Honorable Solomon Oliver, Jr., United States District Judge for the Northern District of
Ohio, sitting by designation.
No. 17-6432
United States v. Solis-Roblero

       On appeal, Solis-Roblero challenges the reasonableness of his below-guidelines sentence.

We review Solis-Roblero’s sentence for procedural and substantive reasonableness under an

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

       Solis-Roblero argues that the district court did not give enough weight to his family

circumstances.     Although Solis-Roblero characterizes the district court’s alleged error as

procedural, his argument is a challenge to the substantive reasonableness of his sentence. See

United States v. Conatser, 514 F.3d 508, 521 (6th Cir. 2008). “A sentence may be considered

substantively unreasonable when the district court selects a sentence arbitrarily, bases the sentence

on impermissible factors, fails to consider relevant sentencing factors, or gives an unreasonable

amount of weight to any pertinent factor.” Id. at 520. Given that we afford a within-guidelines

sentence a rebuttable presumption of substantive reasonableness, Solis-Roblero’s “task of

persuading us that [his] more lenient sentence . . . is unreasonably long is even more demanding.”

United States v. Curry, 536 F.3d 571, 573 (6th Cir. 2008); see also United States v. Greco, 734

F.3d 441, 450 (6th Cir. 2013) (“Although it is not impossible to succeed on a substantive-

reasonableness challenge to a below-guidelines sentence, defendants who seek to do so bear a

heavy burden.”).

       In granting Solis-Roblero a three-month downward variance, the district court stated that

it was “sympathetic towards his personal family situation.” (RE 37, Sentencing Tr., Page ID

# 146). Given that the district court expressly considered his family circumstances and accepted

his argument that those circumstances warranted a downward variance, Solis-Roblero cannot

overcome the presumption that his below-guidelines sentence is substantively reasonable. Solis-

Roblero’s desire for a greater variance “is insufficient to justify our disturbing the reasoned

judgment of the district court.” United States v. Trejo-Martinez, 481 F.3d 409, 413 (6th Cir. 2007).


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No. 17-6432
United States v. Solis-Roblero

       Solis-Roblero cites the government’s argument that granting his motion for a variance

would “open[] the door to a broad range of exceptions that leads to a disparity . . . that we really

work hard to avoid.” (RE 37, Sentencing Tr., Page ID # 143). The district court accepted Solis-

Roblero’s claim that his family circumstances warranted a downward variance, implicitly rejecting

the government’s argument about sentencing disparities.

       According to Solis-Roblero, the district court did not believe that it had the authority to

grant a greater variance. We construe Solis-Roblero’s argument as a challenge to the procedural

reasonableness of his sentence. See United States v. Herrera-Zuniga, 571 F.3d 568, 580 (6th Cir.

2009) (construing claims relating to “the sentencing court’s understanding and explanation of its

authority to deviate from the Guidelines” as procedural challenges). In reviewing for procedural

reasonableness, we must “ensure that the district court committed no significant procedural error,

such as failing to calculate (or improperly calculating) the Guidelines range, treating the

Guidelines as mandatory, failing to consider the § 3553(a) factors, selecting a sentence based on

clearly erroneous facts, or failing to adequately explain the chosen sentence.” Gall, 552 U.S. at

51.

       While acknowledging that Solis-Roblero presented “a sympathetic situation,” the district

court stated:

       [W]hen I, a judge with civil authority, begin to start going down the path of
       absolving people from criminal punishment based upon my personal view of the
       sympathy of their situation, . . . I’ve really crossed the [R]ubicon at that point . . . .

       . . . I’ve crossed the line of administering the law into making all sorts of broad sort
       of moral judgments . . . .

(RE 37, Sentencing Tr., Page ID ## 144-45). Notwithstanding these statements, the district court

recognized the advisory nature of the sentencing guidelines and exercised its discretion to grant a



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No. 17-6432
United States v. Solis-Roblero

downward variance, citing Solis-Roblero’s family circumstances. The district court did not

commit procedural error.

       For these reasons, we AFFIRM Solis-Roblero’s sentence.




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