                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 10a0211n.06

                                            No. 09-5082                                    FILED
                                                                                        Apr 06, 2010
                             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 WESTERN
v.                                                         )        DISTRICT OF TENNESSEE
                                                           )
ORLIN ESCALON-VELASQUEZ,                                   )                           OPINION
                                                           )
       Defendant-Appellant.                                )




BEFORE:        GUY, COLE, and SUTTON, Circuit Judges.

       COLE, Circuit Judge. Defendant-Appellant Orlin Rolando Escalon-Velasquez appeals his

sentence for illegal re-entry into the United States in violation of 8 U.S.C. §§ 1326(a)(2) and (b)(2).

He challenges his sentence as procedurally unreasonable because, in his view, the district court failed

to consider adequately his arguments for a lower sentence. We AFFIRM.

                                        I. BACKGROUND

       On June 16, 2008, Immigration and Customs Enforcement (ICE) agents encountered

Escalon-Velasquez and requested identification from him. He ran, a chase ensued, and the agents

apprehended him after a brief altercation. At that time, he had a counterfeit green card, displaying

the name of German Velasquez. Escalon-Velasquez told the ICE agents that he was a citizen of

Mexico, that his correct name was Rolando German-Velasquez, and that he did not have a criminal

record. After the Government processed his fingerprints, however, his true identity (Orlin Escalon-
No. 09-5082
United States of America v. Orlin Escalon-Velasquez

Velasquez) and citizenship (Honduran) were revealed. He then admitted that he had illegally entered

the United States in November or December of 2007. Next, the ICE agents reviewed his

immigration file and discovered that he had been convicted of felony drug possession in 2004 and

grand theft in 2005. In addition, he had been deported from the United States on December 15,

2004, and on November 29, 2006.

       As a result of the ICE investigation, a federal grand jury sitting in the Western District of

Tennessee indicted Escalon-Velasquez on one count of reentry of a deported alien whose removal

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

(b)(2). Pursuant to a plea agreement, he pleaded guilty, and the Government agreed to recommend

a sentence at the low end of the applicable Guidelines range and a full reduction for acceptance of

responsibility.

       The United States Probation Office prepared a Presentence Report (“PSR”). The PSR

calculated that Escalon-Velasquez had an offense level of twenty-one and a criminal history category

of IV. His offense level was based on an initial level of eight for the offense at hand and an

enhancement of sixteen levels pursuant to United States Sentencing Guideline (“U.S.S.G.”) §

2L1.2(b)(1)(A) because he previously had been convicted of felony drug trafficking that resulted in

his deportation. His offense level then was reduced by three because he accepted responsibility for

his actions. Pursuant to U.S.S.G. § 4A1.1(a), he was placed in Criminal History IV because of

previous convictions for drug trafficking and theft. The calculated offense level and criminal-history

category resulted in a Guidelines range of fifty-seven to seventy-one months.

       Before sentencing, both Escalon-Velasquez and the Government filed sentencing position

                                                -2-
No. 09-5082
United States of America v. Orlin Escalon-Velasquez

papers with the district court. The Government filed no objections to the PSR. Likewise, Escalon-

Velasquez filed no objections to the PSR’s calculations but requested a twelve-month sentence,

arguing that a within-Guidelines sentence was greater than necessary for the seriousness of the crime.

       At the sentencing hearing on February 27, 2009, the district court accepted the PSR’s

calculations. The sentencing judge continued the hearing by inviting the Government’s counsel to

speak. Consistent with the terms of the plea agreement, the Government recommended a sentence

at the low end of the Guidelines range but also stated that a within-Guidelines sentence, as opposed

to the twelve-month sentence requested by the defendant, would be appropriate. In particular, the

Government noted Escalon-Velasquez’s criminal history, including drug trafficking, and his repeated

illegal entries into the United States. Next, Escalon-Valesquez’s counsel argued for a below-

Guidelines sentence, explaining that Escalon-Velasquez had been looking for work and had not been

involved with criminal activity. Escalon-Valesquez then addressed the court, stating that he would

remain in Honduras if deported. After considering the factors outlined in 18 U.S.C. § 3553(a), the

district court accepted the Government’s recommendation of a low-end within-Guidelines sentence

and sentenced Escalon-Velasquez to fifty-seven months in prison.

       Escalon-Velasquez appealed.

                                          II. ANALYSIS

       Escalon-Velasquez raises only one issue on appeal, challenging his sentence as procedurally

unreasonable. We first note that Escalon-Velasquez did not raise this issue below. At no point

during the district court proceedings did he raise procedural reasonableness objections, even after

the district court provided him opportunity to do so as required by United States v. Bostic, 371 F.3d

                                                -3-
No. 09-5082
United States of America v. Orlin Escalon-Velasquez

865, 872 (6th Cir. 2004). A failure to preserve leads to plain-error review. See United States v.

Vonner, 516 F.3d 382, 385-86 (6th Cir. 2008) (en banc). Here, however, the Government did not

request the heightened standard, and we do not apply plain-error review unless a party asks. Cf.

United States v. Keith, 2010 U.S. App. LEXIS 2298, at *9 n.2 (6th Cir Feb. 3, 2010) (“We decline

to do so, however, because the government did not request that we apply this more stringent standard

of review.”); United States v. Blackie, 548 F.3d 395, 404 (Sutton, J., concurring) (“The government

never asked us to apply plain-error review to this claim, which by itself is reason enough not to apply

this standard to the issue.”). Instead, we review the sentence for reasonableness under the “familiar

abuse-of-discretion standard.” See Gall v. United States, 552 U.S. 38, 46 (2007).

       For a sentence to be procedurally reasonable, the district court must consider the applicable

Guidelines range; consider the factors listed in 18 U.S.C. § 3553(a); accurately calculate the

sentence; and adequately explain the sentence, allowing for meaningful appellate review. Id. at 49-

50. On the final point, a district court’s explanation is adequate if it demonstrates that the court

considered the parties’ arguments and had a reasoned basis for its decision. Rita v. United States,

551 U.S. 338, 356 (2007). Further, a sentence “within a properly calculated Guidelines range” is

“entitled to a presumption of reasonableness on review.” United States v. Sexton, 512 F.3d 326, 332

(6th Cir. 2008). Escalon-Velasquez believes he can overcome this presumption in two ways. First,

he claims that the district court took inaccurate account of his argument that incarcerating him will

waste government resources. Second, he contends that the court failed to explain its rejection of his

argument for a twelve-month sentence.

       We are not persuaded and conclude that Escalon-Velasquez’s sentence meets the

                                                 -4-
No. 09-5082
United States of America v. Orlin Escalon-Velasquez

constitutional standard for procedural reasonableness. The Supreme Court has made clear that a

district court may exercise discretion in determining how much explanation is necessary in a given

case and “when a judge simply decides to apply the Guidelines to a particular case, doing so will not

necessarily require lengthy explanation.” Rita, 558 U.S. at 356. In fact, a sentencing court need only

“set forth enough to satisfy the appellate court that he has considered the parties’ arguments and has

a reasoned basis for exercising his own legal decisionmaking authority.” Id. Accordingly, “a district

court’s failure to address each argument head-on will not lead to automatic vacatur”; instead, we will

vacate a sentence only “if the ‘context and record’ do not ‘make clear’ the court’s reasoning.”

United States v. Liou, 491 F.3d 334, 339 n.4 (6th Cir. 2007) (quoting Rita, 558 U.S. at 356).

       In this case, the district court considered “the nature and circumstances of the offense, and

the history and characteristics of the defendant”; “the seriousness of the offense”; and “the arguments

that ha[d] been raised by the defendant.” (Sentencing Hr’g Tr. 15-18.) The court acknowledged that

this was the third time that Escalon-Velasquez was before the court on charges of illegal entry and

noted that, at the time of his arrest, he possessed an illegal green card. The court also explained that

it believed that Escalon-Velasquez still had “not accepted that he is not allowed to be in this country

illegally” and, instead, “continues to return even though he’s been deported on at least two prior

occasions, and on both occasions, he was involved in criminal conduct.” (Id. at 18.) “[B]ased upon

those factors,” the court decided that a sentence at the low end of the Guidelines range would be

“sufficient.” (Id.) In light of this analysis, we conclude that the district court properly made an

individualized sentencing determination based upon the facts and § 3553(a) factors and gave

sufficient explanation for the sentence imposed.

                                                 -5-
No. 09-5082
United States of America v. Orlin Escalon-Velasquez

       Further, we do not accept Escalon-Velasquez’s critiques of the district court. First, “a

sentencing judge is not required to explicitly address every mitigating argument that a defendant

makes, particularly when those arguments are raised only in passing.” United States v. Madden, 515

F.3d 601, 611 (6th Cir. 2008). In his sentencing position paper, Escalon-Velasquez did not argue

that a within-Guidelines sentence would waste government resources. His counsel raised the issue

only at the end of his presentation, stating cursorily that “the resources that we would expend in

incarcerating him any longer than necessary for him to be—for him to be deported should also be

taken into consideration.” (Sentencing Hr’g Tr. 14.) We therefore conclude that the argument was

raised “only in passing,” and the court was not required to address explicitly this mitigating argument

to satisfy the constitutional requirement of procedural reasonableness. Cf. Madden, 515 F.3d at 611-

12 (holding that the district court did not commit a “‘significant procedural error’” by not explicitly

addressing an undeveloped mitigating argument (quoting Gall, 552 U.S. at 50)).

       Escalon-Velasquez’s second critique—that the district court did not sufficiently consider his

request for a twelve-month sentence—fares no better. Escalon-Velasquez argued for a twelve-month

sentence in his written submission to the district court, and the court noted at the sentencing hearing

that it had considered his arguments. Despite Escalon-Velasquez’s efforts, the court concluded that

a within-Guidelines sentence was appropriate. Although the court did not specifically mention the

requested twelve-month sentence, we are satisfied that the court understood and considered Escalon-

Velasquez’s request. Cf. Sexton, 512 F.3d at 332 (“Although the district court did not state its

reasons for rejecting this argument, it did not need to, given that the issue was simple and it was

obvious that the court had considered his claim . . . .”).

                                                 -6-
No. 09-5082
United States of America v. Orlin Escalon-Velasquez

                                    III. CONCLUSION

       For the reasons stated above, we AFFIRM.




                                            -7-
