                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 15a0418n.06

                                          No. 14-4009

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


       BEFORE: GIBBONS and COOK, Circuit Judges; MURPHY, District Judge.


       PER CURIAM. Isidro Torres-Montoya challenges the substantive reasonableness of his

14-month sentence. We AFFIRM.

       Torres-Montoya, a Mexican citizen, pleaded guilty to an information charging him with

illegal reentry of a removed alien in violation of 8 U.S.C. § 1326(a) and (b)(1). Based on a total

offense level of 10 and a criminal history category of III, the district court calculated Torres-

Montoya’s advisory guidelines range as 10 to 16 months’ imprisonment. After considering the

sentencing factors under 18 U.S.C. § 3553(a), the court sentenced Torres-Montoya to 14 months’

imprisonment.

       Torres-Montoya contends that his sentence is substantively unreasonable because the

district court considered impermissible factors and gave an unreasonable amount of weight to

       
         The Honorable Stephen J. Murphy, III, United States District Judge for the Eastern
District of Michigan, sitting by designation.
No. 14-4009
United States v. Torres-Montoya

certain factors. We review the substantive reasonableness of Torres-Montoya’s sentence under a

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

essence of a substantive-reasonableness claim is whether the length of the sentence is ‘greater

than necessary’ to achieve the sentencing goals set forth in 18 U.S.C. § 3553(a).” United States

v. Tristan-Madrigal, 601 F.3d 629, 632–33 (6th Cir. 2010). “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.” United States v. Conatser, 514 F.3d

508, 520 (6th Cir. 2008). We apply a rebuttable presumption of substantive reasonableness to

Torres-Montoya’s within-guidelines sentence. United States v. Ruiz, 777 F.3d 315, 323 (6th Cir.

2015).

         Torres-Montoya argues that the district court gave an unreasonable amount of weight to

the number of his five prior removals from the United States. According to Torres-Montoya, his

removals were already reflected in his criminal history score.        “That a circumstance was

addressed in the Guidelines, however, 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 also Tristan-Madrigal, 601 F.3d at 636 n.1. Here, the court

pointed out that Torres-Montoya’s history of repeatedly returning to the United States after

removal “demonstrate[d] a complete lack of respect for the courts and the law, and apparently,

without any fear of consequences,” resulting in “a revolving-door effect.” (RE 28, Page ID

# 61). The court concluded that “a substantial period of incarceration” was needed “as just

punishment to account for the gravity of [Torres-Montoya’s] criminal behavior, . . . to protect the


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No. 14-4009
United States v. Torres-Montoya

community from further crimes by [him] and deter not only [him] from coming back to this

country and to continue to engage in crime, but also as a general deterrence for others who would

consider similar behavior.” (Id. Page ID # 62). The court did not give an unreasonable amount

of weight to Torres-Montoya’s prior removals. See United States v. Flores-Midence, 558 F.

App’x 595, 598 (6th Cir. 2014) (“Considering [the defendant’s] pattern of returning to the United

States after removal, the district court reasonably gave significant weight to the need to deter him

from continuing to do so.”).

       Torres-Montoya also argues that the district court improperly commented on his personal

relationships and children born in and out of wedlock. The court made the allegedly improper

comments while describing Torres-Montoya’s background: “The defendant was once married,

and he is divorced. He had one child who is 17 from that marriage, but he has had a number of

relationships and has two other minor children from some of these relationships.” (RE 28, Page

ID # 60-61). The district court is required to consider “the history and characteristics of the

defendant” in imposing a sentence. 18 U.S.C. § 3553(a)(1). The case upon which Torres-

Montoya relies, United States v. Barahona-Montenegro, 565 F.3d 980 (6th Cir. 2009), is thus

distinguishable. In that case, the court vacated the defendant’s sentence in part because the

district court failed to explain adequately the chosen sentence—and “what little explanation the

district court did provide referenced irrelevant factors such as the fact that [the defendant] had

five children who had been born out of wedlock.” Id. at 985. In Torres-Montoya’s case, the

district court provided a thorough explanation for why a 14-month sentence was necessary,

referencing several relevant § 3553(a) factors.

       Torres-Montoya has not overcome the presumption that his within-guidelines sentence is

substantively reasonable. Accordingly, we AFFIRM Torres-Montoya’s sentence.


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