                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 13a0329n.06

                                      Nos. 12-1025, 12-1026
                                                                                         FILED
                          UNITED STATES COURT OF APPEALS                             Apr 03, 2013
                               FOR THE SIXTH CIRCUIT                           DEBORAH S. HUNT, Clerk


UNITED STATES OF AMERICA,                                )
                                                         )
       Plaintiff-Appellee,                               )         ON APPEAL FROM THE
                                                         )         UNITED STATES DISTRICT
               v.                                        )         COURT FOR THE WESTERN
                                                         )         DISTRICT OF MICHIGAN
VICTOR MARTINEZ-SANCHEZ,                                 )
                                                         )
       Defendant-Appellant.                              )
                                                         )



BEFORE: GILMAN, ROGERS, and SUTTON, Circuit Judges.

       ROGERS, Circuit Judge. Victor Martinez-Sanchez appeals his 70-month within-guidelines

sentence for returning to the United States after being convicted of a felony and deported. He argues

that his sentence is procedurally unreasonable because the district court failed to recognize it had

discretion to depart from the sentencing guidelines on policy grounds. He also argues that the

sentence is substantively unreasonable. Neither argument has merit.

       Victor Martinez-Sanchez has been deported from the United States several times, and has

returned each time. While in the United States, he has committed several crimes. In 2004, he pled

guilty to breaking and entering. PSR at 5. He was deported later that year. He returned to the

United States by 2007 (when he pled guilty to operating a vehicle with a suspended license and while

intoxicated) and spent 68 days in jail in 2010 after pleading guilty to participating in a home

invasion. PSR at 6. After being released, he was arrested for illegal reentry and was deported again
Nos. 12-1025, 12-1026
United States v. Martinez-Sanchez


in January of 2011. By August of 2011, he was back in the country again, and was arrested for

operating a vehicle under the influence of alcohol. He was still on supervised release when that

arrest was made.

       Following his latest arrest, Martinez-Sanchez pled guilty to illegal reentry after deportation

subsequent to a conviction for a felony offense and to supervised-release violations. The district

court determined that, under the sentencing guidelines, the offense level was 21 and Martinez-

Sanchez’s criminal history was Category IV. Accordingly, the guidelines range was 57 to 71 months

of imprisonment. Martinez-Sanchez did not object to the presentence report or to the calculation of

the guidelines range. He instead informed the district court that he illegally returned to the United

States so soon after being deported because his common law wife was pregnant and he was

concerned about her health and safety. He also asked the district court to vary downward from the

guidelines because he claimed that the guidelines provision that required a 16-level enhancement for

Martinez-Sanchez’s home-invasion conviction paints with too wide a brush in determining what

constitutes a crime of violence.

       The district court noted that it recognized that the guidelines are discretionary and only “one

of the array of factors warranting consideration.” R.25, PageID #78. The court acknowledged its

“discretion in determining an appropriate sentence as recognized by [the] United States Supreme

Court in its decisions in Booker, Kimbrough, Rita, Gall, Spears, and the recent Sixth Circuit case

of Herrera-Zuniga.” Id. The court then noted that Martinez-Sanchez ignored its warnings not to

return to the United States, and returned less than a year after being deported. This demonstrated


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Nos. 12-1025, 12-1026
United States v. Martinez-Sanchez


to the court that Martinez-Sanchez “has no respect for the immigration laws of our country.” Id. at

PageID #80. The court stated that it “appreciate[d] the fact that he has a youngster just born, that

he has a spouse who he cares about, but that’s no excuse for committing felonies, and that’s precisely

what this defendant has been doing.” Id. The court disbelieved Martinez-Sanchez’s claim that he

planned to return to Mexico with his family after taking care of his wife and children. The court

believed that Martinez-Sanchez “would have stayed here as long as he could until he was

apprehended again.” Id. at PageID #81. The court also determined that the 16-level increase for the

home invasion did not overstate the seriousness of that offense.

       The court determined that Martinez-Sanchez’s actions “require[] a sentence that is at the high

end of the guideline range in this particular case” to promote respect for the immigration laws, to

deter Martinez-Sanchez from committing other offenses, and to ensure just punishment. Id. at

PageID #80–81. Accordingly, it sentenced Martinez-Sanchez to 70 months’ imprisonment, near the

top of, but still within, the guidelines range. The court also sentenced Martinez-Sanchez to 11

months’ imprisonment, to be served consecutively to the 70-month sentence, for the supervisory-

release violation.

       Martinez-Sanchez now appeals. He argues that his sentence is procedurally unreasonable

because the district court did not recognize that it could depart from the guidelines for policy

reasons. He also contends that his sentence is substantively unreasonable because the 16-level

enhancement for the home-invasion conviction overstates the seriousness of that crime.




                                                -3-
Nos. 12-1025, 12-1026
United States v. Martinez-Sanchez


       The district court demonstrated that it was aware of its abilities and responsibilities in

sentencing. It explained fully its reasoning for imposing a 70-month sentence. That reasoning was

legally correct and resulted in an appropriate sentence.

       The sentence is procedurally reasonable because the district court identified its ability to

depart from the guidelines but explained that it did not find this to be an appropriate case to do so.

The district court stated that it “recognize[d] the guidelines are advisory,” that the court “must make

an individualized assessment based on the facts presented,” and that it had “discretion in determining

an appropriate sentence.” R.25, PageID #77–78. The district court specifically cited Spears v.

United States. Id. at PageID #78. In that case, the Supreme Court held that district courts have

authority to vary from the sentencing guidelines due to policy disagreements. Spears v. United

States, 555 U.S. 261, 264 (2009). The court also cited this court’s decision in United States v.

Herrera-Zuniga, 571 F.3d 568 (6th Cir. 2009), which held that the discretion to depart for policy

reasons is not limited to crack-cocaine sentencing. The district court was aware of its ability to

depart from the guidelines for policy reasons.

       Although it was aware of its ability to vary downward for policy reasons, the court chose not

to do so for several reasons. First, the court noted that it had advised Martinez-Sanchez, when

sentencing him on his previous immigration violation, that he faced significantly more prison time

if he chose to return to the United States. He disregarded the law and the court’s warnings by

returning immediately, thus demonstrating to the court that he “has no respect for the immigration

laws” and therefore a longer sentence was warranted for deterrence purposes. Id. at PageID #80.


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Nos. 12-1025, 12-1026
United States v. Martinez-Sanchez


Moreover, the court noted that Martinez-Sanchez lacked respect for criminal laws as well, that he

“does what he wants, when he wants to do it,” as evidenced by his prior felony conviction for a home

invasion. Id. Finally, the court stated that while it appreciated “the human aspects of this”—that

Martinez-Sanchez “has a youngster just born [and] a spouse who he cares about”— it did not believe

Martinez-Sanchez’s explanation that he was going to return to Mexico with his family as soon as he

could. Id. at PageID #80–81.

       The court did not abuse its discretion in rejecting Martinez-Sanchez’s argument that the 16-

level enhancement overstates the seriousness of Martinez-Sanchez’s home-invasion conviction.

According to the presentence report,

       Mr. Martinez-Sanchez accompanied his uncle and cousin to fight a man who had
       allegedly taken his uncle’s job. The uncle kicked in the door whereupon they entered
       the man’s house and a verbal altercation ensued. All the while the three were pushing
       and slapping the man. The defendant’s cousin then brought out a chain and began
       swinging it, hitting the man several times.

PSR at 6. The sentencing guidelines require a 16-level enhancement when a defendant was

previously deported for committing “a crime of violence.” U.S. Sentencing Guidelines Manual §

2L1.2(b)(1)(A)(ii) (2011). A crime of violence includes any offense “that has as an element the use,

attempted use, or threatened use of physical force against the person of another.” Id. at cmt.

1(B)(iii). Martinez-Sanchez did not challenge that his crime was a crime of violence under the

guidelines. R.25, PageID #75. He argues instead that the enhancement should not include the type

of crime Martinez-Sanchez committed. However, he participated in a crime that involved kicking

in a door and physically assaulting the victim. According to the presentence report, Martinez-


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Nos. 12-1025, 12-1026
United States v. Martinez-Sanchez


Sanchez participated in pushing and slapping the victim. This crime is of the type the enhancement

was designed to cover, and the 16-level enhancement does not overstate its seriousness.

       The district court determined that a 70-month within-guidelines sentence was appropriate

because of Martinez-Sanchez’s criminal history and demonstrated lack of respect for immigration

law. It did not abuse its discretion in doing so. See Gall v. United States, 552 U.S. 38, 51 (2007)

(explaining standard of review). Martinez-Sanchez’s sentence is substantively reasonable.

       Because we conclude that Martinez-Sanchez’s sentence was reasonable, we affirm the district

court’s judgment.




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