                        NOT RECOMMENDED FOR PUBLICATION
                                File Name: 13a0862n.06
                                                                                          FILED
                                           No. 12-2346                              Oct 03, 2013
                                                                               DEBORAH S. HUNT, Clerk
                           UNITED STATES COURT OF APPEALS
                                FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA,                           )
                                                    )
        Plaintiff-Appellee,                         )        ON APPEAL FROM THE UNITED
                                                    )        STATES DISTRICT COURT FOR
v.                                                  )        THE EASTERN DISTRICT OF
                                                    )        MICHIGAN
ARNALDO INFANTE-CABRERA,                            )
                                                    )
        Defendant-Appellant.                        )
                                                    )

BEFORE: MERRITT and CLAY, Circuit Judges; and STAFFORD, District Judge.*

        MERRITT, Circuit Judge. The sole issue in this appeal is whether the 18-month sentence

imposed for possessing contraband in prison, which is to be served consecutively to the 262-month

sentence defendant is currently serving, is substantively and procedurally reasonable. Defendant

contends that the district court failed to consider several of the factors under 18 U.S.C. § 3553(a),

primarily defendant’s severe mental illness. For the following reasons, we affirm the judgment of

the district court.

        Defendant Arnaldo Infante-Cabrera is currently serving a nearly 22-year sentence for his part

in a cocaine conspiracy. On April 13, 2010, defendant and another inmate were involved in a

physical altercation over a bed assignment. Defendant struck the other inmate with an improvised

weapon made out of a belt and two metal locks, leaving the victim with an injury that required 18

stitches to the head and other injuries. The prison staff did not witness the fight and there is

        *
         The Honorable William H. Stafford, Jr., United States District Judge for the Northern
District of Florida, sitting by designation.
United States v. Infante-Cabrera
No. 12-2346

disagreement among the inmates who were present about whether defendant was provoked.

Defendant was charged with Assault with a Dangerous Weapon with Intent to Do Bodily Harm in

violation of 18 U.S.C. § 113(a)(3) and Possession of Contraband in Prison in violation of 18 U.S.C.

§ 1791(a)(2). Defendant initially pled not guilty to both charges, but later changed his plea to guilty

on the contraband count. The assault charge was dropped. The contraband charge carries a five-year

statutory maximum that must be consecutive to the sentence already being served. See 18 U.S.C.

§ 1791(b)(3), (c). Defendant’s guideline range for the contraband charge was calculated to be 12-18

months. Citing the seriousness of the situation, the district court sentenced defendant to 18 months

to run consecutively to his current sentence.

        The defendant has a long history of mental illness, including a diagnosis of bipolar disorder

and six attempted suicides. He has been treated with medication while in prison                primarily

lithium, but also Prozac. Defendant maintains that the Prozac makes him irritable and angry and that

he was taking Prozac when the altercation at issue here occurred. A court-appointed psychologist

submitted three reports detailing defendant’s mental illness that were attached to defendant’s

sentencing memorandum. Based on these reports and defendant’s documented mental illness,

defendant’s attorney argued for leniency in his sentence.

        Defendant also argues that the victim threatened him and, along with other inmates,

intimidated him. He argues that the threatening environment, the provocation by the other inmate,

and the negative effect on him of the Prozac, are the reasons for his assault and that the district court

failed to take this all into consideration during sentencing. He also contends that the district court

failed to consider the harsh sanctions he received from the Bureau of Prisons as punishment for the

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United States v. Infante-Cabrera
No. 12-2346

altercation, such as loss of good-time credits, placement in a higher-security level prison and loss

of his job as an auto mechanic instructor.

       We review a sentence for reasonableness under an abuse of discretion standard. United

States v. Bolds, 511 F.3d 568, 578 (6th Cir. 2007). When reviewing a sentence 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 . . . or failing to

adequately explain the chosen sentence        including an explanation for any deviation from the

Guidelines range.” Gall v. United States, 552 U.S. 38, 51 (2007). A sentence is substantively

unreasonable “if the district court selects the sentence arbitrarily, bases the sentence on

impermissible factors, fails to consider pertinent [18 U.S.C.] § 3553(a) factors or gives an

unreasonable amount of weight to any pertinent factor.” United States v. Husein, 478 F.3d 318, 332

(6th Cir. 2007) (internal quotation marks omitted).

       Defendant was sentenced within, albeit at the top, of the guideline range. He argues that the

district court did not adequately consider his poor mental health when analyzing the Section 3553(a)

factors.1 However, the district court specifically said it had read the mental health reports prepared

by the court-appointed psychologist and attached to defendant’s sentencing memorandum. Tr. of

Sentencing Hr’g at 37. The presentence report, as well as the argument presented by counsel at the

sentencing hearing, well documented defendant’s long-standing and serious mental health issues.



       1
        The government contends that this objection was not properly preserved at the sentencing
hearing and we should review only for plain error. Whether we review for preserved or plain error,
the outcome is the same.

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United States v. Infante-Cabrera
No. 12-2346

At the end of the hearing, the court also recommended that defendant receive mental health treatment

in prison. Id. at 42. The record demonstrates that the district court was well aware of defendant’s

mental health problems when it issued the 18-month sentence. It was not necessary for the district

court to expressly state that it was rejecting defendant’s leniency argument based on his history of

mental illness. The sentencing hearing was long, detailed and thorough and the district court stated

clearly that he believed that defendant’s action in inflicting severe injury on a fellow inmate was a

very serious matter. Counsel for defendant explained defendant’s mental illness in great detail,

relying on the records in the case, including the reports of the mental health expert. Under these

circumstances, “the district court’s statement, especially viewed in context, shows that it considered

[defendant’s] personal characteristics in conjunction with the circumstances of the offense and his

criminal history.” United States v. Jeter, 721 F.3d 746, 756 (6th Cir. 2013). Refusing to excuse

defendant’s conduct based on his mental illness does not make the sentence procedurally or

substantively unreasonable.

       Because we find the sentence imposed both procedurally and substantively reasonable, we

affirm the judgment of the district court.




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