                         NOT RECOMMENDED FOR PUBLICATION
                                 File Name: 15a0170n.06


                            UNITED STATES COURT OF APPEALS
                                 FOR THE SIXTH CIRCUIT

                                                No. 13-6414                                  FILED
                                                                                     Mar 05, 2015
                                                                                 DEBORAH S. HUNT, Clerk
UNITED STATES OF AMERICA,                             )
                                                      )
       Plaintiff-Appellee,                            )
                                                      )
v.                                                    )     ON APPEAL FROM THE UNITED
                                                      )     STATES DISTRICT COURT FOR THE
RODRIGO MACIAS-FARIAS,                                )     WESTERN DISTRICT OF KENTUCKY
                                                      )
      Defendant-Appellant.                            )
______________________________________



Before: GRIFFIN and STRANCH, Circuit Judges; and STEEH, Senior District Judge.*

       GEORGE CARAM STEEH, Senior District Judge.

       Defendant’s first appeal to this court resulted in a remand for resentencing before the district

court. At resentencing, defendant Rodrigo Macias-Farias argued that his new sentence should be

lowered based on his efforts at rehabilitation while incarcerated. The district court resentenced

Macias-Farias to 295 months of prison, a reduction of over two-years from his original sentence.

On appeal, Macias-Farias argues that the district court failed to consider or explain its reasons for

allegedly rejecting his argument for leniency. Because the record reflects that the district court did

consider defendant’s leniency argument in reducing his sentence, we AFFIRM.




             *
                The Honorable George Caram Steeh, Senior United States District Judge for the Eastern
     District of Michigan, sitting by designation.
No. 13-6414
United States v. Macias-Farias


                                        I. BACKGROUND

        Macias-Farias was convicted by a jury of conspiring to possess more than 1,000 kilograms

of marijuana with intent to distribute and aiding and abetting that possession. The district court first

sentenced Macias-Farias to 320 months imprisonment. In doing so, the district court enhanced his

sentence two levels for obstruction of justice finding that he perjured himself when he testified at

trial. Macias-Farias appealed. We affirmed his conviction but remanded the case for resentencing

because the district court’s findings were insufficient to support an obstruction of justice

enhancement. United States v. Macias-Farias, 706 F.3d 775, 783 (6th Cir. 2013).

        Upon resentencing, the district court made specific findings that Macias-Farias had perjured

himself when he testified at trial and concluded that his offense level of 38, criminal history category

II, and guideline range of 262 to 327 months remained the same as determined at the original

sentencing. (R. 419 at 11). The government filed a resentencing memorandum that addressed the

sole issue of whether defendant had perjured himself at trial. (R. 404). In his response to the

government’s resentencing memorandum, Macias-Farias argued that the court should lower his

sentence based on his rehabilitation while incarcerated, stating that he had completed 12 hours of

anxiety and phobia management, stress management, and anger management respectively. (R. 407 at

5). Macias-Farias also argued that he was furthering his education, had obtained no disciplinary

reports, had exhibited good behavior, good living skills, and improved family/communication skills.

Id. At resentencing, the government argued that the court should impose the original sentence of

320 months, and opposed any reduction on the grounds that defendant committed his drug-


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United States v. Macias-Farias


trafficking offenses while on supervised release; thus suggesting he had not been rehabilitated.

R.. 419 at 12).

       Also, the district court specifically informed the parties that it had reviewed their

resentencing memoranda and adjourned the hearing for several hours so that the court could look at

the briefs more closely. Id. at 5. Macias-Farias, through counsel, informed the court that he sought

a reduced sentence based on his alleged rehabilitation and the court informed counsel that it

understood that to be his argument. Id. The government argued that the court should reject Macias-

Farias’s argument that he had made “post-rehabilitative efforts, anger management, and whatever

else was pointed out [as those efforts] do[] not overcome the previous factors that were considered

by this Court and the previous arguments made by the United States.” Id. at 12. In response, defense

counsel argued at some length that Macias-Farias’s sentence should be reduced to 240 months on

the grounds that he had reformed while in prison:

       When you look at Mr. Macias-Farias, in the very short period of time relative to the
       guideline range, he has done a lot of things in order to improve his life, improve his
       demeanor, change his ways, and he continues on with his development of living
       skills, family and communication skills, and work skills. This is all things that are
       – when 3553 was written, these are all things that were taken into consideration in
       mitigation, not aggravation.

       Forward-looking is what happens to somebody from the moment that he is caught or
       from the moment that he is starting to rehabilitate himself. Mr. [Macias-]Farias spent
       a relatively short period of time compared to the time that Your Honor gave him
       originally and has already shown changes in his behavior. His level and custody
       suggest a decrease in recidivism. He has no disciplinary reports. He has worked very
       hard to conduct himself and to improve himself in jail. I believe that behavior like
       that should be warranted with a show of good rather than with a stick or further
       punishment. . . . The progress that he has made until today only in a couple years
       shows and indicates his future conduct.

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No. 13-6414
United States v. Macias-Farias


Id. at 13-14. Immediately after defense counsel argued for leniency, the district court stated on the

record:

          All right. I’ve considered all these factors, the advisory guidelines, and 18 U.S.C.
          Section 3553(a). This is a serious charge. On reflection, I don’t think that the overall
          circumstances deserve a sentence at the high end of the guidelines, which is what
          happened the first time around. I think that, considering all the circumstances, the
          appropriate sentence would be at the mid range of the guideline range, which is still
          a very significant sentence.

Id. at 14. The district court imposed a sentence of 295 months, which was more than two years less

than the original sentence. Id. at 15. In doing so, the court further explained that “[t]he sentence is

within the advisory guideline range, and otherwise for the reasons stated, the Court believes it is

sufficient, not less so or more so than is necessary, to provide reasonable punishment and security.”

Id. at 15-16.

                                             II. ANALYSIS

                               A. Procedural Reasonableness Review

          “[C]ourts of appeals must review all sentences . . . under a deferential abuse-of-discretion

standard.” Gall v. United States, 552 U.S. 38, 41 (2007). A sentence within the advisory Guidelines

range is entitled to “a rebuttable presumption of reasonableness.” United States v. Richardson, 437

F.3d 550, 553 (6th Cir. 2006) (internal quotation marks and citation omitted). At sentencing, Macias-

Farias did not object to the sentence imposed or to the district court’s alleged failure to consider his

leniency argument. The district court inquired as to whether the parties had any objections to the

sentence pronounced as required by United States v. Bostic, 371 F.3d 865, 872 (6th Cir. 2004), and

Macias-Farias having failed to so object, his appeal is subject to plain error review. United States

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No. 13-6414
United States v. Macias-Farias


v. Wallace, 597 F.3d 794, 802 (6th Cir. 2010) (citing United States v. Vonner, 516 F.3d 382, 385-86

(6th Cir. 2008) (en banc)). “To show plain error, a defendant must show (1) error (2) that was

obvious or clear, (3) that affected defendant’s substantial rights and (4) that affected the fairness,

integrity, or public reputation of the judicial proceedings.” Id. (citing Vonner, 516 F.3d at 386). No

such error has been committed here.

       B. The District Court Considered Defendant’s Post-Sentencing Rehabilitation

        When a defendant’s sentence has been set aside on appeal, upon remand, the district court

may consider evidence of defendant’s rehabilitation since his prior sentencing in determining a new

sentence. Pepper v. United States, 562 U.S. 476, __, 131 S. Ct. 1229, 1241 (2011). Macias-Farias

argues that the district court failed to consider his argument for leniency upon resentencing based

on his alleged rehabilitation while in prison. The sentencing judge must set forth his or her reasons

for a particular sentence and “[r]eversible procedural error occurs if the sentencing judge fails to ‘set

forth enough [of a statement of reasons] to satisfy the appellate court that he has considered the

parties’ arguments and has a reasoned basis for exercising his own legal decision making authority.’”

United States v. Bolds, 511 F.3d 568, 580 (6th Cir. 2007) (quoting Rita v. United States, 551 U.S.

338, 356 (2007)). The length and specificity of the district court’s articulation of the rationale for

the sentence imposed will vary: “[s]ometimes the circumstances will call for a brief explanation;

sometimes they will call for a lengthier explanation.” Rita, 551 U.S. at 357. The law is well settled

that “[w]here a defendant raises a particular argument in seeking a lower sentence, the record must

reflect both that the district judge considered the defendant’s argument and that the judge explained


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United States v. Macias-Farias


the basis for rejecting it.” Richardson, 437 F.3d at 554. Reading the resentencing transcript as a

whole, it is clear that the district court both considered Macias-Farias’s leniency argument and

lowered his sentence.

       Immediately after defense counsel argued at some length about Macias-Farias’s improved

behavior while in prison, the district court stated that “I’ve considered all these factors,” which was

a clear reference to defense counsel’s arguments. (R. 419 at 14). The district court also indicated

that it had read defendant’s resentencing memoranda and understood defense counsel’s argument

in favor of a reduced sentence based on Macias-Farias’s conduct while in prison. Id. at 5. The

district court did not reject Macias-Farias’s arguments for a lower sentence, but in fact lowered his

sentence significantly. Once the district court made specific findings that defendant perjured himself

at trial, thus warranting the sentencing enhancement, and ruled that the same Guidelines range

applied, the only other issue before the court which was raised by the parties, either in their

resentencing memoranda or at oral argument, was whether defendant’s sentence should be reduced

for his alleged good conduct and rehabilitative efforts while incarcerated. Thus, the only basis for

the district court’s imposition of a lower sentence upon remand was defendant’s changed

circumstances post-sentencing. In sum, Macias-Farias has failed to show that the district court made

an obvious or clear error at resentencing that affected his substantive rights, or that affected the

fairness, integrity, or public reputation of the judicial proceedings. Wallace, 597 F.3d at 802.

                                        III. CONCLUSION

       The sentence imposed by the district court is AFFIRMED.


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