                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 11a0475n.06

                                           No. 10-3020
                                                                                             FILED
                           UNITED STATES COURT OF APPEALS
                                                                                         Jul 12, 2011
                                FOR THE SIXTH CIRCUIT
                                                                                  LEONARD GREEN, Clerk

UNITED STATES OF AMERICA,                            )
                                                     )
            Plaintiff–Appellee,                      )
                                                     )
                                                     ) ON APPEAL FROM THE UNITED
                      v.                             ) STATES DISTRICT COURT FOR THE
                                                     ) SOUTHERN DISTRICT OF OHIO
WILFREDO LOPEZ-GALVEZ,                               )
                                                     )
           Defendant–Appellant.                      )
                                                     )


Before: COLE, GIBBONS, Circuit Judges; and CLELAND, District Judge.*

       JULIA SMITH GIBBONS, Circuit Judge. Defendant–appellant Wilfredo Lopez-Galvez

appeals the district court’s imposition of an above-Guidelines sentence of 24 months’ imprisonment,

the statutory maximum, for illegal reentry of a removed alien under 8 U.S.C. § 1326(a). For the

following reasons, we affirm the sentence as both procedurally and substantively reasonable.

                                                I.

       Wilfredo Lopez-Galvez was born in Chiapas, Mexico. He first came to the United States in

2000. Soon thereafter he was found in Kansas and ordered removed by an immigration judge in July

2000. Lopez-Galvez almost immediately returned to the United States but was deported through



       *
         The Honorable Robert H. Cleland, United States District Court Judge for the Eastern
District of Michigan, sitting by designation.

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United States v. Lopez-Galvez
No. 10-3020

New Mexico in August 2000. Lopez-Galvez subsequently returned to the United States and

eventually made his way to Ohio. In October 2003, Lopez-Galvez was convicted of driving under

the influence, driving with no operator’s license, and resisting arrest. In November 2003, he was

convicted of driving under the influence. In November 2004, Lopez-Galvez was convicted of

driving with no operator’s license, hit-and-run, and failure to maintain assured clear distance ahead.

In November 2005, Lopez-Galvez was convicted of operating a motor vehicle while under the

influence, driving with no operator’s license, and not driving within the marked lane. While in Ohio,

Lopez-Galvez married and had a son.

       In February 2006, Lopez-Galvez was again removed from the United States. Approximately

three years following this deportation, Lopez-Galvez returned to the United States. On September

8, 2009, Lopez-Galvez again encountered agents of the Bureau of Immigration and Customs

Enforcement (“ICE”) and officers with the St. Clairsville Police Department while he was in jail on

multiple traffic charges. On October 15, 2009, a single count information was filed against Lopez-

Galvez, charging him with unlawfully being in the United States after having been deported, in

violation of 8 U.S.C. § 1326. On October 30, 2009, Lopez-Galvez pled guilty to this count pursuant

to a plea agreement.

       Because Lopez-Galvez pled under 8 U.S.C. § 1326, the presentence report (“PSR”) prepared

by a probation officer recommended using a base offense level of 8 pursuant to United States

Sentencing Guidelines (“U.S.S.G.”) § 2L1.2(a). Due to Lopez-Galvez’s recognition and affirmative

acceptance of responsibility, the PSR recommended a 2-level reduction pursuant to U.S.S.G. §

3E1.1(a). The PSR arrived at a base level of 6 and a criminal history category of III, resulting in a

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United States v. Lopez-Galvez
No. 10-3020

Guidelines range of 2 to 8 months.1 The PSR also recognized that the maximum statutory term of

imprisonment was 2 years. Ultimately the PSR recommended a term of imprisonment of 8 months

followed by a 1-year term of supervised release. In sentencing memoranda, both Lopez-Galvez and

the government agreed that a sentence of 8 months was appropriate.

        During the sentencing hearing, the attorneys from both sides reiterated that they and the PSR

all recommended a sentence of 8 months’ imprisonment. After explicitly considering the nature and

circumstances of the offense, the history and characteristics of the defendant, and his criminal record,

the district court varied upward from the Guidelines range and sentenced Lopez-Galvez to the

statutory maximum, 24 months’ imprisonment. Regarding the nature and circumstances of the

offense, the court noted that Lopez-Galvez had already been deported three times. The district court

stated that Lopez-Galvez’s previous deportations were a reflection upon his personal history and

characteristics because “[Lopez-Galvez], obviously, has demonstrated a lack of respect for the laws

of the United States regarding immigration.” The district court asserted that this disrespect

necessitated adequate deterrence. Furthermore, the district court discussed Lopez-Galvez’s criminal

record, “which [gave] the court great concern,” largely because Lopez-Galvez’s convictions for

driving under the influence demonstrate a problem with alcohol, “which he has minimized . . . [and]

failed to acknowledge.” The district court observed that these violations indicate “that [Lopez-

Galvez] represents a substantial risk to the safety of the citizens of Ohio.”




        1
        The criminal history category calculation included one illegal entry conviction and all of
the above-mentioned convictions for driving offenses.

                                                  -3-
United States v. Lopez-Galvez
No. 10-3020

       For those reasons, the district court “believe[d] that a sentence in this case should be

sufficiently severe to deter him from the temptation of returning to the United States . . . [and] that

a sentence more severe than the one suggested by the federal sentencing guidelines is necessary to

accomplish that goal in this case.” The final sentence was 24 months’ imprisonment, followed by

1 year of supervised release in which Lopez-Galvez would surrender to immigration officials for

deportation proceedings and participate in a program of testing and treatment for alcohol and

controlled-substance abuse.

       Lopez-Galvez now challenges this sentence, arguing that it is both procedurally and

substantively unreasonable.

                                                  II.

       We review the district court’s sentencing determination for reasonableness under a

deferential abuse of discretion standard. United States v. Bolds, 511 F.3d 568, 578 (6th Cir. 2007)

(citing Gall v. United States, 552 U.S. 38, 46 (2007)).2 Our review has two components: procedural

and substantive. Id. The district court’s “task [was] to impose a sentence that is ‘sufficient, but not




       2
         Although Lopez-Galvez raised no procedural challenge during the sentencing
proceedings, the district court failed to make the appropriate Bostic inquiry at the end of the
sentencing proceedings, precluding plain error review. See United States v. Cole, 343 F. App’x
109, 111 (6th Cir. 2009) (deciding to review a procedural challenge to a sentence under an abuse
of discretion standard because, although no objection was raised, the sentencing judge neglected
to “‘ask the parties whether they have any objections to the sentence . . . that have not previously
been raised’” (quoting United States v. Bostic, 371 F.3d 865, 872 (6th Cir. 2004))). In this case,
the district court merely asked whether either party saw “any legal impediments to the sentence”
or if there was “anything further on this case,” to which both parties replied “no.” Thus, we will
not conduct plain error review.

                                                  -4-
United States v. Lopez-Galvez
No. 10-3020

greater than necessary, to comply with the purposes’ of sentencing set forth in 18 U.S.C. § 3553(a).”

Id. We assess whether the district court’s accomplishment of this task was reasonable.

                                                  III.

        Lopez-Galvez challenges his sentence as both procedurally and substantively unreasonable.

He argues that his sentence is procedurally unreasonable because the district court did not consider

and explain the rejection of his arguments in mitigation of his sentence. Lopez-Galvez argues that

his sentence is substantively unreasonable because the 24-month sentence constitutes an unwarranted

sentencing disparity; the district court ignored the full nature and circumstances of the offense; and

the district court placed too much emphasis on Lopez-Galvez’s prior criminal history.

                                                   A.

        In reviewing the procedural reasonableness of a sentence, we must “‘ensure that the district

court committed no significant procedural error, such as failing to calculate (or improperly

calculating) the Guidelines range, treating the Guidelines as mandatory, failing to consider the §

3553(a) factors, selecting a sentence based clearly erroneous facts, or failing to adequately explain

the chosen sentence.’” United States v. Martinez, 588 F.3d 301, 324 (6th Cir. 2009) (quoting Gall,

552 U.S. at 51). In Bolds, our court framed this as a three-step analysis: (1) whether the district court

“correctly calculated the applicable Guidelines range”; (2) whether the district court “gave both

parties the opportunity to argue for whatever sentence they deem appropriate” and then whether the

district court “considered all of the § 3553(a) factors to determine whether they support the sentence

requested by each party”; and (3) whether the “district court has adequately explained the chosen



                                                  -5-
United States v. Lopez-Galvez
No. 10-3020

sentence to allow for meaningful appellate review and to promote the perception of fair sentencing.”

511 F.3d at 579–80 (internal quotation marks and editorial marks omitted).

        Lopez-Galvez makes no attempt to argue that the district court erred in its Guidelines

calculation or interpretation, but rather he argues that the district court erred in failing to consider

a few specific arguments intended to mitigate potentially harsh sentences. Lopez-Galvez states that

his mitigating arguments were: (1) “because [he] remained in Mexico for 3 years after his last

deportation, . . . this indicated a willingness and ability to stay outside the country”; and (2) “the only

basis for reentering the country was not for an illegal purpose, but to visit his 5 year old son.” These

arguments appeared in his sentencing memorandum, and the first was presented by his attorney at

the sentencing hearing. The sentencing memorandum stated, “After being deported in 2006, [Lopez-

Galvez] stayed away for three years. He lived in Mexico and readjusted to that culture. Although

he ultimately did return to the United States, he did so only to see his son[.]” During the sentencing

hearing, Lopez-Galvez’s attorney stated that he found it “significant that [Lopez-Galvez] did stay

in Mexico for approximately three years following his deportation in 2006.” Lopez-Galvez’s

attorney made no mention of returning for his son.

        At the sentencing hearing, the district court recognized its receipt of the sentencing

memoranda and “[gave] the attorneys the opportunity to make statements regarding the appropriate

sentence.” The district court also stated that it had considered the letter that indicated that Lopez-

Galvez remained in Mexico for three years following his most recent deportation. Before

pronouncing the sentence, the district court stated that “the Court is called upon to consider a number

of factors in arriving at an appropriate sentence,” and that it would “comment on the ones that [it

                                                   -6-
United States v. Lopez-Galvez
No. 10-3020

thought were] most significant in this case.” The district court went on to discuss the reasons that

supported a sentence of 24 months’ imprisonment, based in the nature and circumstances of the

offense, Lopez-Galvez’s history and characteristics, and Lopez-Galvez’s criminal record.

        We have previously noted that “the district court is not required to give the reasons for

rejecting any and all arguments made by the parties . . . [and] it is sufficient if the district judge sets

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.” United States v. Petrus, 588

F.3d 347, 355 (6th Cir. 2009) (quoting United States v. Lapsins, 570 F.3d 758, 773 (6th Cir. 2009))

(internal quotation marks and editorial marks omitted). Furthermore, in a case in which the district

court sentenced the defendant to a within-Guidelines range, we did not require the district court to

specifically respond to the appellant’s “arguments about [] remorse, family support, substance abuse

problems, and willingness to undergo counseling,” because these matters are “encompassed within

§ 3553(a)(1), which requires a sentencing court to consider ‘the history and characteristics of the

defendant.’” Lapsins, 570 F.3d at 774. In Lapsins, the court found it sufficient for the district court

to “account[] for the ‘nature and circumstances of the offense and the history and the characteristics

of [the defendant].” Id.

        Although the district court in Lapsins was “generous to Lapsins in several respects,” id. at

771, and while the district court here did not evaluate Lopez-Galvez favorably, the analysis in

Lapsins is persuasive. Lopez-Galvez argues that the district court should have specifically

considered his mitigating arguments that he remained in Mexico for three years and only returned

to visit his son. The district court was clear that it had considered the sentencing memorandum and

                                                   -7-
United States v. Lopez-Galvez
No. 10-3020

the letter that indicated that Lopez-Galvez had remained out of the country for that time; it was also

careful to permit Lopez-Galvez and his counsel to present these arguments in court. The district

court committed no procedural error by not specifically discussing the effect of two facts on the

sentence imposed. Indeed, the district court adequately considered the § 3553(a) factors and

discussed those it felt justified the statutory maximum, specifically the circumstances of the offense

(his fourth deportation), Lopez-Galvez’s history and characteristics (including a “lack of respect for

the laws of the United States regarding immigration”), and his criminal record (including several

convictions for driving while intoxicated). Based on its evaluation, the district court clearly

considered Lopez-Galvez’s time in and out of the United States but nonetheless felt other

circumstances justified the high sentence. For these reasons, we conclude that Lopez-Galvez’s

sentence was procedurally reasonable.

                                                 B.

       Within-Guidelines sentences are afforded a rebuttable presumption of reasonableness, but

outside-Guidelines ranges may not be viewed as presumptively unreasonable. Bolds, 511 F.3d at

581. “In reviewing the reasonableness of a sentence outside the Guidelines range, appellate courts

may therefore take the degree of variance into account and consider the extent of a deviation from

the Guidelines.” Gall, 552 U.S. at 47. This does not mean that variance “requires ‘extraordinary’

circumstances to justify a sentence outside the Guidelines range.” Id.

       “The district court ‘must consider all of the relevant § 3553(a) factors and impose a sentence

that is sufficient but not greater than necessary to comply with the purposes of § 3553(a)(2).’”

United States v. Webb, 616 F.3d 605, 610 (6th Cir. 2010) (quoting United States v. Conatser, 514

                                                 -8-
United States v. Lopez-Galvez
No. 10-3020

F.3d 508, 520 (6th Cir. 2008)). “‘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.’” Id. (quoting Conatser, 514 F.3d at 520).

        Lopez-Galvez argues that his sentence was substantively unreasonable in three ways: (1) the

24-month sentence constitutes an unwarranted sentencing disparity; (2) the district court ignored the

nature and circumstances of the offense; and (3) the district court should not have increased Lopez-

Galvez’s sentence due to the “substantial risk” he represents because his criminal history calculation

already accounted for this risk.

        First, Lopez-Galvez argues that his sentence is substantively unreasonable because the 24-

month sentence “creates a situation where he is not treated like other similarly situated defendants.”

In order for a sentence to be substantively reasonable, the district court must consider the relevant

§ 3553(a) factors, including “the need to avoid unwarranted sentence disparities among defendants

with similar records who have been found guilty of similar conduct.” 18 U.S.C. § 3553(a)(6). We

are “‘concerned with national disparities among the many defendants with similar criminal

backgrounds convicted of similar criminal conduct.’” United States v. Benson, 591 F.3d 491, 505

(6th Cir. 2010) (quoting United States v. Simmons, 501 F.3d 620, 623 (6th Cir. 2007)).

        In this case, Lopez-Galvez was sentenced to 24 months’ imprisonment, the statutory

maximum for the offense of illegal reentry under 8 U.S.C. § 1326. His Guidelines range was 2–8

months’ imprisonment, calculated from a base level of 6 and a criminal history level of III. Lopez-

Galvez has entered the United States illegally four times and, after serving his sentence, will be

                                                  -9-
United States v. Lopez-Galvez
No. 10-3020

deported for the fourth time. He has three convictions for driving/operating a motor vehicle while

under the influence and three convictions for driving without a license. Despite this criminal history,

Lopez-Galvez submits that his 24-month sentence creates an unwarranted sentencing disparity

among similarly situated defendants. Lopez-Galvez relies almost exclusively on cases “in which this

court upheld within-Guidelines sentences, which is not enlightening” because within-Guidelines

sentences are afforded a presumption of reasonableness and “that the court upheld within-Guidelines

sentences does not speak to the question of whether it would have reversed above-Guidelines

sentences on the very same facts.” See United States v. Ruiz, 403 F. App’x 48, 54 (6th Cir. 2010).

       This circuit has upheld above-Guidelines sentences for similarly situated defendants to

Lopez-Galvez. The court in Ruiz noted:

       In United States v. Caserez, where the defendant had been previously deported three
       times and the Guidelines did not reflect those illegal entries, this court upheld a
       sentence of 42 months, far above the Guidelines range of 15 to 21 months. 225 F.3d
       660 (table), 2000 WL 1033024, at *1–2 (6th Cir. July 18, 2000). And in [United
       States v.] Tristan-Madrigal [601 F.3d 629 (6th Cir. 2010)], where the defendant had
       three prior illegal reentries, this court upheld a 36-month sentence, again much
       further above the Guidelines range of 15 to 21 months . . . .

Ruiz, 403 F. App’x at 54. In Ruiz, we affirmed an above-Guidelines sentence of 18 months for an

8 U.S.C. § 1326 violation where the alien had illegally entered the country seventeen times. In this

case, Lopez-Galvez received a 24-month above-Guidelines sentence after four illegal reentries and

several criminal convictions including driving under the influence.

       Lopez-Galvez’s sentence does not differ in any material way from other sentences affirmed

by our court. And, in any event, Lopez-Galvez points to nothing from which we could conclude that



                                                 -10-
United States v. Lopez-Galvez
No. 10-3020

his sentence represents an unwarranted sentence disparity. We reject this argument that his sentence

is substantively unreasonable.

        Second, Lopez-Galvez argues that his sentence was substantively unreasonable because the

district court “wholly ignored the nature and circumstances of the offense of conviction in imposing

a sentence.” Lopez-Galvez points to the same mitigating evidence discussed above—that he

remained in Mexico for three years after his last deportation and that he only returned to see his son.

But the district court did not fail to discuss the nature and circumstances of the offense. Indeed, it

specifically mentioned the “nature and circumstances of the offense” when arriving at the sentence.

The district court emphasized that the offense of “illegal reentry into the United States” was a serious

offense “accentuated by the fact that [it was] the fourth illegal reentry.” Given that the district court

had no specific responsibility to consider these facts and that it explicitly discussed the nature and

circumstances of the offense, we find that the district court adequately considered the nature and

circumstances of the offense.

        Third, Lopez-Galvez argues that his sentence was substantively unreasonable because the

district court placed too much emphasis on its finding that Lopez-Galvez represented a “substantial

risk to the citizens of Ohio,” when this risk had already been accounted for in the calculation of his

criminal history score. This argument is misplaced because Lopez-Galvez’s criminal history score

did not account for his entire criminal history, and, moreover, the district court is permitted to vary

from the Guidelines range based on a defendant’s criminal history. In assessing the sentence, the

district court discussed Lopez-Galvez’s criminal record. The court stated:



                                                  -11-
United States v. Lopez-Galvez
No. 10-3020

       Mr. Lopez-Galvez has a record of drunk and driving offenses in the United States,
       which gives the court great concern. He comes here without a driver’s license,
       without insurance, and he, obviously, has a problem with alcohol, which he has
       minimized, and really, failed to acknowledge that it is a problem. . . . [After reciting
       his offenses] I think . . . that he represents a substantial risk to the safety of the
       citizens of Ohio.

       Although cited by neither party, this case is closely analogous to United States v. Tristan-

Madrigal, 601 F.3d 629 (6th Cir. 2010). Tristan-Madrigal was removed three times prior to his

arrest upon his fourth illegal reentry. Id. at 631. He had been convicted of drunk driving and drug

use. Id. The PSR “assigned Tristan-Madrigal a total offense level of ten and a criminal-history

category of IV, which resulted in a recommended range of 15 to 21 months’ imprisonment.” Id.

“The criminal-history category reflected Tristan-Madrigal’s convictions for drunk driving and drug

use in 2001, his convictions for drunk driving in 2003, 2005, and 2008; and his unlawful reentry in

2008.” Id. “[T]he district court analyzed the nature and circumstances of Tristan-Madrigal’s

offense, noting that he had committed the actions underlying the § 1326 violation numerous times

and that his actions were ‘quite problematic’ given the potential danger to the public that drunk

driving imposed.” Id. at 631–32. Ultimately, “[t]he district court concluded that the ‘two factors’

of deterrence and public protection counseled toward an above-Guidelines sentence of [36] months’

imprisonment.” Id. at 632.

       Two issues considered on appeal were whether the district court overemphasized Tristan-

Madrigal’s past criminal behavior and whether sufficient evidence supported the magnitude of the

upward variance imposed. On the first issue, the court noted, “There is no dispute that the act of

drunk-driving is . . . dangerous and that every time Tristan-Madrigal drove while under the influence


                                                -12-
United States v. Lopez-Galvez
No. 10-3020

of alcohol he was putting himself and others at risk. The district court’s consideration of Tristan-

Madrigal’s criminal history and the weight that the court afforded that history was reasonable.” Id.

at 634. Of Tristan-Madrigal’s four illegal reentries, the court noted that only one had been charged

and included in his criminal history calculation. Furthermore, the court found that “the district court

viewed Tristan-Madrigal’s repeated removal-and-reentry cycles as extremely relevant to determining

what length of sentence was sufficient to prevent recidivism; to protect the public from the drunk-

driving incidents, which he committed upon reentry; and to promote respect for the law.” Id. at

634–35. The court held that, given Tristan-Madrigal’s criminal record, an upward variance from the

Guidelines range was substantively reasonable.

       As in Tristan-Madrigal, the district court was concerned with Lopez-Galvez’s prior

convictions for driving under the influence and illegal reentry. And like Tristan-Madrigal, Lopez-

Galvez’s criminal history category included only one of his convictions for illegal reentry and all of

his prior driving-offense convictions. The district court in both cases felt that the Guidelines range

was insufficient to provide the amount of deterrence and protection needed, and varied upward—in

Tristan-Madrigal from a 15- to 21-month range to a 36-month sentence, and in this case from a 2-

to 8-month range to a 24-month sentence. The district court in the present case was careful to

discuss what it found to be the relevant § 3553(a) factors and offered sufficient justification for our

court to find that he did not “select[] a sentence arbitrarily, base[] the sentence on impermissible

factors, fail[] to consider relevant sentencing factors, or give[] an unreasonable amount of weight

to any pertinent factor.” See Conatser, 514 F.3d at 520.



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United States v. Lopez-Galvez
No. 10-3020

       The district court offered sufficient justification for the imposition of Lopez-Galvez’s above-

Guidelines sentence. Indeed, we agree that Lopez-Galvez represents a “substantial risk” to the

people of Ohio. Previous deportations and short prison sentences have failed to adequately deter him

from returning to the United States and, additionally, have failed to deter him from driving while

under the influence. Driving while intoxicated presents a fundamental threat, perhaps more

dangerous than the threat presented by other crimes of violence. Every time Lopez-Galvez drove

drunk, he no doubt risked his own life as well as countless others. The district court was not

required to take such offenses lightly and give Lopez-Galvez a lesser sentence. For these reasons,

we find that the district court adequately considered Lopez-Galvez’s criminal history and came to

a reasonable conclusion.

                                                IV.

       For the foregoing reasons, we affirm the 24-month sentence imposed by the district court as

it is both procedurally and substantively reasonable.




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United States of America v. Wilfredo Lopez-Galvez
No. 10-3020

       COLE, Circuit Judge, dissenting. The majority claims that Lopez-Galvez’s sentence is

reasonable. I cannot agree. Because Lopez-Galvez’s sentence was “greater than necessary” to

satisfy the purposes of 18 U.S.C. § 3553(a), I would vacate his sentence and remand for

resentencing.

       Lopez-Galvez pled guilty to unlawful reentry to the United States after removal, in violation

of 8 U.S.C. § 1326(a). His Guidelines range was two to eight months’ imprisonment. He, the

government, and the U.S. Probation and Pretrial Services Office (as indicated by the Presentence

Investigation Report) all agreed that an eight-month sentence was proper. The district court

sentenced Lopez-Galvez to twenty-four months’ imprisonment, the statutory maximum for this

offense given Lopez-Galvez’s background and triple the sentence that all parties involved believed

to be appropriate. That sentence was also twelve times greater than the bottom of Lopez-Galvez’s

Guidelines range. This immense variance was not warranted here.

       We have reviewed the reasonableness of a sentence imposed under this statutory provision

four times. In United States v. Ruiz, we affirmed a sentence of eighteen months under § 1326(a) for

a defendant who had a Guidelines range of six to twelve months and “a minimum of 17 illegal

entries.” 403 F. App’x 48, 53 n.1 (6th Cir. 2010). In United States v. Lopez, we affirmed a sentence

of twelve months and one day for a defendant who had “five prior deportations . . . in the eighteen

months prior to the Indictment.” 401 F. App’x 49, 52 (6th Cir. 2010). In United States v. Gallagher,

we affirmed a defendant’s mid-Guidelines sentence of eight months and eight days for a defendant

who “re-entered the United States without permission within three weeks of his having been

deported.” 83 F. App’x 742, 743 (6th Cir. 2003). In United States v. Johnson, meanwhile, we

                                               -15-
United States of America v. Wilfredo Lopez-Galvez
No. 10-3020

affirmed imposition of a statutory-maximum, twenty-four-month sentence. No. 99-3352, 2000 WL

799248 (6th Cir. June 16, 2000) (unpublished disposition). But that case involved a defendant

whose Guidelines range was forty-six to fifty-seven months’ imprisonment. Id., at *1. And that

defendant had prior convictions for “drug-related crimes, resisting arrest, and assaulting a police

officer.” Id.

        These cases show the fundamental unreasonableness of Lopez-Galvez’s sentence: Lopez-

Galvez does not represent the most egregious offender capable of violating the statute, yet the district

court chose to give him the highest possible sentence for a § 1326(a) violation. This was error. Cf.

United States v. Eve, 984 F.2d 701, 704 (6th Cir. 1993) (“The extent of Eve’s criminal history, unlike

that of the defendant in Belanger, is not so egregious or severe that it warrants an upward departure

[to the statutory maximum] from the guidelines by the district court.”). Unlike the defendant in

Johnson, Lopez-Galvez did not have a history of violent crime and his Guidelines range did not

exceed the statutory maximum. Unlike the defendant in Ruiz, Lopez-Galvez has not amassed nearly

a score of illegal reentries, he did not avoid responsibility, and his reason for coming to the United

States was not to commit crimes or otherwise make trouble: it was to visit his U.S. citizen son.

Lopez-Galvez’s history and characteristics simply did not warrant the sentence he received, and the

majority’s conclusion to the contrary effectively renders reasonableness review an empty formality.

        Moreover, all the cases to which the government directs our attention—and on which the

majority relies—(besides Ruiz) are improper benchmarks for comparison, as they deal with

individuals sentenced under what is now 8 U.S.C. § 1326(b). That provision criminalizes unlawful

reentry after removal that is “subsequent to a conviction for commission of three or more

                                                 -16-
United States of America v. Wilfredo Lopez-Galvez
No. 10-3020

misdemeanors involving drugs, crimes against the person, or both, or a felony,” id. § 1326(b)(1), or

“subsequent to a conviction for commission of an aggravated felony,” id. § 1326(b)(2). Those

subsections, unlike § 1326(a), permit imprisonment for up to ten or twenty years, respectively.

Comparison of sentences under § 1326(a) and § 1326(b) is thus inappropriate because the

subsections do not involve “defendants with similar criminal backgrounds convicted of similar

criminal conduct.” United States v. Simmons, 501 F.3d 620, 623 (6th Cir. 2007). Subsection

1326(b), unlike § 1326(a), is concerned with individuals who have the more severe criminal

background it details, and who therefore face greater punishment. Lopez-Galvez does not qualify

as such an individual.

       Further, the proportional increases between the Guidelines range and the sentence received

in the cases cited by the majority—Ruiz, Tristan-Madrigal, and Caserez—pale in comparison to that

present here, notwithstanding the more egregious circumstances of those cases and the far greater

possible punishment: Ruiz’s sentence (eighteen months) was only 1.5 times greater than the top of

his Guidelines range (twelve months); Tristan-Madrigal’s sentence (thirty-six months) was 1.7 times

greater (twenty-one months); and Caserez’s sentence (forty-two months) was 2 times greater (twenty-

one months). The majority’s conclusion conveys to district judges the clear message that we will

uphold as substantively reasonable any sentence that does not exceed the statutory maximum;1 that



       1
        Unless, of course, we consider the sentence substantively unreasonable because it is too
low. See, e.g., United States v. Fink, 502 F.3d 585 (6th Cir. 2007); United States v. Borho, 485
F.3d 904 (6th Cir. 2007); United States v. Davis, 458 F.3d 491 (6th Cir. 2006), abrogated by
Davis v. United States, 552 U.S. 1088 (2008); United States v. Harris, 339 F. App’x 533 (6th
Cir. 2009); United States v. Camiscione, 207 F. App’x 631 (6th Cir. 2006).

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United States of America v. Wilfredo Lopez-Galvez
No. 10-3020

is, as long as district judges do not do what they cannot do (overstep the power bestowed on them

by Congress), we will affirm. This approach abdicates our duty to ensure that a defendant’s sentence

is “reasonable.” Gall v. United States, 552 U.S. 38, 46 (2007).

       As both the government and U.S. Pretrial and Probation Services Office acknowledged, the

circumstances of Lopez-Galvez’s crime, as well as his background and characteristics, do not justify

imposition of a statutory-maximum sentence. The district court erred in concluding otherwise, so

I would find Lopez-Galvez’s sentence substantively unreasonable. I respectfully dissent.




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