                  NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                             File Name: 07a0444n.06
                               Filed: June 25, 2007

                                                  No. 06-3540

                              UNITED STATES COURT OF APPEALS
                                   FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA,                                       )
                                                                )
        Plaintiff-Appellee,                                     )
                                                                )
v.                                                              )   ON APPEAL FROM THE
                                                                )   UNITED STATES DISTRICT
RICARDO RODRIQUEZ-GOMEZ,                                        )   COURT FOR THE NORTHERN
                                                                )   DISTRICT OF OHIO
        Defendant-Appellant.                                    )


Before: BATCHELDER and MARTIN, Circuit Judges, and O’MEARA, District Judge*

        JOHN CORBETT O’MEARA, District Judge. Defendant, a Mexican deportee who

illegally reentered the United States following deportation, challenges the district court’s sentence

as unreasonable. Defendant seeks a downward departure from the sentence imposed due to an

alleged overstatement of Defendant’s criminal history or because he will be deported after

completion of his sentence. For the following reasons, we affirm the judgment of the district court.

                                                         I.

        On April 20, 2005, Defendant Ricardo Rodriquez-Gomez was arrested by the Cleveland

Police Department for drug trafficking under the alias Cesar Perez-Rodriquez. Defendant had been

previously convicted of possession with intent to distribute heroin in 2001 and was sentenced to 57

months of incarceration, after which he was deported on August 27, 2004. By Defendant’s

admission, he failed to obtain permission to reenter the United States from the Secretary of
*
          The Honorable John Corbett O’Meara, United States District Judge for the Eastern District of Michigan,
sitting by designation.
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United States v. Rodriguez-Gomez
Page 2

Homeland Security following his deportation. On March 31, 2006, Defendant pleaded guilty to one

count of illegal reentry following deportation.

         The district court sentenced Defendant to 63 months of incarceration followed by three years

of supervised release. The district court determined a total offense level of 21. The base offense

level for illegal reentry was 8. Because of Defendant’s previous drug trafficking and illegal entry

convictions, 16 levels were added. Defendant’s guilty plea qualified him for a three-point reduction,

resulting in a total offense level of 21. The Guideline range for a total offense level of 21, criminal

history category IV, is 57 to 71 months of incarceration. The district court’s sentence of 63 months

of imprisonment with a subsequent three year supervised release term falls within the Guideline

range.

                                                  II.

         Defendant now appeals his sentence as unreasonable because the district court denied his

request for a downward departure. This court reviews sentences for procedural and substantive

reasonableness. United States v. Collington, 461 F.3d 805, 808 (6th Cir. 2006); United States v.

Webb, 403 F.3d 373, 383 (6th Cir. 2005).

                A sentence may be procedurally unreasonable if “the district judge
                fails to ‘consider’ the other factors listed in 18 U.S.C. § 3553(a), and
                instead simply selects what the judge deems an appropriate sentence
                without such required consideration.” A sentence may be considered
                substantively unreasonable when the district court “select[s] the
                sentence arbitrarily, bas[es] the sentence on impermissible factors,
                fail[s] to consider pertinent § 3553(a) factors or giv[es] an
                unreasonable amount of weight to any pertinent factor.”

Collington, 461 F.3d at 808 (citations omitted). A sentence falling within the properly calculated
No. 06-3540
United States v. Rodriguez-Gomez
Page 3

Guideline range is entitled to a rebuttable presumption of reasonableness. United States v. Williams,

436 F.3d 706, 708 (6th Cir. 2006). This court generally does not review a district judge’s refusal to

depart downward under Chapter 5 of the Sentencing Guidelines in calculating the proper Guideline

range. United States v. Puckett, 422 F.3d 340, 345-46 (6th Cir. 2005). However, this rule does not

“prevent our review of defendant’s claim that his sentence is excessive based on the district court’s

unreasonable analysis of the section 3553(a) factors in their totality.” United States v. McBride, 434

F.3d 470, 476-77 (6th Cir. 2006). Although Defendant frames the issue here as a denial of a

“downward departure,” he also challenges the reasonableness of his sentence. Therefore, it is

appropriate for this court to consider Defendant’s downward departure claim in the broader context

of the overall reasonableness of his sentence. See id. at 474-75.

                                                 III.

       Defendant contends that the district court should have granted a downward departure because

his criminal history is overstated and because he faces deportation after the completion of his

sentence. Defendant maintains that his criminal history is comprised of offenses related to his drug

habit and that his past convictions are non-violent. Pursuant to U.S.S.G. § 4A1.3(b)(1), the court

may depart if “the criminal history category substantially over-represents the seriousness of the

Defendant’s past criminal conduct or the likelihood that the Defendant will commit other crimes.

. . .” Defendant also asserts that a downward departure or variance is warranted because he will be

immediately deported following his incarceration, thus rendering him less of a threat.

       The district court did not err in refusing to grant a downward departure or a variance.

Defendant’s criminal history category did not substantially over-represent the seriousness of his past
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United States v. Rodriguez-Gomez
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criminal conduct or likelihood he will commit other crimes. In Unites States v. Fletcher, 15 F.3d

553, 555 (6th Cir. 1994), this court acknowledged that a departure was justified where a criminal

history category overstates a defendant’s criminal record because of the type of prior convictions and

their unrelatedness to the current matter. The record, however, makes it clear that Defendant’s prior

convictions are serious and directly related to his current conviction.

       Defendant was arrested for a drug-related offense and has been convicted of illegal reentry

into the United States. Defendant’s prior criminal record consists of a conviction for possession with

the intent to distribute heroin, and subsequently, deportation. By illegally reentering the country and

involving himself in illegal drug activity a second time, Defendant has shown a propensity for

recidivism. The district court reasonably rejected Defendant’s argument that his criminal history was

overstated.

       Further, the district court’s decision that Defendant’s deportable alien status does not support

a downward departure or variance in this case is reasonable. Defendant was convicted of a crime

that can only be committed by aliens whose conduct makes them deportable: namely, illegally

reentering the United States. See 8 U.S.C. § 1326 (reentry of removed aliens). This court has found

that “the Sentencing Commission took deportable alien status into account when formulating a

guideline that applies almost invariably to crimes, such as 8 U.S.C. § 1326, that may be committed

only by aliens whose conduct makes them deportable.” United States v. Ebolum, 72 F.3d 35, 38-39

(6th Cir. 1995) (holding that “deportable alien status may not be a basis for downward departure from

a sentence imposed under a guideline that applies primarily to aliens who are deportable”).

       In meting out the sentence, the district judge noted that he considered Defendant’s arguments,
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United States v. Rodriguez-Gomez
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but stated, “I can’t ignore the fact that the defendant has re-entered the United States for a second

time. He did serve 57 months for a drug conviction, was deported and within less than a year he

comes back to the United States and was arrested for another drug conviction.” Joint Appendix

(“JA”) at 88. The district judge appropriately considered these factors as well as those set forth in

18 U.S.C. § 3553(a). See JA at 83-89. The record shows that the district judge considered

Defendant’s criminal and employment history, family circumstances, education, health and financial

status, his history of drug abuse, the nature of the offense, the kinds of sentences available, and the

need for the sentence imposed. The district judge chose a sentence within the Guideline range, 63

months. There is no indication in the record that this sentence is either procedurally or substantively

unreasonable.

       We AFFIRM the judgment of the district court.
