                          NOT RECOMMENDED FOR PUBLICATION
                                 File Name: 06a0307n.06
                                    Filed: May 4, 2006

                                             No. 05-2196

                            UNITED STATES COURT OF APPEALS
                                 FOR THE SIXTH CIRCUIT


UNITED STATES OF AMERICA,            )
                                     )
      Plaintiff-Appellee,            )               ON APPEAL FROM THE UNITED
                                     )               STATES DISTRICT COURT FOR THE
v.                                   )               WESTERN DISTRICT OF MICHIGAN
                                     )
JOSE ESTEBAN IBARRA,                 )
                                     )               OPINION
      Defendant-Appellant.           )
____________________________________ )


       Before: GILMAN, SUTTON, and COOK, Circuit Judges.

       RONALD LEE GILMAN, Circuit Judge. Jose Esteban Ibarra, an undocumented alien,

was convicted of the crime of being found in the United States without permission after having been

deported following an aggravated felony conviction. The district court sentenced him to 46 months

of imprisonment. Ibarra appealed, arguing that the sentence was unreasonable because the district

court failed to adequately consider the factors listed in 18 U.S.C. § 3553(a). For the reasons set forth

below, we AFFIRM the judgment of the district court.


                                        I. BACKGROUND

       All of the facts in this opinion are taken from the Presentence Report, the accuracy of which

Ibarra does not dispute. Ibarra is a Mexican citizen who first came to the United States illegally in

the mid-1980s. He married a United States citizen in 1988. Although immigration officials
approved his “Petition for Alien Relative” shortly thereafter, Ibarra failed to apply for a permanent

resident visa. This caused his visa registration to expire in 1995.

       Ibarra has a long record of criminal offenses. In 1989 and 1992, Ibarra was arrested and

convicted of his first and second offenses for drunk driving. Both incidents escalated when Ibarra

struggled and fought with police officers, the second incident resulting in an assault and battery

conviction after Ibarra repeatedly struck an officer and reached for the officer’s firearm. In 1993,

Ibarra was convicted of “attempted criminal sexual conduct—second degree” involving his step-

daughter, and was sentenced to 180 days in jail. He was sentenced to 30 days in jail for a domestic

violence offense in 1994. Two years later, he was again convicted of drunk driving. In 1996, 1998,

and 2003, Ibarra was convicted of four separate offenses for driving while his license was

suspended. Another domestic violence conviction, for which Ibarra was sentenced to 30 days in jail,

occurred in 1996. In 2001, Ibarra was convicted of failing to register as a sex offender.

       Ibarra was deported in March of 2004. Shortly thereafter, in September of 2004, Ibarra

illegally reentered the United States by walking across the Arizona border. In January of 2005, he

was convicted of failing to register as a sex offender, an offense for which he was sentenced to 60

days in jail. Ibarra was indicted in March of 2005 on the federal charge of being found in the United

States without permission after having been deported subsequent to an aggravated felony

conviction—here, the 1993 conviction for attempted criminal sexual conduct—second degree. See

8 U.S.C. § 1326. He pled guilty to the charge pursuant to a written plea agreement. The statutory

maximum sentence for this offense is 20 years of imprisonment. 8 U.S.C. § 1326(b)(2).

       At sentencing, Ibarra’s counsel called attention to the fact that Ibarra had not been convicted

of any drug or firearm offenses, and downplayed the seriousness of Ibarra’s offenses other than the


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conviction for criminal sexual conduct. Counsel “ask[ed] the Court to sentence him, if not below

the 46-month guideline, certainly no more than the 46.” According to counsel, a 46-month sentence

“would be certainly a very sufficient sentence under the factors . . . for this type of offense.”

       The district court then stated:

       Taking a look at his total record and the requirements of 18 United States Code,
       Section 3553(a) and also considering the fact that I can—and the guidelines are
       advisory to me—but, as I just said in the last sentencing, the guidelines cover many,
       if not most, of the factors set forth in 18 United States Code 3553(a), especially
       number 1, the nature and circumstance[s] of the offense and the history and
       characteristics of the defendant, which are set forth, of course, in the offense level
       and in the criminal history category. And then the guidelines also try to take into
       account subsection 2 of that 3553(a).

       But considering his criminal history—and drunk driving, although not an intentional
       act, is a very dangerous act. Domestic violence, which creates the opportunity, and
       probably the most dangerous opportunity, for a lot of violence. I mean, domestic
       violence seems to be the cause of most murders and puts police officers in a lot of
       danger—a sentence within the guideline range I think would be appropriate.

       And the sentence will be 46 months incarceration, three years of supervised release,
       I’ll waive the fine, restitution is not an issue, $100 special assessment.

Ibarra’s counsel did not object to the sentence imposed by the district court.

       On appeal, Ibarra’s only claim is that the 46-month sentence imposed by the district court

is unreasonable because the court failed to discuss most of the sentencing factors enumerated in

18 U.S.C. § 3553(a). The government responds that the sentence is “patently reasonable” and

should be affirmed.


                                          II. ANALYSIS

       We review sentences imposed under the now-advisory Sentencing Guidelines regime for

reasonableness. United States v. Christopher, 415 F.3d 590, 594 (6th Cir. 2005) (reviewing a

sentence for reasonableness). In United States v. Williams, 436 F.3d 706, 708 (6th Cir. 2006), this

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court held that “sentences properly calculated under the Guidelines [are credited] with a rebuttable

presumption of reasonableness.” Williams recognized that the sentencing judge still must consider

the 18 U.S.C. § 3553(a) sentencing factors, but concluded that “[s]uch consideration . . . need not

be evidenced explicitly.” Id.

       A week after Williams was decided, this court held in United States v. Foreman, 436 F.3d

638, 644 (6th Cir. 2006), that the rebuttable presumption of reasonableness “does not mean that a

sentence within the Guidelines is reasonable if there is no evidence that the district court followed

its statutory mandate to ‘impose a sentence sufficient, but not greater than necessary’ to comply with

the purposes of sentencing in section 3553(a)(2).” United States v. Richardson, 437 F.3d 550 (6th

Cir. 2006), decided a week after Foreman, further illuminated the duties of the sentencing court.

According to Richardson, sentencing courts have an obligation to “explain to the parties and the

reviewing court its reasons for imposing a particular sentence.” Id. at 554. This explanation need

not include a recitation of the § 3553(a) factors, “but must articulate [the district court’s] reasoning

in deciding to impose a sentence in order to allow for reasonable appellate review.” Id. (citation and

quotation marks omitted).

       Turning to the present case, the district court sentenced Ibarra at the low end of the

applicable 46 to 57 month Guidelines range. Ibarra does not challenge the calculation of the

Guidelines range or the fact that his 46-month sentence fell within that range, thus triggering the

rebuttable presumption of reasonableness called for by Williams. See Williams, 436 F.3d at 708.

       Ibarra cannot rebut the presumption of reasonableness in this case because the record

demonstrates that the district court explicitly mentioned § 3553(a) and discussed several of its

factors. The district court started by noting that the Guidelines incorporate the first sentencing


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factor—that is, the “nature and circumstances of the offense and the history and characteristics of

the defendant.” 18 U.S.C. § 3553(a)(1). Also taken into account by the Guidelines, according to

the district court, were the second set of sentencing factors contained in § 3553(a)(2). These factors

include “the need for the sentence imposed . . . to reflect the seriousness of the offense, to promote

respect for the law, . . . to provide just punishment for the offense[,] to afford adequate deterrence

to criminal conduct[,] [and] to protect the public from further crimes of the defendant.” 18 U.S.C.

§ 3553(a)(2)

         The court then went on to speak specifically about the offenses that Ibarra had committed

in the past that were troubling. It stated that drunk driving—for which Ibarra had thrice been

convicted—was “a very dangerous act.” Domestic violence, according to the court, “creates . . .

probably the most dangerous opportunity . . . for a lot of violence . . . [and] seems to be the cause

of most murders and puts police officers in a lot of danger.” This history of Ibarra engaging in

dangerous criminal acts clearly weighed heavily in his sentencing, both to the extent that it was

incorporated into the Guidelines sentence and to the extent that the district court explicitly

commented on Ibarra’s past. Because of this history, the district court held that “a sentence within

the guideline range I think would be appropriate,” and then sentenced Ibarra to the bottom of that

range.

         Ibarra makes much of the fact that the district court did not explicitly consider the other

factors, but “this court has never required the ‘ritual incantation’ of the factors to affirm a sentence.”

Williams, 436 F.3d at 709. Further, Ibarra “identifies no factor from § 3553(a) that would render

his sentence unreasonable.” Id. at 708. The very fact that the district court made mention of “the

requirements of 18 United States Code, Section 3553(a)” during the sentencing hearing is itself a


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strong indication that all of the factors were taken into account, even if not specifically discussed.

Under these circumstances, we hold that the sentence imposed by the district court was reasonable.


                                       III. CONCLUSION

       For all of the reasons set forth above, we AFFIRM the judgment of the district court.




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