NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 11a0684n.06

 

No. 09-6428 FILED
Sep 26, 2011
UNITED STATES COURT OF APPEALS LEONARD GREEN. Clerk
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA, )
)
Plaintiffprpellee, )
) On Appeal from the United States
v. ) District Court for the Western
) District of Tennessee
JESUS MUNOZ—HERNANDEZ, )
)
Defendant/Appellant. )

Before: SUTTON and COOK, Circuit Judges; GREER, District Judge.’

GREER, District Judge. Defendant, Jesus Munoz—Hemandez (“Munoz-Hernandez”),
appeals the substantive reasonableness of his within guidelines sentence of 70 months imprisonment.
We afﬁnn.

I.

Munoz-Hemandez was indicted on April 29, 2009, by a federal grand jury in the Western
District of Tennessee and charged with unlawfully reentering the United States after having been
convicted of an aggravated felony in violation of 8 U.S.C. §§ 1326(a) and (b)(2). He pled guilty to
the charge on August 13, 2009. A Presentence Investigation Report (“PSR”) was prepared in which
the probation ofﬁcer calculated an advisory guidelines range of 92 tol 15 months imprisonment.
After adjusting the guidelines range for acceptance of responsibility, the district court adopted an

advisory guidelines range of 70 to 87 months imprisonment. Neither party objected to the PSR and

‘ The Honorable J. Ronnie Greer, United States District Judge for the Eastern District of Tennessee,
sitting by designation.

the defendant was sentenced to 70 months imprisonment, the bottom of the advisory guidelines
range. This timely appeal followed.
II.

At the time of sentencing, Munoz-Hernandez was a 29 year old citizen of Mexico, who
entered the United States illegally in 1990 and has lived in Memphis since he was ten years old. On
J anuary21, 2003, Munoz-Hernandez was convicted of aggravated burglary, possession of a handgun
while under the influence and possession of an item with an altered serial number in Shelby County,
Tennessee Criminal Court. He was then processed as an alien present in the United States without
admission or parole who was convicted of a crime involving moral turpitude and ordered removed
from the United States on May 10, 2003. The removal order was executed on May 25, 2003. On
January 5, 2009, Munoz-Hemandez was found by immigration enforcement ofﬁcials while he was
in the Shelby County Jail where he was serving a sentence for driving under the inﬂuence (3rd) and
driving on a revoked driver’s license. Munoz-Hemandez claimed that he returned to the United
States in 2007, although he had been arrested for driving under the inﬂuence in Shelby County on
May 9, 2006.

Munoz-Hernandez attended elementary, middle and high school in Memphis and completed
the ninth grade. He resided with his parents who are legal residents of the United States. Munoz-
Hernandez’s signiﬁcant criminal history began at age 15 with a conviction for aggravated burglary.
He has sustained adult convictions for leaving the scene of a car accident, no driver’s license,
criminal trespass, theft, aggravated burglary, possession of a handgun (with an altered serial number)
while intoxicated and multiple convictions for driving under the influence. Additional criminal

history points were added because Munoz—Hernandez committed the instant offense while under a

criminal justice sentence and within two years of release from imprisonment. All this resulted in a
total of 11 criminal history points and acriminal history category V. Munoz-Hemandez suffers from
mild mental retardation, has three children in the United States and has no signiﬁcant ties to Mexico.
He has a signiﬁcant alcohol abuse problem.

III.

Munoz—Hernandez raises a single issue in this appeal. He argues that the district court “failed
to give proper weight to mitigating circumstances such as Mr. Munoz-Hernandez’s cultural
assimilation, his probable deportation after sentence, his untreated alcohol abuse which led to his
criminal conduct, and his diminished mental capacity.” In short, Munoz-Hernandez argues that his
sentence is substantively unreasonable in light of the § 3553(a) factors. In challenging the
substantive reasonableness of his sentence, Munoz-Hemandez has a tough row to hoe.

We review the district court’s sentencing determination for abuse of discretion. Gall v.
United States, 552 US. 38, 46 (2007). A sentencing court abuses its discretion if it imposes a
sentence that is either procedurally or substantively unreasonable. Id. at 51. The district court
commits procedural error by 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 on clearly erroneous facts, failing to entertain and address all non-frivolous arguments by the
defendant in mitigation of his sentence, or failing to explain adequately the chosen sentence. Id.

As for substantive reasonableness, a sentence is substantively unreasonable if it is selected
arbitrarily, if it is based on impermissible factors, if it fails to consider a relevant sentencing factor,
or if it gives an unreasonable amount of weight to any pertinent factor. United States v. Conatser,

514 F.3d 508, 520 (6th Cir. 2008). A sentence within a properly calculated guidelines range is

afforded a rebuttable presumption of reasonableness on appeal. Id. (citing United States v. Williams,

436 F.3d 706, 708 (6th Cir. 2006)).

As noted above, defendant claims substantive error. He does not claim that the district court
failed to address the § 35 53(a) factors or that the court failed to listen to him and consider his
mitigation arguments. Instead, he argues that the district court simply failed to give adequate weight
to his arguments—his cultural assimilation, his probable deportation, his untreated alcohol abuse and
his diminished mental capacity.

Munoz-Hernandez’s sentence was within the properly calculated guidelines range and is thus
presumed reasonable. The sentencing transcript clearly shows that the district judge considered the
arguments of Munoz-Hemandez, and Munoz-Hemandez does not argue otherwise. The district court
provided an explanation for the weight he gave each factor and, in the end, concluded that he did not
“think it justiﬁes a variance,” in view of Munoz—Hernandez’s lengthy criminal history, the need to
protect the public and the need for deterrence. Even though the district judge rejected Munoz-
Hemandez’s request for a variance from the guidelines range, he did speciﬁcally ﬁnd that the harsh
consequences of deportation justiﬁed a sentence at the bottom of the guidelines range. The district
judge’s explanation was neither arbitrary nor unreasonable.

While Munoz—Hemandez might have a viable argument that a lower sentence was
permissible, he has not shown that the district court’s weighing of his claims was unreasonable or
that the lower sentence was required. “On abuse-of—discretion review, [we give] due deference to
the District Court’s reasoned and reasonable decision that the § 3553(a) factors, on the whole,

justiﬁed the sentence.” Gall, 552 US. at 59—60. We will not second-guess the district court and

reverse a sentence even where we “might reasonably have concluded that a different decision was
appropriate.” Id. at 51.

Here, the district court reviewed the § 35 53(a) factors, explained why it chose the sentence
it chose, explained why it considered Munoz-Hernandez’s mitigation arguments insufﬁcient to
justify at below guidelines variance, and did not consider any impermissible factors. Under these
circumstances, we cannot conclude that Munoz-Hernandez’s sentence was substantively
unreasonable and the district court did not abuse its discretion.

IV.

For these reasons, we AFFIRM the judgment of the district court.

