               NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                          File Name: 14a0404n.06

                                          No. 13-1639
                                                                                     FILED
                         UNITED STATES COURT OF APPEALS                        Jun 05, 2014
                              FOR THE SIXTH CIRCUIT                        DEBORAH S. HUNT, Clerk


UNITED STATES OF AMERICA,                             )
                                                      )
       Plaintiff-Appellee,                            )
                                                      )   ON APPEAL FROM THE UNITED
v.                                                    )   STATES DISTRICT COURT FOR
                                                      )   THE WESTERN DISTRICT OF
ISMAEL GOMEZ, JR.,                                    )   MICHIGAN
                                                      )
       Defendant-Appellant.                           )


       BEFORE: WHITE, DONALD, and O’MALLEY, Circuit Judges.*


       PER CURIAM.           Ismael Gomez, Jr., appeals his sentence as procedurally and

substantively unreasonable. The government has moved to dismiss the appeal based on an

appellate-waiver provision in Gomez’s plea agreement. We AFFIRM Gomez’s sentence and

deny as moot the government’s motion.

       Gomez pleaded guilty of being a felon in possession of a firearm, in violation of

18 U.S.C. § 922(g)(1). The district court determined that, based on his total offense level of 27

and criminal history category of III, Gomez’s guidelines range of imprisonment was 87 to 108

months (R.32 at 14). Gomez moved the court for a downward variance on account of his

cooperation with law enforcement (R.25-26). The district court denied Gomez’s motion and

sentenced him to 108 months in prison (R.32 at 15).




* The Honorable Kathleen M. O’Malley, Circuit Judge for the United States Court of Appeals
for the Federal Circuit, sitting by designation.
No. 13-1639
United States v. Gomez

       On appeal, Gomez argues that his sentence is procedurally unreasonable because the

district court failed to adequately explain its decision to deny his motion for a downward

variance. Gomez also argues that his sentence is substantively unreasonable because the district

court mischaracterized and placed undue weight on his criminal history and speculated

concerning whether he was truthful in prior criminal proceedings.

       We generally review a district court’s sentencing determination under a deferential
abuse-of-discretion standard for reasonableness, which has both a procedural and a substantive
component. United States v. O’Georgia, 569 F.3d 281, 287 (6th Cir. 2009). A sentence may be
procedurally unreasonable if the district court fails to adequately explain the chosen sentence.
Gall v. United States, 552 U.S. 38, 51 (2007). We review Gomez’s procedural challenge for
plain error, however, because his counsel failed to specifically raise the issue when given the
opportunity to do so by the district court at the conclusion of the sentencing hearing (R.32 at 17).
See United States v. Brinley, 684 F.3d 629, 635 (6th Cir. 2012).             A sentence may be
substantively unreasonable if the district court bases the sentence on an impermissible factor or
gives an unreasonable amount of weight to any pertinent factor.          United States v. Vowell,
516 F.3d 503, 510 (6th Cir. 2008).         We apply a rebuttable presumption of substantive
reasonableness to a within-guidelines sentence. United States v. Vonner, 516 F.3d 382, 389 (6th
Cir. 2008) (en banc).
       Gomez’s sentence is procedurally reasonable because the district court adequately

explained that it denied his motion for a downward variance based on several relevant sentencing

factors, including the seriousness of his offense, his pattern of criminal activity, and his lack of

respect for the law and high likelihood to recidivate (R.32 at 8-10, 14-15). In addition, Gomez

has not overcome the presumption that his sentence is substantively reasonable. The evidence

before the district court supported its findings that Gomez’s criminal history included violence

(Presentence Report at ¶¶ 50-52, 54). Further, the record does not reflect that the district court


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No. 13-1639
United States v. Gomez

gave improper weight to Gomez’s criminal history in relation to the other relevant sentencing

factors (R.32 at 8-10, 14-15).

       Accordingly, we affirm Gomez’s sentence and deny as moot the government’s motion to

dismiss the appeal.




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