                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 08a0494n.06
                            Filed: August 13, 2008

                                            No. 07-5871

                           UNITED STATES COURT OF APPEALS
                                FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA,                          )
                                                   )
               Plaintiff-Appellee,                 )
                                                   )       ON APPEAL FROM THE UNITED
v.                                                 )       STATES DISTRICT COURT FOR
                                                   )       THE WESTERN DISTRICT OF
                                                   )       KENTUCKY
ERASMO CASTILLO,                                   )
                                                   )
               Defendant-Appellant.                )




BEFORE:        SUTTON and COOK, Circuit Judges, and Rose, District Judge.*

       Per Curiam. Defendant-Appellant Erasmo Castillo appeals the sentence imposed upon him

after his guilty plea to charges of conspiracy to possess with intent to distribute and possession with

intent to distribute 1,700 pounds of marijuana. Castillo claims that the district court mechanically

imposed a guideline sentence that was unreasonable in light of Castillo’s request for either a variance

or downward departure based upon diminished mental capacity and substantial assistance to the

Government. Because the sentence was reasonable in light of Castillo’s mental capacity and

criminal history, we will affirm the sentence imposed by the district court.

I.     Factual Background




       *
        The Honorable Thomas M. Rose, United States District Court for the Southern District
of Ohio, sitting by designation.
                          United States v. Erasmo Castillo, No. 07-5871

       On June 26, 2005, during a routine weigh-station inspection in Hope, Arkansas, police found

marijuana in a truck loaded with broccoli. The truck was followed all the way to Louisville,

Kentucky, by which time the police had determined that a car was trailing the truck and that another

was running ahead, operating as a look-out. Defendant-Appellant Erasmo Castillo drove the car that

followed the truck. After 680 kilograms of marijuana were unloaded into vans in Louisville, the

police arrested those involved. On November 16, 2006, without the benefit of a plea agreement,

Castillo pleaded guilty to charges of conspiracy to possess with intent to distribute and possession

with intent to distribute 1,700 pounds of marijuana.

       By the time Castillo was sentenced, several of his co-conspirators had already been

sentenced, receiving terms that ranged from 19, to 22, to 30, to 60 months. Castillo’s PSI, however,

recommended a sentencing range of 188 to 235 months, due in large part to the fact that Castillo had

a significant criminal history. In total, he had 9 criminal history points, putting him in criminal

history category IV. However, because Castillo was cooperative, the Government forewent filing

notification under 21 U.S.C. § 851 that this was Castillo’s third drug trafficking offense, a

notification that would have required a life sentence. Moreover, Castillo had only been out of prison

for four and a half months when he committed this offense.

       Castillo sought a downward departure, which the sentencing judge interpreted as alternatively

being a request to depart from the guidelines under the sentencing guideline regime and for a

downward variance outside the guideline regime. Castillo asserted a combination of factors,

including diminished mental capacity and his efforts to cooperate with authorities. In response, the

judge ordered a mental evaluation, which found that Castillo suffered deficiencies including an

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“extremely low range of intellectual functioning” resulting from years of drug and alcohol abuse.

The judge denied Castillo’s request and sentenced him to 188 months for the conspiracy charge and

18 months more for a supervised release violation. Castillo appealed.

II.    Standard of Review

       We review the sentencing decision of a district court “under a deferential abuse-of-discretion

standard” for reasonableness, which has both a procedural and a substantive component. Gall v.

United States, — U.S. —, 128 S. Ct. 586, 591 (2007). We must first ensure that the district court

committed no procedural error. Id. at 597; United States v. Webb, 403 F.3d 373, 383 (6th Cir. 2005).

This is because a district court necessarily abuses its sentencing discretion if it:

               commit[s][a] 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 on clearly erroneous facts, or failing to
               adequately explain the chosen sentence-- including an explanation for
               any deviation from the Guidelines range.


Gall, 128 S. Ct. at 597.

       If the district court's sentencing decision is procedurally sound, we must “then consider the

substantive reasonableness of the sentence imposed under an abuse-of-discretion standard[,] ...

tak[ing] into account the totality of the circumstances, including the extent of any variance from the

Guidelines range.” Id. For sentences within the Guidelines range, we have chosen to apply a

rebuttable presumption of substantive reasonableness. Id.; Rita v. United States, --- U.S. ----, ----,

127 S. Ct. 2456, 2462 (2007); United States v. Williams, 436 F.3d 706, 708 (6th Cir. 2006). We do



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not, however, apply “a presumption of unreasonableness” to sentences outside of the Guidelines

range. Gall, 128 S. Ct. at 597. If the sentence is outside of the Guidelines, we must give “due

deference” to the district court's decision that the § 3553(a) factors justify the variance. Id. “The fact

that [this court] might reasonably have concluded that a different sentence was appropriate is

insufficient to justify reversal of the district court.” Id.

III.    Analysis

        Defendant-Appellant asserts that the district court erred by mechanically imposing a

guideline sentence that was unreasonable in light of Castillo’s request for a variance or downward

departure based upon diminished mental capacity and cooperation with authorities. The Court

initially notes that the district court’s sentence suffers from no procedural irregularity. The district

court understood the advisory nature of the Guidelines, calculated the Guidelines' recommendation

correctly and considered the § 3553(a) factors when determining the sentence. Moreover, the district

court considered the bases for departure or variance Castillo put forward. The sentencing judge

considered Castillo’s mental health issues. J.A. 73-78. The judge also considered Castillo’s

cooperation. J.A. 75. The judge also considered the degree to which Castillo’s sentence differed

from those of his co-conspirators, having made a chart of the sentences that had been imposed until

that time. J.A. 77, 81. Castillo’s sentence does not suffer procedural error.

        Neither is the sentence substantively unreasonable. The sentence reflects the statutory factors

established under 18 U.S.C. § 3553. As acknowledged by the district court, Castillo’s sentence

largely reflects Defendant-Appellant’s criminal history, as well as the characteristic of his mental

capacity. The sentence reflects the seriousness of the offense, deters others from criminal conduct,

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protects the public from further crimes of Defendant-Appellant, and, in imposing special conditions

of drug abuse after-care and mental health treatment, the sentencing judge provided Castillo medical

care in the most effective manner available to it. The sentencing judge was aware of the sentencing

disparities among the defendants and ensured that they were warranted. In short, the sentence is both

procedurally and substantively reasonable.

IV.    Conclusion

       The Court finds the sentence imposed upon Castillo entirely reasonable. Therefore, the Court

AFFIRMS the sentence of the district court.




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