                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 13a0891n.06

                                            No. 12-6544                                  FILED
                                                                                    Oct 15, 2013
                           UNITED STATES COURT OF APPEALS                      DEBORAH S. HUNT, Clerk
                                FOR THE SIXTH CIRCUIT


UNITED STATES OF AMERICA,                         )
                                                  )
       Plaintiff-Appellee,                        )
                                                  )
v.                                                )    ON APPEAL FROM THE UNITED
                                                  )    STATES DISTRICT COURT FOR THE
CASIMITRO CABRERA-JIMENEZ,                        )    EASTERN DISTRICT OF TENNESSEE
                                                  )
       Defendant-Appellant.                       )



       Before: BOGGS and SUTTON, Circuit Judges, and CLELAND, District Judge.*

       SUTTON, Circuit Judge: The district court sentenced Casimitro Cabrera-Jimenez to 41

months in prison and three years of supervised release for illegally reentering this country after

being deported. Because Cabrera-Jimenez’s criminal history included several statutory-rape

convictions, the district court imposed sex-offender special conditions in the terms of his supervised

release. Cabrera-Jimenez considers his prison sentence unreasonable and his supervised-release

conditions plainly erroneous. We disagree and affirm.


                                                  I.

       In 1996, Cabrera-Jimenez pled guilty to three counts of statutory rape, one count involving

a 13 year-old and two counts involving 14 year-olds. This conviction came on the heels of a 1995



       *
        The Honorable Robert H. Cleland, United States District Judge for the Eastern District
of Michigan, sitting by designation.
No. 12-6544
United States v. Cabrera-Jimenez

guilty plea for contributing to the delinquency of a minor. For the statutory-rape convictions,

Cabrera-Jimenez served three years in Tennessee prison before his release to federal officials and

deportation to Mexico in September 1999.


       Cabrera-Jimenez next crossed paths with the domestic courts in May 2012, when he was

arrested in Bedford County, Tennessee, and charged with public intoxication. This minor offense

became a more significant one when law enforcement officers identified him as a previously

deported illegal alien. On August 21, 2012, Cabrera-Jimenez pled guilty to illegal reentry in

violation of 8 U.S.C. § 1326. The sentencing guidelines recommended a prison sentence between

41 and 51 months and a supervised release term between one and three years. See 18 U.S.C. §

3583(b)(2). Based on Cabrera-Jimenez’s statutory-rape convictions, the pre-sentence investigation

report recommended that the court impose a series of special conditions of supervised release for

sex offenders “in order to appropriately monitor the defendant once he is released back into the

community, and to help prevent and deter the defendant from committing further crimes against

children.” PSR at 8. Neither the government nor Cabrera-Jimenez objected to the pre-sentence

report at the sentencing hearing.


       Cabrera-Jimenez argued for a below-guidelines sentence based on the disparity between the

recommended sentence and the sentences typically imposed in jurisdictions with fast-track

deportation programs (whereby prosecutors agree to a downward departure from the guidelines

sentence in certain illegal-reentry cases in exchange for a guilty plea), but the district court

sentenced Cabrera-Jimenez to a within-guidelines sentence of 41 months in prison and three years

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United States v. Cabrera-Jimenez

of supervised release. The district court also ordered that Cabrera-Jimenez comply with eight of the

twelve recommended special conditions for sex offenders during his supervised-release period.

While Cabrera-Jimenez objected to the imposition of a supervised-release period in general, he did

not object to the sex-offender conditions specifically.


                                                 II.

       On appeal, Cabrera-Jimenez challenges the 41-month sentence, which we review for

procedural and substantive reasonableness. Gall v. United States, 552 U.S. 38, 51 (2007). To begin,

the district court “committed no significant procedural error,” because it properly calculated the

guidelines range, it did not treat the guidelines as mandatory, it considered the 18 U.S.C. § 3553(a)

factors, it did not rely on “erroneous facts” when selecting its sentence, and it adequately explained

its rationale for the 41-month sentence. Id. Indeed, both parties agreed with the pre-sentence

report’s calculation of the advisory guidelines range, the court repeatedly recognized its discretion

in sentencing Cabrera-Jimenez, and the court explicitly noted that it had considered the “factors

listed in Title 18, United States Code, Section 3553(a).” R. 31 at 17–18. In short, the court

“explain[ed] its reasoning to a sufficient degree to allow for meaningful appellate review” of the

reasonableness of its conclusions. United States v. Brown, 501 F.3d 722, 724 (6th Cir. 2007). The

court need do no more.


       Cabrera-Jimenez argues that the district court did not adequately consider possible

sentencing disparities when imposing the 41-month term of imprisonment, because the court rejected

his request for a downward variance based on the gap between guidelines sentences and the

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United States v. Cabrera-Jimenez

sentences typically imposed in fast-track jurisdictions. See 18 U.S.C. § 3553(a)(6). The record does

not support this argument. After Kimbrough v. United States, 552 U.S. 85 (2007), sentencing courts

may consider disparities created by the absence of a fast-track policy in a given district. See United

States v. Camacho-Arellano, 614 F.3d 244, 248–50 (6th Cir. 2010). That a court may consider such

disparities, however, in no way entitles Cabrera-Jimenez to a lower sentence. See United States v.

Mason, 410 F. App’x 881, 886 (6th Cir. 2010). Here, the district court heard Cabrera-Jimenez’s

arguments for a downward variance based on fast-track disparities and rejected those arguments on

the merits, finding that Cabrera-Jimenez’s history of statutory rape meant he “should not be part of

that so-called fast track relief.” R. 31 at 12–13. Viewed through the abuse-of-discretion lens (or any

other lens for that matter), this does not constitute procedural error.


       Cabrera-Jimenez also argues the district court abused its discretion when it relied on the

government’s “clearly erroneous” assertion that he would not qualify for fast-track consideration

due to his previous statutory-rape convictions. But the premise of this argument rests on two clearly

erroneous assertions of its own. First, it is not obvious that the government got the facts wrong in

this case. At the sentencing hearing, the government simply noted that Cabrera-Jimenez’s statutory-

rape convictions “would not make him eligible under our [proposed] policy for fast track

opportunity.” R. 31 at 9 (emphasis added). The Eastern District of Tennessee’s fast-track policy

has not yet been published, see App. Reply Br. at 2 n.1, so how can Cabrera-Jimenez (or more

importantly this court) find this statement concerning a hypothetical policy “clearly erroneous”?

Second, the district court did not rely on this statement one way or the other. The sentencing court



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United States v. Cabrera-Jimenez

did not say that Cabrera-Jimenez would not be eligible for the fast-track program and therefore could

not enjoy the benefit of a downward variance. The court said that he “should not be a part of that

so-called fast track relief” because of his prior history. R. 31 at 13 (emphasis added). Far from

relying on the government’s assertions, this case seems to involve a district court properly exercising

its sentencing discretion.


       United States v. Sanchez-Rosas, __ F. App’x __, 2013 WL 2420333 (6th Cir. June 4, 2013),

is not to the contrary. In that case, government prosecutors argued that Sanchez-Rosas’ drug-

trafficking history would make him ineligible for relief “in any . . . district” with a fast-track

program, id. at *3, and “[t]he district court relied on the government’s position” in denying him a

downward variance, id. at *4. This argument was objectively wrong—the government conceded

in its appellate briefs that some districts would not disqualify defendants like Sanchez-Rosas. Id.

at *3. On appeal, a Sixth Circuit panel called the district court’s reliance on this “clearly erroneous”

fact an abuse of discretion. Id. at *4. But this case involves nothing of the sort. As far as we can

tell, the government’s assertions were not false—persons convicted of statutory rape will not be

eligible for fast-track relief in the Eastern District of Tennessee. And the district court did not rely

on this statement anyway, noting instead that there were good reasons why someone with Cabrera-

Jimenez’s history ought not get the benefit of a downward variance. Sanchez-Rosas therefore says

nothing about the procedural reasonableness of Cabrera-Jimenez’s sentence.


       The 41-month sentence is also substantively reasonable. In this circuit, within-guidelines

sentences are entitled to a presumption of reasonableness, see Rita v. United States, 551 U.S. 338,

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United States v. Cabrera-Jimenez

347 (2007), and Cabrera-Jimenez has not made any arguments sufficient to rebut the presumption.

The district court sentenced Cabrera-Jimenez to 41 months in prison—the bottom of the guidelines

range. He only argues in response that a fast-track court might have given him an even shorter

sentence. This argument fell short of the mark under the procedural element of the reasonableness

test, and it falls short here. “The mere fact that [Cabrera-Jimenez] desired a more lenient sentence,

without more, is insufficient to justify our disturbing the reasoned judgment of the district court.”

United States v. Trejo-Martinez, 481 F.3d 409, 413 (6th Cir. 2007). Cabrera-Jimenez’s within-

guidelines sentence was not unreasonably long.


        Cabrera-Jimenez also challenges the imposition of sex-offender conditions in the terms of

his three-year supervised release. But this is a new argument—Cabrera-Jimenez did not object to

the special conditions at his sentencing hearing—so we review the district court’s decision only for

plain error. United States v. Vonner, 516 F.3d 382, 385–86 (6th Cir. 2008) (en banc). In this case,

the district court committed no error, plain or otherwise.


        First, the district court did its procedural duty, stating in open court its rationale for imposing

sex-offender special conditions to Cabrera-Jimenez’s supervised release. United States v. Brogdon,

503 F.3d 555, 563 (6th Cir. 2007). According to the court, these conditions were necessary “because

of [Cabrera-Jimenez’s] prior criminal history as a sex offender,” R. 31 at 20, and the record reflects

a lengthy discussion at the sentencing hearing about the significance of this criminal history. Given

the record in this case, the court’s explanation is sufficient.




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       Second, the special conditions pass substantive muster, because they are reasonably related

to the history and characteristics of Cabrera-Jimenez, including the need to deter him and protect

the public. See 18 U.S.C. § 3583(d)(1). Moreover, the conditions involve “no greater deprivation

of liberty than is reasonably necessary for” the district court’s sentencing purposes, id. § 3583(d)(2),

and are consistent with Sentencing Commission policy statements, id. § 3583(d)(3). Again, the

record in this case is clear. Not only does Cabrera-Jimenez have a history of sex offenses involving

13 and 14 year-olds, he also has a history of illegally reentering the country after deportation,

making him a continuing public threat. And the district court did not simply rubberstamp the sex-

offender conditions recommended in Cabrera-Jimenez’s pre-sentence report. Instead, the court

selected eight of the twelve recommended conditions, eliminating the conditions unrelated to

Cabrera-Jimenez’s sexual misconduct (e.g., condition 11, which would have prevented Cabrera-

Jimenez from possessing any “electronic device with access to the Internet,” PSR at 9), and keeping

those conditions applicable to a convict with a track record of sexual offenses involving minors (e.g.,

condition 3, which prevents Cabrera-Jimenez from “associat[ing] . . . with children under 18 years

of age” without the approval of his probation officer, PSR at 8). This is an appropriately limited

deprivation of liberty that readily survives plain-error review.


       But what of Cabrera-Jimenez’s counter-argument that the sex-offender conditions in this case

are not reasonably related to his prior history because his statutory-rape convictions are 16 years

old? He has a point: Prior convictions can be too remote in time from current proceedings to have

any reasonable bearing on the terms of an offender’s supervised release. See, e.g., United States v.

Carter, 463 F.3d 526, 532 (6th Cir. 2006). But this circuit has never adopted a per se rule marking
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the temporal bounds of a sentencing court’s inquiry, see id., and several cases have upheld special

conditions justified by similarly remote sexual offenses, see, e.g., Brogdon, 503 F.3d at 563–65.

This mixed precedent counsels against a plain-error finding. Moreover, Cabrera-Jimenez’s case

does not involve a single sex offense, but four separate incidents: three statutory-rape convictions

in 1996 and one conviction for contributing to the delinquency of a minor in 1995. Whatever we

think about the remoteness of this prior history, surely imposing special conditions on a serial sex

offender does not amount to plain error. See id. at 565–66.


       Cabrera-Jimenez’s remaining arguments fare no better. In Cabrera-Jimenez’s estimation,

the condition that prevents him from “associat[ing] . . . with children under 18 years of age,” PSR

at 8, is hopelessly vague, and banning Cabrera-Jimenez from “any business that caters to . . . child

customers,” id., sweeps too broadly. Not so. To start, this court has upheld similar special

conditions against overbreadth and vagueness challenges. See, e.g., United States v. Zobel, 696 F.3d

558, 574–75 (6th Cir. 2012) (upholding “no contact with minors” condition and condition that

“prohibited . . . loitering where minors congregate”). And these similar conditions survived even

though they amounted to lifetime burdens on the offender’s liberty. Id. at 564. Cabrera-Jimenez’s

three-year burden looks light by comparison, and other courts have held that limited-duration

restrictions withstand appellate review even where lifetime restrictions might not. See United States

v. Maurer, 639 F.3d 72, 86 (3d Cir. 2011); see also United States v. Brandenburg, 157 F. App’x 875,

880 (6th Cir. 2005). We find no error, much less plain error.


                                                III.

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       For these reasons, we affirm.




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