               NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                          File Name: 10a0305n.06

                                          No. 08-6076

                          UNITED STATES COURT OF APPEALS                              FILED
                               FOR THE SIXTH CIRCUIT                               May 19, 2010
                                                                              LEONARD GREEN, Clerk

UNITED STATES OF AMERICA,                               )
                                                        )
       Plaintiff-Appellee,                              )        ON APPEAL FROM THE
                                                        )        UNITED STATES DISTRICT
               v.                                       )        COURT FOR THE WESTERN
                                                        )        DISTRICT OF TENNESSEE
MARINO MAXIMILIANO ALMONTE-ROSA, aka                    )
Edwin Hernandez, aka Ruben Arturo Fatu,                 )
                                                        )
       Defendant-Appellant.                             )



BEFORE: MARTIN, SUHRHEINRICH, and WHITE, Circuit Judges.

       HELENE N. WHITE, Circuit Judge. Defendant Almonte-Rosa pleaded guilty of illegally

reentering the United States after having been removed subsequent to being convicted of an

aggravated felony, in violation of 8 U.S.C. §§ 1326(a) and 1326(b)(2). He appeals his thirty-six

month sentence, claiming that it is both procedurally and substantively unreasonable. We affirm.

                                                I.

       Almonte-Rosa is a citizen of the Dominican Republic. In 1999, he was removed from the

United States after serving a 2 1/2-year sentence in Massachusetts for possession of cocaine with

intent to distribute. Almonte-Rosa illegally reentered the United States and was arrested in

Tennessee on February 5, 2005, also for unlawful possession of cocaine with intent to distribute.

He pleaded guilty in state court and was sentenced to nine years’ imprisonment, with release

eligibility at thirty percent. The U.S. Bureau of Immigration and Customs Enforcement (ICE) placed
No. 08-6076
USA v. Almonte-Rosa

a detainer on Almonte-Rosa on March 8, 2006. In July 2006, the Tennessee Board of Probation and

Parole continued a hearing in order to “verify” whether ICE intended to act on the detainer.

       Almonte-Rosa was still in Tennessee custody when he was indicted in the instant case on

September 24, 2007. He was then transferred to federal custody pursuant to a writ of habeas corpus

ad prosequendum; he pleaded guilty to the § 1326 violation on February 14, 2008. His presentence

report (PSR) calculated a total offense level of twenty-one, which, combined with a criminal history

category III, resulted in a Guidelines range of forty-six to fifty-seven months.

       Almonte-Rosa did not challenge the PSR, but filed a position paper outlining arguments in

favor of a variance. Relevant to the instant appeal, he argued that he should receive “credit” for the

time he spent in Tennessee custody following his July 2006 parole hearing. He claimed that the ICE

detainer prevented him from being granted parole at his July 2006 hearing, and that he should have

been transferred to Federal custody at that point. Because he would be ineligible for credits

calculated by the Bureau of Prisons (BOP) under 18 U.S.C. § 3585(b), he asked the district court to

grant a variance equal to the roughly two years between July 2006 until his sentencing.1

       At sentencing, during the district court’s consideration of Almonte-Rosa’s Guidelines range,

the district court and Almonte-Rosa’s counsel engaged in a lengthy discussion of Almonte-Rosa’s

parole eligibility in Tennessee. Sent’g Tr. at 9-12, 18-21. His attorney admitted that it was unclear


       1
        At the sentencing hearing, Almonte-Rosa’s attorney asked “for credit from July ‘06 through
today [August 20, 2008], which comes up to be by my calculation about two years and a little over
a month.” Sent’g Tr. at 12. On appeal, Almonte-Rosa states that his counsel requested only a
fifteen-month variance at sentencing, which would correspond to the time between Almonte-Rosa’s
parole hearing in July 2006 and his federal indictment in September 2008. The record, however,
does not indicate that the requested variance changed from Almonte-Rosa’s position paper.

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USA v. Almonte-Rosa

when Almonte-Rosa should have been eligible for parole, and stated that she had “never figured out

what formula they are going to [use to] come up with the [parole eligibility] dates they come up

with.” Id. at 20. The Government responded that it was conjecture that Almonte-Rosa was actually

eligible for parole at his July 2006 hearing, and that “this credit may be better left to the authorities

that Congress has set for that, and that is the Bureau of Prisons.” Id. at 22.

        The district court ultimately agreed with the Government, stating:

        As far as credits, I really believe that the BOP is in a position to handle that. I’m not
        going to be providing or determining that. I have a difficult time enough determining
        what the federal systems calls for in terms of credit, and things of that nature, or the
        way it handles matters. I’m not going to be trying to understand what the state
        systems [sic] does. All I know is what I’m [sic] heard from you folks who have done
        work over there that there is a set of rules that a lot of times are given 30 percent.
        And what all the details and intricacies of that program, other than that 30 percent,
        I don’t know. I don’t pretend to know. The BOP, which handles credits, does a much
        better job, I’m sure, than I do. I have no wishes or desire to give Mr. Almonte-Rosa
        some credit for the time that was delayed or that he should have been in federal
        custody. I’m going to leave that with them.

Sent’g Tr. at 25. After accepting the PSR recommended Guidelines range of forty-six to fifty-seven

months, the court considered the § 3553(a) factors. Id. at 38-40. It determined that Almonte-Rosa’s

reason for reentry was to traffic narcotics, which impacted the court’s consideration of nearly all of

those factors. Id. At the conclusion of its review of the § 3553(a) factors, the court considered

Almonte-Rosa’s argument in favor of a variance based on his state custody and stated:

        The Court has heard the arguments of counsel concerning the circumstances
        surrounding credits and delays, and things of that nature. I’ve already addressed that
        however, in that regard the Court is going to impose the following sentence, which
        are [sic] under the Guidelines. The Court is going to impose a sentence in the matter
        of 36 months.



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USA v. Almonte-Rosa

Sent’g Tr. at 40. Thus, Almonte-Rosa received a ten-month variance below the low-end of the

Guidelines range.2 Almonte-Rosa appeals claiming that his sentence was both procedurally and

substantively unreasonable.

                                                  II.

       We review the reasonableness of a sentence for abuse of discretion. Gall v. United States,

552 U.S. 38, 51 (2007).3 This review “is split into two parts: procedural reasonableness and

substantive reasonableness.” United States v. Benson, 591 F.3d 491, 500 (6th Cir. 2010). A sentence

is procedurally unreasonable if it contains “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, 552 U.S. at 51. However, sentencing is an “exercise of judgment, not

ritual” and a district court is required “only to provide enough detail to allow an appellate court to

conduct ‘meaningful appellate review’ and to conclude that the district court adequately considered


       2
        Almonte-Rosa’s brief on appeal correctly states the Guidelines range and the final sentence,
but mistakenly states that he received a twelve-month variance.
       3
          Almonte-Rosa did not object to the district court’s explanation of its decision not to grant
the full amount of the variance requested. Sent’g Tr. at 41. Where a defendant fails to object to a
district court’s sentencing determination sentence when given the opportunity, this court reviews
claims of procedural unreasonableness for plain error. United States v. Haj-Hamed, 549 F.3d 1020,
1024 (6th Cir. 2008) (citing United States v. Vonner, 516 F.3d 382, 386 (6th Cir.) (en banc), cert.
denied, 129 S.Ct. 68 (2008)).
         However, here, as in Haj-Hamed, the Government does not assert that the standard of review
should be plain error. We do not need to decide which standard of review applies to Almonte-Rosa’s
procedural reasonableness challenge, as the claim fails under either standard.

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USA v. Almonte-Rosa

the relevant statutory factors.” United States v. Grossman, 513 F.3d 592, 595 (6th Cir. 2008) (citing

United States v. McGee, 494 F.3d 551, 556-57 (6th Cir. 2007)).

        Substantive unreasonableness occurs where the district court “selects a sentence arbitrarily,

bases the sentence on impermissible factors, fails to consider relevant sentencing factors, or gives

an unreasonable amount of weight to any pertinent factor.” United States v. Conaster, 514 F.3d 508,

520 (6th Cir. 2008) (citations omitted). “The essence of a substantive-reasonableness claim is

whether the length of the sentence is ‘greater than necessary’ to achieve the sentencing goals set forth

in 18 U.S.C. § 3553(a).” United States v. Tristan-Madrigal, 601 F.3d 629, 2010 WL 1541291, at

*3 (6th Cir. 2010). We afford a sentence within the advisory Guidelines range a “rebuttable

presumption of substantive reasonableness.” United States v. Erpenbeck, 532 F.3d 423, 430 (6th Cir.

2008) (citation omitted). “[S]imple logic compels the conclusion that, if a sentence [within the

Guidelines] would have been presumptively reasonable in length, defendant's task of persuading us

that [a] more lenient sentence . . . is unreasonably long is even more demanding.” United States v.

Curry, 536 F.3d 571, 573 (6th Cir. 2008).

                                                  III.

                                                  A.

        Almonte-Rosa argues that his sentence is procedurally unreasonable because the district court

failed to adequately explain its decision to grant his request for a variance in part, but deny the full

extent of the variance he requested. We disagree.

        Because the district court chose to vary below the Guidelines, it was required to explain its

decision. Rita v. United States, 551 U.S. 338, 357 (2007) (“Where the judge imposes a sentence

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USA v. Almonte-Rosa

outside the Guidelines, the judge will explain why he has done so.”). The district court fulfilled this

obligation. The record reflects that the district court carefully considered the § 3553(a) factors,

acknowledged Almonte-Rosa’s request for a variance and granted the variance in part. In doing so,

the court implicitly accepted the argument that Almonte-Rosa should receive some leniency based

on the time he spent in Tennessee custody. However, the court also made clear, by reference to its

earlier discussion of the issue, that it was uncomfortable with accepting Almonte-Rosa’s calculation

of when he would otherwise have been eligible for release. Similarly, it is clear that the district court

was concerned with the need to adequately punish Almonte-Rosa for returning to the United States

illegally for the purpose of trafficking in narcotics. Taken in context, the district court’s careful

consideration of the § 3553(a) factors and its explicit reference to its earlier statements regarding

Almonte-Rosa’s variance request provide a sufficient basis for meaningful appellate review. See

United States v. Lalonde, 509 F.3d 750, 770-71 (6th Cir. 2007). Thus, Almonte-Rosa’s sentence is

not procedurally unreasonable.

                                                   B.

        “Assuming that the district court's sentencing decision is procedurally sound, [we] should

then consider the substantive reasonableness of the sentence imposed under an abuse-of-discretion

standard.” Gall, 552 U.S. at 51. Almonte-Rosa contends that his sentence is substantively

unreasonable because it failed to fully discount his sentence for the time he spent in Tennessee

custody, resulting in a sentence longer than necessary to achieve the goals of § 3553. This claim is

without merit. Almonte-Rosa has not rebutted the presumption of reasonableness accorded to his

below-Guidelines sentence, nor could he prevail in the absence of such a presumption.

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USA v. Almonte-Rosa

       The record does not clearly indicate that Almonte-Rosa was entitled to any reduction based

on his imprisonment in Tennessee. While Almonte-Rosa’s attorney asserted that he would have

been paroled in 2006 absent the ICE detainer, there is no evidence in the record to substantiate such

a claim. Even accepting Almonte-Rosa’s argument, the district court’s sentence reflects its

consideration of all of the § 3553(a) factors, including the seriousness of the offense, the need to

deter others from similar crimes, and the need to protect the public from future illegal activity by

Almonte-Rosa. Its ultimate decision to impose a thirty-six month sentence in addition to the time

served in Tennessee reflected an appropriate balance of the various factors and resulted in a

reasonable sentence. The district court did not abuse its discretion and, therefore, we AFFIRM.




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