                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 13a0256n.06

                                            No. 11-1906                                   FILED
                                                                                       Mar 12, 2013
                          UNITED STATES COURT OF APPEALS                        DEBORAH S. HUNT, Clerk
                               FOR THE SIXTH CIRCUIT

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



       BEFORE: BOGGS, GIBBONS, and COOK, Circuit Judges.


       PER CURIAM. Tomas Jimenez appeals the district court’s judgment of conviction and

sentence.

       Jimenez pleaded guilty to illegal reentry after deportation, in violation of 8 U.S.C. § 1326(a).

The district court determined that Jimenez’s base offense level was eight. The court added 16 levels

under USSG § 2L1.2(b)(1)(A) because Jimenez was previously deported after being convicted of

committing lewd acts upon a child, which qualified as a crime of violence. The court subtracted

three levels for acceptance of responsibility, resulting in a total offense level of 21. Based on the

total offense level of 21 and a criminal-history category of I, Jimenez’s guidelines range of

imprisonment was 37 to 46 months. In July 2011, the district court sentenced Jimenez to 37 months

in prison.
No. 11-1906
United States v. Jimenez

        On appeal, Jimenez argues that his sentence was procedurally unreasonable because, during

the sentencing hearing, the district court failed to consider a proposed amendment to the sentencing

guidelines that subsequently went into effect in November 2011. According to Jimenez, because his

prior conviction occurred in 1991 and did not result in the assessment of criminal-history points, the

guidelines amendment would have reduced the sixteen-level enhancement under § 2L1.2(b)(1)(A)

to twelve levels and reduced his ultimate guidelines range to 24 to 30 months. Jimenez also argues

that his sentence was substantively unreasonable because it was based in part on an offense-level

enhancement that is now considered excessive by the Sentencing Commission.

        We review a sentence “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

improperly calculates the guidelines range, treats the guidelines as mandatory, fails to consider the

18 U.S.C. § 3553(a) factors, selects a sentence based on clearly erroneous facts, or fails to adequately

explain the chosen sentence. Gall v. United States, 552 U.S. 38, 51 (2007). “A sentence may be

substantively unreasonable if the district court selects the sentence arbitrarily, bases the sentence on

impermissible factors, fails to consider pertinent § 3553(a) factors or gives an unreasonable amount

of weight to any pertinent factor.” United States v. Vowell, 516 F.3d 503, 510 (6th Cir. 2008)

(internal quotation marks and alterations omitted). We apply a rebuttable presumption of substantive

reasonableness to a within-guidelines sentence. United States v. Vonner, 516 F.3d 382, 389-90 (6th

Cir. 2008) (en banc).



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No. 11-1906
United States v. Jimenez

       The district court did not abuse its discretion in imposing Jimenez’s sentence. The sentence

was not rendered procedurally unreasonable by the district court’s failure to address the proposed

amendment to § 2L1.2(b)(1)(A) because Jimenez did not raise the issue during the sentencing

hearing, the court was not obligated to consider it sua sponte, and Congress did not later make the

amendment retroactive. See 18 U.S.C. § 3553(a)(4)(A)(ii); USSG § 1B1.11(a). Contrary to

Jimenez’s argument, the cases he cites allow consideration by the district court of the pending

amendments to the guidelines but do not establish an obligation for the district court to apply those

amendments. See United States v. Taylor, 648 F.3d 417 (6th Cir. 2011); United States v. Atkinson,

354 F. App’x 250 (6th Cir. 2009). Because Jimenez’s sentence was based on a sentencing range that

was properly calculated under the guidelines in effect at the time of his sentencing, he has not

overcome the presumption that his sentence was substantively reasonable. See United States v.

Massey, 663 F.3d 852, 861 (6th Cir. 2011), cert. denied, 132 S. Ct. 2761 (2012).

       Accordingly, we affirm the district court’s judgment.




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