                  NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                             File Name: 13a0459n.06

                                            No. 12-3794

                            UNITED STATES COURT OF APPEALS
                                 FOR THE SIXTH CIRCUIT                                 FILED
                                                                                   May 09, 2013
                                                                              DEBORAH S. HUNT, Clerk
UNITED STATES OF AMERICA,                                 )
                                                          )
          Plaintiff-Appellee,                             )
                                                          )
v.                                                        )   On Appeal from the United States
                                                          )   District Court for the Southern
JOEL RODRIGUEZ–SOLANO,                                    )   District of Ohio
                                                          )
          Defendant-Appellant.                            )




Before:          BATCHELDER, Chief Judge; GUY and BOGGS, Circuit Judges.

                 BOGGS, Circuit Judge. Joel Rodriguez–Solano, a native of Mexico, pled guilty to

a charge of illegal reentry into the United States after having been previously removed subsequent

to the commission of a felony. The district court imposed a 36-month term of imprisonment, a

sentence below his Guidelines range of 41 to 51 months. Rodriguez–Solano appeals his sentence

on grounds of procedural and substantive unreasonableness. For the following reasons, we affirm.

                                                  I

                 Rodriguez–Solano was convicted of trafficking in cocaine, a first-degree felony, in

the Franklin County Court of Common Pleas in August 2006. After serving a period of time in Ohio

state prison, the United States deported him in November 2009. Less than two years later,

Rodriguez–Solano was found in a Franklin County prison, following his arrest on drug-abuse
No. 12-3794
United States v. Rodriguez–Solano

charges. The Government indicted him on one count of illegal reentry, in violation of 8 U.S.C. §

1326(a) and (b)(1). He pled guilty pursuant to a plea agreement with the Government.

               Prior to his sentencing hearing, the probation office prepared a presentence report that

calculated Rodriguez–Solano’s Guidelines range at 41 to 51 months. Rodriguez–Solano agreed with

this calculation, but argued that the 16-level enhancement under U.S.S.G. § 2L1.2(b)(1)(A), which

applied because he had a prior drug-trafficking conviction, was unduly harsh. His argument was

twofold: He first claimed that § 2L1.2 double counted his prior conviction, as points for a

defendant’s criminal history are also assigned under § 4A1.1. The resulting base level scored illegal

reentry higher than a number of far more serious crimes. He further objected to the provision

because it “lack[ed] any sound policy rationale” and “was not based on empirical research

concerning deterrent efficacy or any other variable relevant to the purposes of sentencing.” In light

of this, Rodriguez–Solano urged the district court to focus on the specific circumstances of his case

and not to allow the 16-level enhancement to “distort the [district court’s] exercise of discretion in

determining the minimally sufficient sentence.”

               The district court addressed Rodriguez–Solano’s argument during his sentencing

hearing. After summarizing his argument, the court invited his attorney to add any additional

commentary. To this the attorney responded that “our request would be that the potential application

of Section 2L1.2 should not take away the discretion the Court has to consider a downward variance

in this case.” He went on to discuss the family considerations that brought Rodriguez–Solano back

to the United States, namely the desire to reunite with his eight-year-old daughter, who resides in

Ohio with her mother, and to provide financial support for his father, an elderly farmer, in Mexico.

                                                -2-
No. 12-3794
United States v. Rodriguez–Solano

The Government responded by emphasizing that the crux of the defendant’s argument was that the

district court could consider the potential double-counting effect of § 2L1.2 and that he did not in

fact object to its applicability to this case.

                After allowing Rodriguez–Solano to allocute, the judge imposed a below-Guidelines

sentence of 36 months, finding that the defendant’s requested 24-month sentence would not be just

punishment under the circumstances. The district judge highlighted contradictory statements made

by Rodriguez–Solano during his allocution and his past problems with alcohol abuse. The court

further acknowledged the facts that Rodriguez–Solano had been punished for his prior drug offense

and that many people face a financially distressing situation in Mexico. In light of this, the court

varied downward from the bottom end of the Guidelines by five months.

                The district court concluded the hearing by asking the parties if they had any

additional objections that they wished to put into the record. See generally United States v. Bostic,

371 F.3d 865 (6th Cir. 2004). Rodriguez–Solano objected to the substantive reasonableness of the

sentence. He subsequently filed a timely appeal with this court, raising claims of procedural and

substantive unreasonableness.

                                                 II

                We must first consider whether the sentence is procedurally reasonable. The goal of

procedural review is to ensure that the sentencing judge “has considered the parties’ arguments and

has a reasoned basis for exercising his own legal decisionmaking authority.” Rita v. United States,

551 U.S. 338, 356 (2007). Each party has a duty to object to the procedural rulings made by a

sentencing court in order to preserve them for appeal. United States v. Vonner, 516 F.3d 382, 385

                                                 -3-
No. 12-3794
United States v. Rodriguez–Solano

(6th Cir. 2008) (en banc). When a sentencing judge asks the parties if they have any additional

objections not previously raised and the complaining party fails to raise an issue, we review that

issue for plain error. Ibid. (citing Bostic, 371 F.3d at 872–73). Under plain-error review, the

defendant must show “(1) error (2) that was obvious or clear, (3) that affected defendant’s substantial

rights and (4) that affected the fairness, integrity, or public reputation of the judicial proceedings.”

Id. at 386 (internal quotation marks omitted).

                Procedural review involves a three-factor analysis: (1) whether the court properly

calculated the Guidelines range; (2) whether the court considered the § 3553(a) factors and the

parties’ arguments; and (3) whether the court adequately explained why it imposed the chosen

sentence. United States v. Bolds, 511 F.3d 568, 581 (6th Cir. 2007). Although the district court

must consider the § 3553(a) factors, it need not explicitly reference each factor. United States v.

Hernandez–Fierros, 453 F.3d 309, 312 (6th Cir. 2006). Rather, the court must “make an

individualized assessment based on the facts presented, and . . . discuss all relevant statutory factors

to facilitate reasonable appellate review.” United States v. Simmons, 587 F.3d 348, 358 (6th Cir.

2009) (internal quotation marks omitted).

                If the sentence survives procedural-reasonableness review, we then review the

sentence for substantive reasonableness under an abuse-of-discretion standard. United States v.

Barahona–Montenegro, 565 F.3d 980, 983 (6th Cir. 2009) (citing Gall v. United States, 552 U.S.

38, 49 (2007)). Substantive review requires that the court “take into account the totality of the

circumstances, including the extent of any variance from the Guidelines range.” Gall, 552 U.S. at

51. “A sentence is substantively unreasonable if the sentencing court arbitrarily selected the

                                                  -4-
No. 12-3794
United States v. Rodriguez–Solano

sentence, based the sentence on impermissible factors, failed to consider pertinent § 3553(a) factors,

or gave an unreasonable amount of weight to any pertinent factor.” United States v. Castilla–Lugo,

699 F.3d 454, 464 (6th Cir. 2012) (internal quotation marks omitted). Because the district court is

better situated to evaluate the facts of the case and determine their import under the sentencing rubric

of § 3553(a), we apply “a great deal of deference to a district court’s determination that a particular

sentence is appropriate.” Id. at 465 (internal quotation marks omitted). Furthermore, a within-

Guidelines sentence is afforded a rebuttal presumption of reasonableness. Ibid. When the

sentencing judge imposes a sentence below the Guidelines range, “simple logic compels the

conclusion that . . . [the] 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

                Rodriguez–Solano’s only objection to the procedural reasonableness of the district

court’s sentence is that the court failed to give an adequate explanation of the sentence imposed.

Because he did not raise this issue during the sentencing hearing, we review it for plain error.

Vonner, 516 F.3d at 385. After calculating the appropriate Guidelines sentence—a calculation that

the defendant agreed was correct—the judge discussed Rodriguez–Solano’s arguments regarding the

application of § 2L1.2:

                         THE COURT: Now, the argument with respect to the appropriate
         sentence in this case. I have reviewed the memorandum filed by counsel which in
         this case includes the defendant’s request for a variance - - right, Jose?

                                                 -5-
No. 12-3794
United States v. Rodriguez–Solano

                       MR. VELEZ: Yes, Your Honor.

                       THE COURT: - - from the applicable guideline range. Your
       argument, if I could summarize, emphasizes that the 16-level increase attributable to
       the base offense level, which you argue, is overly harsh. You also state that this
       increase grades the crime of reentry at the same level as offenses that are far greater
       in seriousness, including sex trafficking of children, bombing an airport, and robbery
       with a weapon causing serious bodily harm.

                       And you’ve also argued the sentencing commission has not articulated
       any rationale for the increase, resulting in a sentence far harsher and insufficient to
       provide just punishment and adequate deterrence.

                       Do you want to add any more to that?

                       MR. VELEZ: Your Honor, as to the downward variance petition, our
       request would be that the potential application of Section 2L1.2 should not take away
       the discretion the Court has to consider a downward variance in this case.

               At bottom, Rodriguez–Solano asked the court to exercise its discretion to sentence

him below the 41-month minimum Guidelines range. He argued that the application of U.S.S.G. §

2L1.2(b) to this case was inconsistent with 18 U.S.C. § 3553(a)(2)(A), which calls upon courts to

consider the need for the sentence imposed “to reflect the seriousness of the offense.” His argument

appears to have been well taken, at least in part, as the district court did in fact vary downward by

five months.

               While the court did not give Rodriguez–Solano the entirety of his requested variance,

it did give a thorough explanation as to why:

                       THE COURT: Why didn’t you stay at home in Mexico? You knew
       you weren’t permitted to return to this country. If your father was ill, you could have
       stayed there to take care of him. It’s contradictory what you’re saying to this Court.
       Now you want to return to take care of your father. You should have stayed there in
       Mexico, and you wouldn’t have to face the federal charge against you for unlawful
       reentry. You knew you weren’t supposed to return to this country.

                                                -6-
No. 12-3794
United States v. Rodriguez–Solano

        ....

                       I don’t think a sentence of 24 months is just punishment under the
       circumstances. The defendant is 31 years old. He has a problem with alcohol,
       consumes up to 24 beers in a day. That may lead to some of his rationale and his
       thinking, to be as subtle as I can. So he’s a person who is not predictable. You know
       that. Anyone who has to use substances like alcohol - - there’s no evidence that he
       uses drugs, but it’s a concern to the Court.

                       The Court has to fashion a sentence that will deter him from returning
       to this country. A sentence of 24 months just isn’t enough.

To put this in the language of § 3553(a), the district court was concerned that a 24-month sentence

would not “afford adequate deterrence to criminal conduct.” Id. § 3353(a)(2)(B). The court was

specifically troubled by a glaring inconsistency in Rodriguez–Solano’s defense: he claimed to be less

culpable because he returned to the United States to assist his family financially, which he could not

do by working on the family farm in Mexico, yet he argued that he would not offend again because

he planned to assist his family financially by working on the family farm in Mexico. While the

district court did not explicitly connect its concern of recidivism with its rejection of

Rodriguez–Solano’s concern of overpunishment, it did not need to do so. See United States v.

Washington, 147 F.3d 490, 491 (6th Cir. 1998) (“A court need not engage in ritualistic incantation

in order to establish consideration of a legal issue.” (internal quotation marks omitted)). Indeed, the

unspoken connection between the two issues is quite obvious, as it would be exceedingly odd outside

the realm of petty crime for a proposed term of imprisonment to be simultaneously too low to deter

future criminal behavior yet too severe in relation to the act committed.

               Rodriguez–Solano cites United States v. Wallace, 597 F.3d 794 (6th Cir. 2010), in

support of his position. However, that case is readily distinguishable. In Wallace, a divided panel

                                                 -7-
No. 12-3794
United States v. Rodriguez–Solano

of this court vacated the defendant’s sentence on procedural grounds because it failed to respond to

the defendant’s nonfrivolous argument for a lower sentence. Id. at 806. The facts and circumstances

of Wallace were unique: The defendant, a member of an oxycodone distribution ring, asked the

district court to consider the sentence of her co-conspirator, the admitted head of the ring, when

imposing her sentence. Id. at 802–03. The ringleader received a substantial reduction in his

sentence for acceptance of responsibility and because he suffered from sickle-cell anemia. Id. at 802.

Though the defendant made it clear that she was appealing to 18 U.S.C. § 3553(a)(6), which calls

upon judges to consider “unwarranted sentence disparities among defendants with similar records

who have been found guilty of similar conduct,” the majority observed that “no part of the record

makes clear that the district judge even understood Defendant’s argument.” Id. at 803, 806.

               It is notable that the majority’s holding was extremely narrow. In collecting a number

of cases on the issue, the majority recognized that cases with a “bare-bone” recitation of the

argument, id. at 805 (citing United States v. Petrus, 588 F.3d 347, 356 (6th Cir. 2009)), a

“conceptually straightforward” sentencing objection, ibid. (citing Simmons, 587 F.3d at 361), or a

reasoning that “accounted for the nature and circumstances of the offense and the history and the

characteristics”of the defendant, ibid. (citing United States v. Lapsins, 570 F.3d 758, 774 (6th Cir.

2009)), would all pass muster. The sentence at issue in Wallace simply did not clear this low bar.

               Two key differences prove fatal to Rodriguez–Solano’s comparison and to his

argument in general. First, and as discussed above, it is plain from the record that the district court

acknowledged and understood Rodriguez–Solano’s downward-variance argument. Not only did the

district court’s oral summary of the argument track the structure of his sentencing brief with near-

                                                 -8-
No. 12-3794
United States v. Rodriguez–Solano

verbatim accuracy, but also the court invited his attorney to make any needed clarification or addition

thereafter. This is a far cry from the situation presented in Wallace and is certainly not error, plain

or otherwise. Even if we were to assume that the district court plainly erred in not addressing

Rodriguez–Solano’s argument in more detail, it is manifest that this error did not prejudice his

substantial rights. Again unlike Wallace, the district court here gave a detailed explanation of why

it imposed the sentence that it did, specifically that it was concerned about the defendant’s potential

to recidivate. Further discussion of Rodriguez–Solano’s concern of overpunishment would not have

affected the outcome of the case—lenity and deterrence are very much opposite sides of the same

penological coin, and to the extent that the district court rooted its sentence in one concept, it did so

to the exclusion of the other. Accordingly, we reject Rodriguez–Solano’s procedural-reasonableness

argument.

                                                   B

                We next review Rodriguez–Solano’s sentence for substantive reasonableness. His

sole argument is that a prison term of 24 months would have satisfied the purposes of sentencing laid

out in § 3553(a). He argues that his crime, though a felony, was committed for noncriminal

purposes, namely to reunite with his daughter and to earn money to tend to his ailing father. The

record demonstrates that the district court believed that, though these concerns weighed in favor of

lenity to some degree, they also created a concern that the defendant would offend again. The judge

responded directly to Rodriguez–Solano’s assertion that he reentered to help his father financially,

noting that it was contradictory for him to claim that he returned to the United States to help his



                                                  -9-
No. 12-3794
United States v. Rodriguez–Solano

father, yet that the court did not need to worry about him returning for the very same reason after his

release.

               To be sure, it appears that the district court credited Rodriguez–Solano’s plea for

lenity to an extent. Instead of imposing the low-end Guidelines sentence of 41 months requested by

the Government, the judge varied downward to 36 months. Aside from the bald assertion that a 24-

month sentence would have been sufficient, Rodriguez–Solano does not explain how the district

court abused its discretion by imposing a below-Guidelines sentence. His argument therefore fails.

                                                  IV

               For the foregoing reasons, we AFFIRM Rodriguez–Solano’s sentence.




                                                - 10 -
