                  NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                             File Name: 11a0732n.06

                                           No. 10-5268                                    FILED
                                                                                      Oct 26, 2011
                          UNITED STATES COURT OF APPEALS
                                                                                 LEONARD GREEN, Clerk
                               FOR THE SIXTH CIRCUIT


UNITED STATES OF AMERICA,                                )
                                                         )         ON APPEAL FROM THE
        Plaintiff-Appellee,                              )         UNITED STATES DISTRICT
                                                         )         COURT FOR THE
v.                                                       )         WESTERN DISTRICT OF
                                                         )         TENNESSEE
ARMIN SAMAYOA-BALTAZAR,                                  )
                                                         )
        Defendant-Appellant.                             )                  OPINION




BEFORE:           BOGGS and McKEAGUE, Circuit Judges; and GOLDSMITH, District Judge.*

        McKEAGUE, Circuit Judge. Defendant Armin Samayoa-Baltazar was arrested in Shelby

County, Tennessee, in connection with a vandalism charge on July 12, 2009. It was determined that

defendant is a citizen of Guatemala who was in the Unites States illegally. On November 20, 2009,

defendant pleaded guilty to having illegally re-entered the United States, in violation of 8 U.S.C. §

1326(a) and (b)(2). The district court sentenced defendant to a prison term of thirty-six months,

followed by two years of supervised release. Defendant now challenges the sentence as procedurally

and substantively unreasonable. Finding no abuse of discretion, we affirm the judgment of the

district court.




        *
       Honorable Mark A. Goldsmith, United States District Judge for the Eastern District of
Michigan, sitting by designation.
No. 10-5268
United States v. Samayoa-Baltazar

        At the sentencing hearing, the district court noted that neither party had objected to the

presentence report. The court therefore adopted the presentence report as its findings of fact.

Evaluation of those facts under the Sentencing Guidelines resulted in an adjusted offense level of

13 and a criminal history category of VI, yielding an advisory Guidelines range of thirty-three to

forty-one months. Commenting on defendant’s significant criminal history, including numerous

theft and alcohol-related offenses, the district court, in considering the sentencing factors prescribed

at 18 U.S.C. § 3553(a), observed that a significant period of incarceration was needed to achieve just

punishment and vindicate the law, and to deter others and protect the public. R. 29, Sent. Tr. pp. 8-9.

The court determined that a prison sentence of three years was appropriate, a period slightly longer

than the low end of the advisory Guidelines range. The court recognized that defendant would be

deported to Guatemala as soon as he is released from prison and that this would affect his conditions

of supervised release.

        A. Procedural Unreasonableness

        We review the judgment of sentence under the abuse-of-discretion standard. Gall v. United

States, 552 U.S. 38, 46, 51 (2007). A sentence may be vacated under this standard only if it is found

to be procedurally or substantively unreasonable. Id. at 51-52; United States v. Peebles, 624 F.3d

344, 347 (6th Cir. 2010). A sentence may be deemed procedurally unreasonable if the district court

failed to calculate or improperly calculated the applicable advisory Guidelines range, treated the

Guidelines as mandatory, failed to consider the factors prescribed at 18 U.S.C. § 3553(a), selected

the sentence based on erroneous facts, or failed to adequately explain the sentence. Gall, 552 U.S.



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United States v. Samayoa-Baltazar

at 51; Peebles, 624 F.3d at 347. Defendant contends the sentence imposed is procedurally

unreasonable in three respects.1

        1. Unwarranted Sentence Disparities

        First, defendant contends the district court failed to expressly consider all of the § 3553(a)

factors. In particular, he contends the court failed to consider “the need to avoid unwarranted

sentence disparities among defendants with similar records who have been found guilty of similar

conduct.” 18 U.S.C. § 3553(a)(6). As we have previously observed, “ ‘avoidance of unwarranted

disparities was clearly considered by the Sentencing Commission when setting the Guidelines

ranges,’ and the district court's very act of correctly calculating and reviewing the advisory range

indicates that a district judge ‘necessarily gave significant weight and consideration to the need to

avoid unwarranted disparities.’” United States v. Simmons, 587 F.3d 348, 363 (6th Cir. 2009)

(quoting Gall, 552 U.S. at 54). By reasonably weighing the appropriate § 3553(a) factors and then

sentencing defendant within the advisory Guidelines range, the district court thus adequately

observed the need to avoid unwarranted disparities—especially considering that defendant did not


        1
          The government argues that defendant’s procedural unreasonableness challenges are
reviewable only for plain error because he failed to properly assert and preserve them below. We
agree that defendant did not clearly articulate any of these procedural challenges in the district court.
If the district court had correctly complied with the requirement set forth in United States v. Bostic,
371 F.3d 865, 872-73 (6th Cir. 2004) (requiring the district court to expressly ask the parties whether
they have any additional objections to the sentence tentatively announced), then defendant would
be deemed to have forfeited his right to review of these procedural challenges except for plain error.
The record shows, however, that the district court, at the end of the sentencing hearing, merely asked
the parties whether there was “anything else.” R. 29, Sent. Tr. p. 10. This is insufficient to satisfy
the Bostic requirement. United States v. Clark, 469 F.3d 568, 570 (6th Cir. 2006) (holding “anything
else” inquiry to be insufficient). We therefore review defendant’s procedural objections under the
ordinary abuse-of-discretion standard.

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United States v. Samayoa-Baltazar

raise any such argument, factual or legal, at the time of sentencing. See id. (“Adequately explaining

the reasons for sentencing does not require expressly defending the abstract justifications for the

sentencing range.”).

        2. Deportation as Punishment

        Second, defendant contends the district court failed to expressly address and explain why it

rejected his argument that his eventual deportation represented an element of punishment that should

be taken into account in determining the appropriate prison sentence. Specifically, defendant’s

counsel argued in the district court as follows:

        Well, Your Honor, we’re going to ask the court for a sentence below the guidelines
        inasmuch as this is a case where the defendant can be sent back out of the country.
        We know he has to be punished some for coming into the country without
        permission.

R. 29, Sent. Tr. p. 4. This is the totality of the argument that defendant’s eventual deportation should

be considered in determining the length of his prison sentence.

        Defendant made no further argument and cited no legal authority explaining why his eventual

deportation should justify a downward variance. The district court acknowledged that defendant

would be deported to Guatemala upon release from prison, presumably to live with family. The

court also acknowledged the hardship caused by deportation of an alien who entered without

permission in order to work, but observed that defendant’s significant criminal history rendered his

case “unusual” in a way “not favorable” to him. The court made no further mention of the

deportation issue as it went on to impose a sentence within the Guidelines range. In other words,

the district court determined that a downward variance was not warranted because a significant


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United States v. Samayoa-Baltazar

period of incarceration was necessary to achieve just punishment, deter others, and protect the public.

        The court’s failure to more explicitly address the “deportation argument” does not rise to the

level of a procedural violation or an abuse of discretion. While we might prefer that the district court

had explicitly addressed defendant’s argument that his deportation represented punishment that

warranted a variance, the context and the record make clear the court’s reasoning. This is sufficient

to enable meaningful review and defeat defendant’s claim that the sentence is procedurally

unreasonable. United States v. Chiolo, 643 F.3d 177, 184-85 (6th Cir. 2011). “When a district court

adequately explains why it imposed a particular sentence, especially one within the advisory

Guidelines range, we do not further require it to exhaustively explain the obverse—why an

alternative sentence was not selected in every instance.” Id. at 185 (quoting United States v. Gale,

468 F.3d 929, 940 (6th Cir. 2006) (emphasis in Gale)).

        3. Erroneous Fact Finding

        Third, defendant contends the district court based the sentence on a clearly erroneous finding

of fact. In sentencing defendant, the district court referred to ¶ 42 of the presentence report, noting

that defendant’s criminal history involved an aggravated burglary. Paragraph 42 shows that although

defendant was originally charged with aggravated burglary, the charge was subsequently amended

and he was actually convicted of aggravated criminal trespass. To the extent the district court may

have believed he was convicted of aggravated burglary, defendant contends the court relied on an

erroneous fact in imposing sentence.

        Neither party filed any objection to the presentence report and the district court adopted the

report as embodying its findings of fact. Paragraph 42 clearly shows that the aggravated burglary

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United States v. Samayoa-Baltazar

charge was amended to aggravated criminal trespass, a conviction that undisputedly earned

defendant one of his fifteen criminal history points. The district court simply referred to the

conviction described in ¶ 42 as one of numerous convictions comprising a significant criminal

history that resulted in a higher advisory Guidelines range and made defendant’s sentencing unusual

among illegal re-entry cases. Irrespective of the district court’s inaccurate reference to ¶ 42 as

reflecting an aggravated burglary conviction rather than an aggravated criminal trespass conviction,

the error had no impact on the court’s Guidelines calculation, which has not been objected to. Nor

is there any reason to conclude it had any impact on the sentence ultimately imposed. Accordingly,

we find that any “error” was harmless and does not warrant resentencing. See United States v.

Anderson, 526 F.3d 319, 323-24 (6th Cir. 2008).

       B. Substantive Unreasonableness

       Review for substantive unreasonableness requires us to consider the totality of the

circumstances with deference to the district court’s institutional advantage in evaluating the

defendant, making credibility determinations, and assessing facts and insights not conveyed by the

record. Gall, 552 U.S. at 51-52. A sentence may be deemed substantively unreasonable if the

district court selected the sentence arbitrarily, based the sentence on an impermissible factor, failed

to consider the relevant sentencing factors, or gave unreasonable weight to any pertinent factor.

United States v. Hall, 632 F.3d 331, 335 (6th Cir. 2011). A prison sentence within the properly

calculated advisory Guidelines range enjoys a rebuttable presumption that it is substantively

reasonable. United States v. Vonner, 516 F.3d 382, 389 (6th Cir. 2008).



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United States v. Samayoa-Baltazar

       1. Unwarranted Sentence Disparities

       Defendant contends the district court’s failure to expressly consider the need to avoid

unwarranted sentence disparities also renders the sentence substantively unreasonable in two

respects. Defendant acknowledges that his Guidelines range was properly calculated. He also

acknowledges that his offense level was properly increased by eight levels pursuant to U.S.S.G. §

2L1.2(b)(1)(D), because he had been previously deported after being convicted of an aggravated

felony. Defendant further acknowledges that his 2002 Mississippi conviction for felony shoplifting

satisfies the definition of aggravated felony under 8 U.S.C. § 1101(a)(43)(G), because he was subject

to a term of imprisonment of at least one year. Yet, even though the district court properly increased

his offense level by eight levels under the Guidelines, and even though the Guidelines are designed

to eliminate unwarranted sentence disparities, see Simmons, 587 F.3d at 363, defendant contends the

resultant sentence is substantively unreasonable, (a) because shoplifting, under the laws of most

states, would not be deemed an aggravated felony; and (b) because shoplifting should not be lumped

together for equal treatment with such violent offenses as murder, rape and sexual abuse of a minor.

See 8 U.S.C. § 1101(a)(43)(A).

       The “need to avoid unwarranted sentence disparities” factor is designed to avoid disparities

in sentences “among defendants with similar records who have been found guilty of similar

conduct.” 18 U.S.C. § 3553(a)(6). It is designed “to ensure nationally uniform sentences among like

offenders so as to leave room to depart downward for those defendants who are truly deserving of

leniency.” United States v. Simmons, 501 F.3d 620, 624 (6th Cir. 2007). Defendant’s argument is

not that he has been punished more severely than other defendants nationally who illegally re-entered

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United States v. Samayoa-Baltazar

after having been deported following conviction for an aggravated felony. Rather, his argument is

that he should be punished less severely than other offenders who illegally re-entered following

conviction for a more serious aggravated felony. In other words, defendant impliedly argues that he

is among those deserving of a downward variance because he is truly deserving of leniency.

       The trouble is that defendant did not move the district court for a downward variance on this

ground. He did not present this substantive argument below and did not make any showing that

“other judges have departed from the same guideline with respect to similarly situated offenders.”

Simmons, 587 F.3d at 363. Nor has he supported his appellate argument with such a showing. The

district court was not, in the absence of such a showing, required to defend the Sentencing

Commission’s abstract justifications for the sentencing Guidelines, see id., and neither is the

reviewing court. Nor has defendant otherwise demonstrated, considering the totality of the

circumstances, that his sentence inflicts such a disparately harsh punishment as to be substantively

unreasonable.

       2. Unreasonable Weighing of Pertinent Factors

       a. Deportation as Punishment

       Defendant contends that his request for a variance based on the argument that his eventual

deportation constituted a form of punishment that should be taken into account in fashioning the

appropriate prison term was improperly ignored by the district court. In effect, he argues that the

district court’s failure to grant a downward variance from the advisory Guidelines range was an

abuse of discretion and the resulting sentence substantively unreasonable.



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United States v. Samayoa-Baltazar

       That his deportation is a pertinent sentencing consideration, defendant argues, has been

recently confirmed by the Supreme Court in Padilla v. Kentucky, 130 S.Ct. 1473, 1480-81 (2010).

Padilla was decided a month after defendant’s sentencing and was not cited to the district court.

Padilla does recognize that “deportation is an integral part—indeed, sometimes the most important

part—of the penalty that may be imposed on noncitizen defendants who plead guilty to specified

crimes.” Id. at 1480 (footnote omitted). Yet, the Padilla Court made this observation in a totally

different context. The Court held that a criminal defense counsel’s failure to advise his client that

deportation would be a consequence of his pleading guilty to a drug-trafficking charge could amount

to ineffective assistance of counsel. Padilla thus represents weak authority for the proposition that

the district court abused its discretion by denying a downward variance to a defendant with a lengthy

criminal history who pleaded guilty to illegal re-entry after having been deported following a felony

conviction.

       On the other hand, our sister circuits have frowned on the notion that deportation should be

considered grounds for a downward variance. The Second Circuit has held that it was “improper for

the district court to factor deportation in as an ‘additional punishment’” and vacated a below-

Guidelines sentence. United States v. Wills, 476 F.3d 103, 107-09 (2d Cir. 2007). See also United

States v. Castro-Rivas, 254 F. App’x 742, 750-52 (10th Cir. 2007) (following Wills). In United

States v. Molina, 563 F.3d 676, 678-79 (8th Cir. 2009), the Eighth Circuit held the district court did

not plainly err in failing to consider that the defendant would be deported after serving his prison

sentence. The Molina court noted, however, that a sentencing court would not necessarily be



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United States v. Samayoa-Baltazar

precluded from considering deportation in conjunction with the statutory sentencing factors. Id. at

679 n.3.

       We need not decide whether defendant Samayoa-Baltazar’s eventual deportation represents

an appropriate sentencing consideration. Even assuming defendant properly asserted and preserved

the issue, we find no abuse of discretion in the district court’s refusal to accept defendant’s

deportation as justification for a downward variance. The district court acknowledged defendant’s

impending deportation, but made clear that it selected a prison sentence of thirty-six months based

on consideration of the § 3553(a) factors. Among these, the court deemed the need for just

punishment, vindication of the law, deterrence of others, and protection of the public to be the most

important, in light of defendant’s lengthy criminal history. We cannot find this sentence, just three

months above the low end of the Guidelines range, to be substantively unreasonable.

       b. Defendant’s Criminal History

       Defendant contends the district court placed too much weight on his criminal history. He

does not contest the validity of any of the twenty-two convictions listed in the presentence report,

but contends that most of the convictions are for relatively minor theft and driving offenses and were

precipitated by a substance abuse problem that he has since overcome. Irrespective of the nature of

the convictions, twenty-two convictions in a span of less than six years undeniably constitutes a

significant and troubling criminal history. Considering the totality of the circumstances, defendant

falls far short of persuading us that the sentence imposed is substantively unreasonable.




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        c. Protection of the Public

        Finally, defendant argues the district court placed too much weight on the need to protect the

public as justification for the sentence. This argument, too, deserves only short shrift. The first three

justifications given by the district court for imposing a period of incarceration are just punishment,

vindication of the law, and deterrence of others. All are appropriate considerations. The court

mentioned the need to protect the public as well. It is no less relevant. The record gives no reason

to believe the district court placed undue or unreasonable weight on this factor. We find no abuse

of discretion.

        Accordingly, we overrule defendant’s claims of error and AFFIRM the judgment of the

district court.




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