                       NOT RECOMMENDED FOR PUBLICATION
                               File Name: 14a0570n.06

                                         No. 13-2244
                                                                                    FILED
                                                                               Jul 28, 2014
                                                                          DEBORAH S. HUNT, Clerk
                         UNITED STATES COURTS OF APPEALS
                              FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA,                              )
                                                       )
       Plaintiff-Appellee,                             )      ON APPEAL FROM THE
                                                       )      UNITED STATES DISTRICT
v.                                                     )      COURT FOR THE WESTERN
                                                       )      DISTRICT OF MICHIGAN
RAMON BERLANGA-RODRIGUEZ,                              )
                                                       )
       Defendant-Appellant.                            )
                                                       )      OPINION
                                                       )



       BEFORE:        GUY, KETHLEDGE, and STRANCH, Circuit Judges.

       STRANCH, Circuit Judge. Ramon Berlanga-Rodriguez was sentenced to the thirty-

year statutory maximum sentence for sexual exploitation of his minor niece, a child who lived

with the Defendant for most of her childhood. He now appeals, arguing that his sentence is

substantively unreasonable because the district court ignored his request for a variance and

information raised in his sentencing memorandum, resulting in a sentence that is longer than

necessary to meet the goals of 18 U.S.C. § 3553(a). Because the sentencing court did not ignore

mitigating factors, rely on impermissible considerations, or impose a sentence arbitrarily, we

AFFIRM Berlanga-Rodriguez’s sentence.

                                  I.      BACKGROUND

       Ramon Berlanga-Rodriguez sexually molested and photographed his niece, a child who

lived with him for fourteen years. According to the victim, Berlanga-Rodriguez had a history of
No. 13-2244
United States v. Berlanga-Rodriguez

violence toward her. When the victim was fourteen-years-old, he began grooming her for a

different kind of abuse with sexual touching, sexually explicit internet videos, and eventually

alcohol and Ecstasy. Then, between September 2011 and January 2012, Berlanga-Rodriguez had

oral sex or sexual intercourse with the victim approximately 50 to 60 times and took pictures and

videos of the acts. The victim was under the impression that Berlanga-Rodriguez was selling the

videos—earning over $50,000 to pay off a restitution order resulting from a prior criminal

conviction for embezzlement—but it appears that the “buyer” was a fictitious person and he

never distributed the videos.

       Berlanga-Rodriguez repeatedly denied making pornographic videos of the victim or

having sexual intercourse with her even after investigators showed him the videos. Eventually

he changed his story and said that the victim began making pornographic videos on her own, that

the victim gave him Ecstasy which led to sexual touching, and that the victim requested that they

have oral sex and sexual intercourse for money. He ultimately pleaded guilty to one count of

sexual exploitation of a child in violation of 18 U.S.C. § 2251(a). Berlanga-Rodriguez admitted

that “he failed to consider the long-term consequences for the victim” and that “the Ecstasy may

have interfered with his decision making.” The government agreed to drop a second charge for

possession of images of a minor engaging in sexually explicit conduct.

       The presentence investigation report (PSR), which the district court adopted with no

objection, assigned Berlanga-Rodriguez an offense level of 43. It also assigned him a criminal

history category of II due to prior state convictions for identity theft and embezzlement from a

nonprofit organization where Berlanga-Rodriguez had served as executive director.            This

resulted in an advisory guideline range of 360 months to life imprisonment; however, the

statutory range for the offense is 15 to 30 years, so 360 months became the guidelines sentence.


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No. 13-2244
United States v. Berlanga-Rodriguez

       Prior to sentencing, Berlanga-Rodriguez filed a motion for a downward variance, arguing

that the factors under § 3553(a) warrant a lower sentence in his case; he asked for a sentence as

low as 15 years. His argument was based on: his family background as a hard-working legal

immigrant; the “series of bad choices”—starting with his embezzlement conviction and divorce

and ending in drug use and sexual abuse—that led to the current conviction; studies showing that

a fifteen-year sentence would reflect the public’s sense of just punishment for sexual abuse

crimes; the low risk of recidivism generally present in sex offenders who commit incest;

Berlanga-Rodriguez’s age of 41 years; and the unwarranted sentencing parity that a maximum

sentence would create with repeat offenders who abuse multiple victims. He attached letters of

support from one of his brothers and from his girlfriend, both indicating that he is a supportive

family member and a community leader. Also prior to sentencing, the victim submitted a letter

explaining the impact of Berlanga-Rodriguez’s abuse and concluding “[t]he day that I am told

[Berlanga-Rodriguez] has received the maximum penalty for his actions; I will sleep easy, and

feel like I have regained 18 years of my life back.”

       At sentencing, the court mentioned the downward variance motion and gave both defense

counsel and Berlanga-Rodriguez an opportunity to speak. Defense counsel reiterated some of

the information in the motion and indicated that the high guideline range in this case was due to

the 19 levels of enhancements. Berlanga-Rodriguez told the court that during the six-month

period that he abused the victim, it never occurred to him that his behavior was immoral, illegal,

or damaging to the child and that he was taking Ecstasy the entire time. The court then began an

explanation, which is quoted in more detail below, about Berlanga-Rodriguez, the nature of his

offense, and the need for deterrence and protection of the public. The court noted that this was a

very serious crime causing “profound” and ongoing damage in the victim’s life; Berlanga-


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United States v. Berlanga-Rodriguez

Rodriguez committed it despite coming from a moral, functioning, and hard-working family; and

his past embezzlement from the nonprofit organization “indicates some terribly selfish, illegal,

immoral behavior.” Of the § 3553(a) factors, the court said that the seriousness of the offense,

Berlanga-Rodriguez’s lack of respect for the law, the need for adequate deterrence, and—to a

lesser degree—the need to protect the public, warranted a 360-month sentence. This sentence

reflects the statutory maximum for this crime, as well as the recommended guidelines sentence.

       Berlanga-Rodriguez now challenges the 360-month sentence on appeal.

                                      II.    ANALYSIS

       This court reviews criminal sentences for both substantive and procedural

reasonableness. Gall v. United States, 552 U.S. 38, 51 (2007). Berlanga-Rodriguez raises only a

substantive reasonableness challenge, which we review under the abuse-of-discretion standard.

United States v. Freeman, 640 F.3d 180, 185 (6th Cir. 2011). “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, 632-33 (6th Cir. 2010) (internal quotation marks omitted).             Substantive

unreasonableness “will be found when 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. Cooper, 739 F.3d 873,

883 (6th Cir. 2014). In general, we give deference to the sentencing court’s conclusion that a

particular sentence is warranted by the § 3553(a) factors and do not reverse simply because we

might reasonably conclude that a different sentence is appropriate. United States v. Bolds,

511 F.3d 568, 581 (2007).




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No. 13-2244
United States v. Berlanga-Rodriguez

       Berlanga-Rodriguez concedes that his sentence is within the advisory guideline range and

that such sentences are given a rebuttable presumption of substantive reasonableness. See id.

Nevertheless, he argues that the presumption is rebutted in his case because the district court

imposed a sentence that was greater than necessary by ignoring his request for a variance, the

information in his sentencing memorandum, and his argument that a statutory maximum

sentence would create an unwarranted parity between him and those who commit multiple acts

of abuse against multiple victims. Based on this record, we cannot agree.

       The district court acknowledged the motion for a downward variance, and, while

considering each of the § 3553(a) sentencing factors, specifically addressed the various facts

raised by the Defendant in his sentencing memorandum. As for Berlanga-Rodriguez’s family

background, the court found it “shocking” that he would commit this crime despite having been

raised in a moral, functioning, and drug-free family that had worked hard to better themselves

and to be role models for their children. There was “no excuse in [his] background for what [he]

did;” it was a “deliberate choice . . . most probably for [his] own gratification.” In considering

Berlanga-Rodriguez’s work for nonprofit organizations, the court found “nothing noteworthy

that indicates any selflessness. If anything, that prior conviction indicates some terribly selfish,

illegal, immoral behavior.” Finally, the court made what appears to be a reference to defense

counsel’s arguments that there is a low risk of recidivism, saying that protecting the public from

Berlanga-Rodriguez is “[n]ot a large factor, but . . . it is a factor which this Court should take

into mind.”

       The court considered and rejected Berlanga-Rodriguez’s argument that a statutory

maximum sentence would create an unwarranted sentencing parity with repeat or more serious

offenders.    After acknowledging the sentencing memorandum and hearing arguments from


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United States v. Berlanga-Rodriguez

counsel explaining that the high guideline range was due in large part to the 19 levels of

enhancements—for the victim’s age, the sexual acts, the fact that Berlanga-Rodriguez was the

victim’s primary caretaker, and an image that depicted sadomasochistic behavior—rather than

for past sex crimes, the court spent a good deal of time on the seriousness of the offense. The

court questioned Berlanga-Rodriguez, who told the court that he was taking Ecstasy for the

entire six-month period during which he had sexual relations with the victim 50 to 60 times, and

that during that period it never occurred to him to stop or that his behavior was immoral, illegal

or damaging to the child’s psychological welfare. The court listened to Berlanga-Rodriguez as

he put the responsibility for the victim’s drug consumption and internet behavior on the victim

herself. The court mentioned the letter submitted by the victim and elicited acknowledgement

that Berlanga-Rodriguez’s behavior had “really damaged” the victim.            Finally, the court

addressed the “very serious” nature of the crime, committed during a “very vulnerable time” for

the victim, in which Berlanga-Rodriguez “t[ook] advantage of th[e] opportunity with the

libations of Ecstasy and alcohol,” and which worked profound destruction on the victim’s life

likely requiring significant counseling and care.

       In other words, the court saw the facts differently than the Defendant and found the crime

to be very serious. Though the court did not make a formulaic recitation, its actions rejected the

argument that Berlanga-Rodriguez’s crime was not on par with repeat offenders. See United

States v. Gunter, 620 F.3d 642, 646-47 (6th Cir. 2010). The district court met its responsibility

in this case, going through each sentencing factor and considering what would be a “sufficient

sentence, but not greater than necessary.”

       Finally, Berlanga-Rodriguez points to cases in which this court affirmed lower sentences

for similar crimes and argues that this suggests “approval” of lower sentences. In United States


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United States v. Berlanga-Rodriguez

v. Richards, 659 F.3d 527, 550-52 (6th Cir. 2011), for example, this court affirmed a sixteen-year

sentence for a defendant who had produced and distributed child pornography involving a

thirteen-year-old boy. Berlanga-Rodriguez attempts to invert the standard of review. Richards,

in fact, reflects the extent of deference owed to the sentencing judge. Despite the fact that this

court found “troubling aspects in the district court’s sentencing rationale, particularly its

mitigation of the seriousness” of the crime, the sentence was affirmed because the sentencing

court had thoroughly weighed the arguments, understood the sentencing options, and provided

sufficient justification for the sentence. Id. at 550-51. Here, we similarly must conclude that the

court weighed the arguments, understood the sentencing options, and provided sufficient

justification for the sentence.

        Based on the facts specific to this case, we cannot conclude that the court ignored

mitigating factors, relied on impermissible considerations, or imposed a sentence arbitrarily.

Thus, the court did not abuse its discretion by imposing a 360-month sentence.

                                     III.   CONCLUSION

        For the reasons explained above, we AFFIRM Berlanga-Rodriguez’s sentence, as

imposed by the district court.




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