                      RECOMMENDED FOR FULL-TEXT PUBLICATION
                           Pursuant to Sixth Circuit Rule 206
                                  File Name: 10a0112p.06

               UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT
                                 _________________


                                                X
                          Plaintiff-Appellee, -
 UNITED STATES OF AMERICA,
                                                 -
                                                 -
                                                 -
                                                      No. 09-1003
           v.
                                                 ,
                                                  >
                                                 -
                       Defendant-Appellant. -
 SERGIO TRISTAN-MADRIGAL,
                                                 -
                                                N
                   Appeal from the United States District Court
              for the Western District of Michigan at Grand Rapids.
                No. 08-00141-001—Janet T. Neff, District Judge.
                                 Argued: March 10, 2010
                           Decided and Filed: April 20, 2010
                Before: MARTIN, SILER, and MOORE, Circuit Judges.

                                   _________________

                                       COUNSEL
ARGUED: Paul L. Nelson, FEDERAL PUBLIC DEFENDER’S OFFICE, Grand Rapids,
Michigan, for Appellant. R. Clay Stiffler, ASSISTANT UNITED STATES ATTORNEY,
Grand Rapids, Michigan, for Appellee. ON BRIEF: Sean R. Tilton, FEDERAL PUBLIC
DEFENDER’S OFFICE, Grand Rapids, Michigan, for Appellant. John F. Salan,
ASSISTANT UNITED STATES ATTORNEY, Grand Rapids, Michigan, for Appellee.
                                   _________________

                                        OPINION
                                   _________________

        KAREN NELSON MOORE, Circuit Judge. Defendant Sergio Tristan-Madrigal
appeals the district court’s imposition of a thirty-six month, above-Guidelines sentence as
substantively unreasonable. Tristan-Madrigal argues that the district court’s upward
variance overemphasized his criminal history and that no information in the record supported
a variance of the magnitude that the district court imposed. He additionally contends that
the district court provided unreasonable weight to his need for rehabilitation because it


                                             1
No. 09-1003         United States v. Tristan-Madrigal                                 Page 2


believed that Tristan-Madrigal would benefit from custodial drug-abuse treatment and
vocational training for which he, as a non-English-proficient non-citizen, is actually
ineligible. We conclude that the district court did not abuse its discretion in relying on
Tristan-Madrigal’s criminal history. Moreover, although we express sincere reservations
about the propriety of a district court’s reliance on a non-English-proficient non-citizen’s
need for custodial drug-abuse treatment and vocational training when it is unlikely that the
individual will be eligible for such programming, we cannot conclude, on the record before
us, that the district court abused its discretion in sentencing Tristan-Madrigal. We AFFIRM
Tristan-Madrigal’s sentence.

                I. BACKGROUND AND PROCEDURAL HISTORY

        Tristan-Madrigal is a native and citizen of Mexico who has lived and worked in the
United States since 1992 or 1993 without proper documentation. While present in this
country, Tristan-Madrigal has had a number of encounters with law enforcement. In 2001,
he was convicted in Michigan state court of operating a vehicle while impaired and the use
of a non-narcotic, controlled substance. He was removed to Mexico on July 1, 2001.
Tristan-Madrigal returned to the United States without authorization shortly thereafter and
was convicted again of operating a vehicle while impaired both in 2003 and in 2005. He was
removed to Mexico for a second time sometime in 2005. Tristan-Madrigal again crossed the
border into the United States without authorization. In 2008, he was convicted of operating
a vehicle under the influence for the fourth time and removed for a third time to Mexico on
May 20, 2008.

        On June 4, 2008, while Tristan-Madrigal was residing in Mexico, the U.S.
government secured an indictment against him for unauthorized reentry to the United States
after a prior removal subsequent to a felony conviction in violation of 8 U.S.C.
§ 1326(a), (b)(1). The underlying offense upon which the government relied was Tristan-
Madrigal’s 2005 felony drunk-driving conviction in Michigan. Always persistent, on June
19, 2008, for the fourth time Tristan-Madrigal reentered the United States at a river crossing
without authorization. He was arrested shortly thereafter and convicted of a misdemeanor
for the June 19, 2008 unauthorized entry. After serving his sentence for the misdemeanor,
No. 09-1003         United States v. Tristan-Madrigal                                 Page 3


Tristan-Madrigal made his initial appearance in response to the pending federal indictment
and pleaded guilty to the one count of illegal reentry in violation of § 1326(a).

        The Presentence Investigation Report’s (“PSR”) undisputed Guidelines calculation
assigned Tristan-Madrigal a total offense level of ten and a criminal-history category of IV,
which resulted in a recommended range of 15 to 21 months’ imprisonment. See U.S.
Sentencing Guidelines (“U.S.S.G.”) § 2L1.2(a), (b)(1)(D). The criminal-history category
reflected Tristan-Madrigal’s convictions for drunk driving and drug use in 2001; his
convictions for drunk driving in 2003, 2005, and 2008; and his unlawful reentry in 2008.
In his sentencing memorandum, Tristan-Madrigal requested a sentence within the Guidelines
range, citing in support of his request his impoverished upbringing, his lack of education,
and, surprisingly, his “significant contacts with the law.” Def. Sent. Mem. at 2. The
memorandum also noted that Tristan-Madrigal was “remorseful” and that he intended “to
return to Mexico permanently” upon his release from custody. Id. at 3. Finally, the
memorandum requested that the district court provide him with “any available educational
and vocational training” as well as “alcohol abuse evaluation and treatment” during any
prison term that the district court imposed. Id. at 3–4.

        At the sentencing hearing, the district court responded to each argument that Tristan-
Madrigal raised in his sentencing memorandum and in open court. After first acknowledging
the advisory nature of the Guidelines and the need to impose a sentence that was sufficient
but not greater than necessary to comply with 18 U.S.C. § 3553(a), the district court
analyzed the nature and circumstances of Tristan-Madrigal’s offense, noting that he had
committed the actions underlying the § 1326 violation numerous times and that his actions
were “quite problematic” given the potential danger to the public that drunk driving imposed.
Sent. Hr’g Tr. at 12. Turning to Tristan-Madrigal’s specific history and characteristics, the
district court noted that he had grown up in poverty, lacked a formal education, and was a
hard worker. But the district court also observed that Tristan-Madrigal had a serious alcohol
problem and that his numerous drunk-driving convictions made him a dangerous person.
The district court recognized that it was “fortunate that [Tristan-Madrigal] ha[d] not hurt
someone or [him]self” and made apparent that his dangerousness was “a big concern” for
the district court in “making [its] decision.” Id. at 9. The district court concluded “that
deterrence and protection of the public [we]re perhaps the two most important”
No. 09-1003          United States v. Tristan-Madrigal                                  Page 4


considerations in choosing its sentence because Tristan-Madrigal had “been quite persistent
in returning to this country, and almost equally persistent in drinking and driving.” Id. at 13.
The district court also noted Tristan-Madrigal’s need for alcohol-abuse treatment was “a
somewhat important factor as well.” Id.

        Ultimately, the district court determined that the recommended Guidelines range of
15 to 21 months’ imprisonment did not “properly reflect the statutory factors” because of
Tristan-Madrigal’s “repeated reentry[] and his serious drinking problem, which leads him
to drive and to be quite dangerous.” Id. at 14. The district court concluded that the “two
factors” of deterrence and public protection counseled toward an above-Guidelines sentence
of thirty-six months’ imprisonment in this non “heartland or . . . mine run case.” Id. Tristan-
Madrigal made clear his objection to the substantive reasonableness of the above-Guidelines
sentence and timely appealed.

                                       II. ANALYSIS

        Tristan-Madrigal argues that the district court’s upward variance resulted in a
sentence greater than necessary to achieve the sentencing goals outlined in 18 U.S.C.
§ 3553(a) because (1) the district court overemphasized his past criminal behavior; (2) the
district court unreasonably considered his need for substance-abuse treatment and vocational
training because it failed to recognize that as a non-English-proficient non-citizen Tristan-
Madrigal is ineligible for custodial treatment and training; and, finally, (3) no other
information in the record supported an upward variance of the magnitude that the district
court imposed. For the reasons set forth below, we disagree with each of Tristan-Madrigal’s
arguments and affirm his sentence.

A. Standard of Review

        This court reviews a district court’s sentence for reasonableness. United States v.
Walls, 546 F.3d 728, 736 (6th Cir. 2008). Because Tristan-Madrigal does not challenge the
procedural reasonableness of his sentence, and explicitly disclaimed such a challenge at oral
argument, this court need only “‘consider the substantive reasonableness of the sentence
imposed under an abuse-of-discretion standard.’” Id. (quoting Gall v. United States, 552
U.S. 38, 51 (2007)); see also United States v. Vallellanes, 339 F. App’x 579, 582 (6th Cir.
No. 09-1003          United States v. Tristan-Madrigal                                   Page 5


2009) (unpublished opinion) (bypassing the procedural-reasonableness analysis because the
defendant did “not contend that his sentence [was] procedurally unreasonable”). 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).
“A sentence is 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.” Walls, 546 F.3d at 736
(internal quotation marks and alterations omitted).

        In our substantive-reasonableness review, we must “take into account the totality of
the circumstances, including the extent of any variance from the Guidelines range.” Gall,
552 U.S. at 51. “Although a sentence that falls within the Guidelines range warrants a
presumption of reasonableness in this circuit, there is no presumption against a sentence that
falls outside of this range.” United States v. Herrera-Zuniga, 571 F.3d 568, 590 (6th Cir.
2009). If the sentencing judge elects “an outside-Guidelines sentence . . . he [or she] must
consider the extent of the deviation and ensure that the justification is sufficiently compelling
to support the degree of the variance.” Gall, 552 U.S. at 50. However, “[t]he fact that the
appellate court might reasonably have concluded that a different sentence was appropriate
is insufficient to justify reversal of the district court.” Id. at 51.

B. Sentence Is Substantively Reasonable

        Tristan-Madrigal does not claim that the district court selected his sentence
arbitrarily or failed to consider any relevant § 3553(a) factor; instead, as the basis for his
claim of substantive unreasonableness, Tristan-Madrigal challenges the weight that the
district court placed on his criminal history and further asserts that the district court
unreasonably considered his need for custodial drug treatment and vocational training. We
hold that the district court did not abuse its discretion by giving unreasonable weight to or
overemphasizing Tristan-Madrigal’s past criminal conduct. Moreover, although we express
reservation about a district court’s reliance on the need for custodial drug-abuse treatment
and vocational training when sentencing an individual who will likely be ineligible for such
programs, we cannot say, based on the record before us, that the district court relied
improperly on that factor such that a remand for resentencing is required.
No. 09-1003          United States v. Tristan-Madrigal                                  Page 6


        1. Consideration of Past Drunk-Driving Convictions and Unauthorized
           Reentries Was Proper.

        Challenging the district court’s reliance on his past drunk-driving and unauthorized-
reentry convictions in selecting an above-Guidelines sentence, Tristan-Madrigal raises two
specific objections. First, he claims that the district court should have afforded his past
convictions and criminal acts lesser weight because they were not crimes against people or
property. Second, he argues that the fact that the district court did not depart upward under
U.S.S.G. § 4A1.3(a) for an underrepresented criminal history when calculating his
Guidelines range provides conclusive evidence that the district court overrelied on his
criminal history for purposes of the § 3553(a) analysis. We reject both claims.

        At sentencing, the district court thoroughly explained its concern with Tristan-
Madrigal’s four drunk-driving convictions—one of which amounted to the felony conviction
underlying the instant 8 U.S.C. § 1326 conviction. After discussing Tristan-Madrigal’s
continued recidivism despite previous periods of incarceration for the drunk-driving
offenses, the district court concluded that because “an automobile in the hands of a drunk
driver can be just as lethal a weapon” as a gun, Sent. Hr’g Tr. at 12, Tristan-Madrigal had
shown himself to be a dangerous person who needed to be further deterred and from whom
the public needed protection. See 18 U.S.C. § 3553(a)(2)(B)–(C). To be sure, Tristan-
Madrigal’s drunk-driving offenses luckily had resulted in no harm to persons or property,
but he has presented us with no authority for the proposition that the district court was
unreasonable in considering the potential lethality of his crimes in assessing their gravity and
in determining the resulting appropriate sentence. Likewise, Tristan-Madrigal has also failed
to present any authority to support the conclusion that the fact that he committed repeatedly
a dangerous crime in a “victimless” manner somehow decreases the need for deterrence or
public protection and warrants a lesser period of incarceration. There is no dispute that the
act of drunk-driving is, in fact, dangerous and that every time Tristan-Madrigal drove while
under the influence of alcohol he was putting himself and others at risk. The district court’s
consideration of Tristan-Madrigal’s criminal history and the weight that the court afforded
that history was reasonable. See, e.g., United States v. Carlton, No. 08-1442, 2009 WL
4882519, at *8 (6th Cir. 2009) (unpublished opinion) (upholding a sentence as substantively
No. 09-1003          United States v. Tristan-Madrigal                                  Page 7


reasonable when the district court considered “the potential for violence created by [the]
crime” at issue, among other factors).

        The instant case is distinguishable from those cases where a sentencing court
improperly speculates that an individual will cause some particular harm at a future point in
time or will commit another, more harmful version of a criminal offense. See United States
v. Hughes, 283 F. App’x 345, 353 (6th Cir. 2008) (unpublished opinion) (“[D]istrict courts
may not make ‘unfounded assumptions’ when fashioning a sentence for a defendant.”
(internal quotation marks omitted)); cf. United States v. Mikowski, 332 F. App’x 250, 253–54
(6th Cir. 2009) (unpublished opinion) (indicating that the district court’s statement “that if
‘left unapprehended, [the defendant] was going to harm somebody’” could form the basis
of a challenge to the reasonableness of a sentence, but concluding that “the record show[ed]
that the district judge did not select [the defendant’s] sentence, even in part, based upon
[this] clearly erroneous finding[] of fact” (quoting the sentencing transcript)). The district
court here did not hypothesize a future criminal action or result based on Tristan-Madrigal’s
past convictions but instead simply noted that each time that Tristan-Madrigal committed the
offense of drunk driving he was engaging in harmful conduct that could result in death. In
sum, the dangerousness of Tristan-Madrigal’s behavior, coupled with the fact that Tristan-
Madrigal’s prior drunk-driving convictions were an ongoing problem directly related to and
underlying the instant § 1326 conviction, support the district court’s conclusion that Tristan-
Madrigal was a dangerous person and needed to be incarcerated.

        Similar reasoning applies to the district court’s consideration of Tristan-Madrigal’s
repeated unauthorized reentries. First, both parties agree that Tristan-Madrigal had been
removed from the United States on at least four occasions only to reenter each time without
proper documentation, yet only one of those unauthorized reentries had been charged and
included in Tristan-Madrigal’s criminal-history calculation.         Second, the sentencing
transcript indicates, as it does with regard to the drunk-driving convictions, that the district
court viewed Tristan-Madrigal’s repeated removal-and-reentry cycles as extremely relevant
to determining what length of sentence was sufficient to prevent recidivism; to protect the
public from the drunk-driving incidents, which he committed regularly upon reentry; and to
promote respect for the law. Tristan-Madrigal’s history of four drunk-driving arrests and
four unauthorized reentries over a time span of less than eight years leads us to conclude that
No. 09-1003           United States v. Tristan-Madrigal                                Page 8


the district court’s concern that Tristan-Madrigal would likely reoffend if not incarcerated
for a time period greater than the top of the recommended Guidelines range was not
unreasonable.

           Tristan-Madrigal next contends that the fact that the district court did not depart
upward under U.S.S.G. § 4A1.3(a) for an underrepresented criminal history further
evidences the district court’s overreliance on his criminal history in the § 3553(a) analysis.
See U.S.S.G. § 4A1.3(a)(1) (permitting a sentencing court to depart upward from the
Guidelines if it finds a “defendant’s criminal history category substantially under-represents
the seriousness of the defendant’s criminal history or the likelihood” of recidivism).
Specifically, Tristan-Madrigal argues that “the Guideline standard for an upward departure
is instructive regarding what might be reasonable in a given case” and because a departure
was not warranted, consideration of his criminal history for purposes of a variance was
unreasonable. Reply Br. at 2–3. Although the standard for an upward departure under the
Guidelines may be helpful in determining reasonableness, a district court does not
necessarily abuse its discretion in considering criminal history that would not otherwise
support a § 4A1.3 departure when that criminal history is directly relevant to the § 3553(a)
factors.

           As this Circuit recognized in United States v. Grams, “the same facts and analyses
can, at times, be used to justify both a Guidelines departure and a variance, [but] the
concepts are distinct.” United States v. Grams, 566 F.3d 683, 687 (6th Cir. 2009); see
Herrera-Zuniga, 571 F.3d at 586. Simply stated, “‘variances from Guidelines ranges that
a District Court may find justified under the sentencing factors set forth in 18 U.S.C.
§ 3553(a)’ include a much broader range of discretionary decisionmaking” than departures.
United States v. Stephens, 549 F.3d 459, 466–67 (6th Cir. 2008) (quoting Irizarry v. United
States, 553 U.S.708, __, 128 S. Ct. 2198, 2203 (2008)); see also Herrera-Zuniga, 571 F.3d
at 589; United States v. Davis, 537 F.3d 611, 617 (6th Cir. 2008) (“[A] trial judge’s authority
to exercise independent judgment in granting a variance after applying the § 3553(a) factors
differs from his authority to grant departures.”); accord United States v. Solis-Bermudez, 501
F.3d 882, 886 (8th Cir. 2007) (“[T]he standards justifying departures under the advisory
Guidelines are narrower than the factors enumerated in § 3553(a), [and] there may well be
cases that would not justify a departure under the Guidelines but [that] are appropriate for
No. 09-1003            United States v. Tristan-Madrigal                                           Page 9


a variance.” (internal quotation marks omitted)). Thus, although the Guidelines may prohibit
a district court from departing in light of a particular factor, that prohibition does not
necessarily preclude the district court from considering the same or a similar factor when
determining whether to vary under § 3553(a). See Herrera-Zuniga, 571 F.3d at 590; accord
Solis-Bermudez, 501 F.3d at 886.

         The district court’s consideration of Tristan-Madrigal’s repeated and virtually
identical drunk-driving convictions and unauthorized reentries reflected the district court’s
belief that Tristan-Madrigal needed to be deterred further from engaging in dangerous
criminal conduct and that a lengthy sentence was necessary to protect the public and promote
respect for the law. All of these factors are proper considerations under § 3553(a). See 18
U.S.C. § 3553(a)(2)(A)–(C). The fact that the district court did not depart upward pursuant
to § 4A1.3 neither per se precludes the district court from considering Tristan-Madrigal’s
                                                                                                          1
personal criminal history under its § 3553(a) analysis nor obviates its obligation to do so.

         In sum, Tristan-Madrigal’s prior convictions and criminal actions bore
substantially on the instant offense and related directly to several § 3553(a) factors.
Despite the fact that the district court did not depart upward from the Guidelines under
U.S.S.G. § 4A1.3, the district court was entitled to consider Tristan-Madrigal’s criminal
history in its decision to vary above the recommended Guidelines range. The district
court not only explained extensively its reasons for varying in light of Tristan-Madrigal’s
criminal past, but it also analyzed each of the § 3553(a) factors in determining what
constituted an appropriate sentence. We simply cannot conclude that the district court
abused its discretion in weighing Tristan-Madrigal’s criminal history in support of its
above-Guidelines sentence.




         1
            Tristan-Madrigal also states that his sentence is substantively unreasonable because all of the
§ 3553(a) factors were accounted for in the recommended Guidelines calculation. To the extent that he
is truly arguing for a bright-line rule, Tristan-Madrigal’s proposed rule would mean that in any case where
the Guidelines calculation encompassed all of the § 3553(a) factors, any sentence outside of the
recommended range (whether above or below that range) always would be substantively unreasonable if
the district court again mentioned those factors in the § 3553(a) analysis. This would preclude the district
court from being able to comply with § 3553(a)’s mandate and would have the practical effect of making
the Guidelines again mandatory, which is plainly not the law. We therefore reject Tristan-Madrigal’s
proposed rule.
No. 09-1003             United States v. Tristan-Madrigal                                            Page 10


         2. The District Court Did Not Abuse its Discretion By Relying on
            Tristan-Madrigal’s Need for Rehabilitation.

         Tristan-Madrigal also claims that the district court unreasonably relied on his
need for substance-abuse treatment and vocational training in selecting his thirty-six
month sentence because he, as a non-English-proficient non-citizen, is ineligible for the
Bureau of Prisons (“BOP”) programs.2

         We first note that Tristan-Madrigal specifically requested that the district court
consider his need for “any available educational and vocational training” as well as
“alcohol abuse evaluation and treatment,” in his sentencing memorandum. Def. Sent.
Mem. at 3, 4.3 Responding to this request, the district court addressed Tristan-
Madrigal’s alcoholism and his need for drug-abuse treatment at length during the
hearing:

         THE COURT: [Based] on what I have read, it appears that you have a
         serious problem with alcohol.
         THE INTERPRETER: Yes, I understand . . . .
         THE COURT: It appears to me that, aside from you coming into the
         country illegally, the big problem that you have is with alcohol.
                 ....




         2
           Tristan-Madrigal asserted his ineligibility for the BOP programs for the first time in his Reply
Brief. This Circuit has held that issues raised for the first time in a reply brief are not properly before the
panel unless they respond to arguments raised in the appellee’s brief. See United States v. Carson, 560
F.3d 566, 587 (6th Cir. 2009) (citing United States v. Campbell, 279 F.3d 392, 401 (6th Cir. 2002) (“[T]he
appellant cannot raise new issues in a reply brief; he can only respond to arguments raised for the first time
in appellee’s brief.” (citation omitted and alteration in original))). In this case, however, Tristan-Madrigal
has not forfeited the argument as it directly responds to several matters that the Government raised in its
appellate brief. For example, although Tristan-Madrigal challenged only the substantive reasonableness
of his sentence, the Government nevertheless devoted a large portion of its appellate brief to arguing that
Tristan-Madrigal’s sentence was procedurally reasonable and that the district court relied on entirely
appropriate factors in its sentencing. Most relevant to this claim, the Government argued that the district
court properly relied on the need for rehabilitation and medical treatment because the “Defendant needed
serious intervention with regard to his alcohol problem.” Appellee Br. at 13. Once the Government raised
the propriety of the district court’s consideration of rehabilitation, Tristan-Madrigal was within his right
to respond directly to the Government’s contention.
         3
           Contrary to the Government’s suggestion at oral argument, we do not dispose of this argument
as invited error. At no point did Tristan-Madrigal request an above-Guidelines sentence to receive the
requested treatment and training, and he did, in fact, request consideration of the treatment only to the
extent of his eligibility. See Def. Sent. Mem. at 3 (“Mr. Tristan-Madrigal’s status as an [undocumented]
alien slated for deportation likely curtails the programming available to him. However, he is requesting
any available educational and vocational training.” (emphasis added)).
No. 09-1003         United States v. Tristan-Madrigal                                Page 11


        THE COURT: It’s one thing to send you back to Mexico, but if you
        don’t address your drinking problem, you’re either going to hurt
        someone very badly or you’re going to hurt yourself or both.
        THE INTERPRETER: Yes, I understand.
        THE COURT: Have you ever had any alcohol counseling?
        THE INTERPRETER: Once they made me take classes.
        THE COURT: And that didn’t help?
        THE INTERPRETER: No. Well, since you come to this country, and
        you’re worried about your family and you have problems, and your
        parents, and maybe that’s why I drank. I don’t have any other problems
        with drugs or anything. Just the alcohol. Maybe that’s why.
        THE COURT: Do you think that you are an alcoholic?
        THE INTERPRETER: No.
        THE COURT: Do you think it would help you if you had more
        counseling to understand why you drink and why it is important not to
        drink and drive?
        THE INTERPRETER: I understand that.
               ...
        THE COURT: I think, Mr. Tristan-Madrigal, that before you can help
        your parents you’re going to have to help yourself with your alcohol
        problem.
Sent. Hr’g Tr. at 8–11. The district court continued by explaining that
        in these cases where deportation is a certainty, I normally do not take into
        account significantly providing the defendant with medical, educational,
        and correctional treatment, but in this case I think something of an
        exception is required because I think Mr. Tristan-Madrigal needs some
        serious intervention with regard to his alcohol problem.

Id. at 13. The record does not make clear what drug-treatment program the district court
had in mind or whether the district court was even familiar with the types of BOP
programs available to an undocumented alien. At no time did Tristan-Madrigal object
to the district court’s discussion of his need for treatment or to the district court’s belief
that Tristan-Madrigal would receive treatment while in BOP custody. On appeal,
however, Tristan-Madrigal claims that the district court abused its discretion in weighing
this factor because he does not qualify for drug-treatment or vocational programs.

        If the district court believed that Tristan-Madrigal would be eligible for drug-
abuse treatment, despite evidence to the contrary, and relied on this factor when
choosing his sentence, then a remand to the district court for resentencing would be
No. 09-1003            United States v. Tristan-Madrigal                                          Page 12


warranted. As we have indicated previously, a sentence is substantively unreasonable
when “a district court examines a relevant factor but, despite rigorous analysis, gives
unreasonable weight to that factor by failing to examine the full spectrum of information
on the record before it relating to that factor.” Hughes, 283 F. App’x at 351; cf. United
States v. Hunt, 521 F.3d 636, 649 (6th Cir. 2008) (finding a sentence substantively
unreasonable and noting that “a district court abuses its discretion when it relies on
clearly erroneous facts” in imposing a sentence). The “record before us,” however, must
“clearly indicate[] that the district court failed to consider the full spectrum of
information relevant to” Tristan-Madrigal’s custodial-treatment options. Hughes, 283
F. App’x at 352; id. (noting that the appellate court’s role through reasonableness review
“is to bring . . . an oversight to the attention of the district court . . . so that the district
court may address it, and make any appropriate adjustments to the sentence on remand”).

         Although Tristan-Madrigal’s argument raises an interesting and potentially
problematic issue, on the record before us we cannot conclude that the district court
abused its discretion in considering Tristan-Madrigal’s need for substance-abuse
treatment and vocational training when selecting his sentence. First, Tristan-Madrigal
has provided us with no evidence that he presented the district court with information
at sentencing regarding the availability of BOP programming; second, the district court
did not rely on the availability of one particular form of treatment or training that
Tristan-Madrigal has shown is actually unavailable; and, third, our reading of the BOP
regulations indicates that Tristan-Madrigal may, in fact, be eligible for at least one BOP
drug-treatment program.4

         According to the BOP’s regulations, the BOP offers three types of drug-abuse
treatment for incarcerated individuals: the Residential Drug Abuse Program (“RDAP”),
the Non-Residential Drug Abuse Treatment Services Program, and a drug-abuse


         4
           Our review of the reasonableness of Tristan-Madrigal’s sentence would have been facilitated
greatly by definitive information from either advocate as to (1) whether the BOP, in practice, excludes non-
English-proficient non-citizens from drug-treatment and vocational programs and (2) whether Tristan-
Madrigal had, up to this point, actually received any drug treatment. Unfortunately, however, neither
counsel was able to provide the court with information pertaining to either inquiry, despite the ease with
which they could have obtained this information.
No. 09-1003             United States v. Tristan-Madrigal                        Page 13


education course. Tristan-Madrigal is clearly ineligible for RDAP in light of his pending
removal and non-citizen status because he cannot complete the mandatory community-
based phase of the program and is ineligible for the program’s early-release benefits.
See 28 C.F.R. § 550.53(b)(3); id. § 550.55(b)(1); id. § 550.56; see generally 18 U.S.C.
§ 3621(e). There are two other types of drug-treatment programs in the BOP system,
however: a “[n]on-residential drug abuse treatment” program, which is apparently
available at “[a]ll institutions,” 28 C.F.R. § 550.52, and a BOP drug-abuse education
course, id. at § 550.51. Unlike RDAP, the BOP asserts that “[t]hese options are
currently available for ‘non-U.S. citizen’ inmates.” See Drug Abuse Treatment Program,
74 Fed. Reg. 1892, 1893 (Jan. 14, 2009) (“The Bureau does not deny drug abuse
treatment to inmates based on their citizenship. Instead, we offer several program
options, such as a drug abuse education course or non-residential drug abuse treatment
to inmates . . . .”).

        Despite the fact that the options are “currently available for ‘non-U.S. citizen’
inmates,” id., individuals who “cannot comprehend the English language” are still
seemingly ineligible to participate in the non-residential program. U.S. Dep’t of Justice,
Psychology Treatment Programs, Program Statement, § 2.4.5, at 6 (Mar. 16, 2009)
[hereinafter BOP Program Statement]. And although “limited English proficient
inmates” are obligated to attend English as a Second Language courses to gain sufficient
English competency to participate in the drug program, 28 C.F.R. § 544.40, “[s]entenced
aliens with a deportation detainer” appear to be exempt, if not prohibited, from attending
these classes. Id. § 544.41(a)(3). In essence, for the non-residential drug program, the
regulations appear to operate to preclude those non-citizen detainees who are not English
proficient, such as Tristan-Madrigal, from participating in the BOP’s drug-rehabilitation
program. Turning to the final BOP program, however, unlike RDAP and the non-
residential drug-treatment program, it appears that “[t]he Drug Abuse Education course
(DRUG ED) is available to all sentenced inmates at every institution.” BOP Program
Statement § 2.3.1 at 1; see also 28 C.F.R. § 550.51. There is no indication in the record
that this would exclude non-citizen, non-English-proficient individuals such as Tristan-
Madrigal from participating. And the record also contains no information that the drug-
No. 09-1003             United States v. Tristan-Madrigal                                            Page 14


abuse education course is conducted only in the English language, which could call into
question the reality of the program’s “availability.”5

         In conclusion, as Tristan-Madrigal has failed to present evidence that all
opportunities for treatment are foreclosed and our independent research has not
convinced us otherwise, we assume that our reading of the BOP’s regulations and
policies is correct. Although Tristan-Madrigal is not eligible for RDAP and the non-
residential drug-abuse treatment program, he apparently remains eligible for the drug-
abuse education course. Again, despite the fact that district court discussed at length
Tristan-Madrigal’s need for drug-treatment while in custody, the district court never
mentioned what program it envisioned, and our review of the record does not indicate
that the district court clearly had in mind something other than the drug-abuse education
course. Were this not the case, Tristan-Madrigal certainly would have a much stronger
argument for a remand premised on the conclusion that the district court relied on an
improper fact or overweighed a relevant factor when sentencing Tristan-Madrigal and,
as a result, imposed a substantively unreasonable sentence.6

         Gall directs district courts to put forth persuasive reasons in light of the 18
U.S.C. § 3553(a) factors to support a variance. Gall, 552 U.S. at 50. Our review of the
totality of the circumstances convinces us that the district court’s reliance on Tristan-
Madrigal’s criminal history as well as his need for drug-abuse treatment and vocational
training in sentencing him above the recommended Guidelines range was not an abuse
of discretion.



         5
           We also reject Tristan-Madrigal’s argument that the district court erred in weighing his need for
vocational training. The record evidence as to his eligibility for vocational programs is extremely limited,
and although it may be that Tristan-Madrigal’s non-citizen status and lack of English-language competency
preclude him from participating in BOP programming, we cannot conclude in the instant case that the
district court actually relied on Tristan-Madrigal’s need for such training in selecting his sentence. The
district court’s mention of this factor was fleeting and appears to be in response to Tristan-Madrigal’s
request for any available training, as compared to the district court’s lengthy discussion of the need for
substance-abuse treatment.
         6
            The sentencing transcript plainly reflects the district court’s concern for Tristan-Madrigal’s well
being, and we recognize that district courts often fashion sentences with the understanding that a particular
term of incarceration will make an individual eligible for various BOP programs, including drug treatment.
In light of that reality, we urge counsel to fulfill their advocacy roles and, at a minimum, investigate their
clients’ eligibility for BOP programming prior to sentencing.
No. 09-1003           United States v. Tristan-Madrigal                           Page 15


                                   III. CONCLUSION

        For the reasons outlined above, Tristan-Madrigal’s sentence was not
substantively unreasonable. The district court did not abuse its discretion in relying on
Tristan-Madrigal’s extensive criminal history and need his for rehabilitation, two factors
that were closely related to the instant 8 U.S.C. § 1326 offense. Because the record
supports the district court’s above-Guidelines sentence, we AFFIRM the judgment of
the district court.
