                  NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                             File Name: 12a0041n.06
                                                                                             FILED
                                            No. 11-3013
                                                                                        Jan 11, 2012
                             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 SOUTHERN
v.                                                        )        DISTRICT OF OHIO
                                                          )
JUAN MARTINEZ-RENDON,                                     )                            OPINION
                                                          )
       Defendant-Appellant.                               )



BEFORE:        MERRITT and COLE, Circuit Judges; VARLAN, District Judge.*

       COLE, Circuit Judge. Defendant-Appellant Juan Martinez-Rendon appeals his sentence of

forty-eight months’ imprisonment for illegally reentering the United States after committing a felony,

in violation of 8 U.S.C. § 1326(b). The Presentence Investigation Report (“PSR”) calculated an

advisory range of ten to sixteen months and recommended the maximum of sixteen months, due to

Martinez-Rendon’s recidivism. The district court issued an upward variance, imposing a sentence

of forty-eight months, based on Martinez-Rendon’s repetition of the instant offense, a series of prior

crimes that did not count toward his criminal history category, and the lack of regard for public

safety that this history displayed. Martinez-Rendon challenges this variance as unreasonable,

claiming that the district court increased his criminal history category without adequate explanation

and double-counted his prior felony conviction. We AFFIRM.

       *
       The Honorable Thomas A. Varlan, United States District Judge for the Eastern District of
Tennessee, sitting by designation.
United States v. Martinez-Rendon
No. 11-3013

                                        I. BACKGROUND

       On June 2, 2010, Martinez-Rendon pleaded guilty to one count of unlawful presence in the

United States in violation of 8 U.S.C. §§ 1326(a) and (b)(1). Section 1326(b)(1) carries a statutory

maximum penalty of ten years. Martinez-Rendon previously had been deported on two separate

occasions. His first deportation occurred in late 2000, after his third conviction for driving under

the influence of alcohol (“DUI”) and an attempted escape from custody. He returned to the United

States and thereafter pleaded guilty to facilitation of possession of over half a gram of cocaine on

January 10, 2003. Following a four-year period of incarceration and a fourth DUI conviction,

Martinez-Rendon was again deported in the fall of 2008. In October 2009, Immigration and

Customs Enforcement (“ICE”) received information indicating that Martinez-Rendon had returned

to the United States. ICE agents apprehended him on May 1, 2010. Upon apprehension, Martinez-

Rendon cooperated completely with the ICE agents, admitting to his true identity and his unlawful

reentry.

       The PSR set forth a total offense level of ten and a criminal history category of three, yielding

a Guidelines sentence of ten to sixteen months. Based on numerous offenses not factored into the

criminal history calculation and Martinez-Rendon’s repeated illegal reentries into the United States,

the PSR recommended a sentence at the top of the Guidelines range, sixteen months, and three years

of supervised release. Taking the advisory and statutory ranges into account, the district court

considered the factors enumerated in 18 U.S.C. § 3553(a) and imposed an upward variance,

sentencing Martinez-Rendon to forty-eight months’ incarceration, followed by three years of

supervised release. This appeal follows.

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United States v. Martinez-Rendon
No. 11-3013

                                          II. ANALYSIS

       Martinez-Rendon challenges his sentence as both procedurally and substantively

unreasonable. He claims that the district court arrived at the above-Guidelines sentence by

increasing his base offense level from ten to twenty-one. He contends that the court impermissibly

relied on factors not countable toward an “upward departure,” and “double counted” his prior

narcotics conviction to justify an offense-level increase. Martinez-Rendon misses, however, that a

“variance” and a “departure” are not two versions of the same thing. See United States v. Denny,

653 F.3d 415, 420-21 (6th Cir. 2011).1 In this case, the district court upwardly varied, on the basis

of the discretion afforded by United States v. Booker, 543 U.S. 220 (2005).

A. Standard of Review

       We review the district court’s sentence for substantive and procedural reasonableness under

an abuse-of-discretion standard. United States v. Martinez, 588 F.3d 301, 324 (6th Cir. 2009) (citing

Gall v. United States, 552 U.S. 38, 56 (2007)). We apply the same standard whether the district

court imposed a sentence within or outside the advisory range established by the Guidelines. United

States v. Herrera-Zuniga, 571 F.3d 568, 590-91 (6th Cir. 2009). Unlike sentences within the

Guidelines range, however, sentences outside it carry no presumption of reasonableness. Id. at 582.

We ensure that such sentences have sufficient support from the district court’s analysis of the

§ 3553(a) factors. United States v. Keller, 498 F.3d 316, 326 (6th Cir. 2007) (citing United States


       1
         An above- or below-Guidelines sentence is a “departure” where it is “based on Chapter 5
of the Guidelines.” United States v. Jordan, 544 F.3d 656, 671 n.12 (6th Cir. 2008) (citing United
States v. Cousins, 469 F.3d 572, 577 (6th Cir. 2006), rev’d on other grounds by Irizarry v. United
States, 553 U.S. 708 (2008)). A “variance” is based on the § 3553(a) factors. Id.

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United States v. Martinez-Rendon
No. 11-3013

v. Davis, 458 F.3d 491, 496 (6th Cir. 2006), vacated, 552 U.S. 1088 (2008)). To affirm, we must

find the sentence both procedurally and substantively reasonable. Id. at 322.

B. Procedural Reasonableness

       Martinez-Rendon argues that the district court improperly calculated his sentence under the

Guidelines, ignored clear Guidelines policy directives, and failed to explain adequately its chosen

sentence. We review the procedural reasonableness of the district court’s sentence by ascertaining

whether it:

       (1) properly calculated the applicable advisory Guidelines range; (2) considered the
       other § 3553(a) factors as well as the parties’ arguments for a sentence outside the
       Guidelines range; and (3) adequately articulated its reasoning for imposing the
       particular sentence chosen, including any rejection of the parties’ arguments for an
       outside-Guidelines sentence and any decision to deviate from the advisory Guidelines
       range.

United States v. Barahona-Montenegro, 565 F.3d 980, 983 (6th Cir. 2009) (quoting United States

v. Bolds, 511 F.3d 568, 581 (6th Cir. 2007)). The record of the sentencing hearing must reflect that

the court considered the § 3553(a) factors. See United States v. Johnson, 640 F.3d 195, 203 (6th Cir.

2011). Section 3553(a) requires the court to “impose a sentence sufficient, but not greater than

necessary,” to satisfy the purposes of sentencing. Denny, 653 F.3d at 420 (quoting 18 U.S.C.

§ 3553(a)) (internal quotation marks omitted). These purposes include:

       [T]he need for the sentence imposed— (A) to reflect the seriousness of the offense,
       to promote respect for the law, and to provide just punishment for the offense; (B)
       to afford adequate deterrence to criminal conduct; (C) to protect the public from
       further crimes of the defendant; and (D) to provide the defendant with needed
       educational or vocational training, medical care, or other correctional treatment in the
       most effective manner;



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United States v. Martinez-Rendon
No. 11-3013

18 U.S.C. § 3553(a)(2). In assessing this need, the district court must consider “the nature and

circumstances of the offense and the history and characteristics of the defendant,” 18 U.S.C.

§ 3553(a)(1), as well as the various available sentences and the policies behind them. Id.

§§ 3553(a)(3)-(5).

       A review of the record, including the sentencing hearing transcript, establishes that the

district court did not abuse its discretion in determining Martinez-Rendon’s sentence. The PSR

properly calculated, and the district court properly accepted, Martinez-Rendon’s Guidelines range.

The base offense level for violating 8 U.S.C. § 1326(b) is eight, after which Martinez-Rendon

received a four-level enhancement for his previous felony conviction, and a two-level reduction for

acceptance of responsibility. His criminal history reflects a series of misdemeanors committed more

than ten years ago (which do not count toward his criminal history category), a drug offense, and a

drunk-driving offense, yielding a criminal history category of three.

       The transcript likewise shows that the court fully considered the § 3553(a) factors. Regarding

Martinez-Rendon’s history and characteristics, the court noted his multiple illegal reentries into the

United States and sought a sentence “sufficiently severe to deter this defendant from further illegal

entries into the United States.” (Tr. of Sentencing Hr’g, Dist. Ct. Docket No. 25, at 8.) It further

found that Martinez-Rendon’s criminal history evinced “a lack of respect for the judicial system and

for the administration of justice,” especially given his multiple prior drunk driving offenses and his

failure to enroll in an alcohol treatment program previously offered to him. (Id. at 9.) Based on the

DUIs, the court concluded that “this man’s presence in the United States presents a significant risk

of injury to the innocent citizens of the United States.” (Id. at 10.) The court considered the

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United States v. Martinez-Rendon
No. 11-3013

statutory range, which permits up to ten years of incarceration, and understood it to reflect

Congress’s view that “there may be certain cases of illegal entry by a convicted felon which could

warrant a sentence as severe as 10 years in prison.” (Id. at 11.) With this in mind, the court

sentenced Martinez-Rendon to forty-eight months’ incarceration, coupled with three years of

supervised release, in order to adequately convince Martinez-Rendon “that he is not to illegally

reenter the United States, and he is not to continue committing offenses in the United States.” (Id.)

       Martinez-Rendon does not argue that the district court failed to consider his mitigating

evidence in imposing the sentence. Given the district court’s express articulation of the § 3553(a)

factors and the explicit connections that the court drew between those factors and the need for an

above-Guidelines sentence, we conclude that the court imposed a procedurally reasonable sentence.

C. Substantive Reasonableness

       Martinez-Rendon maintains that the court improperly double-counted his narcotics

conviction by considering it as part of the § 3553(a) analysis, when it already factored into his

criminal history category. He further claims that the court impermissibly relied on his uncounted

misdemeanors, because Guidelines policy dictated that courts may consider them only in “rare”

circumstances where the criminal history “substantially under-represents” the defendant’s criminal

past. See U.S.S.G. § 4A1.3(a)(1).

       The Supreme Court requires us to give district courts substantial latitude to calculate

sentences that they deem appropriate. Indeed, it has made clear that “‘[n]o limitation shall be placed

on the information’ a sentencing court may consider ‘concerning the [defendant’s] background,

character, and conduct.’” Pepper v. United States, 131 S. Ct. 1229, 1235-36 (2011) (alterations in

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United States v. Martinez-Rendon
No. 11-3013

original) (quoting 18 U.S.C. § 3661) (relying on this principle to strike down a statutory provision

limiting the information that district courts may consider in sentencing).

        As a cardinal rule, the fact that we might reasonably disagree with the sentence imposed is

insufficient to justify vacating a sentence imposed by a district court. Johnson, 640 F.3d at 202

(citing Gall, 552 U.S. at 51). We may not apply a presumption of unreasonableness to above-

Guidelines sentences, but rather must examine the totality of the circumstances and “give due

deference to the district court’s decision that the § 3553(a) factors, on a whole, justify the extent of

the variance.” Id. (quoting Gall, 552 U.S. at 51).

        We may find a sentence substantively unreasonable if it appears that the district court has

“select[ed] the sentence arbitrarily, bas[ed] the sentence on impermissible factors, fail[ed] to

consider pertinent § 3553(a) factors or giv[en] an unreasonable amount of weight to any pertinent

factor.” United States v. Martinez, 588 F.3d 301, 328 (6th Cir. 2009) (quoting United States v.

Collington, 461 F.3d 805, 808 (6th Cir. 2006)). Where a sentence deviates from the Guidelines, we

may “require some correlation between the extent of the variance and the justification for it,” but we

may not apply a “rigid mathematical formula that uses the percentage of a departure as the standard

for determining the strength of the justifications required for a specific sentence.” Davis, 537 F.3d

at 614 (quoting Gall, 552 U.S. at 47).

        Here, the court did not rely on impermissible factors in determining Martinez-Rendon’s

sentence. The district court did not double count the narcotics conviction, because it properly

considered that conviction as part of Martinez-Rendon’s history and characteristics, under §

3553(a)(1). Likewise, the district court used sound discretion in considering Martinez-Rendon’s

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United States v. Martinez-Rendon
No. 11-3013

uncounted misdemeanors as part of his history and in considering the need to promote respect for

the law and protect the public from Martinez-Rendon’s future crimes, pursuant to §§ 3553(a)(1) and

(2), respectively. The policy statement discouraging courts from considering “out of time”

convictions does not bind the court. Keller, 498 F.3d at 319 (citing Booker, 543 U.S. at 261).

Rather, courts retain broad discretion to “impose a sentence sufficient but not greater than necessary

to serve the § 3553(a) factors.” Davis, 537 F.3d at 618.

        Given that the district court imposed an above-Guidelines sentence, the question is whether

the court relied on facts that distinguish this instance of illegal reentry from the “mine run of cases”

contemplated by the Guidelines. See Rita v. United States, 551 U.S. 338, 351 (2007). We agree with

the district court that the record supports the upward variance in this case. While Martinez-Rendon’s

criminal history included only two non-immigration offenses over the past ten years, the record

suggests that Martinez-Rendon’s ability to keep his more recent crimes to a minimum follows as

much from his four-year incarceration and two deportations as from any attempt at reform. Second,

his four DUIs, while not commanding high sentences, raise the inference that Martinez-Rendon’s

mere presence in this country may pose a danger to himself and others. Finally, Martinez-Rendon’s

persistence in driving while under the influence of alcohol, coupled with his repeated reentry into

this country in defiance of court orders, evidences a lack of deterrence from committing future

crimes. The Supreme Court has made clear that few factors are “impermissible” in the sentencing

context, see Pepper, 131 S. Ct. at 1240, and thus, it was not an abuse of discretion for the district

court to rely on Martinez-Rendon’s past crimes in imposing an upward variance.



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United States v. Martinez-Rendon
No. 11-3013

                                     III. CONCLUSION

       For the reasons stated above, we AFFIRM the judgment of the district court.




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