RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 10a0150p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
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Plaintiff-Appellee, -
UNITED STATES OF AMERICA,
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No. 08-6435
v.
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Defendant-Appellant. -
BLANCA JIMENEZ,
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Appeal from the United States District Court
for the Middle District of Tennessee at Nashville.
No. 08-00093-001—Aleta Arthur Trauger, District Judge.
Argued: April 30, 2010
Decided and Filed: May 20, 2010
Before: COOK and McKEAGUE, Circuit Judges; HOOD, Senior District Judge.*
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COUNSEL
ARGUED: Kathleen G. Morris, LAW OFFICES, Nashville, Tennessee, for Appellant.
Mary Elizabeth McCullohs, ASSISTANT UNITED STATES ATTORNEY, Nashville,
Tennessee, for Appellee. ON BRIEF: Kathleen G. Morris, LAW OFFICES, Nashville,
Tennessee, for Appellant. Mary Elizabeth McCullohs, ASSISTANT UNITED STATES
ATTORNEY, Nashville, Tennessee, for Appellee.
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OPINION
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McKEAGUE, Circuit Judge. Defendant Blanca Jimenez, a citizen of Mexico,
pleaded guilty to the charge of illegally re-entering the United States after having previously
been deported following an aggravated felony conviction. The district court sentenced her
at the low end of the advisory Sentencing Guidelines range to a prison term of 30 months.
*
The Honorable Joseph M. Hood, Senior United States District Judge for the Eastern District of
Kentucky, sitting by designation.
1
No. 08-6435 United States v. Jimenez Page 2
Defendant contends on appeal that the district court miscalculated the Guidelines range by
relying on findings that were not supported by sufficient evidence. She also contends the
sentence is substantively unreasonable because the district court relied on an impermissible
purpose in imposing the prison sentence—namely, to promote rehabilitation. For the reasons
that follow, we affirm the judgment of sentence.
I. BACKGROUND
On July 24, 2008, defendant Blanca Jimenez pleaded guilty to having illegally re-
entered the United States after having been removed following a conviction for an
aggravated felony. 8 U.S.C. § 1326(a) and (b)(2). During the plea hearing, defendant’s
counsel explained that defendant had, at some unknown time, been struck by a car as a
pedestrian and had suffered head injuries that resulted in memory difficulties. Counsel also
explained that defendant had been the victim of a brutal rape six months earlier in Nashville.
Further, although Jimenez had complained about the adequacy of medical care she had
received at the local jail, her attorney represented that she wished to and was competent to
proceed with the plea hearing. The district court made inquiry of Jimenez and assured itself
that she was competent to proceed and knowingly and voluntarily waived her right to trial.
In establishing the factual basis for the plea, Immigration and Customs Enforcement
(“ICE”) Special Agent Jeremy Ridenour, under oath, explained: that defendant came to the
attention of authorities in Davidson County, Tennessee after she was arrested for public
intoxication; that she had been removed to Mexico, her native country, on April 11, 1997;
that in 1995, she had been convicted in Arizona of forgery and assisting a criminal syndicate,
each considered an “aggravated felony;” and that ICE records were devoid of evidence that
defendant had applied for or received permission to re-enter the United States. Defendant
confirmed the accuracy of Ridenour’s statement. The district court reserved acceptance of
the plea pending sentencing.
The sentencing proceeded on November 20, 2008. The district court first addressed
defendant’s objection to the proposed finding that Jimenez had re-entered the United States
by December 30, 1997, as evidenced by the fact that she was arrested on that date in Salinas,
California and charged with assaulting her live-in boyfriend with a ceramic statue.
Defendant did not directly challenge the notion that she had re-entered by December 1997,
No. 08-6435 United States v. Jimenez Page 3
but argued the government failed to prove she remained continuously in the United States
after that date. Defendant proposed that she might have left the United States again since
December 1997 and re-entered illegally as recently as August 2007. If so, then she would
not be subject to assessment of an additional criminal history point pursuant to U.S.S.G.
§ 4A1.2(e) for a “prior sentence” imposed within ten years of the commencement of the
instant illegal re-entry offense (i.e., 30-day sentence imposed in Maricopa County, Arizona
on May 14, 1994, for solicitation to commit forgery). The district court overruled
defendant’s objection, observing that the PSR showed Jimenez had had numerous interim
brushes with law enforcement—in January 1998, September 2002, July 2003, March 2004,
May 2004, October 2007, and February 2008—and had neither challenged this showing nor
presented any support for a finding that she had left again and re-entered more recently than
December 1997. The district court concluded that the preponderance of the evidence
weighed in favor of finding that Jimenez came back in December 1997 and never left again.
Next, the district court considered defendant’s objection to the sufficiency of the
government’s proof of two other convictions for which the PSR recommended assessment
of two additional criminal history points. The convictions, in Salinas, California, were for
petty theft (guilty plea, March 12, 1998) and for inflicting corporal injury on her boyfriend
(nolo contendere plea, April 9, 1998). Because Monterey County Superior Court records
regarding these convictions had been “purged” pursuant to California law, the government
substantiated the convictions with certified copies of disposition records from the California
Department of Justice, plus fingerprint verification by the FBI through the Criminal Justice
Information System. Defendant argued these records were insufficient to satisfy the
requirements set forth in Shepard v. United States, 544 U.S. 13 (2005), because they did not
include “the terms of the charging document, the terms of a plea agreement or transcript of
colloquy between judge and defendant in which the factual basis for the plea was confirmed
by the defendant, or [ ] some comparable judicial record of this information.” Id. at 26.
Again, the district court overruled the objection, holding that the admitted exhibits were
sufficiently reliable, being unrefuted, to confirm the accuracy of the PSR information.
The district court went on to formally accept defendant’s guilty plea. The court also
accepted the contents of the PSR as its findings of fact and conclusions of law, over
defendant’s objections. Accordingly, in its calculation of the governing advisory Guidelines
No. 08-6435 United States v. Jimenez Page 4
range, the court concluded that defendant had a total offense level of 13 and a criminal
history category of V, producing a sentencing range of 30 to 37 months.
Defendant Jimenez did not exercise her right to allocution, preferring to allow her
attorney to speak for her. Counsel began her remarks by acknowledging that her client’s
criminal history, viewed in the abstract, could justify the 30-to-37 month sentencing range.
However, she characterized Jimenez as a unique individual with a personal history
distinguishing her as a victim . . . a victim of memory loss, of criminal assault, of continuing
untreated physical ailments, of flawed immigration policy, of homelessness . . . such that a
30-month prison sentence represented unnecessary “overkill.” Counsel requested a sentence
of time served (i.e., nine months) plus immediate removal to Mexico. If a prison term were
imposed, Counsel asked that Jimenez be recommended for placement in a Bureau of Prisons
medical facility where her medical needs could be addressed. The Assistant U.S. Attorney
responded by acknowledging that defendant’s medical care needs represented a valid
sentencing consideration, but reminded the court that defendant’s illegal conduct warranted
punishment and requested a sentence of 30 months’ imprisonment.
In pronouncing sentence, the district court began by summarizing the “sad profile”
of defendant’s life. In light of this background, the court viewed the recommended 30-
month prison sentence not as a lengthy sentence, but “as the compassionate thing to do.”
The court found no compelling reason to depart or vary from the advisory Guidelines range
and found that a 30-month prison term would meet the purposes of sentencing prescribed at
18 U.S.C. § 3553(a), reflecting the seriousness of the offense, promoting respect for law,
representing just punishment, and protecting the public from other crimes. “Moreover,” the
court observed that this period of incarceration would provide Jimenez with the medical and
mental health treatment she so desperately needed. Id. at 35. The sentence included credit
for time served.
On appeal, defendant asserts three claims of error. First, she contends the district
court miscalculated the applicable Guidelines range by adding criminal history points based
on inadmissible proof of her 1998 convictions for petty theft and “spousal battery.” Second,
she challenges the district court’s finding that she re-entered the United States in 1997 and
stayed here continuously thereafter as not supported by a preponderance of the evidence.
No. 08-6435 United States v. Jimenez Page 5
Third, defendant contends the 30-month sentence is substantively unreasonable because
longer than necessary and because it was motivated by the improper purpose of
“rehabilitating” her health, contrary to 18 U.S.C. § 3582(a).
II. ANALYSIS
A. Standard of Review
The district court’s sentencing is reviewed for both procedural and substantive
reasonableness under the deferential “abuse of discretion” standard. Gall v. United States,
552 U.S. 38, 41, 52-53 (2007). A district court will be deemed to have abused its discretion
if it committed significant procedural error, “such as failing to calculate (or improperly
calculating) the Guidelines range, treating the Guidelines as mandatory, failing to consider
the [18 U.S.C.] § 3553(a) factors, selecting a sentence based on clearly erroneous facts, or
failing to adequately explain the chosen sentence—including an explanation for any
deviation from the Guidelines range.” Id. at 51. The standard for evaluating whether a
sentence is substantively unreasonable is summarized in Gall as follows:
When conducting this review, the court will, of course, take into account the
totality of the circumstances, including the extent of any variance from the
Guidelines range. If the sentence is within the Guidelines range, the
appellate court may, but is not required to, apply a presumption of
reasonableness. [Rita v. United States, 551 U.S. 338 (2007)]. But if the
sentence is outside the Guidelines range, the court may not apply a
presumption of unreasonableness. It may consider the extent of the
deviation, but must give due deference to the district court's decision that the
§ 3553(a) factors, on a whole, justify the extent of the variance. The fact that
the appellate court might reasonably have concluded that a different
sentence was appropriate is insufficient to justify reversal of the district
court.
Gall, 552 U.S. at 51. In the Sixth Circuit, a rebuttable presumption of reasonableness applies
to sentences within the properly calculated Guidelines range. United States v. Vonner, 516
F.3d 382, 389 (6th Cir. 2008).
No. 08-6435 United States v. Jimenez Page 6
B. Proof of Prior Convictions
Defendant contends the district court committed procedural error by improperly
calculating the Guidelines range. Specifically, defendant argues the court improperly relied
on inadmissible evidence of prior convictions in assessing criminal history points. In
reviewing the lower court’s calculation of the Guidelines range, factual findings are
reviewed for clear error and legal conclusions are reviewed de novo. United States v.
Brattain, 539 F.3d 445, 447 (6th Cir. 2008). Defendant’s argument that the district court
improperly relied on inadmissible evidence arguably poses a pure legal question that
warrants de novo review. See United States v. Carter, 591 F.3d 656, 661 (D.C. Cir. 2010)
(applying de novo review while refraining from deciding whether a more deferential
standard could be applicable).
The Federal Rules of Evidence do not apply in sentencing proceedings. Fed. R.
Evid. 1101(d)(3); United States v. Hamad, 495 F.3d 241, 246 (6th Cir. 2007). The bounds
of admissibility in sentencing proceedings are defined by due process. See Stewart v. Erwin,
503 F.3d 488, 494-95 (6th Cir. 2007). Due process in this context prohibits the sentencing
court from relying on materially false or unreliable information and requires that the
defendant be afforded the opportunity to rebut adverse information demonstrably relied on
by the sentencing court. Id.
Defendant does not contend the evidence of the two prior convictions here relied on
by the district court is materially false. She made no effort in the district court to rebut the
correctness of the certified records from the California Department of Justice substantiating
the 1998 petty theft and spousal battery convictions. She does not argue that she was denied
the opportunity to rebut the information—although her attorney argued that Jimenez simply
had no recollection of much of her criminal history. Nor has defendant argued on appeal that
the information is materially false. Instead, her sole challenge was and is that, irrespective
of the facial validity of the records relied on, they should be held unreliable because they fail
to meet the requirements set forth in Shepard v. United States, 544 U.S. 13 (2005).
No. 08-6435 United States v. Jimenez Page 7
In Shepard, the Court stated its holding as follows:
We hold that enquiry under the ACCA [Armed Career Criminal Act] to
determine whether a plea of guilty to burglary defined by a nongeneric
statute necessarily admitted elements of the generic offense is limited to the
terms of the charging document, the terms of the plea agreement or transcript
of colloquy between judge and defendant in which the factual basis for the
plea was confirmed by the defendant, or to some comparable judicial record
of the information.
Id. at 26. Defendant thus argues that because the government in this case did not present the
actual charging documents or plea agreements or plea hearing transcripts to substantiate the
specifics of the 1998 convictions, the evidence presented was necessarily unreliable and
insufficient to support enhancement of her criminal history level.
Defendant also cites United States v. Medina-Almaguer, 559 F.3d 420, 422-23 (6th
Cir. 2009), where the court, following Shepard, rejected the government’s use of a
preliminary examination transcript to establish the nature of a prior conviction. The court
held that the transcript, even assuming it might otherwise be deemed reliable, was
insufficient because it did not reveal whether the defendant necessarily admitted the facts
necessary to support a finding that his prior conviction was for a qualifying “drug trafficking
offense,” warranting a criminal history enhancement under U.S.S.G. § 2L1.2(b)(1)(A).
Similarly, here, defendant contends, the certified records introduced by the government fail
to identify the conduct she necessarily admitted when she was convicted of petty theft and
spousal battery, the convictions used to enhance her criminal history level.
In response, the government correctly contends that Shepard and Medina-Almaguer
are inapposite. The complained-of criminal history enhancements applied by the district
court based on the 1998 convictions were made pursuant to U.S.S.G. § 4A1.1(c), based on
the two “prior sentences.” As such, the nature of the prior convictions is of little
consequence, as long as the sentences imposed for the convictions represent qualifying
“prior sentences,” which they undisputedly do. See U.S.S.G. § 4A1.1, cmt. n.3 and § 4A1.2.
In other words, the information furnished by the California Department of Justice was
provided by the government and accepted by the district court to establish the fact of the
prior convictions and the resulting sentences imposed, not to establish the nature of the
convictions or the specific offense conduct.
No. 08-6435 United States v. Jimenez Page 8
This distinction is recognized in a uniform and growing body of case law. In United
States v. Sanders, 470 F.3d 616, 623 (6th Cir. 2006), the court held that Shepard does not
govern the distinct, antecedent inquiry whether the government has furnished sufficient
evidence to prove merely that a conviction exists. See also United States v. Caswell, 456
F.3d 652, 658-59 (6th Cir. 2006) (Shepard prohibitions held not to come into play where the
district court relied only on fact of prior convictions and made no findings regarding the
circumstances of the convictions); United States v. Carter, 591 F.3d 656, 661-62 (D.C. Cir.
2010) (collecting cases and explaining that the Shepard requirements relate only to proof
of the facts underlying a conviction and do not apply in evaluating the sufficiency of the
government’s proof of the existence of a prior conviction).
It follows that the requirements enforced in Shepard and Medina-Almaguer do not
apply to the instant criminal history enhancement based on the 1998 convictions. In
evaluating the sufficiency of the government’s proofs, the district court was constrained only
by the requirements of due process. The court was prohibited from relying on materially
false or unreliable information and was obliged to give defendant the opportunity to rebut
the information. Defendant has not challenged the sufficiency of the government’s proofs
on any of these grounds. She has not argued that the information furnished by the California
Department of Justice was materially false. She has not offered any reason to find the
information otherwise unreliable. Nor does she contend that she was denied fair opportunity
to rebut the information.
The California Department of Justice records introduced by the government are
certified by the custodian of the records and accompanied by FBI fingerprint verification that
the records pertain to defendant Jimenez. In short, the exhibits relied on by the district court
bear adequate indicia of reliability. The district court was entitled to rely on them in
evaluating the appropriateness of the recommended criminal history point assessments.
Further, the district court’s findings that the 1998 convictions involved qualifying “prior
sentences” under U.S.S.G. § 4A1.1(c) are supported by a preponderance of the evidence.
We therefore reject this claim of procedural error.
No. 08-6435 United States v. Jimenez Page 9
C. Proof of Re-entry and Continuous Stay
Next, defendant contends the district court’s finding that she re-entered the United
States in December 1997 and remained here continuously thereafter is not supported by a
preponderance of the evidence. Defendant does not contest the finding that she had re-
entered by December 1997, but contends the government failed to show that she remained
here continuously until her eventual arrest for public intoxication in March 2008, when ICE
officials learned of her presence. Defendant contends the record leaves open the possibility
that she left the United States in the interim and re-entered again as recently as October
2007. She acknowledges this is a question of fact subject to review only for clear error.
Defendant does not dispute that the offense she pleaded guilty to, being “found in”
the United States after illegally re-entering following deportation, 8 U.S.C. §1326(a), is a
continuing offense, deemed to have commenced on the date of illegal re-entry and
continuing to the date of arrest for the offense. See United States v. Are, 498 F.3d 460, 464
(7th Cir. 2007); United States v. Hernandez-Gonzalez, 495 F.3d 55, 60-61 (3d Cir. 2007).
But if her most recent illegal re-entry did not actually occur until October 2007, then she
argues the district court’s assessment of two criminal history points was improper. That is,
the assessment of one point based on her 1994 conviction for solicitation to commit forgery
in Maricopa, Arizona, pursuant to U.S.S.G. § 4A1.1(c) would be improper under
§ 4A1.2(e)(3) because it preceded commencement of this offense by more than ten years.
In addition, the criminal history enhancement pursuant to § 4A1.1(e), based on
commencement of the offense within two years after release from imprisonment for her 1995
convictions for forgery and assisting a criminal syndicate in Flagstaff, Arizona, would also
be improper.
To be sure, the factual record of defendant’s location after her illegal re-entry in
December 1997 is not conclusive. As the district court observed, however, the PSR
summary of defendant’s numerous contacts with the criminal justice system is strongly
suggestive of her continuous presence in the United States from December 1997 onward.
There are gaps of time in which defendant managed to avoid recorded contact with law
enforcement officials, i.e., from March 1998 to September 2002, and from June 2004 to
October 2007. Yet, there is no evidence that defendant returned to Mexico or otherwise
No. 08-6435 United States v. Jimenez Page 10
departed the United States during this period. Defendant’s argument about the possibility
of an illegal re-entry more recent than December 1997 is based on unsupported speculation.
The information relied on by the district court appears to be reliable, is not materially
contested, and supports the finding, by a preponderance of the evidence, that defendant
illegally re-entered the United States in December 1997 and remained here continuously
thereafter until her arrest in March 2008. Defendant has not demonstrated clear error. We
therefore uphold the challenged criminal history enhancements.
D. Substantive Unreasonableness
Finally, defendant contends the 30-month sentence imposed by the district court is
unreasonable because it is greater than necessary and based on an impermissible factor. She
contends the district court imposed the sentence, “as the compassionate thing to do,” to
afford her medical and mental health treatment, a purpose at odds with Congress’ admonition
that “imprisonment is not an appropriate means of promoting correction and rehabilitation.”
18 U.S.C. § 3582(a).
Insofar as defendant contends the sentence is based on an impermissible factor, it
is properly deemed a substantive unreasonableness challenge. United States v. Conatser,
514 F.3d 508, 520 (6th Cir. 2008) (“a sentence may be considered substantively
unreasonable when the 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.”) Because the 30-month sentence, however, is
within the properly calculated advisory Guidelines range , it enjoys a rebuttable presumption
of reasonableness. United States v. Vonner, 516 F.3d 382, 389 (6th Cir. 2008).
Defendant insists the presumption of reasonableness is rebutted where the district
court so clearly violated the statutory prohibition against using imprisonment to promote
rehabilitation. Yet, a fair reading of the sentencing transcript does not support defendant’s
argument and neither does governing Sixth Circuit law.
First, in explaining the rationale for the sentence, the district court, while expressing
compassion for the hardships experienced by Jimenez, observed that defendant had
committed a criminal offense and that a 30-month sentence “complies with all the purposes
No. 08-6435 United States v. Jimenez Page 11
of sentencing.” Sent. tr. at 33. Concluding that the Guidelines range had been properly
calculated, the court saw no compelling reason to depart or vary from it. Id. at 34. With
reference to the sentencing factors prescribed at 18 U.S.C. § 3553(a), the court held that the
30-month sentence “reflects the seriousness of the offense, promotes respect for the law, is
a just punishment and will protect the public from further crimes by the defendant.” Id. at
35. Among the factors substantiating the appropriateness of a within-Guidelines sentence,
the court characterized as “most important” the need to provide defendant with needed
medical and mental health treatment. Id. This consideration was consonant with the court’s
duty to consider “the need . . . to provide the defendant with needed . . . medical
care”—hardly an impermissible factor. 18 U.S.C. § 3553(a)(2)(D).
Defendant equates the district court’s recommendation of medical and mental health
treatment with an inappropriate attempt to promote “rehabilitation.” Yet, the court’s concern
was clearly motivated by defendant’s acknowledged “serious health problems and serious
mental health issues.” Sent. tr. at 32-33. The court saw the impending period of
imprisonment, otherwise justified by legitimate penological purposes, as affording defendant
the additional opportunity to receive needed care while in the custody of the Bureau of
Prisons. The transcript does not even hint at the notion that the prison sentence was imposed
or lengthened to facilitate defendant’s moral reformation, correction or rehabilitation. Quite
to the contrary, the court candidly recognized that it did not expect imprisonment to have any
corrective impact on defendant: “She will be deported when she finishes this sentence, and
there’s probably nothing for her in Mexico. The Court predicts that she will be right back
in this country as soon as she’s deported . . . .” Id.
Careful consideration of the court’s explanation thus reveals that defendant’s third
claim of error is meritless. Defendant has failed to demonstrate that the district court relied
on an impermissible factor, and has thus failed to rebut the presumed reasonableness of her
within-Guidelines sentence.
We recognize the potential tension between the § 3582(a) admonition not to use
imprisonment to promote correction and rehabilitation and the § 3553(a)(2)(D) duty to
consider the defendant’s need for “educational or vocational training, medical care, or other
correctional treatment.” The struggle to resolve the apparent tension has resulted in a split
No. 08-6435 United States v. Jimenez Page 12
of authorities among the circuits. See In re Sealed Case, 573 F.3d 844, 848-51 (D.C. Cir.
2009) (collecting cases). Some circuits have construed § 3582(a) as prohibiting the use of
rehabilitation as a goal both in deciding whether to imprison and whether to impose a longer
prison term. Id. at 849 (citing cases from the Second, Third, Tenth and Eleventh Circuits).
Others, including the Sixth Circuit, have construed § 3582(a) as barring the sentencing court
from choosing prison, rather than a non-incarceration sentence, to promote rehabilitation,
but allowing the court to select a longer prison term to promote rehabilitation. Id. at 848-49
(citing cases from the Fifth, Sixth, Eighth and Ninth Circuits). See United States v. Jackson,
70 F.3d 874, 879-80 n.6 (6th Cir. 1995); United States v. Johnson, 221 F.3d 1336, 2000 WL
924344 (6th Cir. June 28, 2000) (unpublished).
Here, defendant does not argue that the district court considered an impermissible
factor in deciding whether to impose a sentence of imprisonment. Rather, she contends the
district court used an impermissible factor only to impose a longer-than-necessary sentence.
Even if the factual record supported such a theory, it would not transgress the § 3582(a)
admonition, as it has been construed and applied in the Sixth Circuit. Moreover, even if we
were to apply § 3582(a) in a stricter fashion, like the Second, Third, Tenth and Eleventh
Circuits, we would be hard-pressed to find error in this sentence. In United States v. Hoffa,
587 F.3d 610, 615 (3d Cir. 2009), the Third Circuit observed that, even though § 3582(a)
bars consideration of rehabilitation concerns in deciding whether and how long to imprison,
where imprisonment and its length are justified by traditional penological purposes, the
sentencing judge is free to recommend that available rehabilitation services be afforded. The
instant record discloses that this is exactly what happened in the instant sentencing.
The district court did not err. It did not rely on any impermissible factor. It did not
abuse its discretion. The sentence is not substantively unreasonable. Defendant’s final claim
of error is therefore rejected as well.
III. CONCLUSION
Accordingly, the district court’s judgment of sentence is AFFIRMED.