NOT RECOMMENDED FOR PUBLICATION
File Name: 15a0252n.06
No. 14-3985
FILED
Apr 08, 2015
DEBORAH S. HUNT, Clerk
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA, )
)
Plaintiff-Appellee, )
)
ON APPEAL FROM THE UNITED
v. )
STATES DISTRICT COURT FOR THE
)
SOUTHERN DISTRICT OF OHIO
CESAR RODRIGUEZ RENTERIA, )
)
OPINION
Defendant-Appellant. )
)
)
BEFORE: SILER, MOORE, and STRANCH, Circuit Judges.
JANE B. STRANCH, Circuit Judge. Cesar Rodriguez Renteria appeals from the
criminal judgment imposing a sentence of 20 months of imprisonment for illegally re-entering
the United States without permission after a prior felony conviction. He contends that the
sentence is both procedurally and substantively unreasonable. Finding no error, we AFFIRM.
I. BACKGROUND
In June 2014, a grand jury returned an indictment charging Rodriguez Renteria, a
Mexican citizen, with illegal re-entry into the United States on or about May 25, 2014, after he
had been removed from this country in June 2010 following his conviction of a felony offense.
See 8 U.S.C. § 1326(a) & (b)(1). The indictment alleged that the defendant had been previously
convicted on May 26, 2010, in Cobb County, Georgia, of family violence battery and sentenced
No. 14-3985, United States v. Rodriguez Renteria
to serve one year in prison, with all but 35 days of the sentence suspended. The defendant pled
guilty to the federal indictment pursuant to a written plea agreement.
At the sentencing hearing, the district court applied USSG § 2L1.2 and USSG § 3E1.1 to
set the defendant’s total adjusted offense level at 10, as agreed by the parties. The Presentence
Report (PSR) placed the defendant in criminal history category I by awarding one criminal
history point for his 2010 conviction for family violence battery. Because there were other
unresolved charges pending against the defendant in two states, however, the government urged
the court to depart upward to criminal history category II under USSG § 4A1.3. The government
argued that criminal history category I substantially underrepresented the seriousness of the
defendant’s criminal history and the likelihood that he would commit other crimes.
The district court granted the motion over the defendant’s objection and placed him in
criminal history category II. At total adjusted offense level 10 and criminal history category II,
the applicable guideline range was 8 to 14 months. The court considered the sentencing factors
listed in 18 U.S.C. § 3553(a) and varied upward to impose a sentence of 20 months of
imprisonment, followed by three years of supervised release. The defendant now appeals.
II. STANDARDS OF REVIEW
We will set aside a sentence if we conclude that the district court abused its discretion.
See Gall v. United States, 552 U.S. 38, 46 (2007). Our review requires us to examine both the
procedural and substantive reasonableness of the sentence chosen by the court. See United
States v. Robinson, 778 F.3d 515, 518 (6th Cir. 2015). The Sentencing Guidelines are “the
starting point and the initial benchmark” for sentencing, but the district court must consider the
§ 3553(a) sentencing factors within the context of the parties’ arguments about what an
appropriate sentence might be. Gall, 552 U.S. at 49–50. The sentence ultimately chosen by the
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court may be unreasonable if the court committed significant procedural error, “such as failing to
calculate (or improperly calculating) the Guidelines range, treating the Guidelines as mandatory,
failing to consider the 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.” Gall, 552 U.S. at 51. If the sentence is “procedurally sound,” we
inquire whether the sentence is substantively reasonable. See id. A sentence may be
substantively unreasonable if the district court acts arbitrarily in selecting the sentence, considers
impermissible factors, fails to take into account the § 3553(a) factors, or gives any pertinent
factor an unreasonable amount of weight. United States v. Griffin, 530 F.3d 433, 439 (6th Cir.
2008). Where the sentence imposed is outside the applicable guideline range, we may not
presume that the sentence is unreasonable, but we “may consider the extent of the deviation . . .
giv[ing] due deference to the district court’s decision that the § 3553(a) factors, on a whole,
justify the extent of the variance.” Gall, 552 U.S. at 51. The fact that we “might reasonably
have concluded that a different sentence was appropriate is insufficient to justify reversal of the
district court.” Id.
III. ANALYSIS
We turn first to the upward departure under USSG § 4A1.3(a)(2)(D). Because we
conclude that the district court did not err procedurally by increasing the defendant’s criminal
history category from I to II, we will not set aside the sentence on this ground. Our affirmance
on this issue rests on the district court’s factual findings, the language of § 4A1.3 and its
commentary, and our own precedent. We begin with the factual support for the upward
departure.
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The PSR disclosed that, on June 17, 2013, the defendant, using the alias Cesar Vasquez,
was charged in Marietta, Georgia, with driving under the influence of alcohol and with having an
open container in his vehicle. The PSR also disclosed a second traffic stop of the defendant on
May 25, 2014, in Marysville, Ohio. The defendant, who was then using the alias Adan Valazco
Rodriguez, was charged with speeding, open container in the vehicle, no operator’s license, and
furnishing false information to a police officer.
During the sentencing hearing, the probation officer produced to the district court for
examination certain documentation relating to the defendant’s 2013 arrest in Georgia and his
2014 arrest in Ohio. These materials established that a breathalyzer test administered to the
defendant during the Georgia traffic stop registered the defendant’s blood alcohol level as 0.231,
far above Georgia’s legal limit of 0.08. See Ga. Code Ann. § 40-6-391(a)(5). The defendant
was released on bond following his arrest, but he failed to appear in court and a warrant was
issued for his arrest in February 2014. The arrest warrant remains active. The documentation
further established that the police officer who conducted the traffic stop in Ohio thought the
defendant was under the influence of alcohol. Although the defendant admitted drinking beer,
the police officer did not complete field sobriety testing.
After reviewing the documentation produced by the probation officer, the district court
found that the defendant absconded after he was released on bond following his June 2013 arrest
in Georgia, resulting in the issuance of a warrant for his arrest. According to the court, the
defendant’s disappearance explained why the Georgia court had not set a trial date, even though
the charges and the arrest warrant against the defendant remained active. Had the defendant not
absconded and had he been convicted of the Georgia DUI charge, the court found that the
probation officer would have assigned one point to that conviction, placing the defendant in
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criminal history category II. The court was unwilling to allow the defendant’s decision to
abscond to work in his favor at his federal sentencing on the illegal re-entry charge. The court
specifically found that the Georgia charges and arrest warrant were pending when the defendant
was arrested in Marysville, Ohio in May 2014 and subsequently indicted federally in June 2014
on the illegal re-entry offense.
Based on these factual findings, the district court granted the government’s request for an
upward departure under policy statement § 4A1.3 and raised the defendant’s criminal history
category from I to II. The policy statement lists five reasons why a court might appropriately
depart upward to a higher criminal history category. One of the specified reasons is that “the
defendant was pending trial or sentencing on another charge at the time of the instant offense.”
USSG § 4A1.3(a)(2)(D). The court determined that the plain language of the policy statement fit
the facts before the court.
The district court also appropriately relied on the policy statement’s commentary, which
provides examples of circumstances warranting an upward departure in the defendant’s criminal
history category. One example is the “[c]ommission of the instant offense while on bail or
pretrial release for another serious offense.” USSG § 4A1.3, p.s., comment. (n. 2(A)(iv)). The
circumstances of the arrests in Georgia and Ohio support the district court’s expressed concerns
that the defendant’s operation of a motor vehicle while under the influence of alcohol poses
serious danger to citizens on the highways. Further, the defendant’s commission of multiple
crimes and his deception about his identity demonstrate potential recidivism and the likelihood
that he would commit further offenses of the same kind.
The defendant urges us to set aside the upward departure, arguing as he did below that
the background commentary to § 4A1.3 authorizes an upward departure only “in the limited
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circumstances where reliable information indicates that the criminal history category does not
adequately reflect the seriousness of the defendant’s criminal history or likelihood of
recidivism.” USSG § 4A1.3, comment. (backg’d). According to the defendant, his case does not
present “the limited circumstances” envisioned by § 4A1.3 because criminal history category I
did not substantially underrepresent his criminal history. He disclaims knowledge of any trial
dates that had been set in connection with the state charges in Georgia or Ohio. Because no trial
dates had been set, he contends that he was not “pending trial or sentencing on another charge at
the time of the instant offense” and § 4A1.3(a)(2)(D) does not apply. Further, he asserts that
nothing about the pending state charges show that he is likely to repeat those crimes.
None of the defendant’s arguments persuade us that the upward departure was
procedurally unreasonable. We are bound by the district court’s factual findings, which are
based on record evidence and are not clearly erroneous. See Gall, 552 U.S. at 51. Further, when
we review the reasonableness of an upward departure under § 4A1.3, we take into account the
seriousness of the defendant’s prior criminal conduct, the likelihood of recidivism, prior similar
conduct the defendant committed as an adult that did not result in criminal conviction, lenient
sentences received for previous crimes, whether the sentence will deter future criminal conduct,
and the need to isolate the defendant from the community. See Griffin, 530 F.3d at 441. We
upheld a one-level upward departure under § 4A1.3 where a defendant ignored warrants,
committed new crimes while charges were pending against him, and engaged in other conduct
evidencing disrespect for law. United States v. Koeberlein, 161 F.3d 946, 952 (6th Cir. 1998).
Based on our precedent, the language and commentary of § 4A1.3, and the district court’s factual
findings, we uphold the upward departure of one level from criminal history category I to
category II.
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Having concluded that the sentence is free of procedural error, we next consider the
defendant’s argument that the 20-month sentence imposed is substantively unreasonable. With a
total adjusted offense level of 10 and a criminal history category of II, the applicable guideline
range for the defendant was 8 to 14 months. The defendant requested a sentence of 8 months;
the government recommended a sentence of 14 months.
After applying the § 3553(a) sentencing factors, however, the district court determined
that a “modest” upward variance from 14 months to 20 months was necessary to “impose a
sentence sufficient, but not greater than necessary, to comply with the purposes” of sentencing.
R. 27, Page ID 72–73. The court articulated its concern that the defendant had repeatedly re-
entered the United States after removal by federal authorities and had engaged in criminal
activity each time he entered this country illegally. The defendant was first removed to Mexico
in June 2009, but he returned to the United States, committed a felony offense in Georgia, and
was removed from the country again in June 2010. The defendant returned to the United States
and was then arrested in Georgia in June 2013 and in Ohio in May 2014. Apprehended twice
with open containers of alcohol in his car, the court was concerned that the defendant’s drinking
and driving posed a serious risk to law-abiding citizens. A 20-month term of imprisonment was
necessary, the court explained, to underscore the seriousness of all aspects of the defendant’s
conduct, to deter the defendant from engaging in future alcohol-related conduct, to deter the
defendant from again re-entering the United States without permission, and to promote respect
for American law, particularly where it appeared to the court that previously-imposed sanctions
had not been sufficiently severe to command the defendant’s respect for law.
The district court adequately explained the reasons for the upward variance, see United
States v. Herrera-Zuniga, 571 F.3d 568, 587 (6th Cir. 2009), and we affirm the court’s decision
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to vary upward, see United States v. Tristan-Madrigal, 601 F.3d 629, 634–36 (6th Cir. 2010)
(affirming upward variance where defendant repeatedly re-entered country illegally and
committed DUI offenses posing danger to the public). The court relied on some of the same
facts to support the upward departure and the upward variance, but doing so did not undermine
the sentence. “[T]he same facts and analyses can, at times, be used to justify both a Guidelines
departure and a variance,” United States v. Grams, 566 F.3d 683, 687 (6th Cir. 2009) (per
curiam), and here, the district court separated its analyses of the § 4A1.3 upward departure from
the upward variance and adequately justified both. Although we might have decided on a
different sentence, that alone is insufficient to justify reversing the district court. See Gall,
552 U.S. at 51.
IV. CONCLUSION
Accordingly, we AFFIRM the judgment of the district court.
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