NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 07a0158n.06
Filed: February 27, 2007
No. 05-6503
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 WESTERN DISTRICT OF
) TENNESSEE
RAUL JARA, )
)
Defendant-Appellant. )
BEFORE: MARTIN and GUY, Circuit Judges, and Rose, District Judge.*
ROSE, District Judge. Defendant-Appellant, Raul Jara, appeals the sentence imposed upon
him after his original sentence was vacated by the United States Supreme Court for reconsideration
in light of United States v. Booker, 543 U.S. 220 (2005). Jara claims that the district court has now
erred by sentencing him under the mistaken understanding that it was bound to impose a
“reasonable” sentence. Because the record reflects that the district court was guided by the factors
listed in 18 U.S.C. § 3553(a) in imposing a reasonable sentence, the district court should be affirmed.
I. Factual Background
In 2003, Defendant-Appellant Raul Jara pleaded guilty to aiding and abetting the attempted
*
The Honorable Thomas M. Rose, United States District Court for the Southern District
of Ohio sitting by designation.
United States v. Raul Jara, No. 05-6503
manufacture of methamphetamine in violation of 21 U.S.C. §§ 841(a)(1) & 846 and 18 U.S.C. § 2,
and to being an illegal alien in possession of a firearm in violation of 18 U.S.C. § 922(g). The
Presentence Report recommended a range of 135-168 months. J.A. 84-89. The district court
sentenced Jara to 135 months of imprisonment and three years of supervised release, and the court
imposed a $200 special assessment. Jara appealed this sentence, asserting that the district court
improperly denied him a reduction in his Sentencing Guidelines range for being a minor participant
in the offense. United States v. Jara, 96 Fed. Appx. 329 (6th Cir. 2004). When Jara filed a petition
for certiorari to the United States Supreme Court, that court vacated his sentence for reconsideration
in light of United States v. Booker, 543 U.S. 220, 125 S. Ct. 738 (2005). The Sixth Circuit further
remanded the case to the district court for resentencing.
The district court held a resentencing hearing, allowing Jara to present additional evidence.
Jara’s wife testified that her husband did not use drugs when she met him, but that she had persuaded
him to procure methamphetamine for her, which she considered helpful to a mental illness from
which she suffered. J.A. 58. She further testified that she has since ceased taking drugs and that she
believed her husband would not become involved in drugs again. J.A. 59.
After this testimony, the Court sentenced Jara:
The Guideline calculations in this matter were a total offense level
32, Criminal History Category I. The Court sentenced Mr. Jara
originally to the low end of the Guideline range on Count 1 for 135
months. And to 120 months on Count 2, which was the statutory
maximum. I should say Count 6, it was. Count 2 135 months, and
Count 6, 120 months. They ran concurrently for a total sentence of
135 months. The Guidelines haven’t changed. The question is is a
Guideline sentence reasonable in this case. Not only was Mr. Jara in
possession of a substantial quantity of drugs, but he had a firearm
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specifica[tion] under Count 6 in conjunction with those drugs, and
therefore it drives this case. The case is not being driven by Mr.
Jara’s personal criminal history. He is in Criminal History I and the
only criminal history points are driving while license suspended,
Third Degree.
So in looking at the significance of the crime, it is somewhat
offset by his personal characteristics but specifically by his lack of
criminal history, which is important to the Court, because I agree with
Ms. Jara, from her testimony, this defendant is unlikely to commit
further crimes, certainly further crimes of this sort. But it is
extremely important to deter other conduct of this kind, and a
significant sentence is necessary to do that.
The Court, in considering the criteria of 3553 also considered
the Guideline sentence as an indication of reasonableness under
3553[(a)(4)]. The Court has to consider unwarranted sentencing
disparities in this matter.
Is a Guideline sentence reasonable or not? It’s the Court’s
view that the Guidelines are the best guarantee in this case that the
sentence imposed on the defendant as a Guideline sentence was not
unreasonably disparate. And there is no restitution issue in this case.
I believe the Guideline sentence that the Court originally
imposed is a reasonable sentence for the reasons I’ve stated. This is
an extremely serious crime. Ms. Jara received the benefit of her
cooperation or she would likewise have received a far more severe
sentence.
The Guidelines have taken [into] account of the lack of
criminal history that Mr. Jara had. And clearly because of the
quantity of methamphetamine,1 his base offense level is high and his
range is higher than it would have been. Also because of the
possession of a dangerous weapon in this case. Mr. Jara has accepted
responsibility, and the Court knows that.
For all those reasons, it is the Court’s view that a sentence of
1
The Presentence Report estimated the amount of methamphetamine related to the
offense to be between 1.5 kilograms to 5 kilograms. J.A. 71.
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135 months as originally imposed is a reasonable sentence in this
case. And when I say that, I am essentially saying that 135 months
on…Count 2–and 120 on Count 6 concurrently for a total of 135
months is appropriate and reasonable. Three years of supervised
release on Count 2, two years on Count 6, both to run concurrently for
three years. I will reimpose the conditions of supervised release with
the additional condition that the defendant submit to DNA testing, as
deemed appropriate. I assume the total assessment of two hundred
dollars was paid. If not, it is reimposed.
J.A. 60-62.
II. Standard of Review
We review the sentencing decision of a district court for procedural and substantive
reasonableness and accord a sentence within the advisory guidelines range that satisfies the
procedural requirements of post-Booker sentencing a presumption of substantive reasonableness.
United States v. Williams, 436 F.3d 706, 708 (6th Cir. 2006); United States v. Richardson, 437 F.3d
550, 553-54 (6th Cir. 2006); United States v. Underwood, 188 Fed. Appx. 459, 460, 2006 WL
2381611, *1 (6th Cir. 2006). In contrast, in its role at sentencing, the district court must appreciate
the advisory nature of the Guidelines, must calculate the Guidelines' recommendation correctly and
must consider the § 3553(a) factors in exercising its independent judgment about what sentence to
impose, United States v. McBride, 434 F.3d 470, 476 (6th Cir. 2006), though “[s]uch consideration,
…need not be evidenced explicitly” in some mechanical form. United States v. Williams, 436 F.3d
706, 708 (6th Cir. 2006). “Moreover, even when a district court does misstate its task as that of
imposing a reasonable sentence, we review the sentence imposed under the standards explained
above.” United States v. Clark, 469 F.3d 568, 571 (6th Cir. 2006).
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III. Analysis
Defendant-Appellant asserts that the district court erred because “the court erroneously
perceived its duty under Booker to be that of imposing a ‘reasonable’ sentence.” App. Br. at 11. The
Sixth Circuit has rejected, however, claims that a district court committed reversible error by stating
that it was imposing a “reasonable” sentence when the record reflects that the district court arrived
at its sentence by utilizing the factors listed in 18 U.S.C. § 3553(a). See United States v. Jackson,
466 F.3d 537, 539 (6th Cir. 2006); United States v. Cruz, 461 F.3d 752, 754 (6th Cir. 2006) (“Merely
by saying that the sentence he wishes to impose is ‘reasonable,’ a district judge does not necessarily
commit reversible error.”); United States v. Boyd, 2006 WL 3307476, *2 (6th Cir. 2006); cf. United
States v. Cage, 458 F.3d 537, 541 (6th Cir. 2006) (“We decline to conclude that by using the term
‘reasonable’ or by acknowledging that the appellate court will apply a rebuttable presumption of
reasonableness to a sentence, the district court is itself applying that presumption.”).
In the instant case, the district court closely followed the factors listed in 18 U.S.C. § 3553(a).
To wit, the district court considered 18 U.S.C. § 3553(a)(1), the nature and circumstances of the
offense:
Not only was Mr. Jara in possession of a substantial quantity of drugs,
but he had a firearm specifica[tion] under Count 6 in conjunction
with those drugs, and therefore it drives this case. The case is not
being driven by Mr. Jara’s personal criminal history. He is in
Criminal History I and the only criminal history points are driving
while license suspended, Third Degree.
J.A. 60. The district court considered 18 U.S.C. § 3553(a)(2):
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So in looking at the significance of the crime, it is somewhat
offset by his personal characteristics but specifically by his lack of
criminal history, which is important to the Court, because I agree with
Ms. Jara, from her testimony, this defendant is unlikely to commit
further crimes, certainly further crimes of this sort. But it is
extremely important to deter other conduct of this kind, and a
significant sentence is necessary to do that.
Id.
The district court considered 18 U.S.C. § 3553(a)(4):
The Guideline calculations in this matter were a total offense level
32, Criminal History Category I. The Court sentenced Mr. Jara
originally to the low end of the Guideline range on Count 1 for 135
months. And to 120 months on Count 2, which was the statutory
maximum. I should say Count 6, it was. Count 2 135 months, and
Count 6, 120 months. They ran concurrently for a total sentence of
135 months. The Guidelines haven’t changed.
Id. The district court was cognizant of 18 U.S.C. § 3553(a)(6): “The Court has to consider
unwarranted sentencing disparities in this matter.” J.A. 61. “Ms. Jara received the benefit of her
cooperation or she would likewise have received a far more severe sentence.” Id. Finally, the court
also considered restitution, as required by 18 U.S.C. § 3553(a)(7). Id. In short, there is no relevant
sentencing factor which the district court failed to consider. The court imposed a sentence
reasonably calculated to “sufficiently, but not greater than necessary,...comply with the purposes set
forth in paragraph (2) of [18 U.S.C. § 3553(a)].” 18 U.S.C. § 3553(a).
IV. Conclusion
While the district court utilized the term “reasonableness” in sentencing Defendant-
Appellant, the record reflects that the district court sentenced Defendant-Appellant according to the
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statutorily mandated factors. Therefore, the Court AFFIRMS the sentence of the district court.
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