NOT RECOMMENDED FOR PUBLICATION
File Name: 06a0307n.06
Filed: May 4, 2006
No. 05-2196
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA, )
)
Plaintiff-Appellee, ) ON APPEAL FROM THE UNITED
) STATES DISTRICT COURT FOR THE
v. ) WESTERN DISTRICT OF MICHIGAN
)
JOSE ESTEBAN IBARRA, )
) OPINION
Defendant-Appellant. )
____________________________________ )
Before: GILMAN, SUTTON, and COOK, Circuit Judges.
RONALD LEE GILMAN, Circuit Judge. Jose Esteban Ibarra, an undocumented alien,
was convicted of the crime of being found in the United States without permission after having been
deported following an aggravated felony conviction. The district court sentenced him to 46 months
of imprisonment. Ibarra appealed, arguing that the sentence was unreasonable because the district
court failed to adequately consider the factors listed in 18 U.S.C. § 3553(a). For the reasons set forth
below, we AFFIRM the judgment of the district court.
I. BACKGROUND
All of the facts in this opinion are taken from the Presentence Report, the accuracy of which
Ibarra does not dispute. Ibarra is a Mexican citizen who first came to the United States illegally in
the mid-1980s. He married a United States citizen in 1988. Although immigration officials
approved his “Petition for Alien Relative” shortly thereafter, Ibarra failed to apply for a permanent
resident visa. This caused his visa registration to expire in 1995.
Ibarra has a long record of criminal offenses. In 1989 and 1992, Ibarra was arrested and
convicted of his first and second offenses for drunk driving. Both incidents escalated when Ibarra
struggled and fought with police officers, the second incident resulting in an assault and battery
conviction after Ibarra repeatedly struck an officer and reached for the officer’s firearm. In 1993,
Ibarra was convicted of “attempted criminal sexual conduct—second degree” involving his step-
daughter, and was sentenced to 180 days in jail. He was sentenced to 30 days in jail for a domestic
violence offense in 1994. Two years later, he was again convicted of drunk driving. In 1996, 1998,
and 2003, Ibarra was convicted of four separate offenses for driving while his license was
suspended. Another domestic violence conviction, for which Ibarra was sentenced to 30 days in jail,
occurred in 1996. In 2001, Ibarra was convicted of failing to register as a sex offender.
Ibarra was deported in March of 2004. Shortly thereafter, in September of 2004, Ibarra
illegally reentered the United States by walking across the Arizona border. In January of 2005, he
was convicted of failing to register as a sex offender, an offense for which he was sentenced to 60
days in jail. Ibarra was indicted in March of 2005 on the federal charge of being found in the United
States without permission after having been deported subsequent to an aggravated felony
conviction—here, the 1993 conviction for attempted criminal sexual conduct—second degree. See
8 U.S.C. § 1326. He pled guilty to the charge pursuant to a written plea agreement. The statutory
maximum sentence for this offense is 20 years of imprisonment. 8 U.S.C. § 1326(b)(2).
At sentencing, Ibarra’s counsel called attention to the fact that Ibarra had not been convicted
of any drug or firearm offenses, and downplayed the seriousness of Ibarra’s offenses other than the
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conviction for criminal sexual conduct. Counsel “ask[ed] the Court to sentence him, if not below
the 46-month guideline, certainly no more than the 46.” According to counsel, a 46-month sentence
“would be certainly a very sufficient sentence under the factors . . . for this type of offense.”
The district court then stated:
Taking a look at his total record and the requirements of 18 United States Code,
Section 3553(a) and also considering the fact that I can—and the guidelines are
advisory to me—but, as I just said in the last sentencing, the guidelines cover many,
if not most, of the factors set forth in 18 United States Code 3553(a), especially
number 1, the nature and circumstance[s] of the offense and the history and
characteristics of the defendant, which are set forth, of course, in the offense level
and in the criminal history category. And then the guidelines also try to take into
account subsection 2 of that 3553(a).
But considering his criminal history—and drunk driving, although not an intentional
act, is a very dangerous act. Domestic violence, which creates the opportunity, and
probably the most dangerous opportunity, for a lot of violence. I mean, domestic
violence seems to be the cause of most murders and puts police officers in a lot of
danger—a sentence within the guideline range I think would be appropriate.
And the sentence will be 46 months incarceration, three years of supervised release,
I’ll waive the fine, restitution is not an issue, $100 special assessment.
Ibarra’s counsel did not object to the sentence imposed by the district court.
On appeal, Ibarra’s only claim is that the 46-month sentence imposed by the district court
is unreasonable because the court failed to discuss most of the sentencing factors enumerated in
18 U.S.C. § 3553(a). The government responds that the sentence is “patently reasonable” and
should be affirmed.
II. ANALYSIS
We review sentences imposed under the now-advisory Sentencing Guidelines regime for
reasonableness. United States v. Christopher, 415 F.3d 590, 594 (6th Cir. 2005) (reviewing a
sentence for reasonableness). In United States v. Williams, 436 F.3d 706, 708 (6th Cir. 2006), this
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court held that “sentences properly calculated under the Guidelines [are credited] with a rebuttable
presumption of reasonableness.” Williams recognized that the sentencing judge still must consider
the 18 U.S.C. § 3553(a) sentencing factors, but concluded that “[s]uch consideration . . . need not
be evidenced explicitly.” Id.
A week after Williams was decided, this court held in United States v. Foreman, 436 F.3d
638, 644 (6th Cir. 2006), that the rebuttable presumption of reasonableness “does not mean that a
sentence within the Guidelines is reasonable if there is no evidence that the district court followed
its statutory mandate to ‘impose a sentence sufficient, but not greater than necessary’ to comply with
the purposes of sentencing in section 3553(a)(2).” United States v. Richardson, 437 F.3d 550 (6th
Cir. 2006), decided a week after Foreman, further illuminated the duties of the sentencing court.
According to Richardson, sentencing courts have an obligation to “explain to the parties and the
reviewing court its reasons for imposing a particular sentence.” Id. at 554. This explanation need
not include a recitation of the § 3553(a) factors, “but must articulate [the district court’s] reasoning
in deciding to impose a sentence in order to allow for reasonable appellate review.” Id. (citation and
quotation marks omitted).
Turning to the present case, the district court sentenced Ibarra at the low end of the
applicable 46 to 57 month Guidelines range. Ibarra does not challenge the calculation of the
Guidelines range or the fact that his 46-month sentence fell within that range, thus triggering the
rebuttable presumption of reasonableness called for by Williams. See Williams, 436 F.3d at 708.
Ibarra cannot rebut the presumption of reasonableness in this case because the record
demonstrates that the district court explicitly mentioned § 3553(a) and discussed several of its
factors. The district court started by noting that the Guidelines incorporate the first sentencing
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factor—that is, the “nature and circumstances of the offense and the history and characteristics of
the defendant.” 18 U.S.C. § 3553(a)(1). Also taken into account by the Guidelines, according to
the district court, were the second set of sentencing factors contained in § 3553(a)(2). These factors
include “the need for the sentence imposed . . . to reflect the seriousness of the offense, to promote
respect for the law, . . . to provide just punishment for the offense[,] to afford adequate deterrence
to criminal conduct[,] [and] to protect the public from further crimes of the defendant.” 18 U.S.C.
§ 3553(a)(2)
The court then went on to speak specifically about the offenses that Ibarra had committed
in the past that were troubling. It stated that drunk driving—for which Ibarra had thrice been
convicted—was “a very dangerous act.” Domestic violence, according to the court, “creates . . .
probably the most dangerous opportunity . . . for a lot of violence . . . [and] seems to be the cause
of most murders and puts police officers in a lot of danger.” This history of Ibarra engaging in
dangerous criminal acts clearly weighed heavily in his sentencing, both to the extent that it was
incorporated into the Guidelines sentence and to the extent that the district court explicitly
commented on Ibarra’s past. Because of this history, the district court held that “a sentence within
the guideline range I think would be appropriate,” and then sentenced Ibarra to the bottom of that
range.
Ibarra makes much of the fact that the district court did not explicitly consider the other
factors, but “this court has never required the ‘ritual incantation’ of the factors to affirm a sentence.”
Williams, 436 F.3d at 709. Further, Ibarra “identifies no factor from § 3553(a) that would render
his sentence unreasonable.” Id. at 708. The very fact that the district court made mention of “the
requirements of 18 United States Code, Section 3553(a)” during the sentencing hearing is itself a
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strong indication that all of the factors were taken into account, even if not specifically discussed.
Under these circumstances, we hold that the sentence imposed by the district court was reasonable.
III. CONCLUSION
For all of the reasons set forth above, we AFFIRM the judgment of the district court.
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