NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 11a0732n.06
No. 10-5268 FILED
Oct 26, 2011
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
v. ) WESTERN DISTRICT OF
) TENNESSEE
ARMIN SAMAYOA-BALTAZAR, )
)
Defendant-Appellant. ) OPINION
BEFORE: BOGGS and McKEAGUE, Circuit Judges; and GOLDSMITH, District Judge.*
McKEAGUE, Circuit Judge. Defendant Armin Samayoa-Baltazar was arrested in Shelby
County, Tennessee, in connection with a vandalism charge on July 12, 2009. It was determined that
defendant is a citizen of Guatemala who was in the Unites States illegally. On November 20, 2009,
defendant pleaded guilty to having illegally re-entered the United States, in violation of 8 U.S.C. §
1326(a) and (b)(2). The district court sentenced defendant to a prison term of thirty-six months,
followed by two years of supervised release. Defendant now challenges the sentence as procedurally
and substantively unreasonable. Finding no abuse of discretion, we affirm the judgment of the
district court.
*
Honorable Mark A. Goldsmith, United States District Judge for the Eastern District of
Michigan, sitting by designation.
No. 10-5268
United States v. Samayoa-Baltazar
At the sentencing hearing, the district court noted that neither party had objected to the
presentence report. The court therefore adopted the presentence report as its findings of fact.
Evaluation of those facts under the Sentencing Guidelines resulted in an adjusted offense level of
13 and a criminal history category of VI, yielding an advisory Guidelines range of thirty-three to
forty-one months. Commenting on defendant’s significant criminal history, including numerous
theft and alcohol-related offenses, the district court, in considering the sentencing factors prescribed
at 18 U.S.C. § 3553(a), observed that a significant period of incarceration was needed to achieve just
punishment and vindicate the law, and to deter others and protect the public. R. 29, Sent. Tr. pp. 8-9.
The court determined that a prison sentence of three years was appropriate, a period slightly longer
than the low end of the advisory Guidelines range. The court recognized that defendant would be
deported to Guatemala as soon as he is released from prison and that this would affect his conditions
of supervised release.
A. Procedural Unreasonableness
We review the judgment of sentence under the abuse-of-discretion standard. Gall v. United
States, 552 U.S. 38, 46, 51 (2007). A sentence may be vacated under this standard only if it is found
to be procedurally or substantively unreasonable. Id. at 51-52; United States v. Peebles, 624 F.3d
344, 347 (6th Cir. 2010). A sentence may be deemed procedurally unreasonable if the district court
failed to calculate or improperly calculated the applicable advisory Guidelines range, treated the
Guidelines as mandatory, failed to consider the factors prescribed at 18 U.S.C. § 3553(a), selected
the sentence based on erroneous facts, or failed to adequately explain the sentence. Gall, 552 U.S.
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at 51; Peebles, 624 F.3d at 347. Defendant contends the sentence imposed is procedurally
unreasonable in three respects.1
1. Unwarranted Sentence Disparities
First, defendant contends the district court failed to expressly consider all of the § 3553(a)
factors. In particular, he contends the court failed to consider “the need to avoid unwarranted
sentence disparities among defendants with similar records who have been found guilty of similar
conduct.” 18 U.S.C. § 3553(a)(6). As we have previously observed, “ ‘avoidance of unwarranted
disparities was clearly considered by the Sentencing Commission when setting the Guidelines
ranges,’ and the district court's very act of correctly calculating and reviewing the advisory range
indicates that a district judge ‘necessarily gave significant weight and consideration to the need to
avoid unwarranted disparities.’” United States v. Simmons, 587 F.3d 348, 363 (6th Cir. 2009)
(quoting Gall, 552 U.S. at 54). By reasonably weighing the appropriate § 3553(a) factors and then
sentencing defendant within the advisory Guidelines range, the district court thus adequately
observed the need to avoid unwarranted disparities—especially considering that defendant did not
1
The government argues that defendant’s procedural unreasonableness challenges are
reviewable only for plain error because he failed to properly assert and preserve them below. We
agree that defendant did not clearly articulate any of these procedural challenges in the district court.
If the district court had correctly complied with the requirement set forth in United States v. Bostic,
371 F.3d 865, 872-73 (6th Cir. 2004) (requiring the district court to expressly ask the parties whether
they have any additional objections to the sentence tentatively announced), then defendant would
be deemed to have forfeited his right to review of these procedural challenges except for plain error.
The record shows, however, that the district court, at the end of the sentencing hearing, merely asked
the parties whether there was “anything else.” R. 29, Sent. Tr. p. 10. This is insufficient to satisfy
the Bostic requirement. United States v. Clark, 469 F.3d 568, 570 (6th Cir. 2006) (holding “anything
else” inquiry to be insufficient). We therefore review defendant’s procedural objections under the
ordinary abuse-of-discretion standard.
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raise any such argument, factual or legal, at the time of sentencing. See id. (“Adequately explaining
the reasons for sentencing does not require expressly defending the abstract justifications for the
sentencing range.”).
2. Deportation as Punishment
Second, defendant contends the district court failed to expressly address and explain why it
rejected his argument that his eventual deportation represented an element of punishment that should
be taken into account in determining the appropriate prison sentence. Specifically, defendant’s
counsel argued in the district court as follows:
Well, Your Honor, we’re going to ask the court for a sentence below the guidelines
inasmuch as this is a case where the defendant can be sent back out of the country.
We know he has to be punished some for coming into the country without
permission.
R. 29, Sent. Tr. p. 4. This is the totality of the argument that defendant’s eventual deportation should
be considered in determining the length of his prison sentence.
Defendant made no further argument and cited no legal authority explaining why his eventual
deportation should justify a downward variance. The district court acknowledged that defendant
would be deported to Guatemala upon release from prison, presumably to live with family. The
court also acknowledged the hardship caused by deportation of an alien who entered without
permission in order to work, but observed that defendant’s significant criminal history rendered his
case “unusual” in a way “not favorable” to him. The court made no further mention of the
deportation issue as it went on to impose a sentence within the Guidelines range. In other words,
the district court determined that a downward variance was not warranted because a significant
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period of incarceration was necessary to achieve just punishment, deter others, and protect the public.
The court’s failure to more explicitly address the “deportation argument” does not rise to the
level of a procedural violation or an abuse of discretion. While we might prefer that the district court
had explicitly addressed defendant’s argument that his deportation represented punishment that
warranted a variance, the context and the record make clear the court’s reasoning. This is sufficient
to enable meaningful review and defeat defendant’s claim that the sentence is procedurally
unreasonable. United States v. Chiolo, 643 F.3d 177, 184-85 (6th Cir. 2011). “When a district court
adequately explains why it imposed a particular sentence, especially one within the advisory
Guidelines range, we do not further require it to exhaustively explain the obverse—why an
alternative sentence was not selected in every instance.” Id. at 185 (quoting United States v. Gale,
468 F.3d 929, 940 (6th Cir. 2006) (emphasis in Gale)).
3. Erroneous Fact Finding
Third, defendant contends the district court based the sentence on a clearly erroneous finding
of fact. In sentencing defendant, the district court referred to ¶ 42 of the presentence report, noting
that defendant’s criminal history involved an aggravated burglary. Paragraph 42 shows that although
defendant was originally charged with aggravated burglary, the charge was subsequently amended
and he was actually convicted of aggravated criminal trespass. To the extent the district court may
have believed he was convicted of aggravated burglary, defendant contends the court relied on an
erroneous fact in imposing sentence.
Neither party filed any objection to the presentence report and the district court adopted the
report as embodying its findings of fact. Paragraph 42 clearly shows that the aggravated burglary
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charge was amended to aggravated criminal trespass, a conviction that undisputedly earned
defendant one of his fifteen criminal history points. The district court simply referred to the
conviction described in ¶ 42 as one of numerous convictions comprising a significant criminal
history that resulted in a higher advisory Guidelines range and made defendant’s sentencing unusual
among illegal re-entry cases. Irrespective of the district court’s inaccurate reference to ¶ 42 as
reflecting an aggravated burglary conviction rather than an aggravated criminal trespass conviction,
the error had no impact on the court’s Guidelines calculation, which has not been objected to. Nor
is there any reason to conclude it had any impact on the sentence ultimately imposed. Accordingly,
we find that any “error” was harmless and does not warrant resentencing. See United States v.
Anderson, 526 F.3d 319, 323-24 (6th Cir. 2008).
B. Substantive Unreasonableness
Review for substantive unreasonableness requires us to consider the totality of the
circumstances with deference to the district court’s institutional advantage in evaluating the
defendant, making credibility determinations, and assessing facts and insights not conveyed by the
record. Gall, 552 U.S. at 51-52. A sentence may be deemed substantively unreasonable if the
district court selected the sentence arbitrarily, based the sentence on an impermissible factor, failed
to consider the relevant sentencing factors, or gave unreasonable weight to any pertinent factor.
United States v. Hall, 632 F.3d 331, 335 (6th Cir. 2011). A prison sentence within the properly
calculated advisory Guidelines range enjoys a rebuttable presumption that it is substantively
reasonable. United States v. Vonner, 516 F.3d 382, 389 (6th Cir. 2008).
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1. Unwarranted Sentence Disparities
Defendant contends the district court’s failure to expressly consider the need to avoid
unwarranted sentence disparities also renders the sentence substantively unreasonable in two
respects. Defendant acknowledges that his Guidelines range was properly calculated. He also
acknowledges that his offense level was properly increased by eight levels pursuant to U.S.S.G. §
2L1.2(b)(1)(D), because he had been previously deported after being convicted of an aggravated
felony. Defendant further acknowledges that his 2002 Mississippi conviction for felony shoplifting
satisfies the definition of aggravated felony under 8 U.S.C. § 1101(a)(43)(G), because he was subject
to a term of imprisonment of at least one year. Yet, even though the district court properly increased
his offense level by eight levels under the Guidelines, and even though the Guidelines are designed
to eliminate unwarranted sentence disparities, see Simmons, 587 F.3d at 363, defendant contends the
resultant sentence is substantively unreasonable, (a) because shoplifting, under the laws of most
states, would not be deemed an aggravated felony; and (b) because shoplifting should not be lumped
together for equal treatment with such violent offenses as murder, rape and sexual abuse of a minor.
See 8 U.S.C. § 1101(a)(43)(A).
The “need to avoid unwarranted sentence disparities” factor is designed to avoid disparities
in sentences “among defendants with similar records who have been found guilty of similar
conduct.” 18 U.S.C. § 3553(a)(6). It is designed “to ensure nationally uniform sentences among like
offenders so as to leave room to depart downward for those defendants who are truly deserving of
leniency.” United States v. Simmons, 501 F.3d 620, 624 (6th Cir. 2007). Defendant’s argument is
not that he has been punished more severely than other defendants nationally who illegally re-entered
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United States v. Samayoa-Baltazar
after having been deported following conviction for an aggravated felony. Rather, his argument is
that he should be punished less severely than other offenders who illegally re-entered following
conviction for a more serious aggravated felony. In other words, defendant impliedly argues that he
is among those deserving of a downward variance because he is truly deserving of leniency.
The trouble is that defendant did not move the district court for a downward variance on this
ground. He did not present this substantive argument below and did not make any showing that
“other judges have departed from the same guideline with respect to similarly situated offenders.”
Simmons, 587 F.3d at 363. Nor has he supported his appellate argument with such a showing. The
district court was not, in the absence of such a showing, required to defend the Sentencing
Commission’s abstract justifications for the sentencing Guidelines, see id., and neither is the
reviewing court. Nor has defendant otherwise demonstrated, considering the totality of the
circumstances, that his sentence inflicts such a disparately harsh punishment as to be substantively
unreasonable.
2. Unreasonable Weighing of Pertinent Factors
a. Deportation as Punishment
Defendant contends that his request for a variance based on the argument that his eventual
deportation constituted a form of punishment that should be taken into account in fashioning the
appropriate prison term was improperly ignored by the district court. In effect, he argues that the
district court’s failure to grant a downward variance from the advisory Guidelines range was an
abuse of discretion and the resulting sentence substantively unreasonable.
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United States v. Samayoa-Baltazar
That his deportation is a pertinent sentencing consideration, defendant argues, has been
recently confirmed by the Supreme Court in Padilla v. Kentucky, 130 S.Ct. 1473, 1480-81 (2010).
Padilla was decided a month after defendant’s sentencing and was not cited to the district court.
Padilla does recognize that “deportation is an integral part—indeed, sometimes the most important
part—of the penalty that may be imposed on noncitizen defendants who plead guilty to specified
crimes.” Id. at 1480 (footnote omitted). Yet, the Padilla Court made this observation in a totally
different context. The Court held that a criminal defense counsel’s failure to advise his client that
deportation would be a consequence of his pleading guilty to a drug-trafficking charge could amount
to ineffective assistance of counsel. Padilla thus represents weak authority for the proposition that
the district court abused its discretion by denying a downward variance to a defendant with a lengthy
criminal history who pleaded guilty to illegal re-entry after having been deported following a felony
conviction.
On the other hand, our sister circuits have frowned on the notion that deportation should be
considered grounds for a downward variance. The Second Circuit has held that it was “improper for
the district court to factor deportation in as an ‘additional punishment’” and vacated a below-
Guidelines sentence. United States v. Wills, 476 F.3d 103, 107-09 (2d Cir. 2007). See also United
States v. Castro-Rivas, 254 F. App’x 742, 750-52 (10th Cir. 2007) (following Wills). In United
States v. Molina, 563 F.3d 676, 678-79 (8th Cir. 2009), the Eighth Circuit held the district court did
not plainly err in failing to consider that the defendant would be deported after serving his prison
sentence. The Molina court noted, however, that a sentencing court would not necessarily be
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precluded from considering deportation in conjunction with the statutory sentencing factors. Id. at
679 n.3.
We need not decide whether defendant Samayoa-Baltazar’s eventual deportation represents
an appropriate sentencing consideration. Even assuming defendant properly asserted and preserved
the issue, we find no abuse of discretion in the district court’s refusal to accept defendant’s
deportation as justification for a downward variance. The district court acknowledged defendant’s
impending deportation, but made clear that it selected a prison sentence of thirty-six months based
on consideration of the § 3553(a) factors. Among these, the court deemed the need for just
punishment, vindication of the law, deterrence of others, and protection of the public to be the most
important, in light of defendant’s lengthy criminal history. We cannot find this sentence, just three
months above the low end of the Guidelines range, to be substantively unreasonable.
b. Defendant’s Criminal History
Defendant contends the district court placed too much weight on his criminal history. He
does not contest the validity of any of the twenty-two convictions listed in the presentence report,
but contends that most of the convictions are for relatively minor theft and driving offenses and were
precipitated by a substance abuse problem that he has since overcome. Irrespective of the nature of
the convictions, twenty-two convictions in a span of less than six years undeniably constitutes a
significant and troubling criminal history. Considering the totality of the circumstances, defendant
falls far short of persuading us that the sentence imposed is substantively unreasonable.
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c. Protection of the Public
Finally, defendant argues the district court placed too much weight on the need to protect the
public as justification for the sentence. This argument, too, deserves only short shrift. The first three
justifications given by the district court for imposing a period of incarceration are just punishment,
vindication of the law, and deterrence of others. All are appropriate considerations. The court
mentioned the need to protect the public as well. It is no less relevant. The record gives no reason
to believe the district court placed undue or unreasonable weight on this factor. We find no abuse
of discretion.
Accordingly, we overrule defendant’s claims of error and AFFIRM the judgment of the
district court.
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United States v. Armin Samayoa-Baltazar
Court: Court of Appeals for the Sixth Circuit
Date filed: 2011-10-26
Citations: 436 F. App'x 620
Copy CitationsCombined Opinion