                NOT RECOMMENDED FOR FULL TEXT PUBLICATION
                           File Name: 10a0676n.06

                                           No. 10-3565

                          UNITED STATES COURT OF APPEALS
                                                                                       FILED
                               FOR THE SIXTH CIRCUIT
                                                                                    Nov 03, 2010
                                                                              LEONARD GREEN, Clerk
UNITED STATES OF AMERICA,                    )
                                             )
       Plaintiff-Appellee,                   )
                                             )       ON APPEAL FROM THE UNITED
v.                                           )       STATES DISTRICT COURT FOR
                                             )       THE SOUTHERN DISTRICT OF
CLARA LOPEZ,                                 )       OHIO
                                             )
       Defendant-Appellant.                  )

BEFORE: KENNEDY, COLE, and ROGERS, Circuit Judges.

       KENNEDY, Circuit Judge.            Defendant Clara Lopez challenges as substantively

unreasonable the district court’s imposition of a twelve-month-and-one-day, above-Guidelines

sentence. Lopez argues that the district court’s upward variance overemphasized her criminal

history, which included five previous illegal reentries into the United States within an eighteen-

month period as well as prior convictions for driving without a license and identity theft. We

conclude that the district court did not abuse its discretion in varying upward from her Guidelines

sentence by five months and one day after properly considering the applicable sentencing factors in

18 U.S.C. § 3553(a). For the reasons that follow, we AFFIRM.

                     FACTUAL AND PROCEDURAL BACKGROUND

       Clara Lopez is a native and citizen of Mexico. On January 13, 2010, Lopez was named in

a one-count indictment charging her with illegally reentering the United States in violation of 8

U.S.C. § 1326(a). Lopez pleaded guilty without a plea agreement. During the plea hearing held on

June 1, 2010, Lopez agreed to the following facts:
       On or about December 22nd, 2009, the defendant, Clara Lopez, also known as Lara
       Lopez-Alvarez, also known as Clara Lara-Estrada, also known as Carla Lara-Estrada,
       also known as Clara Lopez-Alvarez, was an alien who was found in the United States
       at the Butler County jail in the Southern District of Ohio.

       Prior to being found in the Southern District of Ohio on December 22nd, 2009, the
       defendant had previously been deported and removed from the United States of
       America on five occasions in the past 18 months. She was removed on October 14th,
       2008; on January 17th, 2009; on January 21st, 2009; on January 28th, 2009; and on
       February 6th, 2009.

       The defendant did not obtain the consent of the Attorney General of the United States
       or the Secretary of Homeland Security for re-application by the defendant for
       admission into the United States.

In addition to her history of removals, Lopez had two prior convictions for driving without a license

and one prior conviction for attempted identity theft.

       The Probation Office’s Presentence Investigation Report (“PSR”) calculated the Guidelines

range for Lopez to be one to seven months’ of imprisonment and recommended a sentence of three

months’ imprisonment. The parties did not object to the PSR or the Guidelines calculation. Prior

to sentencing, the district court provided notice to the parties that it was considering an upward

variance from the Guidelines range.

       Lopez appeared for sentencing on May 3, 2010. Lopez argued for a sentence of time served,

alleging that her reentry into the United States was due to her children’s residence in Ohio, that she

believed that her husband was murdered and the children were at risk in Mexico, and that she was

not contesting her deportation with ICE. Lopez noted that the Probation Office’s recommendation

was for 3 months, which amounted to time served; at the time, Lopez had been in the custody of the

United States for approximately 4.5 months. The Government requested a sentence of 5 to 7 months.




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          The district court rejected the recommendations of the parties and the Probation Office and

imposed a sentence of twelve months and one day, to be followed by one year of supervised release,

which represented an upward variance from the Guidelines. The extra day was added at Lopez’s

request so that she might be eligible for an earlier release. The district court determined that the

following factors warranted a sentence outside of the Guidelines range: (1) Lopez’s five deportations

for the same reason charged here; (2) the risk to the public due to Lopez’s identity theft misdemeanor

conviction; (3) the risk to the public due to Lopez’s actions in driving without a license or without

insurance; and (4) the need to send a message to Lopez that she should not return to the United

States.

          Lopez appeals.

                                             ANALYSIS

          Lopez argues that the district court’s upward variance resulted in a sentence greater than

necessary to achieve the sentencing goals outlined in 18 U.S.C. § 3553(a). Specifically, she alleges

that the district court overemphasized her past criminal behavior and that the sentence was

unnecessarily severe to accomplish the goals of deterrence and protection of the public. For the

reasons set forth below, we reject Lopez’s arguments and affirm her sentence.

A. Standard of Review

          Lopez does not challenge the procedural reasonableness of her sentence, only its substantive

reasonableness. We recently had occasion to discuss the standard for a substantive reasonableness

challenge:

          This court reviews a district court’s sentence for reasonableness. United States v.
          Walls, 546 F.3d 728, 736 (6th Cir. 2008). Because [the defendant] does not
          challenge the procedural reasonableness of his sentence . . . this court need only


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       “‘consider the substantive reasonableness of the sentence imposed under an
       abuse-of-discretion standard.’” Id. (quoting Gall v. United States, 552 U.S. 38, 51
       (2007)); see also United States v. Vallellanes, 339 F. App’x 579, 582 (6th Cir. 2009)
       (unpublished opinion) (bypassing the procedural-reasonableness analysis because the
       defendant did “not contend that his sentence [was] procedurally unreasonable”). The
       essence of a substantive-reasonableness claim is whether the length of the sentence
       is “greater than necessary” to achieve the sentencing goals set forth in 18 U.S.C. §
       3553(a). “A sentence is substantively unreasonable if the district court selects the
       sentence arbitrarily, bases the sentence on impermissible factors, fails to consider
       pertinent § 3553(a) factors or gives an unreasonable amount of weight to any
       pertinent factor.” Walls, 546 F.3d at 736 (internal quotation marks and alterations
       omitted).

       In our substantive-reasonableness review, we must “take into account the totality of
       the circumstances, including the extent of any variance from the Guidelines range.”
       Gall, 552 U.S. at 51. “Although a sentence that falls within the Guidelines range
       warrants a presumption of reasonableness in this circuit, there is no presumption
       against a sentence that falls outside of this range.” United States v. Herrera-Zuniga,
       571 F.3d 568, 590 (6th Cir. 2009). If the sentencing judge elects “an
       outside-Guidelines sentence . . . he [or she] must consider the extent of the deviation
       and ensure that the justification is sufficiently compelling to support the degree of the
       variance.” Gall, 552 U.S. at 50. However, “[t]he fact that the appellate court might
       reasonably have concluded that a different sentence was appropriate is insufficient
       to justify reversal of the district court.” Id. at 51.

United States v. Tristan-Madrigal, 601 F.3d 629, 632-33 (6th Cir. 2010).

B. Lopez’s Sentence Is Substantively Reasonable

       Lopez does not claim that the district court selected her sentence arbitrarily or failed to

consider any relevant § 3553(a) factor; instead, Lopez challenges the weight that the district court

placed on her criminal history and asserts that mitigating factors were improperly disregarded. On

the contrary, district court did not abuse its discretion by giving unreasonable weight to Lopez’s past

criminal conduct.

       Tristan-Madrigal addressed the propriety of an above-Guidelines sentence in the context of

an illegal reentry case. 601 F.3d 629. There, a native and citizen of Mexico spent many years in the



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United States without proper documentation and had several encounters with law enforcement. Id.

at 631. The advisory Guidelines range was fifteen to twenty-one months’ imprisonment. Id. In

noting the defendant’s multiple prior removals and drunk-driving convictions, the district court

determined that the recommended range did not adequately reflect the factors in § 3553(a) and

sentenced the defendant to thirty-six months. Id. at 632. The district court specifically noted, inter

alia, that the defendant’s prior reentries and removals was extremely relevant to determining what

length of sentence was necessary to prevent recidivism. Id. at 634-35. We affirmed the sentence as

substantively reasonable because the facts of the case coupled with the goals of individual deterrence

and public safety were proper justifications for an upward variance. Id. at 635-36.

       Here, Lopez’s five prior deportations and the perceived need to discourage her from again

attempting to reenter the country were of particular import to the district court. The district court

concluded that the sentence imposed “must be sufficient to dissuade or deter the Defendant from

returning to the United States illegally” and must “promote respect for our immigration laws.”

Lopez argues that, because she was often caught near the Texas border, the “quality” of her illegal

entries is not as egregious as other “similarly-situated” illegal aliens who are apprehended elsewhere.

We agree with the Government that Lopez’s failure to successfully cross the border in some of her

reentry attempts is not a mitigating factor. Regardless of how or where Lopez was caught, the fact

is that she has repeatedly tried to enter the United States, illegally with the result that she was

removed five times in the eighteen months prior to the Indictment. Lopez’s persistence in that regard

is a factor that the district court properly considered in determining her sentence. See 18 U.S.C. §

3553(a)(2)(A)-(C).




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        The district court also properly considered Lopez’s prior criminal record concerning driving

without a license and a conviction for attempted identity theft. While Lopez dismisses the lack of

a driver’s license and participation in assuming fake names as simply part of the normal life for all

illegal aliens, this does not alter their criminal nature or their risk to the public, both of which make

them proper factors for consideration at sentencing. Id.

        Lopez argues that several facts were unconsidered mitigating factors: (1) that she returned

to the United States repeatedly because her children lived in Ohio; (2) that she did not have a

significant criminal history; (3) that her husband had allegedly been murdered in Mexico; and (4)

that she accepted her deportation. These facts do not transform the district court’s imposition of an

upward variance into an abuse of discretion. Indeed, the district court thought that the first factor

could motivate Lopez to attempt to reenter the country, though the court did not count this as an

aggravating factor. Moreover, the district court specifically disagreed with the second assertion,

stating that Lopez’s repeated conduct in driving without a license, insurance, or the ability to read

English traffic notifications made her a risk to the public. Lopez’s proffered mitigating factors do

not function to alter any of the considerations that led the district court to conclude that an above-

Guidelines sentence was appropriate.

        Lopez also argues that her sentence is unreasonably high when compared with similar cases

in this circuit. While “the need to avoid unwarranted sentence disparities among defendants with

similar records who have been found guilty of similar conduct” is a factor the sentencing court must

consider under 18 U.S.C. § 3553(a)(6), “this court’s review of substantive reasonableness ‘starts with

the sentencing estimate provided by the Sentencing Commission,’ not the sentences received by

other individual defendants,” United States v. Kirchhof, 505 F.3d 409, 416 (6th Cir. 2007) (quoting


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United States v. Davis, 458 F.3d 491, 496 (6th Cir. 2006), overruled on other grounds by Gall, 552

U.S. 38). Here, the specific factors considered by the district court justified the upward variance,

so any disparity between Lopez and other similarly-situated defendants is not unwarranted.

Therefore, the cases cited by Lopez do not demonstrate that a year-and-a-day sentence for illegal

reentry was improper.

       In sum, the Guidelines range for Lopez was one to seven months. The district court varied

upward by five months. The district court determined that Lopez’s persistence in attempting to

illegally reenter this country coupled with her prior state crimes rendered the recommended

Guidelines range an inadequate deterrent towards future illegal conduct and an underrepresentation

of Lopez’s likelihood to illegally reenter this country. “We reverse sentences when it is unreasonable

to conclude that the circumstances, in light of the § 3553(a) factors, justify the sentence issued.”

Kirchhof, 505 F.3d at 417. This is not the case here; Lopez’s sentence was substantively reasonable.

For these reasons, we AFFIRM.




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