United States v. Perez-Rodriguez, 18-4203

• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)
• Citation: 960 F.3d 748
• Docket Number: No. 18-4203,18-4203
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Eduardo PEREZ-RODRIGUEZ, Defendant-Appellant.
• Decision Date: 27 May 2020

960 F.3d 748

UNITED STATES of America, Plaintiff-Appellee,
v.
Eduardo PEREZ-RODRIGUEZ, Defendant-Appellant.

No. 18-4203

United States Court of Appeals, Sixth Circuit.

Argued: October 24, 2019
Decided and Filed: May 27, 2020

OPINION

JANE B. STRANCH, Circuit Judge.

Eduardo Perez-Rodriguez, a citizen of Mexico, was sentenced to 24 months in prison for one count of illegal reentry in violation of 8 U.S.C. § 1326. The district court applied an upward variance that more than doubles the middle of his 8- to 14-month Guidelines range. Perez-Rodriguez challenges the substantive reasonableness of the upward variance and argues that the district court considered facts outside the record in selecting his sentence. Because Perez-Rodriguez’s sentence was substantively unreasonable, we REVERSE the district court’s judgment and REMAND for resentencing.

I. BACKGROUND

Eduardo Perez-Rodriguez was ordered removed by an immigration judge in June 2016. He reentered the country 19 days later and was arrested and convicted of violating 18 U.S.C. § 1546 for reentry after deportation and false personation in immigration matters. He was sentenced to time served of 140 days and removed for a second time in December 2016.

On June 22, 2018, Perez-Rodriguez was arrested in Ohio on a failure to appear warrant for child endangering, having returned to the country at some point prior to his arrest. A grand jury indicted him on one count of illegal reentry, in violation of 8 U.S.C. § 1326, to which he subsequently pled guilty. Perez-Rodriguez had one prior conviction in 2015 for operating a motor vehicle under the influence (DUI), for which he received probation. His presentence report (PSR) noted that he attended a probation violation hearing, though no other information was provided to the sentencing court. Based on this criminal history, his prior count of reentry after deportation, and his acceptance of responsibility, Pretrial Services and Probation recommended a Guidelines range of 8 to 14 months in prison. At the sentencing hearing, the government sought a sentence within the high end of Perez-Rodriguez’s Guidelines range.

The district court applied an upward variance and entered a sentence of 24 months—a 200% increase from the low end of the Guidelines range, a 71% increase from the high end, and a 118% increase from the middle of the range. Noting Perez-Rodriguez’s DUI conviction and his probation sentence, the court mentioned that

960 F.3d 753

he "apparently violated his probation." It also discussed the need to deter individuals who demonstrate "a pattern of continuing to violate our laws, and come back to the country," citing Perez-Rodriguez’s return to the country after two deportations and after serving 140 days for his prior reentry case. The court emphasized the statutory penalty for his conviction—zero to ten years—and concluded that even a high-end Guidelines sentence of 14 months would be too short in comparison to the maximum statutory penalty of ten years.

Perez-Rodriguez appeals his upward variance as substantively unreasonable. He also contends that the district court considered facts outside the record to justify the upward variance by assuming that he violated probation on his DUI charge.

II. ANALYSIS

A. Facts Outside the Record

We review the district court’s consideration of the factual record under an abuse-of-discretion standard. "An abuse of discretion is established where the reviewing court is left with a definite and firm conviction that the district court committed a clear error of judgment." Coach, Inc. v. Goodfellow , 717 F.3d 498, 505 (6th Cir. 2013).

In discussing the reasons for the upward variance, the district court stated that Perez-Rodriguez "apparently violated his probation" because the PSR noted that he had attended a probation violation hearing. Perez-Rodriguez is correct that there is no definitive evidence in the record before the sentencing court that he violated his probation. But the court made a reasonable inference based on the PSR and qualified its reliance on this information by using the word "apparently" to describe the alleged probation violation. The district court did not abuse its discretion by considering this as one of several factors.

B. Substantive Reasonableness

A substantive reasonableness challenge to a sentence is considered under an abuse-of-discretion standard. Gall v. United States , 552 U.S. 38, 51, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007).

The Supreme Court recently reiterated that the substantive reasonableness inquiry determines if the length of a sentence conforms with the sentencing goals set forth in 18 U.S.C. § 3553(a) and asks whether the district judge " ‘abused his discretion in determining that the § 3553(a) factors supported’ the sentence imposed." Holguin-Hernandez v. United States , ––– U.S. ––––, 140 S. Ct. 762, 766, 206 L.Ed.2d 95 (2020) (quoting Gall , 552 U.S. at 56, 128 S.Ct. 586 ); see also United States v. Tristan-Madrigal , 601 F.3d 629, 632–33 (6th Cir. 2010). In contrast, a sentence is procedurally reasonable where "the trial court follows proper procedures and gives adequate consideration to [the § 3553(a) ] factors." Holguin-Hernandez , 140 S. Ct. at 766 ; see also United States v. Rayyan , 885 F.3d 436, 442 (6th Cir. 2018). The substantive reasonableness of a sentence is a separate inquiry: even if the district court followed proper procedures and adequately considered the appropriate factors, we ask whether the district court nevertheless imposed a sentence that is "greater than necessary." Holguin-Hernandez , 140 S. Ct. at 766–67. In short, procedural review of a sentence concerns the propriety of the factors that go into a sentence; substantive review assesses the reasonableness of the sentence that results.

One way to gauge the substantive reasonableness of a sentence is to ask whether "the court placed too much weight on some of the § 3553(a) factors and too

960 F.3d 754

little on others" in reaching its sentencing decision. United States v. Parrish , 915 F.3d 1043, 1047 (6th Cir. 2019) (quoting Rayyan , 885 F.3d at 442 ). If the court failed to give "reasonable weight to each relevant factor," the sentence that results is substantively unreasonable. United States v. Boucher , 937 F.3d 702, 707 (6th Cir. 2019) (emphasis omitted).

Of course, we must respect the district court’s reasoned discretion to weigh the factors "to fashion individualized, fact-driven sentences without interference from appellate courts." Id. at 708. But this discretion is not without limit. The starting point for substantive reasonableness review is the Guidelines range, because "in the ordinary case, the Commission’s recommendation of a sentencing range will ‘reflect a rough approximation of sentences that might achieve § 3553(a) ’s objectives.’ " Kimbrough v. United States , 552 U.S. 85, 109, 128 S.Ct. 558, 169 L.Ed.2d 481 (2007) (quoting Rita v. United States , 551 U.S. 338, 350, 127 S.Ct. 2456, 168 L.Ed.2d 203 (2007) ). Sentences within a defendant’s Guidelines range are presumptively reasonable. United States v. Christman , 607 F.3d 1110, 1118 (6th Cir. 2010).

A sentence above or below the Guidelines range, however, requires the district court to "consider the extent of the deviation to ensure that the justification is sufficiently compelling to support the degree of variance." Gall , 552 U.S. at 50, 128 S.Ct. 586. The greater the variance, the more compelling the justification must be. Id. ; see also United States v. Poynter , 495 F.3d 349, 352 (6th Cir. 2007). A district court may vary outside the Guidelines range if it explains how the present case is different from the typical or mine-run case that occupies the " ‘heartland’ to which the Commission intends individual Guidelines to apply." Kimbrough , 552 U.S. at 109, 128 S.Ct. 558 (quoting Rita , 551 U.S. at 351, 127 S.Ct. 2456 ). But to avoid unfair disparities with the typical case, we give closer review to a variance in a mine-run case. Id. In sum, "in those cases that fall outside the Guidelines’ ‘heartland,’ the district court’s decision to deviate from the advisory range is entitled to the ‘greatest respect,’ whereas a sentence that departs from the advisory range in a ‘mine-run case’ warrants ‘closer review’ " of the district court’s justifications for variance. United States v. Herrera-Zuniga , 571 F.3d 568, 582 (6th Cir. 2009) (quoting Kimbrough , 552 U.S. at 109, 128 S.Ct. 558 ).

We turn to whether Perez-Rodriguez’s case is in the mine-run. A mine-run case is not a theoretical, minimally culpable offense; it is a normal case under the governing Guidelines range, which is calculated to incorporate the crime at issue, the offense level, and the criminal history category based on prior offenses. See Rita , 551 U.S. at 359, 127 S.Ct. 2456. The Guidelines range here was based on illegal reentry in violation of 8 U.S.C. § 1326 (Perez-Rodriguez’s crime) and provides for a base level of eight. Because Perez-Rodriguez had a prior felony conviction for an illegal reentry offense after his initial deportation in 2016, the Guidelines incorporated a four-level increase pursuant to USSG § 2L1.2(b)(1)(A). Acceptance of responsibility lowered his total offense level to...