United States v. Tomas Jimenez , 517 F. App'x 398 ( 2013 )


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  •                 NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
    File Name: 13a0256n.06
    No. 11-1906                                   FILED
    Mar 12, 2013
    UNITED STATES COURT OF APPEALS                        DEBORAH S. HUNT, Clerk
    FOR THE SIXTH CIRCUIT
    UNITED STATES OF AMERICA,                             )
    )
    Plaintiff-Appellee,                            )
    )       ON APPEAL FROM THE
    v.                                                    )       UNITED STATES DISTRICT
    )       COURT FOR THE EASTERN
    TOMAS JIMENEZ,                                        )       DISTRICT OF MICHIGAN
    )
    Defendant-Appellant.                           )
    )
    BEFORE: BOGGS, GIBBONS, and COOK, Circuit Judges.
    PER CURIAM. Tomas Jimenez appeals the district court’s judgment of conviction and
    sentence.
    Jimenez pleaded guilty to illegal reentry after deportation, in violation of 8 U.S.C. § 1326(a).
    The district court determined that Jimenez’s base offense level was eight. The court added 16 levels
    under USSG § 2L1.2(b)(1)(A) because Jimenez was previously deported after being convicted of
    committing lewd acts upon a child, which qualified as a crime of violence. The court subtracted
    three levels for acceptance of responsibility, resulting in a total offense level of 21. Based on the
    total offense level of 21 and a criminal-history category of I, Jimenez’s guidelines range of
    imprisonment was 37 to 46 months. In July 2011, the district court sentenced Jimenez to 37 months
    in prison.
    No. 11-1906
    United States v. Jimenez
    On appeal, Jimenez argues that his sentence was procedurally unreasonable because, during
    the sentencing hearing, the district court failed to consider a proposed amendment to the sentencing
    guidelines that subsequently went into effect in November 2011. According to Jimenez, because his
    prior conviction occurred in 1991 and did not result in the assessment of criminal-history points, the
    guidelines amendment would have reduced the sixteen-level enhancement under § 2L1.2(b)(1)(A)
    to twelve levels and reduced his ultimate guidelines range to 24 to 30 months. Jimenez also argues
    that his sentence was substantively unreasonable because it was based in part on an offense-level
    enhancement that is now considered excessive by the Sentencing Commission.
    We review a sentence “under a deferential abuse-of-discretion standard for reasonableness,
    which has both a procedural and a substantive component.” United States v. O’Georgia, 
    569 F.3d 281
    , 287 (6th Cir. 2009). A sentence may be procedurally unreasonable if the district court
    improperly calculates the guidelines range, treats the guidelines as mandatory, fails to consider the
    18 U.S.C. § 3553(a) factors, selects a sentence based on clearly erroneous facts, or fails to adequately
    explain the chosen sentence. Gall v. United States, 
    552 U.S. 38
    , 51 (2007). “A sentence may be
    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.” United States v. Vowell, 
    516 F.3d 503
    , 510 (6th Cir. 2008)
    (internal quotation marks and alterations omitted). We apply a rebuttable presumption of substantive
    reasonableness to a within-guidelines sentence. United States v. Vonner, 
    516 F.3d 382
    , 389-90 (6th
    Cir. 2008) (en banc).
    -2-
    No. 11-1906
    United States v. Jimenez
    The district court did not abuse its discretion in imposing Jimenez’s sentence. The sentence
    was not rendered procedurally unreasonable by the district court’s failure to address the proposed
    amendment to § 2L1.2(b)(1)(A) because Jimenez did not raise the issue during the sentencing
    hearing, the court was not obligated to consider it sua sponte, and Congress did not later make the
    amendment retroactive. See 18 U.S.C. § 3553(a)(4)(A)(ii); USSG § 1B1.11(a). Contrary to
    Jimenez’s argument, the cases he cites allow consideration by the district court of the pending
    amendments to the guidelines but do not establish an obligation for the district court to apply those
    amendments. See United States v. Taylor, 
    648 F.3d 417
    (6th Cir. 2011); United States v. Atkinson,
    354 F. App’x 250 (6th Cir. 2009). Because Jimenez’s sentence was based on a sentencing range that
    was properly calculated under the guidelines in effect at the time of his sentencing, he has not
    overcome the presumption that his sentence was substantively reasonable. See United States v.
    Massey, 
    663 F.3d 852
    , 861 (6th Cir. 2011), cert. denied, 
    132 S. Ct. 2761
    (2012).
    Accordingly, we affirm the district court’s judgment.
    -3-