United States v. Ebodio Cisneros-Lopez , 518 F. App'x 484 ( 2013 )

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 13a0464n.06
No. 12-5950 FILED
May 09, 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
EBODIO CISNEROS-LOPEZ, ) DISTRICT OF TENNESSEE
)
Defendant-Appellant. )
BEFORE: McKEAGUE and DONALD, Circuit Judges; LAWSON, District Judge.*
PER CURIAM. Ebodio Cisneros-Lopez appeals through counsel the thirty-month sentence
imposed following his guilty plea to a charge of illegal reentry of a deported alien.
At the sentencing hearing in this case, the district court adopted the presentence report
calculating Cisneros-Lopez’s guidelines range at 24 to 30 months. The district court noted that
Cisneros-Lopez had a lengthy and violent criminal history and asked counsel specifically to address
that issue in their argument. Cisneros-Lopez’s counsel responded by addressing “what I believe the
court is concerned with,” which was a charge of kidnapping of which Cisneros-Lopez had been
acquitted, while being convicted of interstate transport of a stolen vehicle. The district court agreed
that the facts related to that charge were “fairly disturbing.” The sentence ultimately imposed was
*
The Honorable David M. Lawson, United States District Judge for the Eastern District of
Michigan, sitting by designation.
No. 12-5950
United States v. Cisneros-Lopez
at the top of the guidelines range. The district court noted that a greater sentence might be necessary
for protection of the public, but that the government had not requested it.
On appeal, Cisneros-Lopez argues that his sentence is substantively unreasonable because
the district court placed undue weight on the kidnapping charge of which he was acquitted fifteen
years earlier.
We review a sentence in a criminal case for reasonableness under an abuse-of-discretion
standard. See United States v. Brooks, 628 F.3d 791, 797 (6th Cir.), cert. denied, 131 S. Ct. 3077(2011). A sentence within the guidelines range is presumptively reasonable. United States v.
Simmons, 587 F.3d 348, 365 (6th Cir. 2009).
Cisneros-Lopez’s argument that the district court gave undue weight to the kidnapping charge
of which he was acquitted is not supported by the sentencing transcript. It was defense counsel who
highlighted this incident. The presentence report shows that Cisneros-Lopez did have a lengthy and
violent criminal history, as the district court stated. He had two convictions for assault and two
convictions for domestic assault, and charges of rape and kidnapping that were dismissed because
the victim would not testify, as well as the acquittal for kidnapping which he references. The risk
to the public noted by the district court therefore was amply demonstrated by Cisneros-Lopez’s prior
record. See United States v. Tristan-Madrigal, 601 F.3d 629, 634-35 (6th Cir. 2010).
The possibility that Cisneros-Lopez could have received a lower sentence does not establish
an abuse of discretion. United States v. Smith, 516 F.3d 473, 478 (6th Cir. 2008). Nothing presented
on appeal overcomes the presumptive reasonableness of Cisneros-Lopez’s within-guidelines
sentence. The district court’s judgment therefore is affirmed.
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