UNITED STATES оf America, Plaintiff-Appellee, v. Ranulfo Luna RUIZ, Defendant-Appellant.
No. 10-1293.
United States Court of Appeals, Sixth Circuit.
Nov. 15, 2010.
624 F.3d 48
In sum, Dillon squarely controls this case. Had Robinson been convicted and sentenced a few years later than he was, he might have been able to take advantage of Spears and Kimbrough v. United States, 552 U.S. 85, 128 S.Ct. 558, 169 L.Ed.2d 481 (2007). As it is, however, Robinson was validly sentenced and that sentence became final under the law as it existed at the timе. With limited exceptions, a “court may not modify a term of imprisonment once it has been imposed.”
Accordingly, the district court did not abuse its discretion in modifying Robinson‘s sentence from 240 months to 235 months of imprisonment. A
Before: BOGGS, COLE, and CLAY, Circuit Judges.
BOGGS, Circuit Judge.
Ranulfo Luna-Ruiz is a 34-year-old citizen of Mexico who pleaded guilty to a violation of
I
The underlying charge arose out of Luna-Ruiz‘s return to the United States after being deported in late 2008. However, Luna-Ruiz has a long, mostly unprosecuted, history of violating immigration laws.
Luna-Ruiz was first deported from this country on April 23, 2003, after he was apprehended by the United States Border Pаtrol near the California-Mexico border. At the time, he was leading four other persons across the border illegally.
On thirteen separate occasions between January 25, 2003, and March 29, 2006, Luna-Ruiz was intercepted at the border and returned to Mexico without being charged with any crime. Despite this long record of unsuccessful border crossing, Luna-Ruiz managed to enter this country without authorization on multiple ocсasions, as evidenced by his extensive arrest record in the United States.
On July 31, 2004, Luna-Ruiz was stopped by police in White Plains, New York and was charged with driving while intoxicated. After Luna-Ruiz failed to appear, a bench warrant was issued in 2005, and Luna-Ruiz was arrested on March 28, 2008. He admitted to having consumed twelve beers before driving the vehicle and pleaded guilty to a reduced charge of driving while impaired.
On March 25, 2008, Luna-Ruiz assaulted his brоther-in-law in White Plains, New York. Three months later, again in White Plains, he assaulted his 12-year-old sister, who reported to school limping and with bruises on her legs. Luna-Ruiz pleaded guilty to these misdemeanor offenses and spent 90 days in jail. Upon his release on September 27, 2008, Luna-Ruiz was deported to Mexico for a second time.
Ever persistent, Luna-Ruiz again returned to the United States and was arrested within a year of his deportation, this time in Michigan on September 19, 2009, for forgery and counterfeiting. On October 9, 2009, he was turned over to immigration authorities and was charged with illegal reentry under
The district court accepted his guilty plea on November 30, 2009. Based on the crime, which had an adjusted offense level of 6, and Luna-Ruiz‘s criminal history category of IV, the Guidelines provided a recommended sentence of between 6 and 12 months in prison.
At the March 1, 2010, sentеncing hearing, the district judge sentenced Luna-Ruiz to 18 months in custody, reasoning that, in light of his multiple uncharged illegal entries, his was not a heartland case and a longer sentence was appropriate.
Luna-Ruiz filed this timely appeal and argues that the district court‘s above-Guidelines sentence is both procedurally
II
This court reviеws a district court‘s sentence for an abuse of discretion. United States v. Barahona-Montenegro, 565 F.3d 980, 983 (6th Cir. 2009) (citing Gall v. United States, 552 U.S. 38, 49, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007) (“[T]he abuse-of-discretion standard of review applies to appellate review of all sentencing decisions—whether inside or outside the Guidelines range.“)).
The court must first consider whether the sentence is procedurally reasonable. Id. The goal of procedural review is to ensure that the sentencing judge “has considered the parties’ аrguments and has a reasoned basis for exercising his own legal decisionmaking authority.” Rita v. United States, 551 U.S. 338, 356, 127 S.Ct. 2456, 168 L.Ed.2d 203 (2007). Procedural review involves a three-factor analysis: (1) whether the court properly calculated the Guidelines range; (2) whether the court considered the
To help ensure that the district court has the opportunity to consider all relevant factors and arguments at the sentencing hearing, the district court is required to “ask the parties whether they have any objections to the sentence just announced that havе not previously been raised.” United States v. Bostic, 371 F.3d 865, 872 (6th Cir. 2004). If a defendant fails to raise an argument either in response to the Bostic question or otherwise prior to the imposition of the sentence, then that argument is reviewed on appeal for plain error, not reasonableness. United States v. Vonner, 516 F.3d 382, 385-86 (6th Cir. 2008) (en banc). To prove plain error, a defendant must show an obvious error that affected his substantial rights and “affected the fairness, integrity, or public reрutation of the judicial proceedings.” Vonner at 386 (quoting United States v. Gardiner, 463 F.3d 445, 459 (6th Cir. 2006)). In order to preserve reasonableness review of a particular argument, the objection must be made with sufficient specificity to give the district court an opportunity to correct the error. United States v. Simmons, 587 F.3d at 358 (holding that a general “object[ion] to the procedural, substantive aspects” is insufficient to preserve a specific procedural argument for reasonableness review).
If the sentence survives procedural reasonableness review, then the court reviews the sentence for substantive reasonableness. Barahona-Montenegro, 565 F.3d at 983. Substantive review requires that the court “take into account the totality of the circumstances, including the extent of any variance from the Guidelines range.” Gall v. United States, 552 U.S. at 51, 128 S.Ct. 586. If the sentencing judge imposed an above-Guidelines sentence, the justification must be “sufficiently сompelling to support the degree of the variance.” Id. at 50, 128 S.Ct. 586. However, due deference must be given to the sentencing judge‘s decision, and the fact that this court “might reason-
III
Luna-Ruiz argues that his sentence is procedurally unreasonable because the district court speculated as to his risk of reсidivism and failed to consider
We hold that Luna-Ruiz‘s generic objection to the substance of the sentence was insufficient to give the district court an opportunity to correct any potential procedural error. Simmons, 587 F.3d at 358; United States v. Harmon, 607 F.3d 233, 238 (6th Cir. 2010) (“Because counsel‘s response to the Bostic question was too vague to give the district court an opportunity to correct its purported procedural errors, we conclude that a plain-error standard of review applies to Harmon‘s procedural reasonableness arguments.“). By objecting to only the end result, Luna-Ruiz gave the district judge no indication of any possible procedural oversight, let alone an indication with the degree of specificity required to preserve reasonableness review. Bostic, 371 F.3d at 871 (“A party must object with that reasonable degree of specificity which would have adequately apprised the trial court of the true basis for his objection.“) (quoting United States v. LeBlanc, 612 F.2d 1012, 1014 (6th Cir. 1980)) (internal quotations omitted). Luna-Ruiz correctly notes that he objected to the upward variance, and while that objection alerted the sentencing judge to the fact that he was unhappy with the substantive result, thereby preserving his substantive arguments, it did not even allude to any of the procedural arguments he makes here. Because Luna-Ruiz did not alert the judge to these alleged procedural infirmities, which, as contemplated by Bostic, would have given the judge the opportunity to address and cure them, his procedural claims are subject to plain-error review.
Luna-Ruiz raises two additional arguments as to why reasonableness review should apply to his procedural claims. Neither of these arguments is convincing.
First, Luna-Ruiz contends that his procedural claims are at the crossroads of substance and procedure, and as a result, they should be reviewed for reasonableness, notwithstanding his failure to object. Reply Br. of Defendant-Appellant at 1, United States v. Herrera-Zuniga, 571 F.3d 568, 579 (6th Cir. 2009) (noting confusion as to whether a district court‘s misunderstanding of its “authority to categorically reject the base offense level” prescribed by the Guidelines is a substantive or procedural defect). In Herrera-Zuniga, the court applied plain-error review to the defendant‘s claim that the sentencing judge miscalculated the Guidelines range, but not to his claim that the court misunderstood its authority. Id. at 579. The court reasoned that, because the sentencing judge would not have curеd this misunderstanding of the law “on the spot,” the purposes of requiring an objection would not be furthered by applying plain error review. Id. at 581 n. 7. Luna-Ruiz does not, however, argue that the district court misunderstood its authority to depart from the Guidelines. As such, Herrera-Zuniga does not control this case. Nor could its reasoning be extended to reach this situation, as Luna-Ruiz does not argue that the judge had a misunderstanding of the law that could not have been corrected at the hearing, but rather that the judge insufficiently considered the facts. These
Second, Luna-Ruiz argues that an objection was unnecessary because it would have been fruitless. Reply Br. of Defendant-Appellant at 2, United States v. Wolfe, 71 F.3d 611, 614 (6th Cir. 1995) (holding that de novo review applies to denial of allocution claims because an objection is unlikely to result in an effective cure). Here, Luna-Ruiz argues that an objection to a district court‘s failure to consider a factor is unlikely to result in the court changing its mind, and as a result, an objection should not be necessary. However, the appropriate inquiry in procedural review is whether the district court considered all of the relevant factors and provided reasoning that an appellаte court can review. Rita v. United States, 551 U.S. at 356, 127 S.Ct. 2456. Even if a district court is unlikely to change its mind about the sentence it imposes, if it is made aware of a factor that it did not consider, it will have an opportunity to fully consider and explain that factor, which is the touchstone of procedural reasonableness review. Luna-Ruiz‘s speculation as to the likelihood of a different substantive result does not speak to the purpose of the requirement of raising a procedural objection. Further, there is no stopping point to Luna-Ruiz‘s argument. If an objection would be fruitless in this case, it would be fruitless in virtually all sentencing cases, which again flies in the face of Bostic and Vonner, decisions that are binding here.
Steps one and three of this court‘s procedural reasonableness analysis are not at issue in this appeal. Luna-Ruiz does not argue that the court improperly calculated the Guidelines range, nor does he argue that the court insufficiently explained its reasons for imposing its chosen sentence. Rather, Luna-Ruiz objects only to the court‘s contemplation of the likelihood of recidivism and the lack of full consideration of the
The record indicates that the sentencing judge considered every relevant
However, the sentencing judge explicitly considered that Luna-Ruiz‘s family and house are in Mexico, concluding that those connections may be insufficient to keep him in Mexico. And even though Luna-Ruiz did not raise any eyesight issues during his allocution, because the judge requested medical treatment for Luna-Ruiz for his diabetes, the judge can be presumed to have fully considered his medical problems as well. Luna-Ruiz argues that the judge “brushed over” these facts in one sentence, but this hardly establishes plain error, even to the extent that it is true. Simmons, 587 F.3d at 363 (holding that defendant‘s argument that the district court failed to fully explain its consideration of the factors “does not demonstrate [defendant‘s] sentencing was marked by ‘significant procedural error,’ constituting plain error, such that a remand is necessary.“) (quoting Gall, 552 U.S. at 51, 128 S.Ct. 586). Here, the record clearly reflects that the judge considered the facts that Luna-Ruiz now points to. That the judge did not reach the conclusion that Luna-Ruiz desired is not unreasonable—and is certainly nоt plain error—particularly in light of his repeated illegal entries into the United States.
Similarly, the court‘s concern that Luna-Ruiz, after being deported twice—the second time less than one year before his arrest in Michigan—and otherwise sent back over the border an additional thirteen times, might once again attempt to illegally enter the United States simply does not rise to the level of a serious error that “affected the fairness, integrity, or public reputation of the judicial proceedings.” Vonner, 516 F.3d at 386. Nor, had Luna-Ruiz properly preserved his procedural claims, would the judge‘s contemplation of recidivism be problematic under reasonableness review. This court has upheld similar concerns with recidivism as reasonable when the defendant illegally entered the country four times in less than eight years. United States v. Tristan-Madrigal, 601 F.3d 629, 634-35 (6th Cir. 2010). Here, Luna-Ruiz illegally entered the United States at least seventeen times in less than seven years.1 Any argument that the judge unreasonably speculated as to Luna-Ruiz‘s risk of recidivism is, in light of his extensive record as a serial law-breaker, simply wrong.
IV
Luna-Ruiz also claims that his sentence is substantively unreasonable. First, he argues that a within-Guidelines sentence would have been sufficient to serve the purposes of sentencing. Br. of Defendant-Appellant at 13-14, United States v. Ortega-Rogel, 281 Fed.Appx. 471, 474 (6th Cir. 2008) (hоlding an above-Guidelines illegal reentry sentence to be substantively unreasonable where the defendant had a minimal prior criminal history and had only recently become involved with illegal activity). Luna-Ruiz concedes that he has a more serious criminal history (category IV) than the defendant in Ortega-Rogel (category I), but argues that the Guidelines reflect his more extensive criminal history. However, although the Guidelines reflect the сrimes that Luna-Ruiz was convicted of, they notably do not
Luna-Ruiz presents no argument or authority that undermines this conclusion. In his reply brief, Luna-Ruiz cites two unpublished cases in which this court upheld two illegal reentry sentences that were within the Guidelines. Reply Br. of Defendant-Appellant at 7-8, United States v. Arias-Arrazola, 254 Fed.Appx. 500 (6th Cir. 2007) (upholding a within-Guidelines sentence where defendant had been previously deported four times); United States v. Saavedra-Ibanez, 247 Fed.Appx. 724 (6th Cir. 2007) (upholding a within-Guidelines sentence where defendant had been previously deported two times).
These cases are indicative of the weakness of Luna-Ruiz‘s substantive objection. First, they аre not cases in which this court reversed above-Guidelines sentences, which would be helpful to our inquiry. Rather, they are cases in which this court upheld within-Guidelines sentences, which is not enlightening. Because this court reviews sentences only for an abuse of discretion, it must frequently uphold sentences that it would have decided differently, particularly when the sentence is within the Guidelines range. See Harmon, 607 F.3d at 240 (“A within-Guidelines sentence is entitlеd to a rebuttable presumption of reasonableness.“). Thus, that the court upheld within-Guidelines sentences does not speak to the question of whether it would have reversed above-Guidelines sentences on the very same facts. As such, the cases do not affect our inquiry here. Second, these cases do not involve defendants whose record of illegal entries even approaches that of Luna-Ruiz. Luna-Ruiz cites no case in which a defendant so routinely violated this country‘s immigration laws.
Significantly, this circuit has upheld above-Guidelines sentences for defendants with far fewer illegal entries than Luna-Ruiz. In United States v. Caserez, where the defendant had been previously deported three times and the Guidelines did not reflect those illegal entries, this court upheld a sentence of 42 months, far above the Guidelines range of 15 to 21 months. 225 F.3d 660 (table), 2000 WL 1033024, at *1-2 (6th Cir. July 18, 2000). And in Tristan-Madrigal, wherе the defendant had three prior illegal reentries, this court upheld a 36-month sentence, again much further above the Guidelines range of 15 to 21 months than the upward variance at issue here. 601 F.3d at 634-35.
A case that comes even closer to the facts here is United States v. Orellana-Aleman, 355 Fed.Appx. 215 (10th Cir. 2009). In that case, the district judge, noting the defendant‘s ten prior unprosecuted illegal entries, sentenced the defendant to 24 months in custody, far above the Guidelines range of one to seven months. Id. at 215-16. Yet the Tenth Circuit upheld the above-Guidelines sentence, noting that the defendant‘s history was more than sufficient to justify the departure. Id. at 222.
In comparison to these cases, the sentencing judge‘s decision to vary above the top of the Guidelines range by only six months appears merciful, and certainly not an abuse of discretion. Luna-Ruiz‘s sixteen prior unprosecuted illegal entries provided more than enough justification for the judge‘s decision to exсeed the Guidelines range by six months, and as a result, the sentence was substantively reasonable. See Gall, 552 U.S. at 51, 128 S.Ct. 586. This conclusion is particularly appropriate in light of this circuit‘s prior holdings that
Finally, Luna-Ruiz points to the disparity between his sentence and the sentences permitted in a “fast-track” district to argue that his sentence is excessive. See
V
For the foregoing reasons, we AFFIRM the sеntence of the district court.
BOGGS
CIRCUIT JUDGE