UNITED STATES of America, Plaintiff-Appellee, v. Leonardo SAAVEDRA-IBANEZ, Defendant-Appellant.
No. 06-2364.
United States Court of Appeals, Sixth Circuit.
Sept. 6, 2007.
V
For the reasons set out above, we DENY the petition for review.
OPINION
MICHAEL H. WATSON, District Judge.
After Leonardo Saavedra-Ibanez pleaded guilty to unlawful reentry after deportation after an aggravated felony, the district court sentenced him to 46 months imprisonment. On appeal, Saavedra-Ibanez challenges the reasonableness of the sentence. For the following reasons, we AFFIRM.
I. BACKGROUND
On April 5, 2006, agents from the Bureau of Immigration and Customs Enforcement (hereinafter “ICE“) entered an
The ICE agents took Saavedra-Ibanez into custody, took his fingerprints, and discovered his true name. Later, the ICE agents determined Saavedra-Ibanez was convicted of an aggravated felony in 2002.
Saavedra-Ibanez‘s prior aggravated felony resulted from an arrest in Michigan. On July 17, 1998, Saavedra-Ibanez was driving erratically at a high rate of speed on Interstate 75 when he rear-ended another vehicle. When the other driver attempted to exit the highway, Saavedra-Ibanez followed the vehicle and struck it a second time. Two passengers in Saavedra-Ibanez‘s vehicle threw empty beer cans at the other vehicle. According to police reports, at some point Saavedra-Ibanez also veered his car directly into the path of a motorcyclist in an oncoming lane of traffic. Saavedra-Ibanez later crashed the vehicle and he and the two passengers fled the scene of the accident. All three were arrested shortly thereafter.
On November 7, 2002, Saavedra-Ibanez pleaded guilty in state court to two counts of felonious assault, one count of malicious destruction of property over $100.00, and one count of driving under the influence of liquor. A final order for Saavedra-Ibanez‘s deportation came on January 30, 2003, and he was administratively removed to Mexico on May 27, 2003. On August 19, 2003, Saavedra-Ibanez was removed to Mexico a second time at Brownsville, Texas. Sometime after August 19, 2003, Saavedra-Ibanez reentered the United States and, as mentioned above, was arrested in Pontiac, Michigan on April 5, 2006.
On April 14, 2006, Saavedra-Ibanez was charged by information with Unlawful Reentry After Deportation After An Aggravated Felony in violation of
On August 11, 2006, a Revised Presentence Investigation Report (hereinafter “Revised PIR“) was presented to the district court. The Revised PIR calculated the base offense level as 8, with a 16 level specific offense characteristic addition, pursuant to
On September 21, 2006, the district court considered the Guidelines range and the factors contained in
II. DISCUSSION
On appeal, Saavedra-Ibanez argues his sentence was both substantively and procedurally unreasonable. This Court reviews a criminal sentence for reasonableness. United States v. Booker, 543 U.S. 220, 261, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). The district court has discretion in sentencing and a reasonableness review is the manner in which courts of appeal determine if the district court abused its discretion. Rita v. United States, —, 127 S.Ct. 2456, 2465, 168 L.Ed.2d 203 (2007). In Rita, the United State Supreme Court held an appellate court may apply a non-binding, rebuttable presumption of reasonableness to a within-Guidelines sentence. 127 S.Ct. at 2462-63. The reasonableness inquiry has both substantive and procedural components. United States v. Jones, 489 F.3d 243, 250 (6th Cir. 2007).
A. Substantive Reasonableness
“[A] sentence may [be] substantively unreasonable where the district court ‘select[s] the sentence arbitrarily, bas[es] the sentence on impermissible factors, fail[s] to consider pertinent
Saavedra-Ibanez advances three arguments in support of his assertion that his sentence is substantively unreasonable. First, he contends the district court failed to meaningfully consider the factors set forth in
1. The Nature and Circumstances of the Offense and the History and Characteristics of Appellant
Saavedra-Ibanez contends his sentence is substantively unreasonable because the district court did not properly consider the
The United States Supreme Court recently held a sentencing judge need only “set forth enough to satisfy the appellate court that he has considered the parties’ arguments and has a reasoned basis for exercising his own legal decision making authority.” Rita, 127 S.Ct. at 2468. In this matter, the district court did consider Saavedra-Ibanez‘s arguments concerning the nature and circumstances of his prior offense. However, it disagreed with his characterization of the prior offense and found the crime‘s severity warranted a punishment within the Guideline range. “My view is that the way in which this offense was committed bespeaks, essentially, random acts of violence perpetrated against people who have no connection to the defendant. In other words, senseless, meaningless, random, potentially fatal violence, resulting in a felonious assault; Two [sic] counts, in fact of felonious assault.” The district court further stated, “[Saavedra-Ibanez] has a record of visiting unwarranted and senseless violence on random citizens. That‘s probably not predatory as such, but it‘s certainly dangerous, and in
Additionally, the district court considered Saavedra-Ibanez‘s current offense sufficiently serious:
This will be the [Saavedra-Ibanez‘s] third deportation. He served a year in prison for the felonious assault convictions.... After that year he was deport-ed. He came back. He was administratively deported again within the same year, within months of his return, in Brownsville, Texas. And now he‘s been found having come back yet again.
He‘s served time in jail. He‘s been deported. He re-entered and was deported again. He re-entered. Now he‘s been found and he is being prosecuted, I think, justifiably for this. He has not learned his lessons.
Further, the district court noted Saavedra-Ibanez‘s “pattern or behavior is more persuasive than [his] verbal statements.”
As evidenced by the foregoing statements, the district court listened to, and considered, Saavedra-Ibanez‘s arguments regarding
2. Double Counting
Saavedra-Ibanez contends his sentence is substantively unreasonable because the district court should have given him a lesser sentence to avoid double counting his prior criminal history. The Revised PIR calculated a 16 level specific offense enhancement because Saavedra-Ibanez was previously deported after a conviction for a felony which was a “crime of violence,” pursuant to
Saavedra-Ibanez argues this double counting unreasonably increased his Guideline range sevenfold. He contends this dramatic increase overstates the nature and severity of his criminal record, diminishes the district court‘s ability to differentiate between defendants such as himself and more violent or serious offenders, and is therefore, unreasonable as it does not conform with the
In United States v. Hernandez-Fierros, 453 F.3d 309 (6th Cir. 2006), this Court held double counting is permissible. In Hernandez-Fierros, the appellant was charged with a violation of
First, Saavedra-Ibanez‘s acceptance without objection at sentencing of the
In the event the issue is not waived, the district court considered the issue. It specifically referred to Hernandez-Fierros and Note 6. Moreover, the district court further considered Saavedra-Ibanez‘s argument in terms of
3. Fast Track Disparity
In 2003, Congress sanctioned the use of fast track programs which offer a 4 level downward departure from the Guidelines to defendants who enter a plea agreement and waive certain rights. Hernandez-Fierros, 453 F.3d at 313. District courts can implement this fast track program only when “the resources of a district would otherwise be significantly strained by the large volume of a particular category of cases.” Id. The Eastern District of Michigan does not offer a fast track program. As such, Saavedra-Ibanez did not have the option of waiving his rights in exchange for a 4 level sentence reduction.
Saavedra-Ibanez contends his sentence is substantively unreasonable because the district court failed to allow him a downward departure in light of the resulting fast track disparity between districts. He argues by not granting a downward departure based on this fast track disparity, the district court violated
This argument was presented in Hernandez-Fierros, which held any fast track disparity between districts is not unwarranted, because this disparity was specifically authorized by statute and serves a legitimate government purpose.1 453 F.3d at 314. Additionally, all of the
In the instant case, the district court addressed Saavedra-Ibanez‘s argument concerning the fast track disparity. The district court found the disparity was not unwarranted, and therefore the
4. Undue and Excessive Weight to the Advisory Guidelines Range
As mentioned above, there is no basis to find the district court failed to consider the factors set forth in
B. Procedural Reasonableness
While Saavedra-Ibanez contends the sentence was procedurally unreasonable in the standard of review section of his brief, he fails to set forth any argument on the issue. Nevertheless, Sixth Circuit jurisprudence requires both substantive and procedural reasonableness be considered in determining the overall reasonableness of a sentence. United States v. Liou, 491 F.3d 334, 336 (6th Cir. 2007).
A sentence may be procedurally unreasonable if “the district judge fails to ‘consider’ the applicable Guidelines range or neglects to “consider” the other factors listed in
At the sentencing hearing, there was no objection to the calculated Guidelines range. Moreover, the district court noted the advisory nature of the Guidelines range. The district court acknowledged Saavedra-Ibanez‘s arguments with respect to the
III. CONCLUSION
For these reasons, we AFFIRM the sentence imposed by the district court.
MICHAEL H. WATSON
UNITED STATES DISTRICT JUDGE