United States v. Mario Umanzor-Pleytes

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 15a0199n.06
No. 14-5296
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
FILED
Mar 11, 2015
UNITED STATES OF AMERICA, ) DEBORAH S. HUNT, Clerk
)
Plaintiff-Appellee, )
) ON APPEAL FROM THE UNITED
v. ) STATES DISTRICT COURT FOR
) THE EASTERN DISTRICT OF
MARIO ALONSO UMANZOR-PLEYTES, ) KENTUCKY
aka Javier Antonio Munoz-Hernandez, )
)
Defendant-Appellant. )
)
Before KEITH, MERRITT, and BOGGS, Circuit Judges.
PER CURIAM. Mario Alonso Umanzor-Pleytes, a federal prisoner, appeals through
counsel the sentence imposed following his guilty plea to a charge of illegal reentry by a
previously deported alien subsequent to the conviction of an aggravated felony.
Umanzor-Pleytes is a citizen of El Salvador. In 1996, he was convicted of conspiracy to
deliver heroin. In 2005, he was convicted of illegal reentry, the same offense on appeal in this
case. He was sentenced to eighteen months of imprisonment. In 2007, he was again convicted
of the same offense and sentenced to thirty-three months of imprisonment. In 2013, he pleaded
guilty to the same charge. In preparation for sentencing, a probation officer prepared Umanzor-
Pleytes’s presentence report. The report calculated the guidelines range at eighteen to twenty-
four months. However, the probation officer recommended a longer sentence of forty months.
Counsel for Umanzor-Pleytes submitted a sentencing memorandum highlighting the lack of any
No. 14-5296
United States v. Umanzor-Pleytes
other serious or violent criminal history since the 1996 conviction and noting that Umanzor-
Pleytes was employed and had a son living in Lexington. He asked for a sentence at or below
the bottom of the guidelines range. At the sentencing hearing, the district court concluded that
the likelihood of recidivism in this case required an upward departure, and sentenced Umanzor-
Pleytes to thirty-six months of imprisonment. The court also issued a statement of reasons for
the sentence.
In his brief before this court, Umanzor-Pleytes argues that his sentence is unreasonable
because the district court failed to discuss the relevant sentencing factors, including the
guidelines range, the nature of the offense and the offender, and disparity of the sentence with
those of similar offenders. He also argues that the sentence, which is fifty percent higher than
the top of the guidelines range, required compelling justification.
We review a criminal sentence for reasonableness under an abuse-of-discretion standard.
United States v. Carter, 510 F.3d 593, 600 (6th Cir. 2007). Failure to consider the pertinent
sentencing factors can be procedural error, United States v. Vowell, 516 F.3d 503, 509-10 (6th
Cir. 2008), which is reviewed for plain error where the defendant does not object to preserve the
error, United States v. Simmons, 587 F.3d 348, 360 (6th Cir. 2009). No plain error has been
demonstrated here. In fact, the record shows that the district court did address the guidelines
range and the nature of the offense and offender. Although Umanzor-Pleytes cites a failure to
discuss unidentified sentencing disparities, it is not plain error to fail to address arguments that
are not raised.
Failure to consider the pertinent sentencing factors can also result in a substantively
unreasonable sentence. See United States v. Kirchhof, 505 F.3d 409, 413 (6th Cir. 2007).
However, failure to list the specific arguments raised by the defendant in his sentencing
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No. 14-5296
United States v. Umanzor-Pleytes
memorandum in the oral statement of the sentence is not unreasonable, as the district court may
reject the arguments by implication. United States v. Chiolo, 643 F.3d 177, 184 (6th Cir. 2011).
We have upheld an upward variance in cases where a prior sentence’s failure to deter repeat
conduct indicated the need for a longer sentence, United States v. Nixon, 664 F.3d 624, 626 (6th
Cir. 2011), where a defendant has been removed from the country a number of times, United
States v. Tristan-Madrigal, 601 F.3d 629, 634-35 (6th Cir. 2010), and where the guidelines
calculation results in a lower sentence than that for a prior conviction of the same offense, United
States v. Barnes, 910 F.2d 1342, 1345 (6th Cir. 1990). All of these factors were present in this
case.
The argument that the sentence in this case was fifty percent higher than the top of the
guidelines range is also unpersuasive, because we apply no mathematical formula in reviewing
the extent of a departure. United States v. Richards, 659 F.3d 527, 550 (6th Cir. 2011). The
imposition of a thirty-three month sentence did not deter Umanzor-Pleytes from illegally
entering this country a third time, so a sentence of only three more months is not a large
departure requiring a compelling justification.
Umanzor-Pleytes has not demonstrated that a lower sentence was required in his case.
See United States v. Brown, 579 F.3d 672, 687 (6th Cir. 2009). The district court’s judgment is
therefore affirmed.
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