United States v. Carrillo-Hernandez

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 06a0349n.06
Filed: May 16, 2006
No. 05-1990
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA, )
)
Plaintiff-Appellee, )
)
v. ) ON APPEAL FROM THE UNITED
) STATES DISTRICT COURT FOR THE
ANDRES CARRILLO-HERNANDEZ, ) WESTERN DISTRICT OF MICHIGAN
)
Defendant-Appellant. )
Before: GILMAN, SUTTON, and COOK, Circuit Judges.
PER CURIAM. Defendant Andres Carrillo-Hernandez pleaded guilty to being an alien
illegally present in the United States after having been deported following an aggravated felony
conviction. 8 U.S.C. § 1326(a). The district court sentenced him to 27 months’ imprisonment and
three years’ supervised release. Carrillo-Hernandez now appeals, arguing the sentence imposed was
unreasonable because the district court failed to consider the factors listed in 18 U.S.C. § 3553(a).
We affirm the sentence.
I.
No. 05-1990
U.S. v. Carrillo-Hernandez
Though deported to Mexico after a drug trafficking conviction, Carrillo-Hernandez illegally
re-entered the United States. Eventually he was arrested for failing to stop and identify himself after
being involved in a “hit-and-run” automobile accident.
A federal grand jury then indicted Carrillo-Hernandez, charging him with one count of being
an alien illegally “present in the United States after having been deported subsequent to an
aggravated felony conviction,” in violation of 8 U.S.C. § 1326(a). Carrillo-Hernandez pleaded
guilty to the charge pursuant to a written plea agreement. The PSR determined the offense level to
be 17, and the criminal history to be Category II, resulting in an advisory-Guidelines range of 27-33
months. Carrillo-Hernandez did not object to the contents of the PSR, but did file a sentencing
memorandum asking for leniency in sentencing.
The district court sentenced Carrillo-Hernandez to 27 months’ imprisonment and three years’
supervised release. After announcing the sentence, but before adjourning the hearing, the district
court asked both parties if there were any objections; neither raised one.
II.
A.
Generally, we review sentences imposed under the now-advisory Sentencing Guidelines
regime for reasonableness. United States v. Christopher, 415 F.3d 590, 594 (6th Cir. 2005). The
government, however, suggests that where a defendant fails to object to the reasonableness of a
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U.S. v. Carrillo-Hernandez
sentence after the court provides him an opportunity to raise such an objection, we should review
the matter for plain error. See United States v. Bostic, 371 F.3d 865, 872-73 (6th Cir. 2004) (holding
that the district court must expressly provide an opportunity for objections after imposing sentence,
and any objections not raised in response are forfeited and subject to plain error review on appeal).
A recent, albeit unpublished, case from this circuit adopted the government’s suggestion.
See U.S. v. Willis, No. 05-5434, 2006 WL 1043937 (6th Cir. Apr. 20, 2006). In Willis, the defendant
argued the unreasonableness of his sentence, citing the district court’s failure to adequately consider
the factors listed in 18 U.S.C. § 3553(a). We held that because the defendant “failed to object to the
sentence after it was pronounced, . . . he . . . forfeited appellate review of the alleged error,” and we
reviewed for plain error. Id. at *3 (citing Bostic, 371 F.3d at 872-73); see also United States v.
Lopez-Flores,–F.3d–, No. 05-2274, 2006 WL 1000810, at *3 (10th Cir. Apr. 18, 2006) (reviewing
for plain error where defendant failed to challenge, as unreasonable, the district court’s method of
arriving at a post-Booker sentence); U.S. v. Ferguson, No. 05-4243, 2006 WL 786817, at *3 (4th
Cir. Mar. 28, 2006) (“Ferguson’s final challenge is to the reasonableness of his sentence. . . .
Because he failed to raise this claim below, we review it for plain error.”). But see United States v.
Ibarra, No. 05-2196, 2006 U.S. App. LEXIS 11120, at *5-6 (6th Cir. May 4, 2006) (reviewing
challenge to post-Booker sentence for reasonableness despite defendant’s failure to object, but not
discussing plain error standard of review).
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U.S. v. Carrillo-Hernandez
Demonstration of plain error requires, of course, an error, that is plain, that affects substantial
rights, and that seriously affects the fairness, integrity, or public reputation of judicial proceedings.
Johnson v. United States, 520 U.S. 461, 466-67 (1997). We need not decide here whether the plain-
error standard applies because even if it does, we still must, as a threshold matter, review Carrillo-
Hernandez’s post-Booker sentence for reasonableness. And, as we discuss below, our affirming of
the reasonableness of his sentence forecloses Castillo-Hernandez from “demonstrat[ing] error, plain
or otherwise.” Willis, 2006 WL 1043937 at *3.
B.
Carrillo-Hernandez confines his argument regarding reasonableness to the limited
consideration by the district court of § 3553(a) factors. In United States v. Richardson, 437 F.3d
550, 554-55 (6th Cir. 2006), we confirmed that a sentencing court, even when selecting a
presumptively reasonable sentence, must explain its reasons for imposing that particular sentence,
although such explanation need not include a recitation of the § 3553(a) factors.
Given the presumption of reasonableness we accord to sentences properly calculated under
the Guidelines, United States v. Williams, 436 F.3d 706, 708 (6th Cir. 2006), and given that the
sentencing court:
• considered “the history and characteristics of the defendant” by recounting Carrillo-
Hernandez’s prior arrests and convictions, 18 U.S.C. § 3553(a)(1);
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• considered the “nature and circumstances of the offense,” id., and discussed the need
for the sentence imposed to afford adequate deterrence, mentioning that “this
[sentence] will be a big wake up call,” 18 U.S.C. § 3553(a)(2)(B);
• considered the need to “avoid unwarranted sentence disparities,” 18 U.S.C. §
3553(a)(6), when it refused to adopt the “fast-track program”;
• acknowledged its ability to vary from the Guidelines, 18 U.S.C. § 3553(a)(4); and
• concluded that 27 months’ imprisonment and three years’ supervised release was an
appropriate sentence;
we find the district court met its obligation to consider the § 3553(a) factors in imposing sentence.
Thus, the sentence imposed was reasonable, and accordingly, Castillo-Hernandez cannot
demonstrate any error (plain or otherwise) in the court’s consideration of the § 3553(a) factors.
III.
We affirm the district court.
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