NOT RECOMMENDED FOR PUBLICATION File Name: 20a0478n.06
No. 19-4243
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT FILED Aug 13, 2020 UNITED STATES OF AMERICA, ) DEBORAH S. HUNT, Clerk ) Plaintiff-Appellee, ) ) ON APPEAL FROM THE v. ) UNITED STATES DISTRICT ) COURT FOR THE MELVIN ENRIQUEZ RIOS, ) NORTHERN DISTRICT OF ) OHIO Defendant-Appellant. ) )
BEFORE: BOGGS, SUTTON, and WHITE, Circuit Judges
BOGGS, Circuit Judge. Defendant Melvin Rios appeals his eighteen-month sentence for
transportation of aliens not lawfully present in the United States, in violation of 8 U.S.C.
§ 1324(a)(1)(A)(ii). On appeal, Rios argues that the length of his prison sentence is procedurally
unreasonable. He claims that the district court relied on an erroneous fact in imposing his within-
Guidelines sentence, because the court made a statement during sentencing that Rios’s sentence
was similar to those imposed by the sentencing judge in comparable cases. For the following
reasons, we affirm Rios’s sentence.
I. BACKGROUND
A. Factual Background
Rios was apprehended by the Ohio State Highway Patrol during a traffic stop in Wood
County, Ohio on July 15, 2019. He was traveling in a car along with seven other non-English
speaking individuals who had no identification or personal belongings with them, and all of whom No. 19-4243, United States v. Rios
were subsequently detained on suspicion of human smuggling. Although Rios was not driving at
the time of the traffic stop, the investigation by the U.S. Border Patrol determined that he was the
driver of the car until he requested one of the passengers to replace him temporarily so that Rios
could rest. Rios told the U.S. Border Patrol agents that he most recently entered the United States
illegally in August 2014 in Texas. When looking for work outside of Home Depot in Texas, he
was approached by an individual who offered to pay Rios $100 for each person that he would
transport to Chicago, Illinois and Laurel, Maryland. Rios was instructed to pick up a sports utility
vehicle with eight passengers from a gas station in McAllen, Texas and was given money for travel
expenses. By the time he was stopped by state troopers in Ohio, he had already dropped off one
person in Chicago and still had $1,000 in cash for travel expenses. Rios was supposed to receive
his payment when he returned the car to the same gas station in Texas. The seven individuals and
Rios were determined to be aliens who entered the United States illegally and who were citizens
of several countries. Rios confirmed that, although he was not certain, he believed the passengers
of the car to be undocumented aliens. The seven passengers were since deported without a
sentence of imprisonment, because they had only committed a first-time illegal reentry after prior
removal.
B. District Court Proceedings
The complaint against Rios alleged a violation of 8 U.S.C. § 1326(a), illegal reentry, and
seven counts of violating 8 U.S.C. § 1324(a)(1)(A)(ii), transportation of aliens not lawfully present
in the United States. He was indicted for seven counts of violating § 1324(a)(1)(A)(ii) and pled
guilty to all counts without the benefit of a plea agreement.
Rios’s sentencing hearing was conducted in conjunction with the sentencing of another
defendant convicted under 8 U.S.C. § 1326(a), illegal reentry. The district court addressed
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introductory remarks to both defendants, stressing its understanding of the reasons people come to
the United States unlawfully, the recently increased enforcement of immigration laws, and the
importance of the deterrent effect of criminal sentencing of those who cross our borders illegally.
The district court proceeded to sentence Rios and then the other defendant individually.
According to the presentence report, Rios’s offense level after reduction for acceptance of
responsibility was thirteen with criminal history of I, resulting in a Guidelines range of twelve to
eighteen months of imprisonment with a statutory maximum of ten years for each violation of §
1324(a)(1)(A)(ii) under 8 U.S.C. § 1324(a)(1)(B)(i). The presentence report also showed that Rios
was previously removed from the United States via Texas as an inadmissible alien both in 2000
and in 2012, that he had a Texas DUI arrest and a reckless-driving conviction in 2007, and a Texas
DUI conviction in 2012. He only received one criminal-history point, for the 2012 DUI conviction.
Rios did not object to his presentence report.
During Rios’s sentencing hearing, the government requested a sentence of eighteen
months, while Rios requested a variance below twelve months. Rios’s counsel justified the
downward-variance request by pointing out Rios’s non-violent treatment of the transported aliens
and Rios’s not being part of a larger operation.
The district court sentenced Rios to eighteen months. Rios did not object, other than to the
court’s not granting the downward variance.
On appeal, Rios argues that the length of his prison sentence is procedurally unreasonable
based on the statements made by the court during Rios’s sentencing.
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II. DISCUSSION
A. Standard of Review and Statement of Law
This court reviews sentencing decisions deferentially for abuse of discretion. Gall v.
United States, 552 U.S. 38, 56 (2007). This review has two separate and distinct components:
procedural reasonableness and substantive reasonableness. United States v. Bolds, 511 F.3d 568,
578 (6th Cir. 2007).
“A district court commits a procedural error by ‘failing to calculate (or improperly
calculating) the Guidelines range, treating the Guidelines as mandatory, failing to consider the
§ 3553(a) factors, selecting a sentence based on clearly erroneous facts, or failing to adequately
explain the chosen sentence.’” United States v. Sexton, 894 F.3d 787, 797 (6th Cir. 2018) (quoting
Gall, 552 U.S. at 51). Where a sentence is allegedly based on erroneous information, “[t]he
defendant must establish that the challenged evidence is materially false or unreliable.” United
States v. Adams, 873 F.3d 512, 517 (6th Cir. 2017) (internal quotation mark and citations omitted).
We will find that “the district court abused its discretion only if it based the defendant’s sentence
on that erroneous information. To determine whether a court relied upon erroneous information,
an appellate court should analyze whether the sentence might have been different in the absence
of that information.” Id. at 518 (alterations and internal quotation marks omitted) (quoting United
States v. Wilson, 614 F. 3d 219, 224 n.3 (6th Cir. 2010)).
Failing to object at all to a procedural error (for example, a district court’s miscalculation
of the Guidelines range) will subject a procedural challenge to plain-error review. Molina-
Martinez v. United States, 136 S. Ct. 1338, 1342–43 (2016).
Under United States v. Olano, 507 U.S. 725 (1993), we have discretion to remedy a plain
error provided that certain conditions are met: (1) the error has not been intentionally relinquished
or abandoned, id. at 732–33; (2) the error is plain, i.e., clear and obvious, id. at 734; (3) the error
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has affected the defendant’s substantial rights, ibid., meaning that the defendant “must ‘show a
reasonable probability that, but for the error,’ the outcome of the proceeding would have been
different.” Molina-Martinez, 136 S. Ct. at 1343 (quoting United States v. Dominguez Benitez, 542
U.S. 74, 76, 83 (2004)). But even if these conditions are met cumulatively, “the court should not
exercise that discretion unless the error ‘seriously affect[s] the fairness, integrity or public
reputation of judicial proceedings.’” Olano, 507 U.S. at 732 (alteration in original) (quoting United
States v. Young, 470 U.S. 1, 15 (1985)).
We review all claims of substantive error for abuse of discretion and reasonableness,
affording a rebuttable presumption of reasonableness to a properly calculated sentence that is
within the Guidelines. United States v. Vonner, 516 F.3d 382, 389–90 (6th Cir. 2008) (en banc).
Defendants are not required to refer to the “reasonableness” of a sentence to preserve substantive
claims for appeal; they simply need to bring the claimed error to the court’s attention. Holguin-
Hernandez v. United States, 140 S. Ct. 762, 766 (2020).
Substantive reasonableness focuses on whether a sentence is too long and whether “the
court placed too much weight on some of the § 3553(a) factors and too little on others in sentencing
the individual.” United States v. Bailey, 931 F.3d 558, 562 (6th Cir. 2019) (quoting United States
v. Rayyan, 885 F.3d 436, 442 (6th Cir. 2018)). “The point is not that the district court failed to
consider a factor or considered an inappropriate factor; that’s the job of procedural
unreasonableness.” Bailey, 931 F.3d. at 562 (quoting Rayyan, 885 F.3d at 442).
B. Procedural Reasonableness
Rios argues that his sentence is procedurally unreasonable because the district court relied
on clearly erroneous information. Rios claims that the district court relied on an erroneous fact in
imposing his sentence when the court made a statement during sentencing that Rios’s sentence
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was similar to those imposed by the sentencing judge in comparable cases. He argues that the
court had a clearly erroneous understanding of its own prior sentences under 8 U.S.C. § 1324.
Rios also claims that his counsel objected to the general reasonableness of the sentence and
to the district court’s refusal to consider a variance, which preserves the alleged error of the
sentencing court. We disagree. Rios did not object to the alleged procedural error during his
sentencing hearing. His counsel raised no objections to the corrected presentence report, and had
no objections to the imposition of the sentence, other than lodging his objection to the court’s not
granting a downward variance from the Sentencing Guidelines:
THE COURT: Counsel, anything you wish I say further about the 3553(a) factors? MR. MELCHING: No, Your Honor. Thank you. THE COURT: Ms. Cahoon? MS. CAHOON: No, Your Honor. We would just respectfully object to the variance. ... THE COURT: Does any—counsel have any objection not previously made to any part of these proceedings? MR. MELCHING: No, Your Honor. MS. CAHOON: Nothing additional, Your Honor.
But simply raising objections to the length of the sentence does not preserve an alleged procedural
error for appellate review. As the Supreme Court noted,
[a] defendant who, by advocating for a particular sentence, communicates to the trial judge his view that a longer sentence is “greater than necessary” has thereby informed the court of the legal error at issue in an appellate challenge to the substantive reasonableness of the sentence. He need not also refer to the standard of review.
Holguin-Hernandez, 140 S. Ct. at 766–67 (emphasis added). Holguin-Hernandez further
explained that by advocating for a shorter sentence, a defendant “argu[es], in effect, that this
shorter sentence would have proved ‘sufficient,’ while a [longer] sentence . . . would be ‘greater
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than necessary’ to ‘comply with’ the statutory purposes of punishment. Id. at 767 (quoting 18
U.S.C. § 3553(a)).
Rios requested a downward variance from his Sentencing Guidelines range of twelve to
eighteen months, citing Rios’s benign, non-violent treatment of the transported aliens, his status
as a low-level middleman rather than being part of a larger, complex trafficking operation, his lack
of criminal history aside from one DUI conviction, and his cooperation with law enforcement.
Rios’s raising an objection to the sentence on those grounds preserves a potential substantive
reasonableness error for appellate review. See Holguin-Hernandez, 140 S. Ct. at 766–67. But
Rios does not challenge the substantive reasonableness of his sentence; instead, he appeals the
procedural reasonableness of his sentence, alleging that the sentence was based on a clearly
erroneous fact. However, Rios never objected to that allegedly clearly erroneous fact at
sentencing. Therefore, we would ordinarily review his sentence under the plain-error standard.
Rios counters, however, that applying plain-error review is unfair because it would require that
“[his] counsel should have been ready, at sentencing, to anticipate the district court’s [allegedly
erroneous] statement” and have information in hand, “with no opportunity for confirmation,” to
challenge that statement immediately or risk forfeiting “all but plain error on review.” Thus, he
argues that the abuse-of-discretion standard applies. Because it makes no difference to the
outcome, we need not decide this issue.
Rios alleges that the district court relied on only two factors in imposing the sentence at
the high end of the Guidelines: deterrence and the need to impose a sentence similar to those given
in similar cases. In so doing, Rios focuses on one statement made by the district court during his
sentencing hearing when imposing a term of eighteen months of imprisonment: “And this is a
term that is similar to those that I’ve imposed in similar cases of this sort.” Rios treats this
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statement as key to the court’s decision to impose a top-of-the-Guidelines sentence and engages
on appeal in a laborious analysis of the court’s docket in an attempt to disprove the court’s
statement. He analyzes the judge’s cases by court location and offense, arrives at only six
comparable cases and, by examining this sample, concludes that his sentence of eighteen months
is thirty percent longer than the highest of the sample, and almost double the average sentence in
the sample. Effectively, Rios is now fact-checking the court to prove his point that the court relied
on a clearly erroneous understanding of its own sentencing practices under 8 U.S.C. § 1324.
But Rios places altogether too much weight on this one passing statement in a hearing
where the court also spoke extensively about the recently increased enforcement of immigration
laws, about the increase in the severity of sentences in the past two or three years, and about the
utmost importance of deterrence, both individual and public. The court stated deterrence as the
very reason to impose a top-of-the-Guidelines sentence here:
The reason for my very severe sentence is very simple. If people can’t get beyond the border and have some sense of confidence that they will be able to get behind the border, then it’s less likely that they’ll try to come to our country. And my purpose is both individual deterrence and public deterrence. Hope that the government undertakes to publicize this sentence, perhaps not here but in the [S]outhwest.
Although Rios was not sentenced in this case under 8 U.S.C. § 1326(a), illegal reentry, his
presentence report noted that he was removed from the United States as an “alien inadmissibly” in
the country twice before, in 2000 and in 2012. The court was therefore aware that Rios was himself
a repeat offender of the immigration laws, aside from his most recent violation of 8 U.S.C. §
1324(a)(1)(A)(ii), transporting aliens not lawfully present in the United States. Rios does not
provide sufficient detail on the cases that he contends are comparable for us to determine whether
they are in fact comparable. He does not always mention whether the defendants in those cases
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were themselves repeat illegal-reentry offenders, nor does he reference the applicable Sentencing
Guidelines range in each case.
But even if we were to agree with Rios that we should disregard the hundreds of
sentencings related by the sentencing judge when sitting by designation in other jurisdictions, or
the recent trend of increasing the length of sentences for immigration offenses, which was
explained by the district court, Rios still cannot establish that the district court relied on a clearly
erroneous fact.
Rios has not shown that the district court in fact committed an error by making a statement
about Rios’s eighteen-month sentence being similar to others imposed in similar cases, since Rios
focused only on six cases within the Northern District of Ohio handled by his sentencing judge
from 2012 to 2018. But during its introductory remarks about increased enforcement and longer
sentences, the sentencing court made the following comment:
A year or so ago I was sitting at a border court Las Cruces, which I’ve done a great deal often. I’ve done that off and on for about eight or ten years, Tucson, Phoenix, Las Cruces, Del Rio, Laredo . . . . Last time I was in Las Cruces I handled, I don’t know, 100 or so sentencings in a week the week I was there, that’s pretty customary.
In his Reply Brief, Rios alleges that his further research yielded only six additional cases from
New Mexico, all of which involved sentences shorter than his. While Rios is trying hard to show
that the district court committed a clear error by stating that Rios’s sentence was comparable to
others, we are not convinced. The alleged error of relying on faulty recollection of sentencing
practices by the district court was anything but clear, especially as Rios’s claim required labor-
intensive docket research yielding only tenuous results.
But more importantly, Rios cannot show that the alleged error was material or affected his
substantial rights because Rios cannot show that the alleged error “actually served as the basis for
the sentence,” Adams, 817 F.3d at 517 (internal quotation marks and citation omitted), or was
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prejudicial, i.e., that it “affected the outcome of the district court proceedings,” Olano, 507 U.S. at
734.
Rios makes a tenuous argument that the district court’s past sentencing practice must have
been “an important factor” in imposing his top-of-the-Guidelines sentence, because deterrence
alone would have resulted in a lower sentence, based on the actual sentencing history of the district
court for § 1324 offenses. Therefore, Rios argues, his own sentence would have been substantially
lower if the district court relied on the correct length of other sentences. We disagree.
Rios cannot show that the district court relied on the “fact” that it imposed similar sentences
in the past. The challenged statement is just one sentence in a long soliloquy stressing the need
for increased deterrence and enforcement of immigration laws. It was included along with
sympathetic statements about the situation in places such as Mexico and the judge’s personal ties
to Latin America, a plea for defendants to think about their families when the breadwinner becomes
incarcerated for violations of immigration laws, warnings about cooperation between the police
and U.S. Immigration and Customs Enforcement, and commentary about recent technological
advances in securing the Southern border. The district court also noted higher sentences for
immigration offenses recently compared to two or three years ago and warned Rios that, if he was
apprehended again in the United States after his deportation, he would likely receive a sentence of
imprisonment of twenty-four months or more. With that as backdrop, a passing remark of the sort
“[a]nd this is a term that is similar to those that I’ve imposed in similar cases of this sort” hardly
was determinative of the imposed sentence. This conclusion is supported by the district court’s
denial of Rios’s motion for compassionate release some six months later. The district court
rejected Rios’s argument that it had sentenced Rios for longer than was appropriate due to the
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district court’s misunderstanding of its prior sentences in similar cases, stressing that Rios’s top-
of-the-Guidelines sentence was based on its view that Rios’s offense was “very serious.”
III. CONCLUSION
For the reasons stated above, we AFFIRM the district court’s sentence.
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