USA v. Exgardo Erazo

Filing

OPINION filed :Erazo's sentence is AFFIRMED, decision not for publication pursuant to local rule 206. Eric L. Clay, Circuit Judge; Jeffrey S. Sutton, Circuit Judge and Jane Branstetter Stranch, Circuit Judge, Authoring.

Case: 10-5949

Document: 006111157006

Filed: 12/15/2011

Page: 1

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 11a0846n.06
No. 10-5949
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
FILED
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
EXGARDO ERAZO,
Defendant - Appellant.

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Dec 15, 2011
LEONARD GREEN, Clerk

ON APPEAL FROM THE UNITED
STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF TENNESSEE
OPINION

Before: CLAY, SUTTON, and STRANCH, Circuit Judges.
JANE B. STRANCH, Circuit Judge.

Exgardo Erazo appeals the procedural and

substantive reasonableness of his sentence. We affirm.
Erazo was convicted after a jury trial of several drug-related offenses for distributing large
amounts of cocaine and crack cocaine. Erazo’s attorney asked the court to vary downward from the
guidelines range of 151-188 months’ imprisonment and impose the mandatory-minimum sentence
of 120 months. Instead, the court imposed a within-guidelines sentence of 160 months. On appeal,
Erazo argues that (1) the court’s purported failure to consider the cocaine-base disparity argument
in his variance request was procedurally and substantively unreasonable and (2) “the fact that Mr.
Erazo has already been in jail for years and felt pressured to give information he did not have to the
government” makes his sentence “just too long and therefore substantively unreasonable.”

Case: 10-5949

Document: 006111157006

Filed: 12/15/2011

Page: 2

10-5949
USA v. Exgardo Erazo
We review a sentence imposed by the district court for reasonableness. Gall v. United States,
552 U.S. 38, 46 (2007). “The question of whether a sentence is reasonable is determined using the
abuse-of-discretion standard of review.” United States v. Webb, 616 F.3d 605, 609 (6th Cir. 2010)
(citation omitted). When reviewing a sentence for procedural reasonableness, we look at three
factors: whether the district court “(1) properly calculated the applicable advisory Guidelines range;
(2) considered the other § 3553(a) factors as well as the parties’ arguments for a sentence outside the
Guidelines range; and (3) adequately articulated its reasoning for imposing the particular sentence
chosen.”

United States v. Bolds, 511 F.3d 568, 581 (6th Cir. 2007).

As for substantive

reasonableness, we consider whether the district court selected a sentence arbitrarily, based the
sentence on impermissible factors, failed to consider relevant sentencing factors, or gave an
unreasonable amount of weight to any pertinent factor. United States v. Holcomb, 625 F.3d 287,
293 (6th Cir. 2010). “A properly calculated advisory guidelines range represents a starting point for
substantive-reasonableness review because it is one of the § 3553(a) factors and because the
guidelines purport to take into consideration most, if not all, of the other § 3553(a) factors.” Id.
(citation omitted).
We reject Erazo’s claim that the court erred in denying his cocaine-base disparity variance
request due to an impermissible factor, his status as an illegal immigrant. Most obviously, the court
did not actually reject his disparity argument. Although the court correctly overruled it as an
objection to the presentence report itself, the court did agree to “consider Defendant’s disparity
argument . . . as part of the Court’s consideration of the 3553 factors in this case.” After reviewing
those factors, the court stated its conclusion that the sentence imposed was appropriate “even taking
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Case: 10-5949

Document: 006111157006

Filed: 12/15/2011

Page: 3

10-5949
USA v. Exgardo Erazo
into consideration . . . the Defendant’s disparity argument.” Moreover, to whatever extent the court
did consider Erazo’s illegal presence, Erazo has failed to show how this was an abuse of discretion.
See United States v. Petrus, 588 F.3d 347, 356 (6th Cir. 2009) (sentencing court has discretion to
consider immigration status). Although Erazo might have wanted the court to weigh the factors
differently, we find no abuse of discretion in the manner in which the court evaluated Erazo’s
variance request.
Finally, we find no merit to Erazo’s claim that his sentence is “just too long.” A district
court’s within-guidelines sentence is afforded a rebuttable presumption of reasonableness. United
States v. Sedore, 512 F.3d 819, 823 (6th Cir. 2008). A review of the record demonstrates that the
court did not abuse its discretion in its consideration of and weight given to pertinent factors.
For the reasons stated above, Erazo’s sentence is AFFIRMED.

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