USA v. Graciela Fonseca-Leyva

Filing

Per Curiam OPINION: Fonseca-Leyva's sentence is AFFIRMED, decision not for publication. Richard F. Suhrheinrich, Circuit Judge; Richard Allen Griffin, Circuit Judge and William H. Stafford, U.S. District Judge for the Northern District of Florida, sitting by designation.

Case: 14-2612

Document: 17-2

Filed: 07/31/2015

Page: 1

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 15a0545n.06
No. 14-2612

FILED

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
GRACIELA FONSECA-LEYVA, aka
Yesenia Sanchez-Magana,
Defendant-Appellant.

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Jul 31, 2015
DEBORAH S. HUNT, Clerk

ON APPEAL FROM THE UNITED
STATES DISTRICT COURT FOR
THE WESTERN DISTRICT OF
MICHIGAN

BEFORE: SUHRHEINRICH and GRIFFIN, Circuit Judges; STAFFORD, District Judge.*

PER CURIAM. Graciela Fonseca-Leyva, a.k.a. Yesenia Sanchez-Magana, appeals her
sentence.
Fonseca-Leyva pleaded guilty to illegally reentering the United States after being
deported subsequent to a felony conviction, in violation of 8 U.S.C. § 1326. The district court
determined that, based on her total offense level of 10 and criminal history category of II,
Fonseca-Leyva’s guidelines range of imprisonment was 8 to 14 months. The court sentenced her
to 12 months and a day in prison.
On appeal, Fonseca-Leyva raises two arguments:

(1) her sentence is procedurally

unreasonable because the district court mistakenly concluded that her criminal history category

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The Honorable William H. Stafford, Jr., United States District Judge for the Northern
District of Florida, sitting by designation.

Case: 14-2612

Document: 17-2

Filed: 07/31/2015

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United States v. Fonseca-Leyva
was II rather than I as calculated in the presentence report; and (2) her sentence is substantively
unreasonable because the district court failed to properly weigh the relevant sentencing factors.
We review Fonseca-Leyva’s procedural challenge only for plain error because she failed
to raise the objection at the sentencing hearing when given the opportunity to so do by the
district court. See United States v. Rogers, 769 F.3d 372, 384 (6th Cir. 2014). Upon review, we
conclude that no error occurred. The initial presentence report calculated Fonseca-Leyva’s
criminal history category to be I, but that calculation was subsequently revised. In the final
presentence report, on which the district court relied, Fonseca-Leyva’s criminal history category
was calculated to be II, and she has not identified any error in that calculation.
Fonseca-Leyva also argues that her sentence is substantively unreasonable because the
district court failed to properly weigh the relevant sentencing factors, including her personal
circumstances. We review sentences under an abuse-of-discretion standard for reasonableness,
which has both a procedural and a substantive component. United States v. O’Georgia, 569 F.3d
281, 287 (6th Cir. 2009). A sentence is substantively unreasonable if the district court selects the
sentence arbitrarily, bases the sentence on impermissible factors, fails to consider pertinent
sentencing factors, or gives unreasonable weight to any pertinent factor. United States v. Vowell,
516 F.3d 503, 510 (6th Cir. 2008).

We apply a rebuttable presumption of substantive

reasonableness to a within-guidelines sentence. United States v. Vonner, 516 F.3d 382, 389 (6th
Cir. 2008) (en banc).
Before imposing the sentence, the district court discussed several relevant sentencing
factors, including the nature of the offense, Fonseca-Leyva’s criminal history and personal
circumstances, and the need to afford adequate deterrence and promote respect for the law. And
the court reasonably concluded that any mitigating factors were outweighed by Fonseca-Leyva’s

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Case: 14-2612

Document: 17-2

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lack of respect for immigration laws, her recidivism, and the need for general and specific
deterrence. Under the circumstances, Fonseca-Leyva has not overcome the presumption that her
within-guidelines sentence is substantively reasonable.
Accordingly, we affirm Fonseca-Leyva’s sentence.

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