United States of America v. Bolivar Dexta

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 06a0455p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
UNITED STATES OF AMERICA ,
Plaintiff-Appellee,
v.
BOLIVAR DEXTA ,
Defendant-Appellant.
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No. 05-6818
Appeal from the United States District Court
for the Eastern District of Tennessee at Chattanooga.
No. 02-00104—Curtis Lynn Collier, Chief District Judge.
Submitted: November 30, 2006
Decided and Filed: December 12, 2006
Before: MARTIN, NORRIS, and GIBBONS, Circuit Judges.
_________________
COUNSEL
ON BRIEF: Bryan H. Hoss, DAVIS & HOSS, Chattanooga, Tennessee, for Appellant. Perry H.
Piper, ASSISTANT UNITED STATES ATTORNEY, Chattanooga, Tennessee, for Appellee.
_________________
OPINION
_________________
JULIA SMITH GIBBONS, Circuit Judge. Appellant-Defendant Bolivar Dexta (“Dexta”)
was convicted, after a jury trial, on three counts related to a conspiracy to distribute
methamphetamine mixture. His first sentence was vacated by this court pursuant to United States
v. Booker, 543 U.S. 220 (2005). Following remand, the district court imposed the same sentence
it imposed initially. Dexta subsequently appealed his sentence, challenging its reasonableness in
light of 18 U.S.C. § 3553(a) and Booker. Because Dexta has failed to demonstrate either that (1)
the district court’s consideration of the relevant sentencing factors was deficient or (2) the sentence
imposed by the district court was substantively unreasonable, we affirm the decision of the district
court.
I.
Dexta, following a jury trial, was convicted on three counts: (1) conspiracy to distribute fifty
grams or more of methamphetamine mixture in violation of 21 U.S.C. § 846; (2) possession of fifty
grams or more of methamphetamine mixture with intent to distribute in violation of 21 U.S.C.
§ 841(a)(1), (b)(1)(B); and (3) attempted distribution of fifty grams or more of methamphetamine
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No. 05-6818 United States v. Dexta Page 2
mixture in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(B), 846 and 18 U.S.C. § 2. After adopting
the Presentence Investigation Report (“PSR”), the district court sentenced Dexta to 151 months
imprisonment, the lowest sentence possible under the then mandatory Guidelines. A panel of this
court vacated the sentence pursuant to the Supreme Court’s decision in United States v. Booker.
United States v. Dexta, 136 F. App’x 895 (6th Cir. 2005).
On November 17, 2005, the district court held a new sentencing hearing. The court relied
on the original PSR to calculate the recommended Guidelines range applicable to Dexta’s
convictions: 151-185 months incarceration based on an offense level of 34 and a Criminal History
Category of I. Dexta does not challenge the PSR or the court’s reliance on it. Before the district
court, Dexta argued that his individual characteristics, specifically his status as an alien, obligations
as a husband and father, lack of a prior criminal history, and status as a middleman in the charged
conspiracy militated in favor of a more lenient sentence. In response, the government emphasized
that Dexta had maintained his innocence throughout trial and had in fact testified falsely about his
involvement in the conduct charged, making a more lenient sentence inappropriate.
The district court considered the arguments of the parties and then pronounced sentence,
stating the following:
The big thing that you have going against you, Mr. Dexta, is your conduct at
trial. Even if the Court believed that the sentence it had imposed should be different
now that the court is not required under the guidelines, I think that it would set an
extremely bad precedent. One of the things that we have to emphasize is the
necessity for there to be only the truth in court. What we deal with are important
issues and matters, and the Court and the juries have to make decisions based upon
what people say under oath. And the assumption always is that people are telling the
truth to the best of their ability.
The Court determined that you had not been truthful in your testimony. And
I think that there is a very, very strong need for that to be discouraged. So looking
at 3553(a), one of the considerations is the need to deter others. And to reflect the
seriousness of the involvement, I think, has particular application to that. Therefore
the Court will reimpose the sentence it imposed initially in all respects, that is, 151
months’ imprisonment.
The Court has imposed this sentence taking into account the defendant’s
background and his unique circumstances. . . .
II.
Dexta challenges the sentence imposed by the district court on the ground that it is
unreasonable. Post-Booker, the discretion of a district court in handing down a sentence has been
enhanced, and a sentence will be upheld on appeal if that sentence is “reasonable.” United States
v. Jackson, 408 F.3d 301, 304 (6th Cir. 2005). This reasonableness inquiry has both a procedural
and a substantive component, requiring review of both the procedures used and factors considered
in determining the sentence and the punishment itself. See United States v. Webb, 403 F.3d 373,
383 (6th Cir. 2005).
A.
Although district courts are no longer bound by the sentencing ranges contained in the
Guidelines, a sentencing court must consider the applicable Guidelines range as one of a number of
factors enumerated in 18 U.S.C. § 3553(a). Jackson, 408 F.3d at 304. The goal of the procedural
reasonableness requirement is to ensure that a sentencing court explains its reasoning to a sufficient
degree to allow for reasonable appellate review. Id. at 305. The court need not explicitly consider

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No. 05-6818 United States v. Dexta Page 3
each of the § 3553(a) factors; a sentence is procedurally reasonable if the record demonstrates that
the sentencing court addressed the relevant factors in reaching its conclusion. See United States v.
McBride, 434 F.3d 470, 475-76 & n.3 (6th Cir. 2006) (citing Webb, 409 F.3d at 383-85). Moreover,
satisfaction of the procedural reasonableness requirement does not depend on a district court’s
engaging in a rote listing or some other ritualistic incantation of the relevant § 3553(a) factors. See
United States v. Collington, 461 F.3d 805, 809 (6th Cir. 2006); see also United States v. Williams,
436 F.3d 706, 708-09 (6th Cir. 2006).
Although Dexta argues that the district court failed to consider fully the sentencing factors
outlined in § 3553(a), he does not point to any specific factor that was not presented to and
considered by the district court. The district court explicitly stated that it was taking into account
Dexta’s background, the nature and circumstances of his offense, and the need to deter the sort of
criminal conduct in which Dexta engaged. The district court also considered the level of Dexta’s
involvement in the underlying criminal activity. Finally, the district court noted its belief that Dexta
had not given truthful testimony regarding his role in the criminal activity and emphasized the need
to discourage such conduct.
Undeniably, the district court did not explicitly consider each and every § 3553(a) factor.
Although a more specific discussion of the relevant factors would have been preferable, the record
is nevertheless sufficient to allow for meaningful appellate review. See United States v. Davis, 458
F.3d 505, 510 (6th Cir. 2006) (noting that the procedural reasonableness test requires asking
“whether the district court [has] adequately considered and expressed its application of the relevant
factors listed in 18 U.S.C. § 3553(a) to permit meaningful appellate review.”) (internal quotation
marks omitted). The record in this case clearly indicates the district court’s consideration of the
relevant sentencing factors. The district court communicated a clear rationale for its sentence.
Moreover, Dexta fails to point to any relevant factor he raised that the district court did not consider,
and there is nothing in the record to suggest that district court did not weigh all of the relevant
factors in arriving at the sentence imposed.
B.
As to substantive reasonableness, the law of this circuit draws a distinction between
sentences that are within the recommended Guidelines range and those outside of that range.
Whenever a district court imposes a sentence that falls within the applicable Guidelines range, that
sentence is treated with a rebuttable presumption of reasonableness. United States v. Cruz, 461 F.3d
752, 754 (6th Cir. 2006) (“We give a properly calculated sentence within the guidelines, in which
the district judge adequately considered the § 3553(a) factors, a ‘rebuttable presumption of
reasonableness.’”) (quoting Williams, 436 F.3d at 708).
Because the district court imposed a sentence within the range recommended by the
Guidelines, it is accorded a rebuttable presumption of reasonableness. Dexta claims that the
sentence imposed by the district court was unreasonable because a sentence of shorter length would
have been more appropriate. Dexta argues on appeal, as he did before the district court, that his
unique circumstances warrant lenity in sentencing. He notes that he was born outside of this
country, that he is both a husband and father, and that he had no prior criminal record. He made
these arguments before the district court, and the district court was ultimately unpersuaded that these
circumstances justified the imposition of a lighter sentence. There is nothing in the record that
suggests the district court’s weighing of the relevant factors and decision to impose a sentence at the
low end of the recommended Guidelines range was unreasonable. The district court was aware of
Dexta’s individual characteristics, and any potential mitigating force they might have, but balanced

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1Dexta also argues, as he did before the district court, that the sentences imposed on his co-conspirators were
lighter than his sentence even though their prior criminal conduct and involvement with the instant crimes were more
egregious. He also notes that the government conceded these points at the sentencing hearing. Accordingly, argues
Dexta, the district court should have considered this as one of the factors in its § 3553(a) analysis, specifically §
3553(a)(6), which instructs district courts to avoid unwarranted sentencing disparities. However, this disparity is
reasonable because his co-conspirators chose to plead guilty and cooperate with the prosecution.
those against society’s need to punish criminal conduct and encourage those appearing before a
court to provide truthful testimony.1
Dexta’s mere allegation that the sentence imposed is greater than necessary to achieve the
goals of punishment outlined in § 3553(a) is insufficient to rebut the presumption of reasonableness.
His desire for a sentence of eight or nine years in lieu of the twelve and a half year sentence imposed
is understandable. This desire, without more, however, does not justify this panel’s setting Dexta’s
sentence aside. “The fact that the district court did not give the defendant the exact sentence he
sought is not a cognizable basis to appeal, particularly where the district court followed the mandate
of § 3553(a) in all relevant respects.” United States v. Jackson, 466 F.3d 537, 540 (6th Cir. 2006).
III.
For the foregoing reasons, we affirm the sentence imposed by the district court.

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