United States of America v. Julio Molina-Portillo

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 13a0771n.06
No. 12-6313
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
JULIO MOLINA-PORTILLO,
Defendant-Appellant.
)
)
)
)
)
)
)
)
)
)
ON APPEAL FROM THE
UNITED STATES DISTRICT
COURT FOR THE MIDDLE
DISTRICT OF TENNESSEE
BEFORE: BOGGS and McKEAGUE, Circuit Judges; BECKWITH, District Judge.*
PER CURIAM. Julio Molina-Portillo appeals the district court’s judgment of conviction and
sentence.
Molina-Portillo pleaded guilty to illegally reentering the United States after being deported
subsequent to a conviction for an aggravated felony, in violation of 8 U.S.C. § 1326(a) and (b)(2).
The district court determined that Molina-Portillo’s base offense level was eight. The court added
16 levels under USSG § 2L1.2(b)(1)(A)(i) because Molina-Portillo was previously deported after
being convicted of a felony drug-trafficking offense for which the sentence imposed exceeded 13
months. The court subtracted two levels for acceptance of responsibility, resulting in a total offense
level of 22. Based on the total offense level of 22 and a criminal history category of III, Molina-
The Honorable Sandra S. Beckwith, United States District Judge for the Southern District*
of Ohio, sitting by designation.

-- 1 of 4 --

No. 12-6313
United States v. Molina-Portillo
Portillo’s Guidelines range of imprisonment was 51 to 63 months. The district court imposed a
sentence of 51 months.
On appeal, Molina-Portillo raises the following four arguments: (1) his sentence was
rendered substantively unreasonable by the district court’s refusal to vary downward from the
Guidelines to avoid a sentencing disparity with jurisdictions that have fast-track programs for
defendants convicted of illegal reentry; (2) his sentence was rendered substantively unreasonable by
the district court’s refusal to vary downward from the Guidelines on the basis that the offense-level
enhancement under § 2L1.2(b) is excessive and irrational; (3) his criminal history category
overrepresented the seriousness of his criminal history and his likelihood to recidivate; and (4) the
government abused its discretion by refusing to move for an additional one-level decrease in his
offense level based on his acceptance of responsibility.
We review a sentence under a deferential 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). To be substantively reasonable, a sentence must be proportionate to the
seriousness of the circumstances of the offense and offender and sufficient, but not greater than
necessary, to comply with the purposes of 18 U.S.C. § 3553(a). United States v. Vowell, 516 F.3d
503, 512 (6th Cir. 2008). A sentence may be substantively unreasonable if the district court selects
the sentence arbitrarily, bases the sentence on impermissible factors, fails to consider pertinent
sentencing factors, or gives an unreasonable amount of weight to any § 3553(a) factor. Id. at 510.
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).
-2-

-- 2 of 4 --

No. 12-6313
United States v. Molina-Portillo
Molina-Portillo first argues that his sentence was rendered substantively unreasonable by the
district court’s refusal to vary downward from the Guidelines to avoid a sentencing disparity with
jurisdictions that have fast-track programs for defendants convicted of illegal reentry. We have
categorically rejected this argument in previous cases, see United States v. Hernandez-Fierros, 453
F.3d 309, 313 (6th Cir. 2006), and we do so again.
Molina-Portillo next argues that his sentence was rendered substantively unreasonable by the
district court’s refusal to vary downward from the Guidelines on the basis that the offense-level
enhancement under § 2L1.2(b) is irrational and improperly double counted his prior drug trafficking
conviction, increasing both his offense level and criminal history score. Again, we have previously
rejected this argument. See id. at 312-13. Further, the district court explicitly considered Molina-
Portillo’s policy arguments and rationally determined that the enhancement was appropriate, given
the seriousness of the offense and Molina-Portillo’s history.
Molina-Portillo next argues that his criminal history category overrepresented the seriousness
of his criminal history and his likelihood to recidivate. To the extent that Molina-Portillo is arguing
that the district court should have granted him a downward departure under USSG § 4A1.3(b), we
cannot review the district court’s decision because it recognized its discretion to grant a departure,
but declined to do so. See United States v. Santillana, 540 F.3d 428, 431 (6th Cir. 2008). To the
extent that Molina-Portillo is arguing that the district court should have varied downward from the
Guidelines, his challenge fails because the district court reasonably declined to do so, given Molina-
Portillo’s numerous prior controlled-substance offenses.
-3-

-- 3 of 4 --

No. 12-6313
United States v. Molina-Portillo
Finally, Molina-Portillo argues that the government abused its discretion by refusing to move
for an additional one-level decrease in his offense level under USSG § 3E1.1(b) based on his
acceptance of responsibility. To prevail on this claim, Molina-Portillo must show that the
government acted arbitrarily or with an unconstitutionally impermissible motive. See United States
v. Collins, 683 F.3d 697, 704-05 (6th Cir.), cert. denied, 133 S. Ct. 571 (2012). He has presented
no evidence demonstrating that the government had an impermissible motive for withholding the
motion. Further, he has not shown that the government’s decision to withhold the motion was
arbitrary, given that he waited until several days before trial to plead guilty, causing the government
to expend resources on trial preparation. See id. at 707.
Accordingly, we affirm the district court’s judgment.
-4-

-- 4 of 4 --