United States of America v. Pablo Antonio-Pacheco

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 16a0294n.06
No. 15-4397
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
PABLO ANTONIO-PACHECO,
Defendant-Appellant.
)
)
)
)
)
)
)
)
)
ON APPEAL FROM THE UNITED
STATES DISTRICT COURT FOR
THE SOUTHERN DISTRICT OF
OHIO
BEFORE: GIBBONS, GRIFFIN, and DONALD, Circuit Judges.
PER CURIAM. Pablo Antonio-Pacheco, a federal prisoner, appeals through counsel the
twelve-month sentence imposed following his guilty plea to a charge of illegal reentry of a
removed alien.
Antonio-Pacheco has been removed from this country to his native Mexico on seven
occasions. He was convicted of misdemeanor illegal entry on three occasions in 2012 and 2013,
receiving sentences of 30, 15, and 45 days. After his apprehension in this case for illegally
reentering this country, the parties initially entered into a binding plea agreement with a sentence
of time served. Antonio-Pacheco waived his right to appeal other than on claims of ineffective
assistance of counsel or prosecutorial misconduct. However, the district court rejected the plea
agreement. The parties then modified the agreement to indicate that the district court could
reject the agreed sentence of time served. The sentencing guidelines range was calculated to be
zero to six months, and the statutory maximum sentence was two years. Defense counsel argued

-- 1 of 3 --

No. 15-4397
United States v. Antonio-Pacheco
- 2 -
for the agreed sentence of time served, which was approximately three months at that point. The
prosecution argued for a sentence within the calculated range. However, the district court found
that an upward variance was called for, citing Antonio-Pacheco’s lack of respect for the law, the
failure of his earlier sentences to deter him from reentering, and the seriousness of the offense; a
twelve-month sentence of imprisonment was imposed.
On appeal, Antonio-Pacheco argues that his sentence is substantively unreasonable
because the district court gave unreasonable weight to his criminal history. Specifically, he notes
that his prior convictions for illegal entry were all misdemeanors, his drunk driving conviction
was over seven years old, and his other convictions of driving without a license did not present a
risk to the public.
Initially, we note that the issue raised is not one of those for which Antonio-Pacheco
reserved the right to appeal. However, the government has not raised this argument and
therefore has forfeited the right to assert an appeal waiver. See United States v. Ford, 761 F.3d
641, 661 n.15 (6th Cir. 2014).
We review a criminal sentence for an abuse of discretion and will not substitute our
judgment for that of the district court. United States v. Phinazee, 515 F.3d 511, 521 (6th Cir.
2008).
Antonio-Pacheco argues that his sentence is substantively unreasonable because the
district court gave an unreasonable amount of weight to his criminal history. See United States v.
Walls, 546 F.3d 728, 736 (6th Cir. 2008). He distinguishes his case from that of United States v.
Tristan-Madrigal, 601 F.3d 629, 634-35 (6th Cir. 2010), where we found an upward variance
proper based on four drunk driving offenses. Antonio-Pacheco argues that he has only one old
drunk driving conviction, and he questions the district court’s finding that his numerous

-- 2 of 3 --

No. 15-4397
United States v. Antonio-Pacheco
- 3 -
convictions of driving without a license pose a danger to the public. The district court expressly
rejected this argument, noting that it was not clear whether Antonio-Pacheco was qualified to
drive, having not passed a driver’s license test or vision test. The district court was also clearly
aware that the prior convictions for illegal entry were misdemeanors. The district court also
justified the upward variance on grounds that a longer sentence was necessary for purposes of
deterrence and to encourage respect for the law, both of which we have found to be valid bases
for upward variances. United States v. Solano-Rosales, 781 F.3d 345, 354-55 (6th Cir. 2015);
United States v. Herrera-Zuniga, 571 F.3d 568, 590 (6th Cir. 2009).
Accordingly, we find no abuse of discretion by the district court and AFFIRM the
judgment imposed in this case.

-- 3 of 3 --