RECOMMENDED FOR PUBLICATION Pursuant to Sixth Circuit I.O.P. 32.1(b) File Name: 20a0164p.06 UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT UNITED STATES OF AMERICA, ┐ Plaintiff-Appellee, │ │ > No. 18-4203 v. │ │ │ EDUARDO PEREZ-RODRIGUEZ, │ Defendant-Appellant. │ ┘ Appeal from the United States District Court for the Northern District of Ohio at Cleveland. No. 1:18-cr-00396-1—John R. Adams, District Judge. Argued: October 24, 2019 Decided and Filed: May 27, 2020 Before: CLAY, STRANCH, and MURPHY, Circuit Judges. _________________ COUNSEL ARGUED: Barry J. McWhirter, MCWHIRTER LAW FIRM, PLLC, Memphis, Tennessee, for Appellant. Danielle Angeli Asher, UNITED STATES ATTORNEY’S OFFICE, Cleveland, Ohio, for Appellee. ON BRIEF: Barry J. McWhirter, MCWHIRTER LAW FIRM, PLLC, Memphis, Tennessee, for Appellant. Danielle Angeli Asher, UNITED STATES ATTORNEY’S OFFICE, Cleveland, Ohio, for Appellee. STRANCH, J., delivered the opinion of the court in which CLAY, J., joined. MURPHY, J. (pp. 11–15), delivered a separate dissenting opinion. No. 18-4203 United States v. Perez-Rodriguez Page 2 _________________ OPINION _________________ JANE B. STRANCH, Circuit Judge. Eduardo Perez-Rodriguez, a citizen of Mexico, was sentenced to 24 months in prison for one count of illegal reentry in violation of 8 U.S.C. § 1326. The district court applied an upward variance that more than doubles the middle of his 8- to 14-month Guidelines range. Perez-Rodriguez challenges the substantive reasonableness of the upward variance and argues that the district court considered facts outside the record in selecting his sentence. Because Perez-Rodriguez’s sentence was substantively unreasonable, we REVERSE the district court’s judgment and REMAND for resentencing. I. BACKGROUND Eduardo Perez-Rodriguez was ordered removed by an immigration judge in June 2016. He reentered the country 19 days later and was arrested and convicted of violating 18 U.S.C. § 1546 for reentry after deportation and false personation in immigration matters. He was sentenced to time served of 140 days and removed for a second time in December 2016. On June 22, 2018, Perez-Rodriguez was arrested in Ohio on a failure to appear warrant for child endangering, having returned to the country at some point prior to his arrest. A grand jury indicted him on one count of illegal reentry, in violation of 8 U.S.C. § 1326, to which he subsequently pled guilty. Perez-Rodriguez had one prior conviction in 2015 for operating a motor vehicle under the influence (DUI), for which he received probation. His presentence report (PSR) noted that he attended a probation violation hearing, though no other information was provided to the sentencing court. Based on this criminal history, his prior count of reentry after deportation, and his acceptance of responsibility, Pretrial Services and Probation recommended a Guidelines range of 8 to 14 months in prison. At the sentencing hearing, the government sought a sentence within the high end of Perez-Rodriguez’s Guidelines range. The district court applied an upward variance and entered a sentence of 24 months—a 200% increase from the low end of the Guidelines range, a 71% increase from the high end, and a 118% increase from the middle of the range. ...
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