                                                                       F I L E D
                                                                United States Court of Appeals
                                                                        Tenth Circuit
                    UNITED STATES CO URT O F APPEALS
                                                                        April 4, 2007
                                 TENTH CIRCUIT                      Elisabeth A. Shumaker
                                                                        Clerk of Court


 U N ITED STA TES O F A M ER ICA,

               Plaintiff-Appellee,                       No. 05-2067
          v.                                           (D. New M exico)
 V ICTO R SO LA N O -C UESTA ,                      (D.C. No. 04-1957 JH)

               Defendant-Appellant.



                            OR D ER AND JUDGM ENT *


Before L UC ER O, EBEL, and M U RPH Y, Circuit Judges.




                                I. IN TR OD UC TIO N

      Victor Solano-Cuesta pleaded guilty to illegally reentering the United

States after having been previously deported following an aggravated felony

conviction. 8 U.S.C. § 1326(a), (b)(2). On appeal, Solano-Cuesta asserts his

sentence is unreasonable both because (1) the district court failed to adequately

analyze on the record the sentencing factors set out in 18 U.S.C. § 3553(a); and

(2) the sentence the district court ultimately imposed is unduly harsh when


      *
        This order and judgment is not binding precedent except under the
doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
measured against those same § 3553(a) factors. Exercising jurisdiction pursuant

to 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291, we reject Solano-Cuesta’s

assertions of error and affirm the sentence imposed by the district court.



                               II. BACKGROUND

      Solano-Cuesta is a citizen of M exico. At age five, he came with his mother

to Amarillo, Texas. In 2002, Solano-Cuesta pleaded guilty in Texas state court to

unauthorized use of a motor vehicle. W hile on probation for that conviction,

Solano-Cuesta pleaded guilty in Texas state court to possession of a controlled

substance. Solano-Cuesta was sentenced to fourteen months’ incarceration for the

drug-possession conviction; at the same time, Solano-Cuesta’s probation on the

unauthorized-use-of-a-motor-vehicle conviction was revoked and he was

sentenced to eighteen months’ incarceration. On August 8, 2003, Solano-Cuesta

was released from incarceration and transferred to the immigration authorities; he

was deported to M exico on August 27, 2003.

      A few month later, in October of 2003, United State Border Patrol agents

arrested Solano-Cuesta near Deming, New M exico; he was charged by

information with illegal reentry after deportation following an aggravated felony

conviction in violation of 8 U.S.C. § 1326(a), (b)(2). Solano-Cuesta pleaded

guilty to the charges. The presentence report (“PSR”) assigned a base offense

level of eight to Solano-Cuesta’s conviction pursuant to U.S.S.G. § 2L1.2(a). It

                                        -2-
then assigned an eight-level enhancement pursuant to § 2L1.2(b)(1)(C) because

Solano-Cuesta had previously been convicted of an aggravated felony and a three-

level reduction for acceptance of responsibility pursuant to § 3E1.1. Solano-

Cuesta’s adjusted offense level was thus thirteen.

      In calculating Solano-Cuesta’s criminal history, the PSR included the

following convictions: In August 2002, Solano-Cuesta was convicted of

possession of a controlled substance and sentenced to fourteen months’

imprisonment for that conviction. He received three criminal history points for

that conviction. Solano-Cuesta had been sentenced to probation in January 2002

for unauthorized use of a motor vehicle; his probation was revoked after his

possession conviction, and he w as sentenced to a concurrent eighteen months’

imprisonment. Solano-Cuesta was assessed three criminal history points for this

conviction. Pursuant to U.S.S.G. § 4A1.1, Solano-Cuesta was assessed an

additional two criminal history points because he w as released from custody for a

prior offense less than two years before the conviction forming the basis of this

appeal. In total, then, Solano-Cuesta was assessed eight criminal history points,

corresponding to a criminal history category IV. W ith a criminal history category

IV and an adjusted offense level of thirteen, his Guideline sentencing range was

twenty-four to thirty months.

      At the sentencing hearing, which occurred after the Supreme Court’s

decision in United States v. Booker, 543 U.S. 220 (2005), Solano-Cuesta’s

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counsel reminded the district court that it was required to consider the 18 U.S.C.

§ 3553(a) factors and argued that each of those factors weighed in favor of a

sentence below the guideline range. In particular, Solano-Cuesta’s counsel

argued as follows: (1) Solano-Cuesta has lived in the United States since the age

of five; (2) Solano-Cuesta’s extensive juvenile record was at least partially

attributable to the absence of his father; (3) although properly calculated, the

criminal history score assigned to him by the PSR overstated his criminal history;

(4) the penalties attributed to illegal reentry crimes by the Guidelines w ere unduly

harsh in light of the nature of the crime and such harsh sentences w ere

unnecessary to protect the public. In response, the government argued that

Solano-Cuesta’s crime was a serious one and that the proper measure of that

seriousness was Solano-Cuesta’s criminal history. The government noted that, as

set out at length in the PSR, Solano-Cuesta had an extensive history of criminal

conduct from the time he was thirteen. None of his juvenile criminal conduct was

captured in the criminal history score. W ith that in mind, the government

concluded its argument as follow s:

             And so I would argue, Judge, that the term of 24 months is
      appropriate in this case. [Solano-Cuesta’s counsel] indicated that the
      Sentencing Commission talked about the sometime inaccuracy of
      determining whether somebody is likely to reoffend. And when
      looking across hundreds of thousands of defendants, sure they are
      going to be inaccurate sometimes, but with this defendant I would
      say that his history clearly show s his likelihood to reoffend because
      he has reoffended over and over and over again. And so as to this



                                          -4-
      defendant, I would strongly suggest that a term within the guideline
      range is reasonable.

      After listening to the parties’ arguments, the district court imposed a

sentence of twenty-four months, stating as follows: “The Court adopts the [PSR]

factual findings. The Court has also considered the guidelines applications and

the factors set out in 18 U.S.C. § 3553. The offense level is 13 and the criminal

history category is four. The guideline imprisonment range is 24 to 30

months. . . . [T]he defendant . . . is committed to the custody of the Bureau of

Prisons for a term of two years.” Immediately thereafter, the district court asked

the parties if there was any “reason why the sentence should not be imposed as

ordered”; Solano-Cuesta did not raise any objection to the district court’s failure

to specifically explain its sentence by reference to the factors set out in § 3553(a).

Solano-Cuesta then filed this timely appeal challenging his sentence.



                                   D ISC USSIO N

      According to Booker, this court reviews “sentences imposed by the district

court for reasonableness.” United States v. Galarza-Payan, 441 F.3d 885, 887

(10th Cir. 2006). Reasonableness review entails a consideration of whether the

district court correctly applied the Guidelines and whether the ultimate sentence

is reasonable in light of the factors set forth in 18 U.S.C. § 3553(a). United

States v. Kristl, 437 F.3d 1050, 1053-54 (10th Cir. 2006) (per curiam). W hen a



                                          -5-
sentence falls within the properly-calculated Guidelines range, it is “entitled to a

rebuttable presumption of reasonableness.” Galarza-Payan, 441 F.3d at 889

(quotation omitted).

      In this case, Solano-Cuesta does not challenge the district court’s

application of the Guidelines. Instead, he argues only that his twenty-four-month

sentence is unreasonable, even though it is at the bottom of the advisory

Guideline range (a substantive reasonableness claim), and that his sentence is

procedurally unreasonable because the district court failed to consider his

arguments that the § 3553(a) factors w arranted a below -Guideline sentence (a

procedural reasonableness claim). Because Solano-Cuesta’s contentions are

without merit, we affirm the district court. 1

      Solano-Cuesta’s procedural reasonableness claim is resolved by this court’s

recent decision in United States v. Ruiz-Terrazas, 477 F.3d 1196, 1199-1203

(10th Cir. 2007). Because Solano-Cuesta did not object to the “procedure by

which his sentence was determined and explained, we may reverse the district




      1
        After learning Solano-Cuesta had completed his term of incarceration, this
court issued to the parties an order to show cause why this appeal should not be
dismissed as moot. In their respective responses, the parties indicated the appeal
was not moot because Solano-Cuesta was still serving a term of supervised
release and if he w ere to prevail on his sentencing-length appeal, the district court
could provide effective relief on remand by shortening his term of supervised
release. United States v. Castro-Rocha, 323 F.3d 846, 847 n.1 (10th Cir. 2003).
For those reasons recognized by the parties, this court agrees this appeal is not
moot.

                                          -6-
court’s judgment only in the presence of plain error.” Id. at 1199. “Plain error

occurs when there is (i) error, (ii) that is plain, which (iii) affects the defendant’s

substantial rights, and which (iv) seriously affects the fairness integrity, or public

reputation of judicial proceedings.” Id. Solano-Cuesta’s procedural

reasonableness claim fails at the first step of the plain error analysis. Ruiz-

Terrazas specifically held that “a specific discussion of Section 3553(a) factors is

not required for sentences falling within the ranges suggested by the Guidelines.”

Id. at 1202. As was the case in Ruiz-Terrazas, the district court here entertained

extensive arguments relating to the § 3553(a) factors, specifically noted it had

considered Solano-Cuesta’s arguments for a below-Guidelines sentence, indicated

on the record that it had considered the § 3553(a) factors, and ultimately imposed

a sentence within the properly calculated Guidelines range. See id. 1202-03.

Thus, the process employed by the district court in imposing sentence on Solano-

Cuesta in this case was reasonable.

      For many of the same reasons he advanced before the district court in

requesting a sentence below the range set out in the Guidelines, Solano-Cuesta

asserts the sentence ultimately imposed by the district court is substantively

unreasonable. Because the district court imposed a sentence within the range set

out in the properly calculated advisory Guidelines range, the district court’s

sentence is “entitled to a rebuttable presumption of reasonableness.” Kristl, 437

F.3d at 1054. Solano-Cuesta has failed to rebut that presumption.

                                           -7-
      At their base, Solano-Cuesta’s arguments for a below-Guidelines sentence

amount to a claim that Guidelines relating to illegal reentry overemphasize his

criminal history, thereby leading to a sentence (1) more severe than necessary to

deter criminal conduct and protect the public and (2) harsher than given to

defendants with similar records convicted of other types of crimes. Solano-

Cuesta’s arguments are wrong both as a matter of fact and of law . The record in

this case reveals Solano-Cuesta has a long history of criminal activity in the form

of juvenile delinquent acts, none of which was counted in calculating his criminal

history score. As noted by the government at the sentencing hearing, this history

demonstrates Solano-Cuesta has a high likelihood of repeatedly reoffending, a

factor strongly favoring a longer sentence over a shorter one. Furthermore, this

court in Ruiz-Terrazas specifically rejected the very argument now advanced by

Solano-Cuesta, holding as follow s:

      Ruiz-Terrazas argues that use of his prior criminal history to
      calculate both his criminal history category and his offense level was
      improper double counting. . . . [T]he Guidelines expressly state in
      commentary to Section 2L1.2 that, in computing a defendant's
      criminal history category, a “conviction taken into account [in
      calculating an offense level enhancement] is not excluded from
      consideration of w hether that conviction receives criminal history
      points.” U.S.S.G. § 2L1.2 cmt. 6. And we have routinely upheld as
      reasonable the use of prior convictions to calculate both the criminal
      history category and a sentence enhancement where, as here, the
      Guidelines authorize it.




                                         -8-
2007 W L 5706034, at *6. 2



                                 C ON CLU SIO N

      For those reasons set out above, this court concludes Solano-Cuesta’s

sentence is both procedurally and substantively reasonable. Accordingly, the

sentence imposed by the United States District Court for the District of New

M exico is hereby AFFIRM ED.

                                      ENTERED FOR THE COURT



                                      M ichael R. M urphy
                                      Circuit Judge




      2
       Even setting aside Kristl’s presumption of reasonableness and considering
Solano-C uesta’s sentencing arguments anew in light of the § 3553(a) factors, w e
would still conclude the sentence imposed by the district court is reasonable.
Solano-Cuesta’s illegal reentry only a few short months after his deportation and
extensive criminal history fully support a sentence of twenty-four months’
incarceration.

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