                                                                             FILED
                                                                United States Court of Appeals
                                                                        Tenth Circuit

                                                                        May 27, 2011
                     UNITED STATES COURT OF APPEALS
                                                                    Elisabeth A. Shumaker
                                  TENTH CIRCUIT                         Clerk of Court



 UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

           v.                                               No. 10-3232
                                                (D. Ct. No. 10-CR-10007-001-WEB)
 MIGUEL ARAGON-CONCHA,                                        (D. Kan.)

                Defendant - Appellant.


                             ORDER AND JUDGMENT *


Before BRISCOE, Chief Circuit Judge, TACHA, Senior Circuit Judge, and
O’BRIEN, Circuit Judge.


       After examining the briefs and the appellate record, this three-judge panel

has determined unanimously that oral argument would not be of material

assistance in the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th

Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument.

       Defendant-appellant Miguel Aragon-Concha, a native and citizen of

Mexico, pleaded guilty to one count of re-entry after deportation subsequent to a

conviction for an aggravated felony in violation of 8 U.S.C. § 1326(a)(1) and


       *
        This order and judgment is not binding precedent except under the doctrines of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.
(b)(2). He was sentenced to 70 months’ imprisonment. Mr. Aragon-Concha now

appeals his sentence. We take jurisdiction under 28 U.S.C. § 1291 and AFFIRM.

                               I. BACKGROUND

      On May 7, 2010, Mr. Aragon-Concha pleaded guilty, pursuant to a plea

agreement, to one count of re-entry after deportation subsequent to a conviction

for an aggravated felony. The United States Probation Office prepared a

Presentence Investigation Report (“PSR”) which determined that under the United

States Sentencing Guidelines (“U.S.S.G.” or “Guidelines”) Mr. Aragon-Concha’s

total offense level was 21 and his criminal history category was V. Based on

these calculations, the PSR recommended a sentencing range of 70 to 87 months’

imprisonment. Mr. Aragon-Concha filed several objections to the PSR and

requested a downward departure based on his alleged cultural assimilation as well

as a variance under the 18 U.S.C. § 3553(a) factors.

      At the sentencing hearing, the district court denied Mr. Aragon-Concha’s

requests for a downward departure and variance. In a subsequent sentencing

memorandum and order, the court more fully explained its reasoning for both

denials. The court noted that the provision allowing for a departure based upon

cultural assimilation was merely a proposed amendment and was not yet part of

the Guidelines. Moreover, the court concluded that even if the provision were in

effect, Mr. Aragon-Concha “d[id] not qualify for this departure” because of his

extensive criminal history. Additionally, the district court denied the requested

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variance because after considering the § 3553 factors, it found that “a sentence of

70 months, which represents the low end of the guideline range, is an appropriate

sentence in this case.”

      On appeal, Mr. Aragon-Concha contends that the district court improperly

denied his requests for a downward departure and a variance. We review

sentencing decisions for an abuse of discretion, asking whether the sentence is

reasonable. Gall v. United States, 552 U.S. 38, 41 (2007).

                                 II. DISCUSSION

      First, Mr. Aragon-Concha argues that the district court erred in denying his

request for a downward departure based on cultural assimilation. He contends

that district court was required to announce the three-part test outlined in then-

proposed amendment U.S.S.G. § 2L1.2 Application Note 8 at sentencing, as well

as to analyze independently in its written order each of the seven factors set forth

in the proposed amendment.

      As Mr. Aragon-Concha concedes, however, the provision allowing for the

departure at issue was not in effect at the time of his sentencing. Accordingly,

the district court did not err by failing to apply it. See U.S.S.G. § 1B1.11.

Moreover, the district court did not abuse its discretion in concluding that Mr.

Aragon-Concha’s extensive criminal history—which includes convictions for

evading arrests and reckless driving, terroristic threat, aggravated assault,

unauthorized use of a motor vehicle, distribution of cocaine, and possession with

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the intent to distribute—also precluded application of the departure provision.

See U.S.S.G. § 2L1.2, cmt. n.8 (“In determining whether such a departure is

appropriate, the court should consider, among other things, . . . the seriousness of

the defendant’s criminal history . . . .”).

      Second, Mr. Aragon-Concha maintains that the district court erred in

refusing to grant a variance because “all of the § 3553 factors should be viewed

through the cultural assimilation filter advanced in his argument for a downward

departure.” It is well-settled law, however, that “the district court has a wide

range of discretion in striking a balance among the 18 U.S.C. § 3553(a) factors,”

United States v. Gambino-Zavala, 539 F.3d 1221, 1232 (10th Cir. 2008), and that

when—as is the case here—the sentence imposed falls within the correctly

calculated Guidelines range, it is presumed to be reasonable on appeal. United

States v. Kristl, 437 F.3d 1050, 1054 (10th Cir. 2006). Mr. Aragon-Concha has

not rebutted the presumption of reasonableness attached to his within-Guidelines

sentence. Indeed, based on Mr. Aragon-Concha’s substantial criminal history, the

district court’s conclusion that the need to protect the public outweighed any

unique circumstances of his case is a thoroughly reasonable balancing of the §

3553(a) factors.




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                              III. CONCLUSION

     For the foregoing reasons, we find that the district court did not err in

sentencing Mr. Aragon-Concha and AFFIRM his sentence.



                                      ENTERED FOR THE COURT,



                                      Deanell Reece Tacha
                                      Senior Circuit Judge




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