                                                                       FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                                                                  March 6, 2008
                    UNITED STATES COURT OF APPEALS
                                                               Elisabeth A. Shumaker
                                 TENTH CIRCUIT                     Clerk of Court



 UNITED STATES OF AMERICA,

               Plaintiff - Appellee,                    No. 07-2104
          v.                                         (D. New Mexico)
 VENTURA JAVIER ESTRADA-                         (D.C. No. CR-06-1620 JB)
 RODRIGUEZ,

               Defendant - Appellant.


                            ORDER AND JUDGMENT *


Before LUCERO, HARTZ, and GORSUCH, Circuit Judges.


      Ventura Javier Estrada-Rodriguez entered a plea of guilty in the United

States District Court for the District of New Mexico to the offense of unlawful

reentry following deportation for committing an aggravated felony. See 8 U.S.C.

§ 1326(a), (b). The district court sentenced him to 46 months’ imprisonment. On




      *
       After examining the briefs and appellate record, this panel has determined
unanimously to honor the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent except under the doctrines of law of the case, res judicata, and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.
appeal Mr. Estrada-Rodriguez contends that his sentence is substantively

unreasonable. We have jurisdiction under 28 U.S.C. § 1291 and affirm.

      Under the United States Sentencing Guidelines Mr. Estrada-Rodriguez was

assigned a base offense level of 8 for unlawfully entering the United States. See

USSG § 2L1.2(a). He received a 16-level enhancement because he had been

previously deported after being convicted of a crime of violence (false

imprisonment by violence) in California. See id. § 2L1.2(b)(1)(A). After a

3-level reduction for accepting responsibility, see id. § 3E1.1, his total offense

level became 21.

      Mr. Estrada-Rodriguez’s criminal-history category under the Guidelines

was IV because he had seven criminal-history points. A conviction for

misdemeanor driving under the influence was assigned one point. See id.

§ 4A1.1(c). A conviction for felony false imprisonment was assigned three

points. See id. § 4A1.1(a). And he received two additional points because he

committed the instant offense while on probation, see USSG § 4A1.1(d), and

received a seventh point because he committed the instant offense within two

years of being released from custody on the felony sentence, see USSG

§ 4A1.1(e). The district court, however, departed downward to criminal-history

category III because Mr. Estrada-Rodriguez was “barely” in criminal-history

category IV and the “timing” of his offense had resulted in “pil[ing] these points

on.” R. Vol. III at 16. The Guidelines sentencing range was therefore 46 to 57

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months’ imprisonment, and the court imposed a 46-month sentence. On appeal

Mr. Estrada-Rodriguez argues that this sentence is substantively unreasonable in

light of the factors listed in 18 U.S.C. § 3553.

      Under United States v. Booker, 543 U.S. 220, 261 (2005), we review a

sentence for reasonableness. See Gall v. United States, 128 S. Ct. 586, 597

(2007); United States v. Smart, No. 06-6120, slip op. at 11 (10th Cir. Mar. 4,

2008). But a sentence within the Guidelines range is “presumptively reasonable.”

United States v. Kristl, 437 F.3d 1050, 1054 (10th Cir. 2006); see Rita v. United

States, 127 S. Ct. 2456, 2462 (2007). Mr. Estrada-Rodriguez has not presented

sufficient grounds for overcoming the presumption.

      Among Mr. Estrada-Rodriguez’s arguments are: (1) that unlawful reentry

is a victimless crime akin to a regulatory offense; (2) that the offense level is

based primarily on the defendant’s prior record rather than his relevant conduct;

(3) that he is being sentenced as harshly as a United States citizen who committed

a far more serious crime; and (4) that a below-Guidelines sentence can adequately

protect the public, particularly because he will be deported after serving his

sentence. These arguments are unpersuasive because they would apply to almost

anyone convicted of the same offense who had the same criminal history. They

thus amount to an attack on the Guidelines themselves, and we are unwilling to

state that the conclusions of the Sentencing Commission with regard to the mine-

run of cases are unreasonable.

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      Mr. Estrada-Rodriguez’s remaining arguments relate to his specific

situation. He states that there were extenuating circumstances surrounding his

conviction for felony false imprisonment—namely, that he had confronted the

victim because his sister had told him that the victim had repeatedly sexually

assaulted her. He also asserts that he had resided in the United States for 20 years

before being convicted of a crime and that he has always been gainfully

employed. Again we are not persuaded. Reasonable people can differ on whether

vigilante action is a proper ground for reducing a sentence; his not engaging in

criminal activity when younger is already taken into account in his criminal-

history category and the district court’s downward departure; and his long-term

gainful employment is not particularly atypical or meritorious.

      Mr. Estrada-Rodriguez’s sentence is therefore AFFIRMED.

                                      ENTERED FOR THE COURT


                                      Harris L Hartz
                                      Circuit Judge




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