                                                                       F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                      UNITED STATES CO URT O F APPEALS
                                                                        June 26, 2007
                                   TENTH CIRCUIT                    Elisabeth A. Shumaker
                                                                        Clerk of Court

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

          Plaintiff - Appellee,
                                                         No. 06-2326
 v.                                               (D.C. No. CR-06-1244 BB)
                                                          (D .N.M .)
 PED RO OCO N -ESTR AD A ,

          Defendant - Appellant.



                              OR D ER AND JUDGM ENT *


Before KELLY, M U RPH Y, and O’BRIEN, Circuit Judges. **


      Defendant-Appellant Pedro Ocon-Estrada entered a guilty plea to one

charge of illegal reentry of an alien after deportation for a conviction of an

aggravated felony, in violation of 8 U.S.C. §§ 1326(a) and (b)(2). As a result, the

district court sentenced him to thirty months’ imprisonment and two years’

supervised release. M r. Ocon-Esrada appeals, arguing that the thirty-month



      *
        This order and judgment is not binding precedent, except under the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.
      **
         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); 10th
Cir. R. 34.1(G). The cause is therefore ordered submitted without oral argument.
sentence is unreasonable. Exercising jurisdiction under 18 U.S.C. § 3742(a) and

28 U.S.C. § 1291, we affirm.

      M r. Ocon-Estrada was arrested by a federal agent on M arch 22, 2006 and

was charged with being illegally present in the United States subsequent to

deportation for an aggravated felony conviction. He pleaded guilty to that charge

shortly thereafter.

      Prior to M r. Ocon-Estrada’s sentencing hearing, a Presentence Investigation

Report (PSR ) was prepared. The PSR revealed that, on M ay 31, 1994, M r. Ocon-

Estrada was convicted of burglary of a habitation in Texas state court, which

resulted in a suspended ten-year prison sentence. On April 13, 1995, however,

his probation was revoked and he was sentenced to five years’ imprisonment.

Consequently, the PSR calculated M r. Ocon-Estrada’s base offense-level as eight

and recommended a sixteen-level enhancement because his prior burglary

conviction qualified as an enumerated “crime of violence.” See U.S.S.G. §

2L1.2(b)(1)(A)(ii) & cmt. n.1(B)(iii). The PSR also recommended a three-level

reduction for acceptance of responsibility, resulting in a total offense-level of

twenty-one. In addition, M r. Ocon-Estrada had three criminal history points,

placing him in a criminal history category of II. A base offense-level of twenty-

one combined with a criminal history category of II resulted in a Guideline range

of forty-one to fifty-one months’ imprisonment, which the Probation Office

believed to be reasonable.

                                         -2-
      At the district court, M r. Ocon-Estrada claimed that his date of birth was

January 28, 1977 and thus he was only seventeen years old when he was

convicted of burglary in Texas. Prior to his current offense, M r. Ocon-Estrada

had been arrested on three occasions and had given his date of birth as June 3,

1976 each time. Nonetheless, the PSR adopted the 1977 date of birth and noted

his juvenile status at the time of his Texas burglary conviction.

      At the sentencing hearing, M r. Ocon-Estrada argued that the forty-one to

fifty-one month Guideline range was unreasonable because he had been convicted

of the crime of violence eleven years prior and had committed that crime when he

was a minor. He also argued that the burglary for which he was convicted in

Texas was not in fact a crime of violence. For these reasons, he requested a

sentence of ten months’ imprisonment. The district court, however, concluded

that his burglary conviction was indeed a crime of violence and thus a sixteen

level enhancement to his base offense-level was appropriate. But, it agreed with

M r. Ocon-Estrada that his juvenile status was a relevant sentencing factor and, as

a result, it found that a downward variance from the advisory Guideline range was

appropriate. II Aplt. App. (Statement of Reasons) at 3. As a result, it sentenced

him to thirty months’ imprisonment and two years’ supervised release.

      On appeal, M r. Ocon-Estrada maintains that, despite the fact it is eleven

months less than the minimum advisory Guideline range, the district court’s

sentence is unreasonable because it still includes a sixteen-level enhancement for

                                         -3-
an offense he committed as a juvenile over eleven years ago. He claims that the

sentence does not adequately compensate for the fact that he was a minor at the

time of the prior offense. Additionally, he asks us to reverse his sentence because

the district court failed to adequately explain why it sentenced him to thirty

months’ imprisonment rather than the ten months he requested.

      W hen reviewing a challenged sentence, we engage in a two-step analysis.

First, we determine whether the district court correctly calculated the Guideline

sentence, “reviewing its legal conclusions de novo and its factual findings for

clear error.” United States v. Kristl, 437 F.3d 1050, 1055 (10th Cir. 2006) (per

curiam). Second, we consider whether the ultimate sentence is reasonable in light

of the factors provided in 18 U.S.C. § 3553(a). United States v. Jarillo-Luna, 478

F.3d 1226, 1228-29 (10th Cir. 2007).

      The district court correctly calculated the Guidelines sentence. M r. Ocon-

Estrada first appears to argue that the district court improperly applied the

Guidelines because his prior Texas conviction for burglary does not constitute a

crime of violence supporting a sixteen-level enhancement to his base offense

level. This argument is unconvincing given that the definition of a “crime of

violence” found in the comments to U.S.S.G. § 2L1.2 specifically lists “burglary

of a dwelling” as a crime of violence. See U.S.S.G. § 2L1.2, cmt. n.1(B)(iii); see

also United States v. Guadardo, 40 F.3d 102 (5th Cir. 1994) (holding that

burglary of a dwelling in Texas constitutes a crime of violence). M oreover, M r.

                                         -4-
Ocon-Estrada’s alleged status as a minor does not alter the characterization of his

prior offense as a crime of violence.

      M r. Ocon-Estrada’s reliance on our unpublished decision in United States

v. Ortuno-Caballero, 187 F. App’x 814 (10th Cir. 2006), is unavailing. In that

case, we explained:

     Because defendant has not been convicted of any of the crimes
     specifically enumerated in the first portion of § 2L1.2(b)(1)(A)’s “crime
     of violence” definition, the only way he could be subjected to the 16-
     level enhancement thereunder is if his prior Colorado state conviction
     for attempted first degree criminal trespass of a dwelling “had as an
     element the use, attempted use, or threatened use of physical force
     against the person of another.”

Id. at 817 (alteration omitted). Here, burglary of a dwelling is specifically listed

as a crime of violence within U.S.S.G. § 2L1.2, cmt. n.1(B)(iii). That listing,

standing alone, renders Ortuno-Caballero inapposite.

      M r. Ocon-Estrada further contends that the district court erred in enhancing

his offense-level based on his prior conviction because U.S.S.G. § 4A1.2(d)(2)

prohibits taking a juvenile conviction into account if the defendant was released

from confinement for that offense more than five years prior to the offense for

which he is currently being sentenced. In so arguing, he conflates the rules

regarding the calculation of a criminal history category with those regarding the

calculation of an offense-level. Section 4A1.2, entitled “Definitions and

Instructions for Computing Criminal History,” provides instructions for

calculating a defendant’s criminal history points; it has nothing to do with the

                                         -5-
calculation of an offense-level and places no limitation on the enhancement of a

defendant’s offense-level for prior crimes of violence.

      Finally, M r. Ocon-Estrada argues that the district court misapplied the

Guidelines because the sixteen-level enhancement was for a crime that occurred

more than eleven years prior to his illegal reentry. This argument similarly fails

because U.S.S.G. § 2L1.2 does not require that a prior conviction for a crime of

violence be within a certain period of time from a reentry in order to support an

enhancement. See U.S.S.G. § 2L1.2, cmt. n.1(B)(viii). Thus, the district court

did not err in concluding that M r. Ocon-Estrada’s prior conviction constituted a

crime of violence and necessitated a sixteen-level enhancement.

      Turning to the reasonableness of the sentence, M r. Ocon-Estrada avers that

the thirty-month sentence is unreasonable because it still includes an enhancement

for a crime committed while a minor, and he claims the district court did not give

adequate reasons for only reducing his sentence by eleven months (from the

bottom of the Guideline range) rather than by the thirty-one months he requested.

Both arguments, however, are without merit. The district court properly

considered the fact that M r. Ocon-Estrada was a juvenile when he committed the

prior offense and, due to that fact, the court imposed a sentence eleven months

below the minimum advisory Guideline sentence in accordance with 18 U.S.C.

§ 3553(a)’s sentencing factors. III Aplt. App. at 9-10. M ore specifically, the

district court stated the following:

                                        -6-
      The Court has reviewed the factual findings and has considered the
      sentencing guideline applications. The Court has also considered the
      factors set forth in 18 United States Code, Section 3553. The Court
      finds the nature and circumstances of the offense and the history and
      characteristics of the defendant indicate that the guidelines do not
      adequately account for his juvenile status at the time of the offense.
      Therefore, although the Court has considered the seriousness of the
      offense and the seriousness of this offense in terms of reentering the
      country, and to afford adequate deterrence to criminal conduct in the
      future by this defendant and protect the public as necessary, the C ourt
      will depart downw ard three levels, and that will make this an offense
      level of 18, rather than 21, as indicated in the presentence report.
      Together with a criminal history category of 2 results in a guideline
      imprisonment range of 30 to 37 months. . . . Therefore, . . . Pedro Ocon-
      Estrada, will be committed to the custody of the Bureau of Prisons to
      serve a term of 30 months.

Id.

       Thus, for the purposes of deterrence and protecting the public and in

consideration of the seriousness of the offense (all factors listed in § 3553(a)), the

district court determined that thirty months was an appropriate sentence. In doing

so, the court exercised its discretion under United States v. Booker, 543 U.S. 220

(2005), to impose a sentence lower than that suggested by the properly calculated

Guideline range because M r. Ocon-Estrada was a minor when he committed the

offense underlying his prior conviction. The reasons given for arriving at the

thirty-month sentence were sufficient. See Jarillo-Luna, 478 F.3d at 1230. As a




                                         -7-
result, the district court imposed a procedurally and substantively reasonable

sentence.

      A FFIR ME D.



                                       Entered for the Court


                                       Paul J. Kelly, Jr.
                                       Circuit Judge




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