                                                                          FILED
                                                               United States Court of Appeals
                                                                       Tenth Circuit

                    UNITED STATES COURT OF APPEALS                   March 10, 2008
                                                                   Elisabeth A. Shumaker
                                 TENTH CIRCUIT                         Clerk of Court


 UNITED STATES OF AMERICA,

               Plaintiff-Appellee,                       No. 05-2392
          v.                                             (D. of N.M.)
 GABRIEL DELGADO,                                 (D.C. No. CR-05-1870-JP)

               Defendant-Appellant.


                           ORDER AND JUDGMENT *


Before HARTZ, EBEL, and TYMKOVICH, Circuit Judges.


      Gabriel Delgado pleaded guilty to illegally reentering the United States in

violation of 8 U.S.C. §§ 1326(a)(1) and (2). Based on the offense level of 21 and

criminal history of III, Delgado fell within a sentencing range of 46 to 57 months

under the United States Sentencing Guidelines (USSG). Delgado asked the court

to sentence him below the guidelines range, arguing the proposed sentence of 46

months was unreasonable in part because his prior conviction was relatively

minor in comparison to other potential prior convictions that produce the same



      *
        This order and judgment is not binding precedent except under the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.
guidelines range. The district court denied Delgado’s request and sentenced him

to 46 months in prison. Delgado timely appealed the procedural and substantive

reasonableness of his sentence.

      Having jurisdiction under 18 U.S.C. § 3742, we AFFIRM.

                                  I. Background

      Delgado pleaded guilty to one court of illegally reentering the United States

after having been previously deported. The government’s Presentence Report

(PSR) revealed two prior convictions. First, in 1998 Delgado was convicted of

attempted possession of marijuana for sale and sentenced to two years

imprisonment in Arizona. Second, in 2000 Delgado was convicted of making a

false claim to citizenship, for which he served 107 days imprisonment in New

Mexico and was subsequently deported.

      The PSR accordingly calculated a base offense level of eight and a 16-level

enhancement for prior deportation subsequent to a conviction for a drug

trafficking offense for which the sentence imposed exceeded 13 months. See

USSG § 2L1.2(b)(1)(A)(I). After a downward adjustment for acceptance of

responsibility, the PSR arrived at a total offense level of 21.

      At sentencing Delgado objected to the reasonableness of the guidelines

sentence range. Delgado argued the imposition of a 16-level enhancement was

unreasonable:




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      Surely, a 16-level bump . . . cannot be a just and fair sentence under
      the guidelines. . . . Were [Delgado] to have committed a murder, he
      would be getting a 16-level bump. Were he to be committing rapes,
      he would get a 16-level bump. To say that his criminal history would
      be the same as those that commit those crimes would be turning a
      blind eye to what the actual conduct is.


R. Vol. IV at 5, 6. He did not, however, suggest any specific lower sentence as

reasonable.

      The government defended the guidelines sentence range as reasonable and

objected to a sentence below the guidelines as unreasonable under the 18 U.S.C.

§ 3553(a) factors. The district court “considered the sentencing guideline

applications and the factors under” § 3553(a) and imposed a sentence at the

bottom end of the guidelines range. Id. at 8. The district court concluded by

saying,

      This is not an easy case, and I do think that the sentence is a long
      sentence, although it’s the bottom of the guidelines range. Although
      the guidelines are no longer mandatory, the Court of Appeals has told
      the sentencing judges that they are normally to abide by the guideline
      ranges except for extraordinary circumstances, and I don’t see that to
      apply in this case, is the reason I’ve chosen to stick with the
      guidelines, even though I think it is a very, very hard sentence.


Id. at 9–10.

                                   II. Analysis

      On appeal, Delgado makes both a procedural and substantive challenge to

his sentence.


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      A. Procedural Reasonableness

      Delgado first argues the district court committed plain error by “applying

an incorrect standard” to his request for a sentence below the guidelines range.

Aplt. Br. 5. Specifically, Delgado argues that the district court effectively

imposed a mandatory guideline sentence even though after United States v.

Booker the sentencing guidelines are only advisory. 543 U.S. 220, 245 (2005).

He claims the district court ran afoul of Booker because it “felt constrained to

impose the 46-month sentence because it thought Mr. Delgado had to show

‘extraordinary circumstances’ to justify a non-guidelines sentence.” Aplt. Br. 5.

      As Delgado concedes, he did not raise this argument at sentencing, so we

review only for plain error. “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.” United States v. Ruiz-Terrazas, 477 F.3d 1196, 1199 (10th Cir.

2007). Mandatory application of the sentencing guidelines constitutes “non-

constitutional Booker error.” Gonzalez-Huerta, 403 F.3d 727, 732 (10th Cir.

2005) (en banc). Under the fourth prong of plain error when the error is non-

constitutional, as in this case, a defendant must make a “demanding” showing that

allowing the error to stand would be “particularly egregious” and would constitute

a “miscarriage of justice.” Id. at 736, 737 (internal quotation omitted); see also




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United States v. Dowlin, 408 F.3d 647, 671 (10th Cir. 2005); United States v.

Trujillo-Terrazas, 405 F.3d 814, 820 (10th Cir. 2005).

      For purposes of this appeal we assume, without deciding, Delgado can

satisfy the first three prongs of plain error analysis. See United States v. Goode,

483 F.3d 676, 682 (10th Cir. 2007) (assuming first three elements of plain error

while addressing the fourth prong); see also United States v. Cotton, 535 U.S.

625, 632–33 (2002) (assuming third prong of plain error and reaching the fourth

prong); Gonzalez-Huerta, 403 F.3d at 736 (same); United States v. Jackson, 327

F.3d 273, 305 (4th Cir. 2003) (collecting cases that dispose of plain error solely

on the third or fourth prong). But we will not “notice the forfeited error” unless

the fairness, integrity, or public reputation of the judiciary is affected by the plain

error. United States v. Barrett, 496 F.3d 1079, 1094 n.6 (10th Cir. 2007) (internal

quotation omitted).

      Delgado fails to persuade us this case would satisfy the fourth prong of

plain error. Delgado must demonstrate that a failure to correct the error (1) would

be “particularly egregious” and (2) would result in a “miscarriage of justice.”

Gonzalez-Huerta, 403 F.3d at 736 (internal citation omitted). We cannot say the

district court’s decision, absent extraordinary circumstances, to sentence Delgado

at the bottom end of the applicable guidelines range is either particularly

egregious or results in a miscarriage of justice.




                                          -5-
      By all measures, this is a routine case. While Delgado was subject to a

sentencing enhancement, more than ample facts support the enhanced sentence at

the bottom of the range. For one, Delgado’s prior imprisonment for trafficking

127 pounds of marijuana easily satisfies the guidelines factor for applying the 16-

level enhancement. For that crime, he was imprisoned for two years, 11 months

more than required to satisfy the guidelines enhancement provision of 13 months.

See USSC § 2L1.2(b)(1)(A)(i).

      In addition, this was not Delgado’s first illegal reentry. He had previously

served prison time for falsely claiming citizenship, a disregard for the law he

repeated when arrested for the crime at issue in this appeal. The application of a

46-month sentence, without more, does not offend justice. Even if the district

court incorrectly believed it needed substantial justification to reduce the

guidelines sentence, Delgado has failed to “present[] a compelling case that

objective consideration of the § 3553(a) factors warrants a departure . . . from the

sentence suggested by the Guidelines.” Trujillo-Terrazas, 405 F.3d at 821. The

district court ultimately considered, but rejected, Delgado’s arguments for a

sentence below the guidelines range, properly recognizing “the guidelines are no

longer mandatory” and choosing “to stick with the guidelines.” R. Vol. IV at




                                         -6-
9–10. We thus do not conclude the sentence imposed is particularly egregious or

represents a miscarriage of justice. 1

      In short, the district court did not commit plain error in sentencing

Delgado.

      B. Substantive Reasonableness

      Delgado also challenges the substantive reasonableness of his sentence.

We review the district court’s sentence for reasonableness in light of the

§ 3553(a) sentencing factors. United States v. Kristl, 437 F.3d 1050, 1053 (10th

Cir. 2006). The district court has significant discretion in sentencing, and our

review for reasonableness, regardless of whether the sentence falls inside or

outside the advisory guidelines, is a review for abuse of discretion. Gall v.

United States, 128 S. Ct. 586, 597 (2007); Rita v. United States, 127 S. Ct. 2456,

2457 (2007).

      The district court sentenced Delgado within the guidelines range. Delgado

does not claim the range was improperly calculated. Our binding precedent holds

that “a sentence that is properly calculated under the Guidelines is entitled to a

rebuttable presumption of reasonableness.” Kristl, 437 F.3d at 1054; United

States v. McComb, ___F.3d___ No. 07-5003, 2007 WL 4393142, *3 (10th Cir.


      1
        This case is readily distinguishable from United States v. Andrews, 447
F.3d 806, 812 (10th Cir. 2006), where we found plain error on the fourth prong
because the sentencing court “imposed a significantly higher sentence on remand
under a direct order from this court to stay within the then-mandatory guidelines.”

                                         -7-
Dec. 18, 2007) (citing Rita, 127 S. Ct. at 2459). Nevertheless, the presumption

of reasonableness “is a deferential standard that either the defendant or the

government may rebut by demonstrating that the sentence is unreasonable when

viewed against the other factors delineated in § 3553(a).” Kristl, 437 F.3d at

1054.

        We do not find any abuse of discretion in the district court’s sentencing of

Delgado within the guidelines range. Although Delgado passingly mentions the

§ 3553(a) factors (“[w]hen these factors are considered, the unreasonable length

of the sentence is clear,” Aplt. Br. at 12), the heart of his appeal mounts a policy

attack on the applicable guidelines enhancement provision. See Kimbrough v.

United States, 128 S. Ct. 558, 574–75 (2007). At sentencing, Delgado made the

well-worn argument against USSG § 2L1.2, claiming “individuals with very

different criminal histories nonetheless receive the same sentence.” Aplt. Br. 13.

The district court considered, and rejected this argument based on the facts of this

case. Because Delgado fails to explain how the § 3553(a) factors support a

sentence below the guidelines, we are not persuaded that the circumstances of

Delgado’s sentence are special, nor “special enough that, in light of § 3553(a),

they require a sentence lower than the [sentencing] the Guidelines provide.” Rita,

127 S. Ct. 2470. The facts of this case do not fall “outside the ‘heartland’ to

which the Commission intends individual Guidelines to apply.” Rita, 127 S. Ct.

at 2465.

                                          -8-
      Delgado’s argument at sentencing, and on appeal, amounts to a

disagreement with the policy considerations of the guidelines § 2L1.2

enhancement provision. If the district court would have sentenced below the

guidelines “based solely on the judge’s view that the Guidelines range fails

properly to reflect § 3553(a) considerations,” as suggested by Delgado, then

“closer review may be in order.” Kimbrough, 128 S. Ct. at 575 (internal

quotation omitted). Because the district court rejected the argument and

sentenced within the guidelines range, no such review is necessary in this case.

      Even if a lower sentence may have been reasonable, the district court’s

decision to sentence Delgado to 46 months is not necessarily unreasonable. See

United States v. Begay, 470 F.3d 964, 975 (10th Cir. 2006) (“In any given case

there could be a range of reasonable sentences that includes sentences both within

and outside the Guidelines range.”), cert. granted in part, No. 06-11543, 2007

WL 1579420 (Sept. 25, 2007). Delgado fails to rebut the presumption of

reasonableness of his sentence within the guidelines range. We therefore cannot

conclude the district court abused its discretion in sentencing him.

                                  III. Conclusion

      For the foregoing reasons, we AFFIRM Delgado’s sentence.

                                                    Entered for the Court

                                                    Timothy M. Tymkovich
                                                    Circuit Judge


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