                                                                       FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                                                                  March 4, 2009
                     UNITED STATES COURT OF APPEALS
                                                               Elisabeth A. Shumaker
                                 TENTH CIRCUIT                     Clerk of Court
                            __________________________

 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,
                                                         No. 08-1280
 v.                                           (D.Ct. No. 1:08-CR-00036-LTB-1)
                                                          (D. Colo.)
 JOSE ANAEL PINTO-PADILLA,

          Defendant-Appellant.
                        ____________________________

                                ORDER AND JUDGMENT *


Before BARRETT, ANDERSON, and BRORBY, Circuit Judges.



      After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist 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 Jose Anael Pinto-Padilla pled guilty to one count of

illegal re-entry of a deported alien following a felony conviction, in violation of 8

      *
         This order and judgment is not binding precedent except under the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.
U.S.C. § 1326(a) and (b)(1). He now appeals his fifty-seven-month sentence,

arguing it is procedurally and substantively unreasonable under the 18 U.S.C.

§ 3553(a) sentencing factors due to the over-representation of his criminal

history. We exercise jurisdiction pursuant to 18 U.S.C. § 3742(a) and 28 U.S.C.

§ 1291 and affirm Mr. Pinto-Padilla’s sentence.



                        I. Factual and Procedural Background

      In his plea agreement to the instant offense, Mr. Pinto-Padilla stipulated to

the following facts: He is a citizen of Honduras, who was first arrested by

authorities in Colorado Springs, Colorado, on or about November 2, 2004, and

convicted in the El Paso County District Court of “Felony Menacing – Real or

Simulated Weapon.” Following his conviction, he was deported on July 7, 2005.

He re-entered the United States on May 20, 2006, and was again deported on

September 8, 2006. On November 6, 2006, Mr. Pinto-Padilla again re-entered the

United States, where he was found on February 27, 2007. On January 9, 2008, he

was interviewed by a Bureau of Immigration and Customs Enforcement agent and

admitted to not being a United States citizen, having previously been deported,

and having re-entered the United States without the permission of appropriate

government officials.



      On May 16, 2008, Mr. Pinto-Padilla pled guilty to one count of illegal re-

                                         -2-
entry of a deported alien in violation of 8 U.S.C. § 1326(a) and (b)(1). In

exchange for his guilty plea, the government agreed to recommend the maximum

reduction in his offense level for acceptance of responsibility and a sentence at

the bottom of the applicable United States Sentencing Guidelines (“Guidelines” or

“U.S.S.G.”) range. The plea agreement also noted the parties’ possible

disagreement over whether Mr. Pinto-Padilla’s criminal history should include his

felony conviction for criminal impersonation and Mr. Pinto-Padilla’s intent to

seek a variant sentence or downward departure for over-representation of his

criminal history, should it include that conviction.



      Following Mr. Pinto-Padilla’s guilty plea, a probation officer prepared a

presentence report calculating his sentence under the applicable 2007 Guidelines.

The probation officer set his base offense level at eight, pursuant to U.S.S.G.

§ 2L1.2(a), and increased his base level sixteen levels, pursuant to

§ 2L1.2(b)(1)(A)(ii), which applies to crimes of violence, because he had

previously been deported following his prior conviction for “Felony Menacing –

Real/Simulated Weapon and Assault 3 – Know/Reckless Cause Injury” which

involved an incident in which Mr. Pinto-Padilla stabbed two individuals. The

probation officer also recommended a three-level offense reduction for acceptance

of responsibility, for a total offense level of twenty-one, which, together with his

criminal history category of IV, resulted in a recommended Guidelines range of

                                         -3-
fifty-seven to seventy-one months imprisonment.



      In calculating Mr. Pinto-Padilla’s criminal history category, the probation

officer included three points for his prior felony conviction for criminal

impersonation to gain a benefit. The probation officer noted court records

verified the criminal impersonation charge stemmed from a residential

disturbance call investigated by police, where they encountered Mr. Pinto-Padilla

and asked for identification, to which he responded by providing them with a

Mexican driver’s license with an alias. However, after his true identity was

discovered and officers learned he had an outstanding warrant for his arrest and a

permanent restraining order against him, he was taken into custody, pled guilty to

the felony charge of criminal impersonation to gain a benefit, and received a

fifteen-month sentence and mandatory parole of one year.



      Neither party objected to the presentence report. However, Mr. Pinto-

Padilla filed a “Motion For Variance Or Downward Departure,” requesting the

district court “vary or depart” for an adjusted criminal history category of III,

pursuant to U.S.S.G. § 4A1.3, based on his claim his conviction for criminal

impersonation caused his criminal history to be over-represented. The probation

officer responded by stating no downward departure was warranted.




                                          -4-
      At the beginning of the sentencing hearing, the district court noted it had

reviewed the presentence report “in the light of 18 U.S.C. Section 3553(a)” and

then questioned Mr. Pinto-Padilla’s counsel concerning the defense’s pending

motion:

      Court:       Now, ... .you have reviewed the Presentence Report with
                   your client ... [and] have filed no objection to the
                   advisory Guideline range, correct?

      [Counsel]:   That is correct, your Honor.

      Court:       You have also filed a motion styled “Motion for
                   Variance or Downward Departure.” As I read that
                   motion it rests upon Guideline Section 4A1.3, in which
                   you assert that the advisory Criminal History Category
                   Level should be III rather than IV, based on over-
                   representation; which is I think correctly construed as a
                   motion for a downward departure rather than a variant
                   sentence. Would you agree?

      [Counsel]:   I do agree, your Honor.

      Court:       Okay. Do you want to be heard further on that
                   question?

      [Counsel]:   ... Your Honor, my position on that is based on the
                   factual basis of that charge for criminal impersonation.
                   And I don’t think anyone would disagree with me, but
                   according to probation the facts in that case consist of
                   Mr. Pinto[-Padilla] basically being contacted in his
                   home by the police, and he shows them his ID from
                   Mexico, which apparently was not his correct ID.

                   It wasn’t a situation where he went and tried to ... use an
                   ID to cash a check or ... defraud somebody out of some
                   money....

      Court:       It could be construed as interfering with a law

                                         -5-
                     enforcement function.

      [Counsel]:     ... [I]t was something that he did in response to contact
                     by the government, and I just would ask the Court to
                     consider that and consider that it could be construed as
                     over-representation of his criminal history.

      Court:         Well, I certainly have discretion to consider that. As I
                     just said, it cuts two ways, and the way that I just looked
                     at it, it cuts in terms of an interference with a law
                     enforcement function ... [even though] it’s not
                     something that involves overt violence.

R., Vol. 2 at 2-4.


      Following this colloquy, the district court explained: (1) § 4A1.3(b)(1) 1

provides for a downward departure if the defendant’s criminal history category

substantially over-represents the seriousness of his criminal history or likelihood

he will commit other crimes; (2) the language of the Guidelines provision uses the

word “substantially” and focuses on a defendant’s entire criminal history; and (3)

that its decision on whether to depart under that Guidelines provision was

“discretionary.” It then discussed Mr. Pinto-Padilla’s criminal history, including:

(1) the fact that within a one-year period he was deported two times; (2) he

sustained two felony convictions; and (3) his conviction for criminal

impersonation to gain a benefit involved “the presentation of the false

identification to a law enforcement officer to avoid his detection [of] being in this


      1
        The sentencing transcript incorrectly cites the Guidelines section at issue
as § “4A1.3(2)(b)(a).”

                                           -6-
country illegally.” Id. at 5. The district court then stated:

             I cannot, in light of the criminal history reflected regarding
      Mr. Pinto[-Padilla], conclude that this criminal history substantially
      over-represents the seriousness of his criminal history or the
      likelihood that he will commit further future offenses. I just don’t
      think that you have met your burden in that respect.

             And [government counsel] ... is recommending a sentence at
      the bottom of the Guideline range, which range is undisputed to be
      57 to 71 months.

             ....

             Having had the benefit of reviewing the Presentence Report,
      particularly in light of [government counsel’s] recommendation, I
      will tell you that my inclination is to follow that recommendation
      under the analysis that would entail under 18 U.S.C. Section 3553(a).

Id. at 5-6. After providing Mr. Pinto-Padilla an opportunity to address the court,

the district court found “no reason to depart from the Guideline range,” and

imposed a sentence of fifty-seven months imprisonment, which is at the bottom of

the Guidelines range of fifty-seven to seventy-one months imprisonment.



                                    II. Discussion

      On appeal, Mr. Pinto-Padilla simply frames the issue as: “Was Defendant’s

sentence for Illegal Re-entry After Deportation Following a Felony Conviction

reasonable?” Apt. Br. at 1. In support, he states that his criminal history

category over-represented his criminal history and the “District Court’s analysis

of this issue led to both procedural and substantive unreasonableness because of


                                          -7-
[its] failure to consider the § 3553(a) factors.” Id. While Mr. Pinto-Padilla

acknowledges his conviction for criminal impersonation resulted from him

showing police officers a Mexican driver’s license with an alias, he argues the

district court’s statement that the offense could be interpreted as interference with

law enforcement “loosely fits the definition of the crime” under the relevant

Colorado statute, § 18-5-113(1)(e). He also argues no evidence shows he

possessed any requisite mental intent to “gain a benefit,” and that the record

contains no information on the circumstances of his guilty plea to that particular

conviction. For these reasons, he suggests his criminal history category of IV was

over-represented and his fifty-seven-month sentence is unreasonably long. In

making his argument, Mr. Pinto-Padilla asserts his sentence is procedurally

unreasonable based on his claim the over-representation of his criminal history

should have been reflected in the district court’s analysis of the § 3553(a) factors

and his contention the district court somehow committed a “misapplication of the

§ 3553(a) factors.” He also generally claims his sentence is “substantively

unreasonable” under the applicable § 3553(a) factors.



      We begin our discussion by clarifying that a sentence above or below the

recommended Guidelines range based on an application of Chapters Four or Five

of the Guidelines is referred to as a “departure,” while a sentence above or below

the recommended Guidelines range through application of the sentencing factors

                                         -8-
in 18 U.S.C. § 3553(a) is called a “variance.” United States v. Atencio, 476 F.3d

1099, 1101 n.1 (10 th Cir. 2007). As the district court indicated and trial counsel

agreed, regardless of how Mr. Pinto-Padilla styled his sentencing motion, he was

arguing for a downward departure by explicit reference to Chapter 4 of the

Guidelines when he asserted over-representation of his criminal history under

U.S.S.G. § 4A1.3. In his motion, Mr. Pinto-Padilla made no mention of the 18

U.S.C. § 3553(a) factors, which are applied in situations involving a variance. To

the extent Mr. Pinto-Padilla is still arguing for a downward departure, which the

district court expressly denied, we lack “jurisdiction ... to review a district court’s

discretionary decision to deny a motion for downward departure on the ground

that a defendant’s circumstances do not warrant the departure ... unless the court

unambiguously states that it lacks such discretion,” which is not the situation

here. United States v. Sierra-Castillo, 405 F.3d 932, 936 (10 th Cir. 2005).



      However, even if we lack jurisdiction to review the denial of Mr. Pinto-

Padilla’s downward departure request, we retain jurisdiction to review his

sentence for reasonableness under the § 3553(a) factors, taking into account the

defendant’s asserted grounds for departure when conducting a reasonableness

review. See United States v. Chavez-Diaz, 444 F.3d 1223, 1229 (10 th Cir. 2006).

“Our appellate review for reasonableness includes both a procedural component,

encompassing the method by which a sentence was calculated, as well as a

                                          -9-
substantive component, which relates to the length of the resulting sentence.”

United States v. Smart, 518 F.3d 800, 803 (10 th Cir. 2008).



      In determining whether the district court properly applied the Guidelines in

calculating a sentence, we generally review its legal conclusions de novo and its

factual findings for clear error. See United States v. Kristl, 437 F.3d 1050, 1054

(10th Cir. 2006) (per curiam). However, in this case, because Mr. Pinto-Padilla

did not specifically object to the procedural reasonableness of his sentence before

the district court, we review his claim of procedural unreasonableness only for

plain error. See United States v. Romero, 491 F.3d 1173, 1176-77 (10 th Cir.),

cert. denied, 128 S. Ct. 319 (2007). While we look to see whether the district

court properly applied the Guidelines in calculating a sentence to ascertain its

procedural reasonableness, “[i]n Gall, the Supreme Court identified ‘failing to

consider the § 3553(a) factors’ and ‘failing to adequately explain the chosen

sentence’ as forms of procedural error” as well. Smart, 518 F.3d at 803 (quoting

Gall v. United States, ___U.S. ___, 128 S. Ct. 586, 597 (2007)).



      On the other hand, “[a] challenge to the sufficiency of the § 3553(a)

justifications relied on by the district court implicates the substantive

reasonableness of the resulting sentence.” Smart, 518 F.3d at 804. We do not

require a defendant to object to the substantive reasonableness of his sentence to

                                         -10-
preserve the issue on appeal and, instead, review the length of his sentence for an

abuse of discretion. See Smart, 518 F.3d at 805-06. If the sentence is within the

correctly-calculated Guidelines range, we may apply a presumption of

reasonableness. See Kristl, 437 F.3d at 1054-55. The defendant or the

government may rebut this presumption by demonstrating the sentence is

unreasonable when viewed under the § 3553(a) factors. See id. The § 3553(a)

factors include not only “the nature of the offense,” but the “characteristics of the

defendant, as well as the need for the sentence to reflect the seriousness of the

crime” and “to provide adequate deterrence ....” Kristl, 437 F.3d at 1053.



      With these principles in mind, we turn to Mr. Pinto-Padilla’s appeal. In

challenging his criminal history category, Mr. Pinto-Padilla is essentially asking,

for the first time on appeal, that we consider the underlying facts of his prior

felony conviction for criminal impersonation to determine the procedural and

substantive reasonableness of his sentence. He does so by stating the record lacks

both proof of his intent in committing the crime as well as the circumstances

underlying his guilty plea. However, it is clear he previously pled guilty to and

was convicted of “Criminal Impersonation [to] Gain a Benefit,” which, as counsel

conceded at the sentencing hearing and now on appeal, involved his showing

officers a false ID when they contacted him at his home. Under Colorado law, the

statute under which he was convicted states, “[a] person commits criminal

                                         -11-
impersonation if he knowingly assumes a false or fictitious identity or capacity,

and in such identity or capacity he ... [d]oes any other act with intent to

unlawfully gain a benefit for himself or another or to injure or defraud another.”

Colo. Rev. Stat. § 18-5-113(1)(e) (emphasis added). Thus, it is evident he pled

guilty to the statutory charge of knowingly assuming a false or fictitious identity

with the intent to unlawfully gain a benefit. Under these circumstances, we need

not make any determination of his intent in committing this offense, as Mr. Pinto-

Padilla requests, and conclude the district court did not commit any error in

considering his prior conviction in calculating his sentence. We also will not

consider his claim that the record contains no information on the circumstances of

his guilty plea. 2 For these reasons, we cannot say the district court committed

plain error in considering Mr. Pinto-Padilla’s conviction of criminal

impersonation in calculating his sentence. Moreover, the district court’s

      2
         When considering whether to apply a prior offense in calculating a
sentence, courts generally employ a categorical approach, looking only to the fact
of conviction and the statutory definition or elements of the prior offense when
that statute is unambiguous. See United States v. Hernandez-Rodriguez, 388 F.3d
779, 782-83 (10 th Cir. 2004) (relying on Taylor v. United States, 495 U.S. 575,
602 (1990)). This approach avoids re-litigating prior convictions and includes
instances, like here, where a defendant pleads guilty to the prior offense at issue.
See generally Shepard v. United States, 544 U.S. 13, 18, 26 (2005). Even when
the statute is ambiguous or generic, the court is limited to only additionally
considering “the terms of the charging document, the terms of a plea agreement or
transcript of the colloquy between [the] judge and defendant in which the factual
basis for the plea was confirmed by the defendant, or to some comparable judicial
record of this information.” Id. Without any specific reference to the record, Mr.
Pinto-Padilla’s cursory assertion regarding the circumstances of his guilty plea is
insufficient to warrant our consideration.

                                          -12-
additional characterization of that offense as interfering with law enforcement

does not change our conclusion. It is clear it used that characterization to note

the seriousness of his prior crime after defense counsel tried to diminish it in

comparison to the use of fake identification to cash a check or defraud someone

out of money.



      As to the other procedural reasonableness considerations, Mr. Pinto-Padilla

did not raise any specific argument before the district court based on the

§ 3553(a) factors. In turn, the district court explicitly stated it considered the

§ 3553(a) factors and more than adequately explained its reasons for imposing the

chosen sentence by articulating the entirety of Mr. Pinto-Padilla’s criminal

history on which it relied in calculating his sentence. While brief, it befitted the

circumstances and argument presented. For these reasons, we cannot discern any

form of procedural error or that Mr. Pinto-Padilla’s sentence was otherwise

improperly calculated. Thus, we conclude Mr. Pinto-Padilla’s sentence is within

the correctly-calculated Guidelines range, to which we may apply a presumption

of reasonableness.



      Mr. Pinto-Padilla must rebut this presumption by demonstrating his

sentence is substantively unreasonable in light of the sentencing factors in

§ 3553(a). However, Mr. Pinto-Padilla has not demonstrated his criminal history

                                          -13-
has been over-represented for the purpose of rebutting this presumption. As

previously noted, he pled guilty to and was convicted of felony criminal

impersonation to gain a benefit, which is clearly relevant in assessing his criminal

history, as are his other offenses, including his conviction for felony menacing,

which included assault with a weapon – very serious conduct constituting a crime

of violence under § 2L1.2(b)(1)(A)(ii) – to which Mr. Pinto-Padilla did not object

in calculating his criminal history category. In addition, the instant offense of re-

entry of an ex-felon into this country is considered a very serious offense for

which Congress has imposed a statutory maximum sentence of ten years, or

twenty years if one of the prior felonies involves an aggravated felony. See 8

U.S.C. § 1326(b)(2). We further note, as did the district court, that Mr. Pinto-

Padilla illegally re-entered this country on two previous occasions, implicating a

need to provide adequate deterrence. Under these circumstances, we cannot say

Mr. Pinto-Padilla has sufficiently rebutted the presumption his sentence is

substantively reasonable or that the district court otherwise abused its discretion

in imposing a sentence of fifty-seven months imprisonment, which is at the

bottom of the applicable Guidelines range.




                                         -14-
                         III. Conclusion

For these reasons, we AFFIRM Mr. Pinto-Padilla’s sentence.

                              Entered by the Court:


                              WADE BRORBY
                              United States Circuit Judge




                               -15-
