                                                                      F I L E D
                                                                United States Court of Appeals
                                                                        Tenth Circuit
                      UNITED STATES CO URT O F APPEALS
                                                                      August 11, 2006
                                   TENTH CIRCUIT                   Elisabeth A. Shumaker
                                                                       Clerk of Court



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

          Plaintiff-Appellee,

 v.                                                     No. 05-2143
                                                   (D.C. No. CR-04-2313)
 M A N U EL SER NA -V A LD IV IEZO,                    (New M exico)
 also know n as M anuel Gonzalez, also
 known as M anuel Cerna-Valdiviezo,

          Defendant-Appellant.




                                OR D ER AND JUDGM ENT *


Before M U RPH Y, SE YM OU R, and M cCO NNELL, Circuit Judges.


      M anuel Serna-Valdiviezo appeals the district court’s imposition of a

sentence of 57 months for illegally reentering the United States after his

deportation following a conviction for an aggravated felony. W e vacate his




      *
       After examining appellant’s brief and the appellate record, this panel has
determined unanimously that oral argument would not materially assist the
determination of this appeal. See Fed. R. App. P. 34(a)(2) and 10th Cir. R.
34.1(G). The case is therefore submitted without oral argument. This order and
judgment is not binding precedent, except under the doctrines of law of the case,
res judicata, or collateral estoppel. The court generally disfavors the citation of
orders and judgments; nevertheless, an order and judgment may be cited under the
terms and conditions of 10th Cir. R. 36.3.
sentence and remand for resentencing.

       On August 4, 2004, United States Border Patrol agents in Sunland Park,

New M exico encountered M r. Serna-Valdiviezo, a citizen of M exico. His name

was entered into an automated identification system, which reported that he had

been deported only a week earlier on July 27. The deportation followed a felony

conviction for the transporting of illegal aliens. M r. Serna-Valdiviezo was

arrested and pled guilty to one count of illegally reentering the United States in

violation of 8 U.S.C. § 1326(b)(2). The United States Probation Office prepared

a presentence report (PSR ), calculating a sentencing range based on the United

States Sentencing Guidelines. The PSR assigned a base offense level of eight for

illegal reentry and recommended a sixteen-level enhancement pursuant to

U.S.S.G. § 2L1.2(b)(1)(A)(vii) for M r. Serna-Valdiviezo’s prior conviction for

transporting illegal aliens in violation of 8 U.S.C. § 1324. The PSR further

recommended a three-level downward adjustment for acceptance of responsibility.

The resulting offense level was 21, which w hen combined with a criminal history

category of IV , resulted in a guidelines sentencing range of 57 to 71 months.

Rec. vol. II.

       In response to the PSR, M r. Serna-Valdiviezo filed a sentencing

memorandum requesting an increase of thirteen, rather than sixteen levels for his

previous conviction. He argued that, under United States v. Booker, 543 U.S. 220

(2005), the district court was required to consider the statutory factors listed in 18

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U.S.C. § 3553(a), and that those factors warranted a sentence below the

guidelines range. Specifically, he argued that he and his wife had been “traveling

in tandem and transporting two illegal aliens each,” an offense for which he had

been sentenced to a mere fourteen months imprisonment. Rec. vol. I, tab 20 at 2.

He further argued that unlike other convictions requiring the sixteen-level

increase under the guidelines, his conviction involved “no use nor threatened use

of physical force against a person. No one was injured or threatened with bodily

harm.” Id.

      At the sentencing hearing, counsel for M r. Serna-Valdiviezo reasserted his

request for a lower offense level, arguing that the facts underlying his conviction

did not support the sixteen-level increase and that the lower offense level would

place M r. Serna-Valdiviezo within the range of 46 to 57 months, the range

typically assigned to illegal aliens who plead guilty pursuant to the “fast track”

program. Rec. vol. III at 2-3. Specifically, counsel requested a sentence of 46

months. Id. at 3. The court then asked if M r. Serna-Valdiviezo himself had

anything to add. He stated that he had only reentered the U nited States because

his parents were ill, “and in M exico you can’t make enough money to pay for the

medication.” Id.

      Following M r. Serna-Valdiviezo’s statement, the district court stated:

            All right. The Court has reviewed the Presentence Report
      factual findings and has considered the Sentencing Guideline
      applications. I find the offense level to be 21; the criminal history

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      category is IV ; the guideline imprisonment range is 57 to 71 months.
      The Court notes the defendant reentered the United States after
      previously being deported.

Id. The court gave M r. Serna-V aldiviezo a sentence of 57 months.

      On appeal, M r. Serna-Valdiviezo contends that contrary to the Supreme

Court’s decision in United States v. Booker, 543 U.S. 220 (2005), the district

court applied the guidelines in a mandatory fashion. He further contends his

sentence is procedurally unreasonable because the district court failed to consider

his arguments that the § 3553(a) factors warrant a lower offense level, and failed

to state its reasons for the sentence imposed.

      W e first consider M r. Serna-V aldiviezo’s claim that the district court

applied the guidelines to his case in a mandatory fashion in violation of Booker.

In support of his claim, M r. Serna-Valdiviezo points to the court’s failure to

articulate its reasons for the sentence imposed or to reference the § 3553(a)

factors. Although we do conclude that this failure requires resentencing, it is not

because we view it as evidence that the district court applied the guidelines in a

mandatory fashion. The Supreme Court’s decision in Booker was issued on

January 12, 2005. M r. Serna-Valdiviezo’s sentencing took place almost four

months later on M ay 5. W e find it highly implausible that by M ay a district court

was unaware of the holding in Booker regarding the advisory nature of the

guidelines. This is especially true where M r. Serna-Valdiviezo referenced Booker

in his sentencing memorandum. W e decline to conclude the court treated the

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guidelines as mandatory absent a clear indication in the record to the contrary.

      W e now turn to M r. Serna-V aldiviezo’s claim that his sentence is

unreasonable because the district court failed to consider his arguments that a

lower sentence was warranted and did not state its reasons for the sentence

imposed. In United States v. Sanchez-Juarez, we stated that

      [f]ollowing Booker, we review sentences imposed by the district
      court for reasonableness. In conducting this review, we consider
      whether the district court correctly applied the Guidelines and
      whether the ultimate sentence is reasonable in light of the factors set
      forth in 18 U.S.C. § 3553(a). W e have held that when a sentence
      falls within the properly-calculated Guidelines range, it is entitled to
      a rebuttable presumption of reasonableness.

446 F.3d 1109, 1114 (10th Cir. 2006) (citations and internal quotation marks

omitted). As in the case here, the defendant in Sanchez-Juarez did not challenge

the district court’s application of the guidelines. Rather he argued that (1) the

presumption of reasonableness did not apply to his sentence even though it fell on

the low end of the guidelines range; and (2) his sentence was procedurally

unreasonable because the district court failed to state reasons for the sentence it

imposed and failed to consider his arguments that the § 3553(a) factors w arrant a

sentence below the applicable guidelines range. Id. at 1115. M oreover, as here,

the defendant in Sanchez-Juarez argued that his prior alien smuggling conviction

contrasted sharply with the usual convictions to w hich the sixteen-level increase

applies because those convictions typically involve crimes of violence or repeated

serious drug offenses. Id. at 1112.

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      As we stated in Sanchez-Juarez, “[t]here is no question that, in addition to

guiding our reasonableness review on appeal, the sentencing factors set forth in

18 U.S.C. § 3553(a) must be considered by the district court itself when imposing

a sentence. Indeed, after Booker, these factors have a new vitality in channeling

the exercise of sentencing discretion.” Id. at 1115 (citation and internal quotation

mark omitted). M r. Serna-Valdiviezo argued in a sentencing memorandum and

before the district court at his sentencing hearing that a number of factors warrant

a sentence below the guidelines. As we noted in Sanchez-Juarez, the fact that the

court allowed M r. Serna-Valdiviezo to make these arguments suggests that the

sentence it ultimately imposed at the low end of the guideline range “may fairly

be read as a functional rejection of [his] arguments and a denial of his request for

a below-Guidelines sentence.” Id. W e pointed out, however, that

      the court stated no reasons for the sentence it imposed, other than
      first noting that it had reviewed the PSR’s factual findings and
      considered the Guidelines applications, and then citing [M r. Serna-
      Valdiviezo’s] offense conduct. The record indicates that at no time
      during the sentencing hearing or when imposing the sentence did the
      district court refer to the § 3553(a) factors.
Id.

      W hile w e will not demand that a district court recite any particular words to

support its conclusions, neither will we “presume the district court weighed a

party’s arguments in light of the §3553(a) factors where the record provides no

indication that it did so and no clear explanation of the sentence imposed. . . . [I]t

is not consistent with our appellate function simply to assume what the district

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court’s reasons might be in such cases.” Id. at 1115-16 (citations and internal

quotation marks omitted). W e determined accordingly that the presumption of

reasonableness adhering to a sentence within the guidelines range does not relieve

the district court of the procedural requirement to “state reasons for its rejection

of a party’s nonfrivolous motion” for a below-guideline sentence as required by §

3553(c). Id. at 1117. Thus we concluded that when, as in Sanchez-Juarez and

here,

        a defendant has raised a nonfrivolous argument that the § 3553(a)
        factors w arrant a below-Guidelines sentence and has expressly
        requested such a sentence, we must be able to discern from the
        record that the sentencing did not rest on the guidelines alone, but . .
        . considered whether the guidelines sentence actually conforms, in
        the circumstances, to the statutory factors.

Id. (citations and internal quotation marks omitted).

        Like in Sanchez-Juarez, the argument M r. Serna-Valdiviezo raised at

sentencing and reiterates on appeal concerning the incongruity between the actual

conduct involved in his prior alien smuggling conviction and the sixteen-level

increase suggested by the guidelines

        is not clearly meritless. D istrict courts have imposed below-
        Guidelines sentences because of such incongruities in other cases.
        See, e.g., United States v. Austin, 2006 W L 305462, at *8 (S.D.N.Y.
        Feb. 6, 2006); United States v. Santos, 406 F. Supp. 2d 320, 328
        (S.D.N.Y. 2005); United States v. Zapata-Trevino, 378 F. Supp. 2d
        1321, 1327 (D.N.M . 2005); United States v. Galvez-Barrios, 355 F.
        Supp. 2d 958, 963 (E.D. W is. 2005). Furthermore, this court has
        indicated, when remanding a case based on nonconstitutional Booker
        error, that where § 2L1.2 imposed a 16-level enhancement but the
        actual offense conduct was ‘relatively trivial,’ there was a

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      ‘reasonable probability’ that a district court exercising its discretion
      in light of the § 3553(a) factors would impose a below-Guidelines
      sentence. [United States v.] Trujillo-Terrazas, 405 F.3d [814,] 819
      [10th Cir. 2005].

Id. at 1117-18.

      Having identified one argument in this case that is not clearly meritless and

was raised at sentencing, we REVERSE and REM AND to the district court with

instructions to vacate M r. Serna-Valdiviezo’s sentence and to resentence him after

considering his request that he receive a sentence below the applicable guidelines

range. In doing so, we in no way express an opinion regarding what the ultimate

sentence should or should not be.

                                               ENTERED FOR THE COURT

                                               Stephanie K. Seymour
                                               Circuit Judge




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