                                                                       FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                    UNITED STATES CO URT O F APPEALS
                                                                  October 23, 2007
                                                   Elisabeth A. Shumaker
                             TENTH CIRCUIT             Clerk of Court



 UNITED STATES OF AM ERICA,
               Plaintiff-Appellee,                       No. 06-2361
          v.                                      (D.C. No. CR-06-1253 JH)
 JOSE AGUILERA–VEGA,                                       (D .N.M .)
               Defendant-Appellant.



                            OR D ER AND JUDGM ENT *


Before BR ISC OE, M cKA Y, and M cCO NNELL, Circuit Judges.


      Defendant Jose Aguilera-Vega pled guilty to illegal reentry of a deported

alien previously convicted of an aggravated felony in violation of 8 U.S.C. § 1326

(a)(1), (a)(2), and (b)(2). He was sentenced to a seventy-seven-month term of

imprisonment, at the bottom of the applicable Sentencing Guidelines

(“Guidelines”) range. On appeal, Defendant argues that this sentence is excessive

because he only reentered the country to visit his ailing father and because his



      *
        This order and judgment is not binding precedent, except under the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 panel has
determined unanimously to honor the parties’ request for a decision on the briefs
without argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument.
1992 conviction for first-degree burglary did not warrant imposition of a sixteen-

level enhancement for crimes of violence under the Guidelines. See U.S.

Sentencing Guidelines M anual § 2L1.2(b)(1)(A) (2004).

      “[W ]e review sentencing decisions for reasonableness, which has both

procedural and substantive components.” United States v. Atencio, 476 F.3d

1099, 1102 (10th Cir. 2007). “In setting a procedurally reasonable sentence, a

district court must calculate the proper advisory Guidelines range and apply the

factors set forth in § 3553(a).” Id. “A substantively reasonable sentence

ultimately reflects the gravity of the crime and the § 3553(a) factors as applied to

the case.” Id. A lthough w e review the ultimate sentence for reasonableness, “w e

continue to review the district court’s application of the Guidelines de novo, and

we review any factual findings for clear error.” United States v. Townley, 472

F.3d 1267, 1275–76 (10th Cir. 2007), cert. denied, 127 S.Ct. 3069 (2007).

“W here the district court correctly applies the Guidelines and imposes a sentence

within the applicable G uidelines range, that sentence is entitled to a rebuttable

presumption of reasonableness.” Id. at 1276 (internal quotation marks omitted).

      Defendant appears to contest the procedural reasonableness of his sentence

by arguing that the sixteen-level “crime of violence” enhancement was not

warranted in his case. Because Defendant did not object to the calculation of the

Guidelines’ range before the district court, we review only for plain error. United

States v. Rom ero, 491 F.3d 1173, 1178 (10th Cir. 2007). “W e find plain error

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only where there is (1) error, (2) that is plain, (3) which affects substantial rights,

and (4) which seriously affects the fairness, integrity, or public reputation of

judicial proceedings.” Id. Here, we find no error in the court’s application of the

sixteen-level enhancement pursuant to Section 2L1.2(b)(1)(A) of the Guidelines.

As the Guidelines’ commentary makes clear, burglary of a dwelling is considered

a violent felony for purposes of this section. U.S.S.G. § 2L1.2 cmt. n.1(B)(ii)(II);

see also United States v. M cNack, No. 07-5034, 2007 U.S. App. LEXIS 16747, at

*4–5 (10th Cir. July 12, 2007) (“Burglary is specifically mentioned in the

Guidelines as a crime of violence.”). M oreover, the court appropriately

considered D efendant’s request for a downw ard departure, the G uidelines’

applications, and the § 3553 (a) factors, then issued a sentence it concluded was

reasonable in light of Defendant’s criminal history. W e therefore hold

Defendant’s sentence is procedurally reasonable.

      Defendant also contends that his sentence is not substantively reasonable

because his “crime of violence” enhancement was based on burglary rather than a

crime such as murder and because his reason for reentering the United States was

his father’s ill health. However, we conclude Defendant has not rebutted the

presumption of reasonableness attached to his sentence which was within the

Guidelines’ range. Given the circumstances of the case, including Defendant’s

extensive criminal history and prior conviction for illegal reentry, we are not

persuaded that a sentence at the bottom of the applicable Guidelines range was

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substantially unreasonable. Therefore, we AFFIRM Defendant’s conviction and

sentence.



                                           Entered for the Court



                                           M onroe G. M cKay
                                           Circuit Judge




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