                                                                       FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                                                                February 17, 2010
                     UNITED STATES COURT OF APPEALS
                                                  Elisabeth A. Shumaker
                                                                   Clerk of Court
                                 TENTH CIRCUIT
                            __________________________

 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,
                                                        No. 09-2128
 v.                                           (D.Ct. No. 2:08-CR-02231-BB-1)
                                                          (D. N.M.)
 JOSE ANTONIO TORRES-LEAL,

          Defendant-Appellant.
                       ______________________________

                                ORDER AND JUDGMENT *


Before BARRETT, ANDERSON, and BRORBY, Senior 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 Antonio Torres-Leal pled guilty to one count of

illegal reentry of a deported alien in violation of 8 U.S.C. § 1326(a) and (b). He

      *
         This order and judgment is not binding precedent except under the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.
now appeals his forty-six-month sentence, arguing it is unreasonable under the 18

U.S.C. § 3553(a) sentencing factors based on the district court’s failure to

consider his mitigating personal history and characteristics involving the

circumstances of his prior burglary conviction, medical condition, and social and

cultural ties to the United States. We exercise jurisdiction pursuant to 18 U.S.C.

§ 3742(a) and 28 U.S.C. § 1291 and affirm Mr. Torres-Leal’s sentence.



                             I. Procedural Background

      On June 8, 2008, United States border patrol agents arrested Mr. Torres-

Leal in Sunland Park, New Mexico, following a report of a domestic disturbance

involving an illegal alien. At the processing center, Mr. Torres-Leal refused to

cooperate, became violent, and resisted restraint, resulting in his being sprayed

with pepper spray and then hand-cuffed. An immigration and criminal records

check revealed not only his Mexican citizenship and deportation from the United

States four months earlier, on February 11, 2008, but that he pled guilty and was

convicted of an aggravated felony for residential burglary in Texas which was

punishable by a period of imprisonment of over one year.



      A criminal complaint and information issued charging Mr. Torres-Leal with

illegal reentry of a deported alien in violation of 8 U.S.C. § 1326(a) and (b), to

which he pled guilty without the benefit of a plea agreement. Following his

                                          -2-
guilty plea, a probation officer prepared a presentence report calculating his

sentence under the applicable 2008 United States Sentencing Guidelines

(“Guidelines” or “U.S.S.G.”). The probation officer recommended applying a

base offense level of eight, pursuant to U.S.S.G. § 2L1.2(a), for unlawfully

entering the United States, and increasing his base level sixteen levels, pursuant

to § 2L1.2(b)(1)(A)(ii), because he had previously been deported following a

felony conviction for first degree habitation burglary. 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 III, resulted in a recommended Guidelines range of forty-six to fifty-

seven months imprisonment.



      In assessing Mr. Torres-Leal’s offender characteristics, the probation

officer noted: (1) his two minor children are United States citizens; (2) his wife,

who is employed at a grocery store, suffers from severe migraines for which she

sees a physician; (3) their children are asthmatic and see a physician; and (4) his

wife and children receive government assistance as well as support from his

wife’s mother and grandparents, who live next door. The probation officer

further explained Mr. Torres-Leal reported overall good health, with the

exception of a history of asthma, ulcers, and a back injury which he claimed

occurred during his arrest, and that he takes medications. With regard to his

                                         -3-
criminal history and any substance abuse, the probation officer noted Mr. Torres-

Leal had three illegal reentry convictions and was arrested two times for

operating a motorized vehicle under the influence of alcohol and four times for

possession of marijuana. Finally, the probation officer stated that after assessing

Mr. Torres-Leal’s criminal and social history, details of the instant offense, and

the factors in 18 U.S.C. § 3553, no circumstances, either individually or

collectively, took him out of the heartland of cases of similarly-situated

defendants, and, therefore, no departure or variance issues existed.



      Mr. Torres-Leal filed a sentencing memorandum acknowledging his

sentence was properly calculated but suggesting the district court should impose a

below-Guidelines-range sentence based on the § 3553(a) factors. With regard to

the nature and circumstances of his offense of illegal reentry, he explained he did

not reenter the United States with “any nefarious intent” but because he spent

most of his life in Sunland Park, New Mexico, and needed to earn money to

provide medical treatment for his elderly mother in Mexico, who is cared for by

his sisters, and for his wife and two children living in the United States. As to his

personal history and characteristics, Mr. Torres-Leal recounted his children suffer

from asthma and receive government assistance. He also stated he: (1) has lived

in the United States since he was fifteen years old; (2) reentered the United States

to make at least twice as much money as in Mexico; (3) suffers from his own

                                          -4-
health problems with asthma and stomach ulcers; and (4) recently took blood tests

indicating the possibility of hepatitis and susceptibility to infections. Finally,

with regard to the other factors, Mr. Torres-Leal stated, in part, he would not

reenter the United States, would not commit future crimes, and had learned his

lesson from prior incarcerations and his recent custodial separation from his

family.



      The government responded to Mr. Torres-Leal’s request for a downward

variance, pointing out he had ten prior misdemeanor convictions, a prior felony

conviction for burglary of a habitation, and had been deported three times – in

1995, 2001, and 2008 – none of which deterred him from committing illegal

reentry. It also pointed to his litany of additional arrests for charges never filed

or eventually dismissed and a pending warrant for his possession of a controlled

substance. It also noted he uses ten aliases and four alternate dates of birth and

discussed his belligerent and uncooperative behavior when taken into custody on

the instant offense. As to his family, it explained Mr. Torres-Leal’s mother is

cared for by her daughters, and his wife confirmed their children are healthy, she

works and receives Medicaid and financial support, and her mother and

grandparents live next door and support her. Finally, the government pointed out

Mr. Torres-Leal made the same arguments based on his medical condition and

cultural assimilation and family ties the last time he was charged with illegal

                                          -5-
reentry, and none of the circumstances claimed then or now take him out of the

heartland of cases.



      At his sentencing hearing, Mr. Torres-Leal’s arguments for a reduced

sentence centered on his claim his burglary conviction merely involved taking his

own VCR from his cousin’s home when he was only eighteen years old and his

continued claim he reentered the United States to provide financial support for his

mother, wife, and children. Prior to rendering a sentence, the district court

confirmed Mr. Torres-Leal made no challenges to the factual statements or

Guidelines calculations in the presentence report and also explicitly stated it had:

(1) read his sentencing memorandum, the government’s response, his reply, and

the presentence report’s factual findings; and (2) considered the sentencing

factors in 18 U.S.C. § 3553. As to Mr. Torres-Leal’s arguments for a below-

Guidelines-range sentence, the district court stated:

      Well, the problem I have with your story ... is that your wife disputes
      the health status of your daughters. And the reason you’re here in
      front of me is because you got into a domestic dispute with her and
      she called the immigration authorities. You still have a pending
      warrant out of El Paso regarding a controlled substance charge. You
      have several other arrests for numerous things, including controlled
      substances.

             So while I might be sympathetic normally to someone who was
      here to help their family, you have – as you did at the prison
      frequently – become belligerent and uncooperative ... with the police
      and the authorities.


                                         -6-
             I am sympathetic to the story about the burglary habitation, but
      if you had not just been deported in February and returned so
      quickly, I’d be much more sympathetic to hearing that story. You
      have been deported at least three or four times. You don’t seem to
      get the message. I don’t see any reason that I can vary based on your
      history and apparent lack of understanding, and failure to want to
      comprehend our laws.

             So I’m not going to depart from the sentencing guidelines. I
      will give you a low end sentence, but you should be aware that every
      time you’re found in this country, your sentence is going to go up.

R., Vol. 3 at 10-11. The district court then sentenced Mr. Torres-Leal at the low

end of the Guidelines range to forty-six months imprisonment.


                                    II. Discussion

      On appeal, Mr. Torres-Leal “does not challenge the procedural component

of his sentence,” but argues his sentence should be shorter, based on the 18

U.S.C. § 3553(a) sentencing factors, when considering: (1) the fact his prior

conviction for residential burglary occurred when he was only eighteen years old

and took his own VCR from his cousin’s house; (2) his and his family’s medical

conditions; and (3) his social and cultural ties to the United States. Apt. Br. at 5.

He states that “[t]hrough the pleadings and at sentencing, [he] presented factors

pursuant to § 3553 which should have warranted a downward departure from the

46 months imposed” and that the district court “did not engage in an appropriate

analysis of the § 3553 factors.” Id. at 4 (emphasis added). In support, he states

the district court: (1) focused primarily on the aggravating factors of his


                                          -7-
situation; (2) misstated those factors when it said Mr. Torres-Leal’s wife called

“immigration authorities,” when, in fact, she called the police, and mentioned he

frequently became belligerent and uncooperative in prison, which he did not; and

(3) failed to address any of the mitigating factors involving his health, his

mother’s health and his need to provide her financial support, and his close

relationship with his two daughters.



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

recommended Guidelines range based on 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 in

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

1099, 1101 n.1 (10 th Cir. 2007), overruled in part on other grounds by Irizarry v.

United States, ___ U.S. ___, 128 S. Ct. 2198, 2201 n.1 (2008). In filing his

sentencing memorandum, Mr. Torres-Leal indicated he sought “a variance” based

on the § 3553(a) sentencing factors, which we assume he intended to seek on

appeal, rather than a “downward departure,” as referenced in his brief.



      We review a sentence for reasonableness, giving deference to the district

court under an abuse of discretion standard. See United States v. Smart, 518 F.3d

800, 802, 805-06 (10 th Cir. 2008). “Our appellate review for reasonableness

                                          -8-
includes both a procedural component, encompassing the method by which a

sentence was calculated, as well as a substantive component, which relates to the

length of the resulting sentence.” Id. at 803. Here, Mr. Torres-Leal has expressly

stated he is not appealing the procedural reasonableness of his sentence and,

instead, is challenging the sufficiency of the § 3553(a) justifications relied on by

the district court, which we have said “implicates the substantive reasonableness

of the resulting sentence.” Id. at 804. In addition, if the sentence is within the

correctly-calculated Guidelines range, as Mr. Torres-Leal agrees it is here, we

apply a presumption of reasonableness. See United States v. Kristl, 437 F.3d

1050, 1054-55 (10 th Cir. 2006) (per curiam). Mr. Torres-Leal may rebut this

presumption by demonstrating the sentence is unreasonable when viewed under

the § 3553(a) factors. See id. The 18 U.S.C. § 3553(a) sentencing factors

include:

      The nature and circumstances of the offense; the history and
      characteristics of the defendant; the need for the sentence imposed to
      afford adequate deterrence, protect the public, and provide the
      defendant with needed educational or vocational training, medical
      care or other correctional treatment in the most effective manner;
      pertinent guidelines; pertinent policy statements; the need to avoid
      unwanted sentence disparities; and the need to provide restitution.

United States v. Cordova, 461 F.3d 1184, 1188-89 (10 th Cir. 2006) (quoting

United States v. Contreras-Martinez, 409 F.3d 1236, 1242 n.3 (10 th Cir. 2005)).

“The sentencing court ... is not required to consider individually each factor listed

in § 3553(a), nor is it required to recite any magic words to show us that it

                                          -9-
fulfilled its responsibility to be mindful of the factors that Congress has instructed

it to consider before issuing a sentence.” Id. at 1189 (internal quotation marks

and citation omitted). Instead, the district court must “state in open court the

reasons for its imposition of the particular sentence,” 18 U.S.C. § 3553(c), and

satisfy us that it “has considered the parties’ arguments and has a reasoned basis

for exercising [its] own legal decisionmaking authority.” Rita v. United States,

551 U.S. 338, 356 (2007).



      With these principles in mind, we turn to Mr. Torres-Leal’s appeal based on

the substantive reasonableness of his sentence. In this case, the district court

listened to the parties’ arguments at the sentencing hearing and explicitly stated it

had: (1) read Mr. Torres-Leal’s sentencing memorandum, the government’s

response, his reply, and the undisputed presentence report’s factual findings; and

(2) considered the sentencing factors in 18 U.S.C. § 3553. As a result, we are

confident it considered all of Mr. Torres-Leal’s arguments in support of a

variance. This is further evidenced by the fact the district court, in denying the

requested variance, stated it sympathized with Mr. Torres-Leal with respect to the

circumstances underlying his felony burglary conviction and the reasons for

entering this country to help his family. But it also pointed out: (1) his wife

disputed his version of their daughters’ health status; (2) he was involved in a

domestic dispute leading to the instant offense; (3) he had a pending warrant for a

                                         -10-
controlled substance charge; (4) he had several other arrests, some of which were

for controlled substances; (5) he became belligerent and uncooperative during the

instant offense; and (6) he had been deported multiple times and returned shortly

after the last deportation, demonstrating his failure to comply with or comprehend

our laws. The district court also stated it did not see any reason to vary the

sentence based on Mr. Torres-Leal’s “history.” While the district court did not

specifically address Mr. Torres-Leal’s medical condition when it addressed the

issue of whether circumstances warranted a below-Guidelines-range sentence, it is

clear it considered his argument and rejected it when it determined not to impose

a below-range sentence.



      Thus, instead of viewing only aggravating sentencing factors, as Mr.

Torres-Leal contends, a review of the record establishes the district court

considered all of the mitigating sentencing factors he raised, including his prior

burglary conviction and his family medical conditions and circumstances, and

determined, based on all of the factors considered, including his criminal history,

repeated illegal reentries, and deterrence issues, that a sentence at the low end of

the Guidelines range was reasonable under the circumstances. In so doing, the

district court sufficiently stated in open court the reasons for its imposition of his

sentence under 18 U.S.C. § 3553(c), satisfying us it “considered the parties’

arguments and ha[d] a reasoned basis for exercising [its] own legal

                                          -11-
decisionmaking authority.” Id.



      We further note the reentry of an ex-felon into this country is considered a

serious offense for which Congress has imposed a statutory maximum sentence of

twenty years. See 8 U.S.C. § 1326(b)(2). As the district court indicated, Mr.

Torres-Leal illegally entered this country following at least three previous

deportations and specifically reentered and was arrested in this country only four

months after his last deportation, indicating a need to provide adequate

deterrence. In turn, Mr. Torres-Leal has not demonstrated his history and

characteristics, including his criminal history and family medical conditions and

circumstances, are sufficiently compelling for the purpose of making his forty-

six-month sentence unreasonable, and, therefore, he has not rebutted the

presumption his sentence is reasonable in light of the sentencing factors in

§ 3553(a). His failure to rebut this presumption is not materially aided by the fact

the district court misstated Mr. Torres-Leal’s wife called “immigration

authorities,” when, in fact, she called the police, or by its statement he frequently

became belligerent and uncooperative in prison, which Mr. Torres-Leal contests.




                                         -12-
                         III. Conclusion

For these reasons, we AFFIRM Mr. Torres-Leal’s sentence.

                             Entered by the Court:

                             WADE BRORBY
                             United States Circuit Judge




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