                                                                          F IL E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                    U N IT E D ST A T E S C O U R T O F A PP E A L S
                                                                        November 1, 2006
                                  T E N T H C IR C U IT
                                                                       Elisabeth A. Shumaker
                                                                           Clerk of Court

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

               Plaintiff - Appellee ,                       No. 06-2155
          v.                                              (D. New M exico )
 JESU S M A N U EL M O LIN A -                        (D.C. No. CR-06-242 )
 R ASC ON ,

               Defendant - Appellant .



                            O R D E R A N D JU D G M E N T *


Before T A C H A , Chief Circuit Judge , A N D ER SO N and B R O R B Y , Circuit
Judges.




      After examining the briefs and appellate record, this panel has determ ined

unanim ously that oral argum ent would not m aterially assist in the determ ination

of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered subm itted without oral argum ent.

      Defendant/appellant Jesus M anuel M olina-Rascon pled guilty to one count

of illegal reentry into the United States following deportation after conviction for


      *
       This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and 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.
an aggravated felony, in violation of 8 U.S.C. §§ 1326(a)(1), (a)(2) and (b)(2).

He was sentenced to fifty-seven months’ im prisonm ent, followed by two years of

supervised release. M olina-Rascon appeals his sentence, w hich w e affirm .




                                 BACKGROUND

      On November 20, 2005, M olina-Rascon was arrested by United States

Border Patrol agents in H idalgo County, New M exico. He adm itted that he w as a

M exican citizen, and further investigation revealed that he had been deported

twice previously, on Novem ber 4, 1996, and on M arch 18, 2003. Authorities also

discovered that, prior to his first deportation, M olina-Rascon had been convicted

in Texas of burglary of a habitation with intent to comm it sexual assault, an

aggravated felony.

      In preparation for sentencing under the United States Sentencing

Com m ission, Guidelines M anual (“USSG ”) (2005), the United States Probation

office prepared a presentence report (“PSR”). The PSR calculated M olina-

Rascon’s base offense level as eight, pursuant to USSG §2L1.2(a). It then added

a sixteen-level upward adjustm ent, pursuant to USSG §2L1.2(b)(1)(A)(ii), based

upon M olina-Rascon’s 1996 conviction for residential burglary. A three-level

reduction for acceptance of responsibility led to a total adjusted offense level of

twenty-one. The PSR calculated M olina-Rascon’s criminal history as category

IV, based upon the 1996 residential burglary conviction, a 2000 misdemeanor

                                         -2-
conviction for possession of m arijuana, and a 2000 illegal reentry conviction, for

which he was on supervised release when he was arrested on the instant offense.

A total adjusted offense level of twenty-one w ith a crim inal history category IV

yielded an advisory Guideline range of fifty-seven to seventy-one m onths.

      M olina-Rascon objected to the PSR, on the ground that his crim inal history

category over-represented the seriousness of his prior offenses and his crim inal

background. He also filed a motion for a downward departure on the ground that

his crim inal history was over-represented. W ith respect to the residential

burglary conviction, M olina-Rascon argued that the residence involved w as a

trailer house that “w as not som eone’s hom e but a place w here aliens and som e

drug addicts would sleep.” M ot. for D ownward Departure at 2, doc. 15, R. Vol. I.

He further argued he had defenses to that charge which were not presented. W ith

respect to the marijuana possession conviction, he argues he was without counsel

and, had he had counsel, “his attorney m ight have told him that there are

im m igration consequences before the defendant pled guilty” to the possession

charge. Addendum to PSR at 1, R. Vol. II. W ith respect to the reentry

conviction, for which he was on supervised release when he was arrested on the

instant offense, a fact which added two crim inal history points, M olina-Rascon

argues that supervised release had ended before he was sentenced in this case. H e

accordingly requested that the district court depart downward from the crim inal

history category IV calculated in the PSR, and instead apply criminal history

                                         -3-
category II, which would yield a sentencing range of forty-one to fifty-one

m onths.

      At the sentencing hearing, M olina-Rascon’s counsel renewed his request

for a downw ard departure, and added the following remarks:

      M r. M olina-Rascon is looking at 57 m onths at the bottom end of the
      guidelines, and basically, he was coming into this country only for
      one thing: His daughter, who was pregnant, was about to have a
      baby, and he cam e for support, cam e to support her and his grandson.
      And that’s kind of tragic, because he didn’t m ake it that far.
             So for that act, he will do alm ost five years, and I think that
      seem s to be a little stiff for the act of illegal entry. Now, I grant to
      the Court that he’s got som e history, but it is kind of spread out. One
      of his charges is about ten years old. But I think at this point I would
      defer to the Court, its judgm ent. I would ask that the Court im pose a
      reasonable sentence at the low end of the guidelines.

Tr. of Sentencing Hr’g at 3, R. Vol. III. The governm ent responded that M olina-

Rascon’s “underlying conduct seem s to have been of a fairly serious nature,” to

which the court responded, “I think so, yeah.” Id. at 4. The court then denied

M olina-Rascon’s m otion.

      The court then sentenced M olina-Rascon, with the following explanation:

            The Court has reviewed the Presentence Report factual
      findings, and I’ve considered the sentencing guideline applications
      and the factors set forth in 18 U.S.C. § 3553(a)(1) through (7). I will
      accept the defendant’s guilty plea.

Id. at 5. After recounting his offense level and crim inal history category, the

court sentenced M olina-Rascon to fifty-seven months. This appeal followed.




                                          -4-
      M olina-Rascon argues: (1) his sentence is procedurally unreasonable

because the district court failed to fully and meaningfully consider all the

sentencing factors contained in 18 U.S.C. § 3553(a) and explain the basis for its

sentence; and (2) his sentence is substantively unreasonable because the sixteen-

level increase in his base offense level is “excessively harsh” and the sentence is

too long given “his personal characteristics, the circumstances of his offense, and

the need to avoid unwarranted sentencing disparities.” Appellant’s Br. at 8.




                                   D ISC U SSIO N

      Since the Suprem e Court’s decision in United States v. Booker, 543 U.S.

220 (2005), w e review district court sentencing decisions for “reasonableness.”

Id. at 262. “Reasonableness has both procedural and substantive components.”

United States v. Cage, 451 F.3d 585, 591 (10th Cir. 2006). Thus, in assessing the

reasonableness of a sentence, “[w ]e consider w hether the district court correctly

applied the Guidelines and whether the ultim ate sentence is reasonable in light of

the factors set forth in 18 U.S.C. § 3553(a).” United States v. Sanchez-Juarez,

446 F.3d 1109, 1114 (10th Cir. 2006). M olina-Rascon argues his sentence was

both procedurally and substantively unreasonable.




                                         -5-
      I. Proced ural reasonableness

      “There 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 im posing a sentence.” Id. at 1115. 1

As we have further acknowledged, since Booker, those factors “have a new

vitality in channeling the exercise of sentencing discretion.” United States v.

Trujillo-Terrazas, 405 F.3d 814, 819 (10th Cir. 2005).



      1
       18 U.S.C. § 3553(a) instructs district courts that, in addition to the
guidelines range and Sentencing Commission policy statements,

      [a] court, in determining the particular sentence to be imposed, shall
      consider–
      (1) the nature and circumstances of the offense and the history and
      characteristics of the defendant;
      (2) the need for the sentence imposed–
             (A) to reflect the seriousness of the offense, to promote
             respect for the law, and to provide just punishment for
             the offense;
             (B) to afford adequate deterrence to criminal conduct;
             (C) to protect the public from further crimes of the
             defendant; and
             (D) to provide the defendant with needed educational or
             vocational training, medical care, or other correctional
             treatment in the most effective manner;
      (3) the kinds of sentences available;
      ....
      (6) the need to avoid unwarranted sentence disparities among
      defendants with similar records who have been found guilty of
      similar conduct; and
      (7) the need to provide restitution to any victims of the offense.

18 U.S.C. § 3553(a).

                                         -6-
      As indicated above, M olina-Rascon asked for a sentence below the advisory

guideline range because his crim inal history category, as calculated under the

guidelines, over-represented his actual crim inal history. In particular, he argued

that his prior conviction for residential burglary was trivial, compared to other

crim es of violence, and did not warrant a sixteen-level enhancem ent of his base

offense level. “W here a defendant has raised a nonfrivolous argum ent 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 judge did not rest on the guidelines alone, but considered whether the

guidelines sentence actually conform s, in the circum stances, to the statutory

factors.” Sanchez-Juarez, 446 F.3d at 1112. W e have held that such an argum ent

about the im propriety of a sixteen-level enhancem ent under USSG

§2L1.2(b)(1)(A )(ii) is “not clearly meritless.” Id. at 1117. Accordingly, we

consider whether the record reveals that the sentencing judge considered that

argum ent.

      The district court in this case referred to the § 3553(a) factors in its

sentencing decision, although not in detail. However, it did address the specific

argum ent M olina-Rascon made, and it found his prior conviction was serious, not

trivial. “W e do not require a ritualistic incantation to establish consideration of a

legal issue, nor do we dem and that the district court recite any m agic w ords to

show us that it fulfilled its responsibility to be m indful of the factor that Congress

                                           -7-
has instructed it to consider.” United States v. Lopez-Flores, 444 F.3d 1218,

1222 (10th Cir. 2006), petition for cert. filed, __ W L __ (July 7, 2006) (No. 06-

5217) (further quotation om itted). Accordingly, assum ing that M olina-Rascon’s

allegations did raise a non-frivolous argum ent that the § 3553(a) sentencing

factors warrant a below-guidelines sentence, we can discern from the record that

the sentencing judge did not “rest on the guidelines alone, but considered whether

the guideline sentence actually conform s, in the circum stances, to the statutory

factors.” Sanchez-Juarez, 446 F.3d at 1112. 2 M olina-Rascon’s sentence was

therefore procedurally reasonable.




      II. Substantive reasonableness

      “[W ]hen a sentence falls within the properly-calculated Guidelines range, it

is entitled to a rebuttable presum ption of reasonableness.” Id. at 1114 (further

quotation om itted); United States v. Kristl, 437 F.3d 1050, 1053-54 (10th Cir.

2006) (per curiam ). M olina-Rascon argues his fifty-seven m onth sentence is

“excessively long, when viewed against the other § 3553(a) factors.” A ppellant’s

Br. at 15. In particular, he alleges that the sixteen-level enhancement he received

for his prior residential burglary is “unduly harsh.” Id. He argues the prior


      2
       W e note that there is some confusion creeping into our case law
concerning what arguments can satisfy the requirement that a defendant make a
non-frivolous argument that the § 3553(a) factors warrant a below-guideline
sentence.

                                          -8-
offense is m ild, compared to other crim es of violence to which the sixteen-level

enhancement applies under USSG §2L1.2(b)(1)(A)(ii). 3 W hile we have

occasionally acknowledged that the sixteen-level enhancement is excessive given

the relatively trivial nature of the defendant’s prior conviction, see United States

v. Hernandez-Castillo, 449 F.3d 1127, 1131-32 (10th Cir. 2006), United States v.

Trujillo-Terrazas, 405 F.3d 814, 817 (10th Cir. 2005), 4 we see nothing trivial

about M olina-Rascon’s prior conviction, the circum stances of which w ere

described in the PSR as follow s:

      The victim stated the bedroom window was open for fresh air and the
      defendant entered through that window. The defendant’s sister


      3
        USSG §2L1.2(b)(1)(A)(ii) provides for a sixteen-level enhancement if the
defendant was previously deported after a conviction for a felony that was a
“crime of violence.” “Crime of violence” is defined as any of the following:
“murder, manslaughter, kidnapping, aggravated assault, forcible sex offenses,
statutory rape, sexual abuse of a minor, robbery, arson, extortion, extortionate
extension of credit, burglary of a dwelling, or any offense under federal, state, or
local law that has as an element the use, attempted use, or threatened use of
physical force against the person of another.” Id., comment. (n.1(B)(iii)).
      4
       In Hernandez-Castillo, we expressed “grave misgivings regarding the
appropriateness of th[e] 57-month sentence[,] . . . result[ing] from a sixteen-level
enhancement on account of a consensual sexual relationship [the defendant] had
with a younger girl many years ago, with parental consent, when both w ere
teenagers” for which the defendant was sentenced, in state court, as if it was a
m isdem eanor. H ernandez-C astillo, 449 F.3d at 1131. In Trujillo-Terrazas, we
noted there was a reasonable probability that, on resentencing, the defendant
would receive a lesser sentence than the one he had received, which included a
sixteen-level enhancement for a prior conviction for third degree arson where the
defendant, upset about an ex-girlfriend, threw a lighted match into the car of his
ex-girlfriend’s companion, causing $35 of damage. Trujillo-Terrazas, 405 F.3d at
819-20.

                                         -9-
      resided tw o houses aw ay from the victim and the defendant is known
      to the victim . The defendant entered the bedroom and laid in the bed
      with the victim . The victim felt the defendant’s hand on her breast
      and assum ed it was her husband, who was due to return to their
      residence. The defendant continued to fondle the victim until the
      victim realized it was not her husband and yelled for the defendant to
      leave. The defendant apologized several tim es and departed the
      residence. . . . It should be noted the defendant was intoxicated.

PSR, ¶ 21, R. Vol. II. The district court determ ined it w as a “serious” offense, a

conclusion with which we agree.

      None of M olina-Rascon’s other argum ents succeed in rebutting the

presum ptive reasonableness of the sentence imposed. W e therefore conclude it is

a reasonable sentence.




                                  C O N C L U SIO N

      For the foregoing reasons, we AFFIRM the sentence im posed in this case.

                                                ENTERED FOR THE COURT


                                                Stephen H. Anderson
                                                Circuit Judge




                                         -10-
