                                                                          FILED
                                                              United States Court of Appeals
                                                                      Tenth Circuit

                    UNITED STATES COURT OF APPEALS                   April 21, 2008
                                                                  Elisabeth A. Shumaker
                                 TENTH CIRCUIT                        Clerk of Court



 UNITED STATES OF AMERICA,

               Plaintiff-Appellee,                       No. 07-2206
          v.                                             (D. of N.M)
 CHRISTOPHER SANTILLANES,                         (D.C. No. CR-07-619-BB)

               Defendant-Appellant.


                           ORDER AND JUDGMENT *


Before HENRY, Chief Judge, BALDOCK, and TYMKOVICH, Circuit Judges. **


      Christopher Santillanes pleaded guilty to possessing with intent to

distribute more than 50 grams of methamphetamine, a violation of 21 U.S.C.

§§ 841(a)(1) and (b)(1)(B). His advisory guidelines sentence was calculated by

comparing the amount of methamphetamine mixture (406.5 grams) with the actual

amount of pure methamphetamine contained in the mixture (168.9 grams), and


      *
        This order and judgment is not binding precedent except under the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 appellate record, this panel 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). Per the court’s
Order dated February 22, 2008, this cause is therefore ordered submitted without
oral argument.
then using whichever amount would result in a higher offense level. In

Santillanes’s case, the actual amount of 168.9 grams yielded a higher offense

level of 34. The guidelines calculations yielded a sentence range of 121–151

months.

      At sentencing, Santillanes requested a downward variance, arguing the

disparity between mixed and actual methamphetamine in the Guidelines produced

a sentence that was greater than necessary under the factors delineated in 18

U.S.C. § 3553(a). The district court, concluding it did not have the power to

accept Santillanes’s argument based on a mere policy disagreement with the

Guidelines, sentenced him to a term of 121 months. In light of the subsequent

Supreme Court decision in Kimbrough v. United States, 128 S. Ct. 558 (2007), we

REVERSE and REMAND for resentencing.

                                         I.

      We review a federal criminal sentence for reasonableness, giving deference

to the district court under “the familiar abuse-of-discretion standard.” Gall v.

United States, 128 S. Ct. 586, 594 (2007); see also United States v. Smart, 518

F.3d 800, 805 (10th Cir. 2008). Reasonableness “has both procedural and

substantive components.” United States v. Atencio, 476 F.3d 1099, 1102 (10th

Cir. 2007); see also Gall, 128 S. Ct. at 597.

      Santillanes argues the district court erred procedurally by failing to

adequately address his argument about the guidelines disparity between actual and

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mixed methamphetamine. After Santillanes’s sentencing, the Supreme Court

decided Kimbrough, holding that, in determining whether a particular sentence

complies with the 18 U.S.C. § 3553(a) factors, “the judge may consider the

disparity between the Guidelines’ treatment of crack and powder cocaine

offenses.” 128 S. Ct. at 564. The government, filing its brief shortly after

Kimbrough was decided, conceded we should remand for resentencing. Because

both parties agree on how we should resolve this case, we remand for

resentencing. 1

      On the substantive reasonableness side, we stress that, although we may

apply a rebuttable presumption of reasonableness to within-guidelines sentences,

“the presumption . . . applies only at the appellate level.” United States v.

Conlan, 500 F.3d 1167, 1169 (citing Rita v. United States, 127 S. Ct. 2456, 2465

(2007)). On remand, the district court’s task is to impose a sentence satisfying

the 18 U.S.C. § 3553(a) factors. The Guidelines are but one of these factors and

are thus not to be presumed reasonable at the district court level.

                                         II.

      For these reasons, we REVERSE Santillanes’s sentence and REMAND to




      1
        This disposition obviates any need for us to address Santillanes’s broader
argument challenging the actual/mixed methamphetamine disparity as
unconstitutional.

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the district court with instruction to VACATE the sentence and resentence

Santillanes.



                                                  Entered for the Court

                                                  Timothy M. Tymkovich
                                                  Circuit Judge




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