                                                                         FILED
                                                             United States Court of Appeals
                                                                     Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                  December 9, 2008
                                   TENTH CIRCUIT
                                                                 Elisabeth A. Shumaker
                                                                     Clerk of Court

 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,

 v.                                                     No. 07-2273
                                                         (D.N.M.)
 GABRIEL PALOMINO-                               (D.C. No. CR-07-1139-BB)
 RODRIGUEZ,

          Defendant-Appellant.


                                ORDER AND JUDGMENT *


Before LUCERO, TYMKOVICH, and HOLMES, Circuit Judges.


      Defendant-Appellant Gabriel Palomino-Rodriguez, a New Mexico federal

prisoner, pleaded guilty to a one-count indictment for illegal reentry after

deportation subsequent to a conviction for an aggravated felony in violation of 8

U.S.C. § 1326(a) and (b)(2). The Presentence Report (“PSR”) computed his

Guidelines range to be 46 to 57 months’ imprisonment. The district court



      *
             This Order and Judgment is not binding precedent, except under the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 three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument.
sentenced him to 46 months. Mr. Palomino-Rodriguez challenges the substantive

reasonableness of his sentence. 1 Exercising jurisdiction under 28 U.S.C. § 1291

and 18 U.S.C. § 3742(a), we AFFIRM.

                                I. BACKGROUND

      Mr. Palomino-Rodriguez pleaded guilty to one count of illegal reentry in

violation of 8 U.S.C. § 1326(a) and (b)(2). Given his offense level and prior

criminal history, the PSR calculated a Guidelines range of 46 to 57 months. Mr.

Palomino-Rodriguez filed a sentencing memorandum in which he sought a

downward variance from the Guidelines range. He submitted four letters on his

behalf and argued that his family circumstances justified a variance.

      At sentencing, the district court acknowledged these materials and stated:

             All right. Well, even taking that at face value, I don’t see this as
             being a case that really requires a deviation. He has difficult
             family circumstances, but . . . that is frequently the case in these
             [illegal re-entry] situations, where there is an inconvenien[ce] at
             best, and misery imposing the worst barrier.



      1
             Mr. Palomino-Rodriguez does not purport to challenge the procedural
reasonableness of his sentence, but his sentencing argument bears significant
procedural stripes in that he seems to allege that the district court did not properly
consider the sentencing factors of 18 U.S.C. § 3553(a)(2) in light of the
overarching parsimony principle of § 3553(a). See United States v. Martinez-
Barragan, 545 F.3d 894, 904 (10th Cir. 2008) (discussing the parsimony principle
embedded in 18 U.S.C. § 3553(a)). In Martinez-Barragan, we treated a similar
argument as a challenge to the procedural reasonableness of the district court’s
sentence. Id. at 904-05. For purposes of this appeal, we will accept Mr.
Palomino-Rodriguez’s characterization of his challenge but in the context of our
analysis we will address any procedural implications of his challenge.

                                             -2-
R., Vol. III, Tr. at 11 (Sentencing Hearing, dated Nov. 1, 2007).

      In justifying Mr. Palomino-Rodriguez’s sentence, the district court referred

to the length of the sentence imposed for his prior burglary offense (i.e., seven

years, with five suspended). After considering the PSR’s factual findings, United

States Sentencing Guidelines, and the 18 U.S.C. § 3553(a) factors, the district

court imposed a 46-month sentence, the bottom of the Guidelines range. Mr.

Palomino-Rodriguez now challenges the substantive reasonableness of his

sentence.

                                 II. DISCUSSION

      We review criminal sentences for reasonableness, applying a deferential

abuse of discretion standard. Gall v. United States, 128 S. Ct. 586, 594 (2007)

(“Our explanation of ‘reasonableness’ review in the Booker opinion made it

pellucidly clear that the familiar abuse-of-discretion standard of review now

applies to appellate review of sentencing decisions.”). Reasonableness has “both

procedural and substantive dimensions.” Martinez-Barragan, 545 F.3d at 898.

That is, we consider both “the length of the sentence, as well as the method by

which the sentence was calculated.” United States v. Kristl, 437 F.3d 1050, 1055

(10th Cir. 2006).

      Generally, a sentence is procedurally reasonable if the district court

accurately calculates the recommended Guidelines range, properly considers the §

3553(a) factors, and abides by the Federal Rules of Criminal Procedure. United

                                         -3-
States v. Geiner, 498 F.3d 1104, 1107 (10th Cir. 2007); see also United States v.

Alapizco-Valenzuela, __F.3d__, No. 07-3327, 2008 WL 4866609, at *3 (10th Cir.

Nov. 12, 2008) (“Procedural review asks whether the sentencing court committed

any error in calculating or explaining the sentence.”). “A sentence is

substantively reasonable when it ‘reflects the gravity of the crime and the §

3553(a) factors as applied to the case.’” Geiner, 498 F.3d at 1107 (quoting

United States v. Atencio, 476 F.3d 1099, 1102 (10th Cir. 2007), overruled in part

on other grounds by Irizarry v. United States, 128 S. Ct. 2198, 2201 n.1, 2203-04

(2008)). The district court has wide discretion in balancing the § 3553(a) factors.

See United States v. Smart, 518 F.3d 800, 808 (10th Cir. 2008) (“We may not

examine the weight a district court assigns to various § 3553(a) factors, and its

ultimate assessment of the balance between them, as a legal conclusion to be

reviewed de novo.”).

      On appeal, a within-Guidelines sentence is presumed to be substantively

reasonable. See United States v. Sells, 541 F.3d 1227, 1237 (10th Cir. 2008);

United States v. Verdin-Garcia, 516 F.3d 884, 898 (10th Cir.), cert. denied, 129

S. Ct. 161 (2008). The burden is on the defendant to rebut the presumption “by

demonstrating that the sentence is unreasonable when viewed against the other

factors delineated in § 3553(a).” Kristl, 437 F.3d at 1054. We conclude that Mr.

Palomino-Rodriguez has not satisfied this burden.

      Mr. Palomino-Rodriguez contends that he is entitled to a downward

                                         -4-
variance because his dire economic circumstances and, more specifically, his

concern about his ability to shoulder the medical expenses of his unborn child, led

him to unlawfully reenter the United States, and because there were ameliorating

circumstances relating to the prior burglary conviction. He alleges that the

district court’s failure to take these circumstances into account implies that the

district court violated the parsimony clause of 18 U.S.C. § 3553(a). “When

crafting a sentence, the district court must be guided by the ‘parsimony

principle’—that the sentence be sufficient, but not greater than necessary, to

comply with the purposes of criminal punishment, as expressed in § 3553(a)(2).”

Martinez-Barragan, 545 F.3d at 904 (internal quotation marks omitted) (quoting

18 U.S.C. § 3553(a)).

      The district court, in imposing Mr. Palomino-Rodriguez’s sentence, took

note of the § 3553(a) factors. We have no reason to believe that the district court

did not consider all of Mr. Palomino-Rodriguez’s arguments, and it was not

required to specifically address each argument to properly carry out its sentencing

duties. See United States v. Mendoza, 543 F.3d 1186, 1193 (10th Cir. 2008)

(“[W]e have generally held that ‘when the district court adheres to the advisory

Guidelines range,’ § 3553(c)(1) ‘does not impose upon district courts a duty to

engage in . . . particularized analysis.’” (quoting United States v. A.B., 529 F.3d

1275, 1289 (10th Cir., cert. denied, 129 S. Ct. 440 (2008))); see also United

States v. Ruiz-Terrazas, 477 F.3d 1196, 1203 n.4 (10th Cir.), cert. denied, 128 S.

                                         -5-
Ct. 113 (2007) (noting a lack of authority for the proposition that a judge must

specifically address a defendant’s arguments before imposing sentence).

      Here, the district court balanced Mr. Palomino-Rodriguez’s family

circumstances against his prior criminal activity and the § 3553(a) factors. In

striking this balance, the district court did not find that any deviation from the

applicable Guidelines range was justified. The court deemed Mr. Palomino-

Rodriguez’s circumstances to be similar to those of other defendants convicted of

the same offense. And it was permissible for the court to make such comparisons

in considering whether to grant a variance. See Martinez-Barragan, 545 F.3d at

900 (“[H]eartland analysis is also a legitimate part of the district court’s analysis

of whether to vary from the Guidelines.”). Mr. Palomino-Rodriguez has not

demonstrated that the district court’s sentence is unreasonable in light of the §

3553(a) factors—viz., he has not rebutted the presumption of reasonableness that

attaches to his within-Guidelines sentence. See id. at 905 (“[W]e cannot say that

Mr. Martinez-Barragan has demonstrated that his criminal history and family

circumstances, when viewed in light of § 3553(a), renders a bottom of the

Guidelines sentence an abuse of discretion.”). Accordingly, we cannot conclude

that the court abused its discretion in sentencing Mr. Palomino-Rodriguez.




                                         -6-
                                III. CONCLUSION

         For the foregoing reasons, we AFFIRM the district court’s sentencing

order.



                                               ENTERED FOR THE COURT

                                               Jerome A. Holmes
                                               Circuit Judge




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