                                                                      F I L E D
                                                               United States Court of Appeals
                                                                       Tenth Circuit
                 UNITED STATES COURT OF APPEALS
                                                                   November 14, 2006
                                 TENTH CIRCUIT                     Elisabeth A. Shumaker
                                                                       Clerk of Court

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

          Plaintiff-Appellee,
                                                       No. 05-3435
 v.
                                                (D.C. No. 05-CR-20049-CM )
                                                          (Kansas)
 JU A N ER NESTO M U RR IEG A -
 SANTO S,

          Defendant-Appellant.



                          ORDER AND JUDGMENT *


Before M U RPH Y, SE YM OU R, and M cCO NNELL, Circuit Judges.


      Juan Ernesto M urriega-Santos appeals his sentence of 30 months

imprisonment pursuant to his plea of guilty to illegal reentry by a deported alien

previously convicted of an aggravated felony in violation of 8 U.S.C. §§ 1326(a)

and (b)(2). W e affirm.

      In 1996, M r. M urriega-Santos was convicted of burglary in Arizona. He


      *
       After examining appellant’s brief and the appellate record, this panel has
determined unanimously that oral argument would not materially assist the
determination of this appeal. See Fed. R. App. P. 34(a)(2) and 10th Cir. R.
34.1(G). The case is therefore submitted without oral argument. This order and
judgment is not binding precedent, except under the doctrines of law of the case,
res judicata, or 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.
was deported to his native country, El Salvador, after completing his sentence for

that crime. In 1998, he was apprehended in the United States and charged with

illegal reentry after deportation for an aggravated felony. He was convicted and

sentenced to 64 months imprisonment. In 2003, following his imprisonment, he

was again deported to El Salvador. On April 6, 2005, M r. M urriega-Santos was

apprehended in Kansas City, Kansas, and indicted for the instant offense. He pled

guilty without the benefit of a plea agreement. His pre-sentence report (PSR)

calculated his total offense level as 14 and his criminal history category at V,

resulting in a guideline range of 33 to 41 months.

      At sentencing, M r. M urriega-Santos made the following arguments for

reducing his offense level and thereby his overall sentence: 1) entitlement to a

sentence in parity with other defendants sentenced in fast track districts; 2) the

8-level increase in offense level is unreasonable; 3) entitlement to an additional

1-level decrease for acceptance of responsibility; and 4) reduction in offense level

because he re-entered the United States for safety rather than for economic

reasons.

      At the sentencing hearing, the district court heard argument from the

parties and stated it had reviewed and considered all the evidence presented by

both sides. The court accepted M r. M urriega-Santos’ second argument, finding

that had the government moved for an additional level for acceptance of

responsibility under U.S.S.G. § 3E1.1(b), M r. M urriega-Santos’ offense level

                                          -2-
would have been a 13. 1 An offense level of 13 combined with a criminal history

category of V , resulted in a sentencing range of 30 to 37 months. The court

reasoned that but for the local United States Attorney’s office policy that without

a plea agreement a defendant is only entitled to a 2-level reduction for acceptance

of responsibility, M r. M urriega-Santos would have been entitled to a 3-level

reduction. The court rejected M r. M urriega-Santos’ other contentions and

sentenced him to 30 months, finding the sentence was “sufficient but not greater

than necessary to comply with the provisions of 18 U.S.C. [§] 3553(A )(2).” Rec.,

vol. III at 4.

       On appeal, M r. M urriega-Santos asks us to reconsider only the district

court’s rejection of his argument that the 8-level increase was unreasonable.

Specifically, he characterizes the issue as, “whether the eight level enhancement

automatically applied to M r. M urriega-Santos’ offense level for his prior felony

under U.S.S.G. § 2L1.2(b)(1)(C) is inherently unreasonable where that prior

felony has already been counted to increase his sentence in four separate ways.”

Aplt. Br. at 2.

       A sentence properly calculated within the advisory sentencing guidelines is

entitled to a presumption of reasonableness. United States v. Kristl, 437 F.3d



       1
       The government did not appeal the district court’s decision granting an
additional one-level downward departure for acceptance of responsibility pursuant to
U.S.S.G. § 3E1.1(b). We therefore do not consider whether the district court acted
properly in the absence of a § 3E1.1(b) motion.

                                          -3-
1050, 1054 (10th Cir. 2006). The defendant is required to show that the sentence

is unreasonable when viewed against the factors in § 3553(a). Id. On appeal, to

determine whether the sentence is reasonable we first examine whether the

guidelines were properly applied. United States v. Hernandez-C astillo, 449 F.3d

1127, 1129 (10th Cir. 2006). The district court's sentence is reviewed de novo

and the factual findings for clear error. Id. If the district court's application of

the guidelines was correct or any errors harmless, then we decide whether the

sentence was reasonable. Id. at 1129-30. “The defendant or the government may

rebut the presumption [of reasonableness] by show ing the sentence is nonetheless

unreasonable in light of the factors contained in 18 U.S.C. § 3553(a).” United

States v. Galarza-Payan, 441 F.3d 885, 889 (10th Cir. 2006).

      W e disagree with M r. M urriega-Santos’ contention that the increase levels

in § 2L1.2(b)(1)(C) are arbitrary and therefore unreasonable. Section

2L1.2(b)(1)(C) provides for a range of increases— from 4 to 16— for different

types of convictions. M r. M urriega-Santos received an 8-level increase for

previous aggravated felonies, including a prior conviction for illegal reentry after

deportation for an aggravated felony, burglary, and possession of narcotic drugs.

It is not our province to second guess the Sentencing Commission’s determination

that these levels are appropriate for purposes of setting sentencing guideline

ranges.

      The district court acknowledged the Sentencing Commission’s

                                           -4-
contemplation of the various types of convictions in determining corresponding

offense levels and chose not to depart downward based on its knowledge that M r.

M urriega-Santos had previously been convicted not only of burglary and

possession of narcotic drugs, but also of the exact same crime for which he was

being sentenced. The district court considered the seriousness of M r. M urriega-

Santos’ underlying offenses when determining that the 8-level increase was

appropriate, while also giving consideration to the guidelines as it must. See

Kristl, 437 F.3d at 1053.

      Next we address M r. M urriega-Santos’ argument regarding what he

considers a substantial overlap in the counting of his prior convictions. He

contends the guidelines unreasonably allow for both his criminal history category

and his offense level to be influenced by the same aggravated felony convictions.

However, the application note to § 2L1.2 expressly states, “[a] conviction taken

into account under subsection (b)(1) [which includes an aggravated felony] is not

excluded from consideration of w hether that conviction receives criminal history

points . . . .” U.S.S. G. § 2L1.2 cmt. n. 6. This circuit has upheld the use of prior

convictions to calculate both criminal history categories and sentence

enhancements where, like here, the guidelines permit such application. See

United States v. Alessandroni, 982 F.2d 419, 421 (10th Cir. 1992); United States

v. Florentino, 922 F.2d 1443, 1446 (10th Cir. 1990). See also United States v.

Torres-Echavarria, 129 F.3d 692, 698-99 (2d Cir. 1997) (rejecting double-

                                          -5-
counting argument as to § 2L1.2 because guidelines expressly permit such

calculation). It was not unreasonable for the district court to defer to the

guidelines.

      In sentencing M r. M urriega-Santos at the bottom of an already-reduced

guideline range, the district court took into account not only the guidelines but

also the factors set forth in § 3553. The district court also remarked that “[t]he

defendant has refused to comply with the law, the court’s directives set forth.

[The] court hopes the sentence w ill hopefully serve as a deterrent to future

criminal behavior.” R ec. vol. III, tab 33 at 32. M r. M urriega-Santos has failed to

show the district court’s sentence of 30 months was unreasonable.

      For the foregoing reasons, we AFFIRM .

                                        ENTERED FOR THE COURT

                                        Stephanie K. Seymour
                                        Circuit Judge




                                          -6-
