                                                                       F I L E D
                                                                United States Court of Appeals
                                                                        Tenth Circuit
                      UNITED STATES CO URT O F APPEALS
                                                                      March 22, 2007
                                 TENTH CIRCUIT                     Elisabeth A. Shumaker
                            __________________________                 Clerk of Court

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

          Plaintiff-Appellee,
                                                        No. 06-2271
 v.                                              (D.Ct. No. CR-05-2768 JC)
                                                         (D . N.M .)
 GIDEO N M ICH AEL R OBLES,

          Defendant-Appellant.
                        ____________________________

                                OR D ER AND JUDGM ENT *


Before TA CH A, Chief Circuit Judge, and BARRETT and BROR BY, Senior
Circuit Judges.




      After examining the briefs and 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); 10th Cir. R. 34.1.9(G). The case is

therefore ordered submitted without oral argument.



      Appellant Gideon M ichael Robles pled guilty to one count of assault with a



      *
         This order and judgment is not binding precedent except under the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.
dangerous weapon within Indian country in violation of 18 U.S.C. §§ 113(a)(3)

and 1153. He now appeals his sentence, contending the district court erred in

failing to sentence him below the applicable United States Sentencing Guidelines

(“Guidelines” or “U.S.S.G.”) range, based on certain sentencing factors under 18

U.S.C. § 3553(a) which he raised during sentencing. W e exercise jurisdiction

pursuant to 28 U.S.C. § 1291 and affirm M r. Robles’s conviction and sentence.



                              I. Factual Background

      On December 11, 2005, M r. Robles and a fifteen-year-old companion

attended a late-night party at a home located on the Navajo Indian Reservation in

Church Rock, New M exico. W itness accounts differed on what occurred that

evening, but all agreed that during an altercation between Aaron Begay and the

fifteen-year-old, M r. Robles intervened by picking up a knife from the kitchen

counter and inflicting a half-inch-deep stab wound in M r. Begay’s chest. 1 A local

medical center treated M r. Begay and released him six days later.



      1
         M r. Begay and his sister claimed M r. Robles also intentionally stabbed
her in the side before he stabbed M r. Begay. In contrast, M r. Robles, who was
drinking that night, claimed he accidently stabbed M s. Begay when he passed
through the sliding glass door when leaving the house and that he believed he
stabbed her after he stabbed M r. Begay, but admitted he did not remember the
sequence of events. Regardless of which version of events is correct, M r. Robles
admitted he stabbed both of them and ultimately pled guilty to assaulting M r.
Begay with a dangerous weapon with intent to do bodily harm. Counts in the
indictment against M r. Robles for assault on M s. Begay with a deadly weapon and
for causing her serious bodily injury were dropped as part of the plea agreement.

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                             II. Procedural Background

      Following a four-count indictment, M r. Robles pled guilty to one count of

assaulting M r. Begay with a dangerous w eapon with intent to do bodily harm in

violation of 18 U.S.C. §§ 113(a)(3) and 1153, and in return, the government

agreed to dismiss the remaining counts against him and recommend a sentence at

the low end of the Guidelines range. Following M r. Robles’s guilty plea and

dismissal of the other counts against him, a probation officer prepared a

presentence report calculating his base offense level at fourteen, but

recommending a four-level increase because M r. Robles used a dangerous weapon

in committing the crime, and an additional three-level increase because M r.

Begay sustained bodily injuries. After reducing M r. Robles’s offense level by

three levels for acceptance of responsibility, the probation officer calculated his

total offense level at eighteen, which, together with his criminal history category

of I, resulted in a Guidelines range of twenty-seven to thirty-three months

imprisonment.



      M r. Robles, through counsel, filed a sentencing memorandum in which he

did not oppose the presentence report, including the Guidelines range

calculations, but argued a twelve-month sentence, rather than a twenty-seven- to

thirty-three-month Guidelines-range sentence, was warranted based on the

sentencing factors in 18 U.S.C. § 3553(a). In support of his argument, M r. Robles

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asked the district court to consider the nature and circumstances of his offense,

including the fact he was attempting to defend the fifteen-year-old from an armed

attack; his lack of a prior criminal record, which showed a reduced risk of

recidivism; and his history and characteristics, including a childhood spent in a

series of foster homes, his young age of eighteen, his lack of, and need for,

educational and vocational training, and his stable relationship with the woman

bearing his child.



      At the sentencing hearing, M r. Robles’s counsel again did not object to the

sentencing range calculations in the presentence report but reiterated the same

arguments in support of a below -Guidelines-range sentence. Follow ing these

arguments and M r. Robles’s statement regarding his remorse for his conduct, the

district court stated it had “reviewed the presentence report factual findings and ...

considered the sentencing guideline applications and the factors set forth in 18

United States Code Section 3553(a)(1) through (7).” It acknowledged the

Guidelines range was twenty-seven to thirty-three months imprisonment and

further noted M r. Robles assaulted the victim and caused him bodily harm. It

then sentenced M r. Robles at the low end of the Guidelines range to twenty-seven

months imprisonment followed by three years supervised release. M r. Robles and

his counsel raised no contemporaneous objection to the district court’s calculation

or explanation of his sentence and a judgment was entered on August 30, 2006.

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                                   III. Discussion

      On appeal, M r. Robles argues the district court erred by: 1) failing to

meaningfully consider his meritorious arguments under 18 U.S.C. § 3553(a) for a

below-Guidelines sentence; 2) failing to give adequate weight to the non-

Guidelines § 3553(a) factors; 3) failing to explain its reasons for the sentence

imposed; and 4) unreasonably imposing a sentence greater than necessary to

achieve the sentencing goals in § 3553(a). In support, he contends the district

court only “perfunctorily” stated it considered the § 3553(a) factors, but did not

address the application of those factors nor explain why a “27-month sentence ...

was necessary to achieve the purposes of sentencing.” He also suggests the

compelling circumstances previously raised warrant a below-Guidelines sentence

based on § 3553(a). In so doing, he argues the record is inadequate to determine

whether the sentence is “greater than necessary to achieve the statutory

purposes.”



      W e review for reasonableness the sentence imposed and have determined a

presumption of reasonableness attaches to a sentence, like here, which is w ithin

the correctly-calculated Guidelines range. See United States v. Kristl, 437 F.3d

1050, 1053-54 (10th Cir. 2006) (per curiam). W e require reasonableness in tw o

respects – “the length of the sentence, as well as the method by which the

sentence was calculated.” Id. at 1055 (emphasis omitted). This involves an

                                         -5-
assessment of the procedural and substantive reasonableness of the sentence. See

United States v. Cage, 451 F.3d 585, 591 (10th Cir. 2006). If the district court

“properly considers the relevant Guidelines range and sentences the defendant

within that range, the sentence is presumptively reasonable,” but “[t]he defendant

may rebut this presumption by demonstrating that the sentence is unreasonable in

light of the other sentencing factors laid out in § 3553(a).” Kristl, 437 F.3d at

1055. In determining whether the district court properly considered the

applicable G uidelines range, we review its legal conclusions de novo and its

factual findings for clear error. Id. at 1054.



      W e have held “[t]here 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 imposing a

sentence.” United States v. Sanchez-Juarez, 446 F.3d 1109, 1115 (10th Cir.

2006). W hen the district court allows a defendant to make an argument that any

of these factors warrant a below -Guidelines-range sentence and then imposes a

sentence at the low end of the Guidelines range, we have said this “may fairly be

read as a functional rejection of [his] arguments and a denial of his request for a

below-Guidelines sentence.” Id. W hen addressing a district court’s consideration

of the § 3553(a) factors, “[w ]e do not require a ritualistic incantation to establish

consideration of a legal issue, nor do we demand that the district court recite any

                                           -6-
magic words to show us that it fulfilled its responsibility to be mindful of the

factors that Congress has instructed it to consider.” United States v. Lopez-

Flores, 444 F.3d 1218, 1222 (10th Cir. 2006) (quotation marks and citation

omitted), petition for cert. filed (Jul. 7, 2006) (No. 06-5217). W hile “we will not

demand that the district court recite any magic words” to support its conclusions,

neither will we “presume the district court weighed a party’s arguments in light of

the § 3553(a) factors where the record provides no indication that it did so and no

clear explanation of the sentence imposed.” Sanchez-Juarez, 446 F.3d at 1115-16

(quotation marks and citations omitted).

      [W ]here a defendant has raised a nonfrivolous argument that the
      § 3553(a) factors warrant 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
      conforms, in the circumstances, to the statutory factors.

Id. at 1117 (quotation marks, alteration, and citation omitted).



      W ith these principles in mind, we note the district court in this case

explicitly considered the factors in § 3553(a). 2 Thus, the record provides a clear

      2
          18 U.S.C. § 3553(a) provides, in part, that the court 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;
                                                                       (continued...)

                                           -7-
“indication” it considered these requisite factors, together with M r. Robles’s

argument for a below-G uidelines-range sentence. See Sanchez-Juarez, 446 F.3d

at 1115-16. W hen the district court imposed a sentence at the low end of the

Guidelines range, it was “a functional rejection of [his] arguments and a denial of

his request for a below-Guidelines sentence.” Id. at 1115. M oreover, we note

M r. Robles and his counsel raised no contemporaneous objection to the district

court’s calculation or explanation of his sentence. Finally, because the district

court properly considered the relevant Guidelines range and sentenced M r. Robles

within that range, his sentence is presumptively reasonable and he clearly has not

rebutted this presumption by demonstrating the sentence is unreasonable in light

of the sentencing factors in § 3553(a). See Kristl, 437 F.3d at 1055. In other

words, he has not shown that the circumstances delineated by him, when viewed

in light of the § 3553(a) factors, are sufficient to transform his presumptively

reasonable sentence into one that is unreasonable.



      2
       (...continued)
             (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.

                                         -8-
                          IV. Conclusion

For these reasons, we A FFIRM M r. Robles’s conviction and sentence.



                              Entered by the C ourt:

                              W ADE BRO RBY
                              United States Circuit Judge




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