                                                                       F I L E D
                                                                United States Court of Appeals
                                                                        Tenth Circuit
                    UNITED STATES CO URT O F APPEALS
                                                                      August 29, 2007
                                 TENTH CIRCUIT                      Elisabeth A. Shumaker
                                                                        Clerk of Court


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

               Plaintiff-Appellee,                      No. 06-3374
          v.                                         District of Kansas
 R UBEN A Y A LA -R OM ER O,                 (D.C. No. 06-CR-20089-001-KHV )

               Defendant-Appellant.



                            OR D ER AND JUDGM ENT *


Before BR ISC OE, M cKA Y, and M cCO NNELL, Circuit Judges.


      Defendant Ruben Ayala-Romero, a M exican citizen, has a lengthy criminal

history in the United States. His troubles began in Oregon in 2001, when he was

convicted of two felony drug charges and sentenced to fourteen months

imprisonment. After serving this sentence, he was deported to M exico on Sept. 6,

2002. He was deported a second time on April 4, 2006, after serving a twenty


      *
        After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination
of this appeal. See Fed. R. App. P. 34(a)(2); 10 th Cir. R. 34.1(G). This 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 This order and judgment is not
binding precedent, except under the doctrines of law of the case, res judicata, and
collateral estoppel. It may be cited, however, for its persuasive value consistent
with Fed. R. App. P. 32.1 and 10 th Cir. R. 32.1.
month sentence for three counts of felony drug charges. Less than three weeks

after this deportation, M r. Ayala-Romero illegally entered the United States

again. He w as apprehended on M ay 20, 2006, and charged “w ith illegal reentry

by a deported alien after being previously convicted of a felony,” in violation of 8

U.S.C. § 1326(a) and (b)(2). M r. Ayala-Romero pleaded guilty to the charge and

was sentenced to fifty-seven months imprisonment. He now appeals this

sentence. W e exercise jurisdiction under 28 U.S.C. § 1291.

      W e review post-Booker sentences for reasonableness. United States v.

Kristl, 437 F.3d 1050, 1054–55 (10th Cir. 2006). “R easonableness includes both

procedural and substantive components.” United States v. Cage, 451 F.3d 585,

591 (10th Cir. 2006). W e review both components— the procedure used to

calculate the length of the sentence, as well as the substantive reasonableness of

the sentence, in light of the sentencing factors articulated in 18 U.S.C. § 3553(a).

Kristl, 437 F. 3d at 1055. “[W]e review factual findings for clear error and legal

determinations de novo.” Id. at 1054.

                          A. Procedural Reasonableness

      M r. A yala-Romero argues that his sentence was procedurally unreasonable.

“In setting a procedurally reasonable sentence, a district court must calculate the

proper advisory Guidelines range and apply the factors set forth in § 3553(a).”

United States v. Atencio, 476 F.3d 1099, 1102 (10th Cir. 2007). He first argues

“that the multiplicity of ways in which his prior record was used makes the

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resulting sentence unreasonable despite the authorization of the computational

methodology by the Sentencing Guidelines.” Appellant Br. at 7. He specifically

objects to the district court’s use of his record to determine a sentence

enhancement and then again as criminal history to calculate his offense level. Id.

However, where the Guidelines permit, this Court has consistently held that a

defendant’s prior record may be used in determining both sentence enhancements

and criminal history category. 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). The district court sentenced M r. Ayala-Romero under § 2L1.2 of the

Sentencing Guidelines. R. Vol. IV, at 4-5. Application note 6 to § 2L1.2 states

that “a conviction taken into account under” the sentencing enhancement

subsection “is not excluded from consideration of whether that conviction

receives criminal history points pursuant to Chapter Four, Part A (Criminal

History).” U.S. Sentencing Guidelines M anual § 2L1.2, cmt. n.6 (2005). The

district court correctly followed the application note and thus did not err in

counting M r. Ayala-Romero’s prior criminal record in determining his criminal

history category and the sentence enhancement.

      M r. Ayala-Romero also claims that “the district court accorded undue

weight to a presumption of reasonableness and too little to the balance of the

sentencing factors under 18 U.S.C. § 3553(a).” Appellant’s Br. 9. At the




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sentencing hearing, the district court articulated its reasoning in determining M r.

Ayala-Romero’s sentence:

               I think a sentence of 57 months would be just and
        reasonable and be sufficient but not more than necessary to reflect
        the seriousness of the offense, to promote respect for the law, and
        to provide just punishment.
               And also I’m giving substantial weight to the Sentencing
        Guidelines here. I know the defendant disagrees. . . . but they are
        what they are and I know that they do serve in proposing
        uniformity and weighing the basic nature of the offense as well as
        aggravating and mitigating factors in a particular situation.

R. Vol. II, Doc. 21, at 20–21. Though the district court did give “substantial

weight” to the Sentencing Guidelines, the judge explicitly stated that he analyzed

the guidelines in light of the § 3553(a) factors. His statement is substantiated by

the reasons articulated when he gave a downward variance. The district judge

sentenced below the guideline range because of “the nature and circumstances of

the offense and the history and characteristics of the defendant pursuant to 18

U.S.C. § 3553(a)(1)” and “to avoid unwarranted sentencing disparities among

defendants (18 U.S.C. § 3553(a)(6)).” R. Vol. V, at 3. After considering both the

Guidelines and the factors set forth in § 3553(a), the district court concluded that

57 months was the proper sentence. W e have reviewed the record and find no

evidence that sentencing was procedurally unreasonable.

                          B. Substantive R easonableness

      M r. Ayala-Romero also argues that his sentence is substantively

unreasonable because 1) the district court did not take into account the disparity

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in sentencing caused by Kansas’s lack of a fast-track program, and (again) 2) the

district court gave too much weight to the Sentencing Guidelines. “A

substantively reasonable sentence ultimately reflects the gravity of the crime and

the § 3553(a) factors as applied to the case.” Atencio, 476 F.3d at 1102. W e have

reviewed the record and conclude that the sentence reflects both the gravity of the

crime and the § 3553(a) factors.

      In United States v. M artinez-Trujillo, 468 F.3d 1266 (10th Cir. 2006), this

Court rejected the argument that the sentencing disparity caused by regional fast-

track sentencing programs violated 18 U.S.C. § 3553. Id. at 1268 (“W e cannot

say that a disparity is ‘unwarranted’ within the meaning of § 3553(a)(6) when the

disparity was specifically authorized by Congress in the PROTECT Act.”). M r.

Ayala-Romero provides no persuasive arguments to change our recent precedent.

      M r. Ayala-Romero also asserts that the sentence is substantively

unreasonable because the district court gave too much weight to the Sentencing

Guidelines. For the same reasons discussed above, we find that the district court

properly considered both the Sentencing Guidelines and the § 3553(a) factors.

      As an appellate court, we do not review sentences de novo, but only for

“unreasonableness,” United States v. Booker, 543 U.S. 220, 261 (2005), which the

Supreme Court has equated with “abuse of discretion.” Rita v. United States, 127

S. Ct. 2456, 2470-71 (2007). M r. Ayala-Romero provides no reason to think that




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the district court’s sentence was an abuse of discretion, or unreasonable in light of

the statutory sentencing factors.

      The judgment of the United States District Court for the District of Kansas

is AFFIRM ED.

                                               Entered for the Court,

                                               M ichael W . M cConnell
                                               Circuit Judge




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