                                                                        FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                                                                February 2, 2012
                    UNITED STATES COURT OF APPEALS
                                                 Elisabeth A. Shumaker
                                                                   Clerk of Court
                                 TENTH CIRCUIT



 UNITED STATES OF AMERICA,

               Plaintiff - Appellee,                    No. 11-1448
          v.                                            (D. Colorado)
 MATIAS ZAVALA-GARCIA,                       (D.C. No. 1:10-CR-00557-DME-1)

               Defendant - Appellant.


                            ORDER AND JUDGMENT *


Before PORFILIO, ANDERSON, and BRORBY, Senior Circuit Judges.




      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); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.

      Defendant and appellant Matias Zavala-Garcia pled guilty to an indictment

charging him with illegal re-entry into the United States after deportation



      *
       This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and 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.
subsequent to an aggravated felony conviction, in violation of 8 U.S.C. § 1326(a)

and (b)(2). He was sentenced to seventy-seven months’ imprisonment. Arguing

his sentence is procedurally and substantively unreasonable, Mr. Zavala-Garcia

appeals his sentence, which we affirm.



                                 BACKGROUND

        Between February 3, 1998, and his deportation to Mexico on March 24,

2005, Mr. Zavala-Garcia developed a lengthy criminal history, including pleading

guilty to operating a vehicle without insurance; while under the age of 21, driving

a vehicle with a blood alcohol count of .02-.05; carrying a concealed weapon and

trespass regarding an auto with the intent to commit a crime; underage

possession/consumption of alcohol; failure to display proof of insurance and

driving while alcohol-impaired; failure to display proof of insurance and driving

without a driver’s license; and possession with intent to distribute a Scheduled II

controlled substance. As indicated, he was deported to Mexico on March 24,

2005.

        On October 14, 2010, personnel from the United States Department of

Homeland Security discovered Mr. Zavala-Garcia at the Boulder County Justice

Center in Boulder, Colorado. On that same date, he was apparently charged with

knowing or reckless child abuse. Immigration officers interviewed and

fingerprinted Mr. Zavala-Garcia and read him his Miranda rights. He decided at

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that point to provide a sworn statement, on the basis of which immigration

personnel determined that he had been previously deported following an

aggravated felony conviction.

      Accordingly, on June 27, 2011, as previously indicated, Mr. Zavala-Garcia

pled guilty to an indictment charging him with illegal re-entry following

deportation after an aggravated felony. In preparation for sentencing under the

advisory United States Sentencing Commission, Guidelines Manual (2010)

(“USSG”), the United States Probation Office prepared a presentence report

(“PSR”). The PSR calculated a total offense level of 22, which, with a criminal

history category of V, yielded an advisory Guidelines sentence of seventy-seven

to ninety-six months.

      The PSR also stated that a factor possibly warranting a downward departure

from the advisory Guidelines range is Mr. Zavala-Garcia’s cultural assimilation,

pursuant to Application Note 8 to USSG § 2L1. The PSR found that Mr. Zavala-

Garcia satisfied a number of the Note 8 factors: he began living in the United

States at age ten, and he remained in the United States until his deportation in

2005, when he was approximately twenty-two or twenty-three. His wife and two

children are United States citizens, although Mr. Zavala-Garcia and his wife are

currently obtaining a divorce. His mother, brother and sisters all reside in

Mexico. He attended junior high school and one year of high school in the United

States. He speaks and understands English, such that most of the presentence

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interview was conducted in English, although an interpreter was present.

Mr. Zavala-Garcia has been gainfully employed for most of the time he has lived

in the United States. Finally, since returning to the United States after his 2005

deportation, he has had no other arrests or convictions except for minor or

misdemeanor traffic offenses. Thus, the PSR specifically stated, Mr. Zavala-

Garcia “appears to meet a number of the listed criteria and a downward departure

may be warranted in this matter.” PSR at ¶ 85, R. Vol. 3 at 20. Of course, the

decision remained in the hands of the district court.

      The PSR also initially granted Mr. Zavala-Garcia a three-point reduction

for acceptance of responsibility. The government objected to granting Mr.

Zavala-Garcia the third point, because Mr. Zavala-Garcia’s acceptance of

responsibility and guilty plea only occurred a few days prior to trial, after

substantial resources had been spent to prepare for trial. The probation officer

accordingly revised the PSR to grant only the two-level reduction for acceptance

of responsibility.

      At the sentencing hearing, the district court began by observing that there

were two issues to be resolved: whether Mr. Zavala-Garcia was entitled to a

three- or two-point reduction for acceptance of responsibility and whether he was

entitled to a downward departure based upon cultural assimilation. The court

determined that the two-point reduction was appropriate, stating: “The Court

believes that it does not have the authority to grant that third point without the

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Government’s having made a motion for it [which it had not]. And furthermore,

even if the Court did have that authority, the Court would not exercise it, given

that this plea agreement came in just virtually on the eve of trial.” Tr. of

Sentencing Hr’g at 12, R. Vol. 2 at 14.

      With respect to the cultural assimilation issue, the court ultimately denied

any departure, stating its reasons as follows:

             First, in terms of the actual cultural assimilation, the Court
      notes that the defendant says he primarily is fluent in Spanish and
      there is an interpreter here today, rather than in English;

             Secondly, the defendant’s family, that is, his mother and
      siblings, are back in Mexico;

            Third, his connection here to a spouse appears to be
      terminating, as he has either achieved a divorce or is in the course of
      doing so;

            Fourth, he’s had only apparently limited contact with his
      children;

             Fifth, he does not have a job or a permanent job in the United
      States of any stability;

            Sixth, he has declined to give information about his jobs that
      could be corroborated, but it appears that he has engaged in illegal
      drug activity, from his conviction for drug-trafficking, and that
      connection to the U.S. is not a cognizable basis for staying in the
      United States.

Id. at 23. Accordingly, the court rejected any departure from the advisory

Guideline sentence based on cultural assimilation.




                                          -5-
      Finally, the court imposed its seventy-seven month sentence, noting that it

had considered all of the 18 U.S.C. § 3553(a) sentencing factors, with the

following explanation:

      The Court is very troubled that in a really short period of time, you
      have accumulated a very significant criminal history, and the Court is
      most troubled that you have turned to drug-dealing. There [are] very
      few things that are more serious than to come into a host country and
      then to show your gratitude, doing your part to convict people in
      America to drug addiction. That shows a disregard for other people
      that indicates that you are not welcome in this country.

                                       ....

      But I hope that before the 77 months is over, you can start to turn
      your attention and your compassion to the people you have hurt and
      the lives that you have destroyed by participating in drugs and
      perhaps participating in gangs and participating in the possession of
      weapons and think about all of the pain that your life has caused in
      America.

Tr. of Sentencing Hr’g at 27-28, R. Vol. 2 at 29-30. Mr. Zavala-Garcia appeals

that sentence, arguing it is procedurally and substantively unreasonable.



                                  DISCUSSION

      We review the reasonableness of a sentence under the “familiar abuse-of-

discretion standard of review.” Gall v. United States, 552 U.S. 38, 46 (2007).

“Reasonableness review has a procedural and substantive component.” United

States v. Martinez, 610 F.3d 1216, 1223 (10th Cir. 2010). “Procedural

reasonableness addresses whether the district court incorrectly calculated or failed


                                        -6-
to calculate the Guidelines sentence, treated the Guidelines as mandatory, failed

to consider the § 3553(a) factors, relied on clearly erroneous facts, or failed to

adequately explain the sentence.” United States v. Huckins, 529 F.3d 1312, 1317

(10th Cir. 2008). “[S]ubstantive reasonableness addresses whether the length of

the sentence is reasonable given all the circumstances of the case in light of the

factors set forth in 18 U.S.C. § 3553(a).” Id. Furthermore, a sentence which

“falls within (at the bottom of) the properly-calculated guidelines range, . . . is

entitled to a rebuttable presumption of reasonableness or rationality on review in

this circuit.” United States v. Soto, 660 F.3d 1264, 1269 (10th Cir. 2011).

      Mr. Zavala-Garcia first makes a procedural challenge to his sentence. He

claims that the court made “factual finding[s]” that he had engaged in drug

trafficking after his return to the United States, as well as possessed weapons and

participated in gangs. Mr. Zavala-Garcia argues those “findings” were

unsupported by any evidence and were “clearly the focus of the court’s sentencing

decisions, both as guideline analysis and as 18 U.S.C. § 3553 considerations.”

Appellant’s Br. at 5.

      As the government points out, the record does not reveal that Mr. Zavala-

Garcia objected to any findings by the district court at sentencing. Accordingly,

we would ordinarily review this issue for plain error. See United States v. Steele,

603 F.3d 803, 808 (10th Cir. 2010); see also United States v. Poe, 556 F.3d 1113,

1128 (10th Cir. 2009) (“When a party fails to object contemporaneously to the

                                          -7-
district court’s sentencing procedure, we review procedural reasonableness

challenges for plain error.”).

      We will find plain error “only when there is (1) error, (2) that is plain, (3)

which affects substantial rights, and (4) which seriously affects the fairness,

integrity, or public reputation of judicial proceedings.” United States v. Romero,

491 F.3d 1173, 1178 (10th Cir. 2007). We typically do not, however, apply plain

error review to the district court’s factual findings. See United States v. Heredia-

Cruz, 328 F.3d 1283, 1288 (10th Cir. 2003) (“Under the plain error standard, we

will not review the district court’s factual findings relating to sentencing, but will

review for particularly egregious or obvious and substantial legal error, which our

failure to consider would result in a miscarriage of justice.”) (further quotation

omitted).

      No egregious or obvious error occurred here. As the government points

out, and the discussion of the sentencing hearing above indicates, the court

resolved the two disputed issues at the sentencing hearing—whether Mr. Zavala-

Garcia was entitled to a two- or three-level reduction for acceptance of

responsibility and whether he was entitled to a downward departure based on

cultural assimilation. The district court correctly applied the Guidelines in

determining that Mr. Zavala-Garcia was only entitled to a two-level decrease, and

Mr. Zavala-Garcia makes no serious argument to the contrary.




                                          -8-
      With regard to the cultural assimilation issue, the district court clearly

applied the factors/considerations contained in Application Note 8. See n.1,

supra. Moreover, in assessing the § 3553(a) factors to determine an appropriate

sentence, the court did not “find” that Mr. Zavala-Garcia had trafficked in drugs

since returning to the United States, nor that he had been involved in gangs or

possessed weapons. Rather, the court focused on Mr. Zavala-Garcia’s serious

criminal history, which did, in fact, include a drug possession felony, to explain

why it felt a sentence at the bottom of the advisory Guidelines range was

appropriate. The court committed no procedural error, and the sentence is

procedurally reasonable.

      Similarly, the sentence is not substantively unreasonable. The court

explained the sentence in terms of the § 3553(a) factors. Mr. Zavala-Garcia has

failed to rebut the presumption of reasonableness attached to the within-

Guidelines range sentence.



                                  CONCLUSION

      For the foregoing reasons, we AFFIRM the sentence imposed in this case.

                                               ENTERED FOR THE COURT


                                               Stephen H. Anderson
                                               Circuit Judge




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