                                                                                 FILED
                                                                    United States Court of Appeals
                                                                            Tenth Circuit

                                                                            May 27, 2008
                        UNITED STATES COURT OF APPEALS                  Elisabeth A. Shumaker
                                                                            Clerk of Court
                                    TENTH CIRCUIT


 UNITED STATES OF AMERICA,

           Plaintiff-Appellee,
                                                             No. 07-2164
 v.
                                                           (D. New Mexico)
                                                      (D.C. No. 06-CR-2267 JAP)
 MARIANO VICTOR MERINO-
 GARCIA,

           Defendant-Appellant.




                                 ORDER AND JUDGMENT*


Before McWILLIAMS, Senior Circuit Judge, ANDERSON, Senior Circuit Judge, and
BRORBY, Senior Circuit Judge.


       On August 2, 2006, United States Border Patrol agents found Mariano Victor

Merino-Garcia (hereinafter referred to as the defendant) and 24 other illegal aliens in a

remote desert area about 30 miles west of Columbus, New Mexico. Based thereon the

defendant was charged in a one-count indictment filed in the United States 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         This order and judgment is not binding precedent, except under the doctrines of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.
       The parties waived oral argument, and this panel has determined unanimously that
oral argument would not materially assist the determination of this appeal. See Fed. R.
App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral
argument.
for the district of New Mexico with illegal re-entry into the United States as a previously

deported alien, and while the Order of Deportation was still outstanding, in violation of 8

U.S.C. §§ 1326(a)(1) and (b). On January 9, 2007, the defendant pled guilty to that

charge. The presentence report (PSR) set defendant’s base offense level at 8 levels, and

then, pursuant to U.S.S.G. § 2L1.2(b)(1)(A)(ii), raised that level by 16 additional levels,

i.e., to 24, because he had been previously convicted in 1994 in a state court in New

Jersey of aggravated assault, a felony, and was sentenced to imprisonment for five years.

However, in this regard we would note that he had been released from custody on

November 28, 1995, and deported to Mexico. The PSR then reduced defendant’s offense

level from 24 to 21 for his acceptance of responsibility. The defendant’s criminal history

category was set at II, resulting in a guideline range of imprisonment of 41 to 51 months.

The PSR found no “circumstances” that would warrant a departure, be it upward or

downward, from the guideline range. The defendant filed objections to the PSR,

asserting, inter alia, that family ties and circumstances warranted a downward departure.

       Prior to sentencing, the defendant filed a motion for a downward departure from

the recommended guideline range, and the imposition of a “reasonable” sentence as

required by United States v. Booker, 543 US 220 (2005). In so doing, counsel suggested

a sentence of 21-24 months. The United States filed a response to that motion in which it

objected to any downward departure or variance from the recommended guideline range.

       At sentencing, the district court, after hearing from defendant’s counsel as well as

from the defendant personally, stated that after taking all matters into consideration,

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including 18 U.S.C. §3553(a), an appropriate and reasonable sentence would be at the

low end of the guideline range, i.e. 41 months. Accordingly, the district court sentenced

defendant to 41 months imprisonment, followed by three years supervised release.

       On appeal, counsel frames the one issue raised in this appeal as follows: “Whether

the sentence imposed was unreasonable.” In her brief, counsel argues that in sentencing

defendant to imprisonment for 41 months the district court failed to consider the

mitigating circumstances surrounding his conviction in 1994 in New Jersey for

aggravated assault and defendant’s family ties and circumstances. We are not persuaded

and therefore affirm.

       As stated, the guideline range was imprisonment for 41 months to 51 months and

the district court imposed a sentence of imprisonment of 41 months, the low end of the

guideline range. The sentence being within the properly calculated guideline range, it is

well established that such sentence is “presumed” to be reasonable as required by 18

U.S.C. §3553(a). United States v. Kristl, 437 F.3d 1050, 1054 (10th Cir. 2006). Such

being the case, a defendant thereafter has the burden of showing that the sentence, even

though within the guideline range, was “unreasonable” under 18 U.S.C. §3553(a). Id. In

his effort to do so, the defendant claims, in his brief in this Court, that 41 months

imprisonment was “unreasonable,” and that, because of “mitigating circumstances”

surrounding his prior conviction in New Jersey, such did not warrant a 16 level increase

in his offense level and thus a downward departure or variance from the guideline range

was proper. Alternatively, counsel argues that because of this “family ties and

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responsibilities” the defendant should have been granted a variance from the guideline

range.

         The defendant in the proceeding in New Jersey pled guilty to the felony crime of

aggravated assault. In that connection the record indicates that in a “street fight” the

defendant pulled a knife and inflicted serious bodily injury on another. Counsel suggests,

however, that there were “mitigating circumstances” and at sentencing went so far as to

state that defendant was in reality acting in “self defense.” Be all that as it may, the fact

of the matter is that the defendant pled guilty to “aggravated assault,” classified under

New Jersey law as a “felony,” for which he was sentenced to imprisonment for five years.

Under those circumstances, we find no error on the part of the district court in accepting

the PSR recommendation that defendant’s offense level be raised by 16 levels based on

his New Jersey conviction.

         Alternatively, counsel argues that the district court erred in not granting a

downward “variance” based on defendant’s family ties and circumstances. In that regard,

the record indicated quite clearly that the defendant only returned to the United States to

find a job to support his father, mother, blind sister, his wife, and newborn child living in

Mexico. We note that such is the typical reason given by many persons convicted of

illegal reentry from Mexico into the United States, i.e. they returned to the United States

to find employment and send support to relatives in Mexico. In this general regard, we

note that U.S.S.G. §5H1.6 provides as follows:

                In sentencing a defendant convicted of an offense other than

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              an offense described in the following paragraph [offense
              involving a minor victim], family ties and responsibilities are
              not ordinarily relevant in determining whether a departure
              may be warranted.

       The foregoing guideline applies in connection with a “departure” from the

guideline range, but the same reasoning would apply to a request for a “variance” from

the guideline range.

       In any event, we find that the district court considered the §3553(a) factors and

did not err in declining to grant a variance from the guideline range because of

defendant’s family obligations.

       Judgment affirmed.

                                                  Entered for the Court



                                                  Robert H. McWilliams
                                                  Senior Circuit Judge




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