                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                      UNITED STATES COURT O F APPEALS
                                                                       March 26, 2007
                                 TENTH CIRCUIT                       Elisabeth A. Shumaker
                                                                         Clerk of Court

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

          Plaintiff-Appellee,
                                                         No. 06-2269
 v.
                                                   (D.C. No. CR-05-391-JC)
                                                          (D . N.M .)
 RA UL V AC A-PEREZ,

          Defendant-Appellant.



                            OR DER AND JUDGM ENT *


Before L UC ER O, HA RTZ, and GORSUCH, Circuit Judges


      Raul Vaca-Perez contends that the district court erred when it failed to

articulate its reasons for rejecting his arguments, based on the factors set forth in

18 U.S.C. § 3553(a), that a sentence below the range recommended by the United

States Sentencing Guidelines (“USSG” or the “Guidelines”) w as w arranted in his

case. M r. Vaca-Perez also argues that his sentence was substantively




      *
         After examining the briefs and appellate record, this panel has
determined unanimously to grant the parties’ request for a decision on the briefs
without oral argument. See Fed. R. App. P. 34(f) and 10th Cir. R. 34.1(G). The
case is therefore ordered and 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judgment is not binding precedent except under the doctrines of law of the case,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 10th Cir. R. 32.1.
unreasonable. W e are constrained to disagree with M r. Vaca-Perez and affirm the

district court’s judgment.

                                          I

      On December 29, 2004, M r. Vaca-Perez, a citizen of M exico, was arrested

in New M exico for illegally reentering the United States after his deportation on

July 19, 2004. Presentence Report (“PSR”) at 1, ¶¶ 3-5. Prior to his deportation,

M r. V aca-Perez had been convicted of burglary and attempted escape in Colorado.

Id. at ¶¶ 10, 21. M r. Vaca-Perez accepted responsibility and pled guilty to

illegally reentering the United States after being deported, in violation of 8 U.S.C.

§ 1326.

      The PSR, prepared in accordance w ith U SSG § 2L1.2, suggested a base

offense level of eight. PSR at ¶ 9. 1 The PSR further recommended that M r.

Vaca-Perez receive an eight-level upward adjustment pursuant to USSG

§ 2L1.2(b)(1)(C) because he had a prior aggravated felony conviction (attempted

escape). Id. at ¶ 10. The PSR, however, also suggested a three-level downward

adjustment, pursuant to USSG § 3E1.1, for acceptance of responsibility. Id. at

¶ 15. As a result, the PSR calculated M r. Vaca-Perez’s adjusted offense level as

13 and his criminal history category as V. Id. at Part D. The resulting




      1
       The PSR mistakenly refers to USSG § 2D1.2(a), which relates to drug
offenses, instead of USSG § 2L1.2(a).

                                         -2-
recommended Guidelines sentencing range was 30 to 37 months, and the PSR

identified no departure factors. Id.; id at ¶ 46.

      M r. Vaca-Perez filed a sentencing memorandum asking for a downward

departure from the advisory sentencing range under Section 3553(a) because,

according to M r. Vaca-Perez, his prior criminal conduct was not violent; he had

demonstrated an “extraordinary acceptance of responsibility”; and he reentered

the United States to care for his children. Appellant’s Br. at 7. M r. Vaca-Perez

argued that these mitigating factors augured in favor of a sentence of no more

than 24 months. Id.

      The district court rejected M r. Vaca-Perez’s arguments, ordering a sentence

of 30 months and an additional year of supervised release; M r. Vaca-Perez

appealed. On M ay 11, 2006, we remanded the case to the district court for

resentencing because we found that “the district court offered no reasons for the

sentence it imposed other than its reference to the PSR’s factual findings and the

guidelines, and its citation to M r. Vaca-Perez’s offense conduct. The [district]

court did not refer to the § 3553(a) factors.” United States v. Vaca-Perez, 178

Fed. Appx. 841, 843 (10th Cir. M ay 11, 2006) (unpub.). The district court was

directed, consistent with United States v. Sanchez-Juarez, 446 F.3d 1109 (10th

Cir. 2006), to provide a better record of the sentence imposed. Vaca-Perez, 178

Fed. Appx. at 844.




                                          -3-
      On August 30, 2006, the district court conducted another sentencing

hearing in which M r. Vaca-Perez raised the same arguments he had at his original

sentencing hearing. The district court again rejected M r. Vaca-Perez’s arguments

and imposed a 30-month sentence. This time, however, the district court

explained the reasoning behind its result in greater depth:

             This matter coming before the Court for re-sentencing pursuant
             to the mandate of the Tenth Circuit of A ppeals and the C ourt
             having given due consideration to the Appellate Court’s
             instructions, hereby vacates and sets aside the sentence
             heretofore imposed in the information, Criminal 05-391, on
             June 22, 2005, and will re-sentence the defendant based on the
             Appellate Court’s remand.

             The Court has reviewed the presentence report [sic] factual
             findings and has considered the sentencing guideline
             applications and the factors set forth in 18 United States Code
             Section 3553(a)(1) though (7). I understand that defendant’s
             criminal history category points result in part from a non-
             violent offense of walking away from a work release program
             and in part from his attempted burglary conviction. . . .

             The Court notes the defendant reentered the United States
             illegally subsequent to a prior aggravated felony, that being
             attempted escape. It is in part because of the non-violent
             nature of this prior aggravated felony that I determine a
             sentence at the low end of the guideline to be appropriate,
             considering the 3553(a) factors.

Transcript of Resentencing Hearing Held on August 30, 2006 (“Resentencing

Tr.”), at 7-8. M r. Vaca-Perez now appeals his resentencing.




                                         -4-
                                           II

      M r. Vaca-Perez presently contends that: (a) his sentence was procedurally

unreasonable because the district court (still) failed to explain sufficiently its

imposition of the 30-month sentence and its rejection of his request for a

downward departure, and (b) his sentence was substantively unreasonable. 2

      a.    M r. Vaca-Perez contends that, pursuant to our decision in Sanchez-

Juarez, his sentence w as procedurally unreasonable because the district court

failed to explain adequately the basis for his sentence and why it rejected his

arguments for a lower sentence in light of Section 3553(a) factors. This

argument, however, is foreclosed by our recent decision in United States v. Ruiz-

Terrazas, ___ F.3d ___, 2007 W L 576034 (10th Cir. 2007). In Ruiz-Terrazas, w e

explained that Sanchez-Juarez is implicated only when: “(i) there was ‘no

indication’ by the district court that it had considered the Section 3553(a) factors,

and (ii) we [are] otherwise unable ourselves to discern a ‘clear explanation of the

sentence’ in the record.” Ruiz-Terrazas, 2007 W L 576034, at *5 (citing Sanchez-

Juarez, 446 F.3d at 1116); see also United States v. Jarrillo-Luna, ___ F.3d ___,




      2
         M r. Vaca-Perez also generally contends the district court impermissibly
considered the Guidelines sentence range to be mandatory because the district
court failed to consider his proffered grounds for mitigation, provided no reason
for rejecting his request for a downw ard departure, and imposed an otherwise
unreasonable sentence. Because this argument overlaps and adds nothing of
substance to M r. Vaca-Perez’s other two contentions, we do not consider it
separately.

                                          -5-
2007 W L 646145, at *3 (10th Cir. 2007) (“Lest any doubt remain about the

meaning of Sanchez-Juarez, we hold that a district court’s duty to explain why it

chose the given sentence does not also require it to explain w hy it decided against

a different sentence.”).

      Here, just as in Ruiz-Terrazas,

             [t]he record before us reveals that the district court entertained
             M r. [Vaca-Perez]’s Section 3553(a) arguments at length;
             indicated on the record that it had considered the Section
             3553(a) factors; and proceeded to explain its reliance on the
             range suggested by the sentencing Guidelines. In our view, no
             more is required by statute or our precedents.

2007 W L 576034, at *5. Accordingly, we find no procedural violation by the

district court in imposing the 30-month sentence at resentencing. Indeed, if

anything, the district court went beyond what Ruiz-Terrazas requires by

explaining on the record how M r. Vaca-Perez’s arguments for mitigation

specifically factored into the sentence imposed – that is, as influencing the district

court’s decision to select a sentence at the bottom of the Guidelines range.

      b.   W hen it comes to analyzing the substantive reasonableness of a

sentence, we have explained that “a sentence that is properly calculated under the

Guidelines is entitled to a rebuttable presumption of reasonableness.” United

States v. Kristl, 437 F.3d 1050, 1054 (10th Cir. 2006). A defendant can, of

course, seek to overcome that presumption by demonstrating that his or her

sentence is unreasonable in light of the factors set forth in Section 3553(a). Id. at



                                          -6-
1055. M r. Vaca-Perez aims to do just this, arguing that his sentence is

substantively unreasonable based on “the nature and circumstances of the offense,

the history and characteristics of the defendant, and the need for the sentence to

avoid unwarranted sentencing disparities.” A ppellant’s Br. at 20. In particular,

M r. Vaca-Perez contends illegal reentry after a prior felony is less severe than

maintaining a facility for the manufacture of illegal drugs, for which the district

court sentenced a defendant to 24 months the same day he resentenced M r. Vaca-

Perez.

         W hen M r. Vaca-Perez raised this same argument at the resentencing

hearing, the district court, in addition to noting the difference in respective

criminal histories of the two defendants, replied on the record that “I certainly

sympathize with your client. A lot of these matters should be taken care of by

[sic] United States Congress, if they ever get around to it, not by a federal judge.”

Resentencing Tr. at 6. W e are constrained to agree. In enacting the statute M r.

Vaca-Perez violated, 8 U.S.C. § 1326, Congress authorized a sentence of up to 20

years in prison. That is the law of the land. W hether or not we would make the

same policy judgment about the severity of M r. Vaca-Perez’s crime when

compared to other violations of law is beside the point. The people’s elected

representatives have authorized a substantial penalty for illegally reentering this

country after previously committing a felony here. Absent some appeal

suggesting that, in so doing, the elected branches violated the Constitution or law s

                                          -7-
of the U nited States, we are sw orn to enforce the statute as w ritten. Should M r.

Vaca-Perez wish to pursue his policy argument, it is one best directed not to the

judiciary but to the policymakers in Congress and the Executive branch.

      M r. Vaca-Perez separately maintains that the particular circumstances of

his case warrant a below-Guidelines range sentence, an issue that, by contrast,

Congress has specifically empowered us to review in Section 3553(a). In

particular, M r. Vaca-Perez again highlights as mitigating factors his non-violent

history, his cultural assimilation (albeit due to his many years of residing illegally

in this country), and the fact that he only reentered illegally because of his

children. The district court, however, considered each of these factors in

imposing his sentence and, indeed, explained that they were the reasons w hy it

chose to impose a sentence at the bottom of the G uidelines range. Under Kristl

we cannot say that the district court behaved unreasonably.

      Yet, even if the Kristl presumption of reasonableness were removed and w e

were free to consider his Section 3553(a) arguments anew, we would still feel

obliged to find the sentence imposed on M r. Vaca-Perez to be substantively

reasonable given his prior criminal history. For example, the PSR reveals that

M r. Vaca-Perez illegally reentered the United States approximately half a year

after he had been deported; the probation for his aggravated burglary conviction

was revoked twice; he has an additional conviction for attempted escape from

custody, and was on parole for that offense when he illegally reentered this

                                          -8-
country; and he has a history of alcohol abuse and alcohol-related offenses. To

our minds, these factors all suggest that a sentence within the Guidelines range

was fully appropriate notwithstanding M r. V aca-Perez’s mitigation arguments.

                                   *     *         *

      The district court’s sentence is affirmed.



                                       ENTERED FOR THE COURT



                                       Neil M . Gorsuch
                                       Circuit Judge




                                         -9-
