                                                                                  FILED
                                                                     United States Court of Appeals
                                                                             Tenth Circuit

                            UNITED STATES COURT OF APPEALS December 27, 2007
                                                                         Elisabeth A. Shumaker
                                     TENTH CIRCUIT                           Clerk of Court



UNITED STATES OF AMERICA,

           Plaintiff-Appellee,
                                                                No. 06-2065
v.                                                            (D. New Mexico)
                                                        (D.C. No. CR 05-2140 MCA)
PABLO PENA-PERETE,

       Defendant-Appellant.




                                 ORDER AND JUDGMENT*


Before BRISCOE, Circuit Judge, McWILLIAMS, Senior Circuit Judge, and GORSUCH,
Circuit Judge.


       Pursuant to a plea agreement, Pablo Pena-Perete (the defendant) on October 20,

2005, in the United States District Court for the District of New Mexico, pled guilty to an

information charging him, “an alien,” with having been found in the State of New Mexico

after he had been previously deported from the United States because of a conviction of an

aggravated felony as defined in 8 U.S.C. § 1101(a) 43 (A), “that being the Rape of 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        This order and judgment is not binding precedent, except under the doctrines of law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.
Child,” in violation of 8 U.S.C. §§ 1326 (a)(1) and (2) and 8 U.S.C. § 1326 (b)(2).1 At that

time, the defendant was represented by appointed counsel. The Pre-Sentence Report (PSR)

set defendant’s base offense level at 8, and then increased his base offense level by 16

levels because of his prior conviction in January 2004 for an aggravated felony, a crime of

violence, in a Washington State Court, for Rape of a Child. U.S.S.G. § 2L1.2.2 Defendant

was then given a 3-level reduction of his adjusted offense level of 24, i.e., to level 21, for

acceptance of responsibility. With defendant’s criminal history category of III, the

resulting guideline range was imprisonment for 46 to 57 months. The PSR did not indicate

any grounds for a downward departure, nor did counsel ask the district court to consider a

downward departure from the PSR guideline range.

       At sentencing, defendant’s counsel made no objection to the PSR, stating, inter alia,

that it “is absolutely factually correct,” and asked that the defendant be sentenced “at the

low end of the guidelines.” In accord with that request, the district court on February 23,

2006, sentenced defendant to imprisonment for 46 months. Before imposing its sentence of

46 months, the district court spoke as follows: “I do adopt then the pre-sentence report

factual findings and note that I do consult and have consulted the advisory sentencing

guidelines together with reviewing and considering the sentencing factors under Title 18,


       1
         8 U.S.C. § 1101(a) 43(A) reads, inter alia, as follows: “The term ‘aggravated
felony’ means murder, rape or sexual abuse of a minor.”
       2
        On that conviction, defendant was sentenced to imprisonment for 12 months and
one day and 48 months community supervision. On April 8, 2004, that judgment and
sentence was amended to reflect 36 to 38 months community supervision. On July 13,
2004, he was deported to Mexico.

                                               2
Section 3553, Part A, in determining the reasonableness of the sentence that I propose here

in this case.”

       Defendant filed a timely pro se notice of appeal, stating therein that “I now have

documentation to show Proof for Consideration under 5H1.6. (Family Ties and

Responsibilities). Thank you.” Later, a notice of appeal was also filed by defendant’s

appointed counsel.

       In this Court, defendant’s appointed counsel filed an Anders brief. Anders v.

California, 367 U.S. 738 (1967). This court later determined that the Anders brief was

procedurally deficient and on December 20, 2006, entered an order directing counsel to

show cause why he should not be removed from the case. On January 19, 2007, this Court

removed defendant’s counsel from the appeal, struck the Anders brief previously filed,

appointed new counsel to represent the defendant, and set a briefing schedule.

       Present counsel, in his brief, frames the one issue in this appeal as follows: “Did the

district court commit plain error and impose an unreasonable sentence under United States

v. Booker?” 125 S.Ct. 738 (2005). Thus, in this Court, the defendant’s position is that his

sentence of 46 months imprisonment was “unreasonable” under 18 U.S.C. § 3553(a) and

that, though that issue had not been raised in the district court, the district court had

committed “plain error” in sentencing the defendant to 46 months imprisonment. He asks

that we reverse the sentence and remand for resentencing. The position of the United

States is that the district court did not commit “error,” let alone “plain error,” in sentencing

defendant to imprisonment for 46 months, the low end of the guideline range, which had

                                                3
been requested by his counsel. We affirm.

       The PSR, which was not objected to by defendant’s counsel and was adopted by the

district court, set defendant’s base offense level at 8. Then, pursuant to U.S.S.G. §

2L1.2(b)(1)(A), the PSR raised defendant’s offense level by 16 levels, i.e. to 24 levels.

That guideline provides as follows:

              “(A) a conviction for a felony that is (i) a drug trafficking
              offense for which the sentence imposed exceeded 13 months;
              (ii) a crime of violence; (iii) a firearms offense; (iv) a child
              pornography offense; (v) a national security or terrorism
              offense; (vi) a human trafficking offense; or (vii) an alien
              smuggling offense, increase by 16 levels.” (emphasis ours)

       As heretofore stated, the conviction which resulted in the defendant being deported

from the United States to Mexico was his conviction in a Washington State Court for Rape

of a Child. As to just what constitutes a “crime of violence,” U.S.S.G. § 2L1.2, Application

Note 1 (B)(iii) provides as follows:

              “Crime of violence” means any of the following: murder,
              manslaughter, kidnapping, aggravated assault, forcible sex
              offenses, statutory rape, sexual abuse of a minor, robbery,
              arson, extortion, extortionate extension of credit, burglary of a
              dwelling, or any offense under federal, state, or local law that
              has an element the use, attempted use, or threatened use of
              physical force against the person of another. (emphasis added)

       It would thus appear that under the guidelines there was no error in raising

defendant’s base offense level of 8 by 16 levels based on his Washington state conviction

for Rape of a Child. Counsel agrees that this particular matter is resolved by United States

v. Hernandez-Castillo, 449 F.3d 1127, 1131 (10th Cir. 2006), where we held that statutory


                                              4
rape was a “crime of violence”. However, in this regard counsel apparently suggests that

the guidelines themselves are “unreasonable” in that they raise defendant’s offense level by

16 levels, which is the same increase that would be given one whose prior conviction

causing a deportation, by way of example, was for murder. We recognized that concern in

Hernandez-Castillo, supra, but because the “reasonableness” of the sentence in that case

was not raised in the district court, nor in the appeal, we, in that case, affirmed the sentence

imposed by the district court.

       In the instant case, in the district court, the issue of “reasonableness” was not raised.

However, unlike Hernandez-Castillo, the issue is raised in the instant case on appeal. Not

having been raised in the district court, there remains the question of whether it was “plain

error” on the part of the district court in not at least considering, and hopefully, imposing a

sentence less than the low end of the guideline range, which was imprisonment for 46

months.

       At sentencing, defendant did not object to the procedure by which his sentence was

determined. Rather his counsel stated that the PSR “is absolutely factually correct” and

asked that defendant’s sentence be at the “low end of the guideline.” The district court then

sentenced defendant to the “lowest end” of the guideline range, i.e., 46 months

imprisonment. In such circumstance, the “reasonableness” of his 46-month sentence

cannot be raised on appeal absent “plain error” by the district court. Plain error occurs

when there is “error,” which is “plain” error. But even if we find “plain error,” before we

will consider the issue we must also find that the “plain error” also “affects the defendant’s

                                               5
substantial rights” and “seriously affects the fairness, integrity, or public reputation of

judicial proceedings.” Lopez v. Flores, 444 F.3d 1218, 1222 (10th Cir. 2006.)

       In support of his claim that the sentence of 46 months imprisonment was

“unreasonable” under 18 U.S.C. § 3553(a), and that the district court erred in not, sua

sponte, so to speak, sentencing the defendant to imprisonment to less than the 46-month

sentence, which was the minimum guideline sentence, counsel argues that the “family

problems” of the defendant should have been considered. Counsel points out that the

defendant is supporting his needy father in Mexico who has health problems, as well as

supporting his sister, and that his “partner” and their new-born child in Mexico are also

looking to him for support. We are not pursuaded.

        In this general regard, a sentence within the guideline range is “presumptively

reasonable.” Rita v. United States, 551 U.S. —, 127 S.Ct. 2456 (2007). However, “the

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

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

1050, 1055 (10th Cir. 2006). Without belaboring the matter, the present record, in our

view, does not “rebut” the presumption that under the facts in this case, a sentence within

the guideline range is “presumptively reasonable.” Such being the case, there was no




                                                6
“plain error” on the part of the district court in sentencing to the lowest end of the guideline

range.

         Judgment affirmed.

                                            Entered for the Court

                                            Robert H. McWilliams,
                                            Senior Circuit Judge




                                               7
