                                                                         F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                    UNITED STATES COURT OF APPEALS
                                                                           May 4, 2006
                                 TENTH CIRCUIT                         Elisabeth A. Shumaker
                                                                          Clerk of Court

 UNITED STATES OF AMERICA,

               Plaintiff - Appellee,                    No. 05-1462
          v.                                           (D. Colorado)
 ANTONIO HERNANDEZ-ARANGO,                      (D.C. No. 05-CR-112-REB)

               Defendant - Appellant.


                            ORDER AND JUDGMENT *


Before TACHA, Chief Circuit Judge, ANDERSON and BALDOCK, Circuit
Judges.



      After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal. See Fed. R. App. P. 34 (a)(2); 10th Cir. R. 34.1(G). This cause is

therefore ordered submitted without oral argument.

      Antonio Hernandez-Arango pled guilty to one count of unlawful reentry by

an alien previously deported following an aggravated felony conviction, in


      *
       This order and judgment is not binding precedent, except under the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.
violation of 8 U.S.C. § 1326(a) and (b)(2). He was sentenced to thirty-three

months’ imprisonment followed by three years of supervised release. He appeals

his sentence. For the reasons set forth below, we affirm.



                                  BACKGROUND

      Hernandez-Arango was indicted in March 2005 for a violation of 8 U.S.C.

§ 1326(a) and (b)(2). He entered a plea agreement with the government,

stipulating to the factual basis for the plea, including his prior convictions in

Colorado state court for two controlled substance offenses, one involving drug

trafficking. The district court accepted Hernandez-Arango’s plea, and the United

States Probation Office prepared a presentence report (“PSR”), calculating the

advisory sentencing range under the United States Sentencing Commission,

Guidelines Manual (Nov. 2004) (“USSG”).

      The PSR began with a base offense level of 8, pursuant to USSG §2L1.2(a).

It added a 12-level enhancement based on Hernandez-Arango’s prior drug

trafficking offense pursuant to USSG §2L1.2(b)(1)(B). It then reduced the

offense level by three levels based on Hernandez-Arango’s acceptance of

responsibility. The total offense level was thus 17, which, together with a

criminal history category of III, yielded an advisory Guidelines range of 30 to 37

months.


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      The PSR then described certain characteristics of Hernandez-Arango,

including his personal history, family ties, and educational and employment

records. It also provided a recommendation on the sentencing factors that should

be considered pursuant to 18 U.S.C. § 3553(a). It stated that Hernandez-Arango

had illegally reentered the United States twice in 2003 but was voluntarily

removed rather than prosecuted. It further advised that “[t]he instant offense

occurred 17 months after [Hernandez-Arango]’s last removal from the United

States,” and that “[Hernandez-Arango] continues to illegally enter and reside in

the United States after three prior removals.” PSR ¶¶ 82-83, R. Vol. III. It noted

that Hernandez-Arango had two prior felony convictions and stated that “[a]ny

imposed sentence should promote respect for the law, provide just punishment

and protect the public from [Hernandez-Arango]’s future crimes.” Id. ¶ 82. The

PSR then recommended a sentence of 33 months, near the middle of the advisory

Guidelines range, stating that “[c]onsidering [Hernandez-Arango] is facing his

third felony conviction and has been removed from the United States on three

separate occasions, the Probation Department believes that a sentence in the

middle of the advisory guideline range adequately meets the statutorily mandated

sentencing purpose[s] of deterrence, just punishment, and the protection of the

public.” Id. at R-2.




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       At the sentencing hearing, Hernandez-Arango argued that he should be

sentenced to 30 months, at the low end of the Guidelines range, rather than 33

months, based on his “modest criminal record” and the fact that his two prior

felony convictions had occurred five years earlier, when he was twenty-two years

old. Tr. of Sentencing at 5, R. Vol. II. He stated that “30 [months] is as good as

33 [months] here” in order to meet the purposes of sentencing set forth in 18

U.S.C. § 3553(a)(2). Tr. of Sentencing at 6, R. Vol. II. The government

responded that, “while, granted the difference between 30 and 33 may not seem

necessarily significant[,] . . . there should be some price, however small it may be,

for this particular history.” Id. at 7.

       The district court accepted the PSR, noting it was “well done and well

written.” Id. The court then stated that it had “consider[ed] the application,

especially of the advisory sentencing guidelines, and then independently and

alternatively consider[ed] the sentencing factors at 18 U.S.C. [§] 3553(a)(1)

through (7),” and concluded that a term of imprisonment of 33 months was

appropriate to meet the sentencing goals set forth in § 3553(a). Id. at 10. The

court then advised Hernandez-Arango as follows:

              Now, I can tell you that it seems as if you lost because I have
       imposed a 33-month sentence instead of a 30-month sentence. You
       have not, and here’s why. Because in my initial analysis, I had
       selected a sentence that was higher than or greater than 33 months.
But I am convinced, after the probation department’s recommendation, coupled
with your counsel’s statements to the court, that 33 months will be sufficient.

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Id. at 14.

       Hernandez-Arango appeals his sentence, arguing that it is unreasonable.



                                   DISCUSSION

       We review sentences imposed after the Supreme Court’s decision in United

States v. Booker, 543 U.S. 220 (2005), for reasonableness. United States v.

Galarza-Payan, 441 F.3d 885, 887 (10th Cir. 2006). Where, as here, there is no

dispute over the district court’s application of the advisory Guidelines, a district

court’s imposition of a sentence within the Guidelines sentencing range is

“‘entitled to a rebuttable presumption of reasonableness.’” Id. at 889 (quoting

United States v. Kristl, 437 F.3d 1050, 1054 (10th Cir. 2006) (per curiam)).

       Here, Hernandez-Arango first argues that the district court improperly

failed to explain why it chose to impose a sentence at the middle, rather than the

low end, of the Guidelines range, or “why the sentence it chose furthered any of

the goals of sentencing.” Appellant’s Op. Br. at 10. We disagree. In our view,

the record as described above clearly indicates that the court weighed the parties’

arguments at the sentencing hearing in light of the factors set forth in 18 U.S.C.

§ 3553(a), and also referred to the probation office’s analysis in the PSR of how

these factors should operate in the circumstances of this case. “[W]e will ‘not

demand that the district court recite any magic words to show us that it fulfilled


                                         -5-
its responsibility to be mindful of the factors that Congress has instructed it to

consider.’” Galarza-Payan, 441 F.3d at 889 (quoting United States v. Contreras-

Martinez, 409 F.3d 1236, 1242 (10th Cir. 2005) (internal quotation and citation

omitted)). Moreover, we can infer that the district court’s reasons for imposing

the sentence it did were those argued at the hearing and in the PSR. Indeed, the

court indicated that it had been swayed, based on those arguments, to impose a

sentence lower than it otherwise would have.

      Hernandez-Arango also argues that his sentence is unreasonable because

his criminal history “barely placed him in criminal history category III,” and

because, “unlike many other illegal reentry defendants who appear in federal

court, he was not discovered as the result of new criminal activity.” Appellant’s

Op. Br. at 13. In addition, Hernandez-Arango points to the fact that, of the eleven

cases reviewed and reported in the Tenth Circuit in 2005 where the defendant had

been convicted of illegal reentry and the opinion indicated the applicable

Guidelines range, the defendant had been sentenced to the low end of the range in

each case. He asserts that “[t]hese opinions demonstrate the collective reasoning

of district court judges in this circuit that, barring unusual circumstances, a

sentence at the bottom of the range in an illegal reentry case is sufficient to meet

the goals of sentencing enumerated in 18 U.S.C. § 3553(a).” Id. at 14.




                                          -6-
      These arguments fail to successfully rebut the presumption that Hernandez-

Arango’s sentence is reasonable. Even if we considered his sample of eleven

cases significant, Hernandez-Arango has failed to compare the actual conduct

involved in these cases to his own conduct. We note that, in absolute terms,

Hernandez-Arango’s sentence of 33 months is equal to the lowest sentence

imposed in these eleven cases. We are unpersuaded that the calculated Guidelines

range overstates the seriousness of his prior criminal history, as described in the

PSR. Moreover, Hernandez-Arango’s assertion regarding the “collective

reasoning” of district courts is inconsistent with his acknowledgment at the

sentencing hearing that “a 30-month sentence, or even a 33-month sentence, is

[not] so far out of the realm of what other people get, even in fast-track districts.”

Tr. of Sentencing at 5, R. Vol. II. We therefore affirm Hernandez-Arango’s

sentence.



                                   CONCLUSION

      For the foregoing reasons, the sentence imposed by the district court is

AFFIRMED.

                                                ENTERED FOR THE COURT


                                                Stephen H. Anderson
                                                Circuit Judge


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