                                                                        F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                         April 7, 2006
                                   TENTH CIRCUIT                      Elisabeth A. Shumaker
                                                                         Clerk of Court

 UNITED STATES OF AMERICA,

          Plaintiff - Appellee,
                                                       No. 05-4207
 v.                                            (D.C. No. 2:03-CR-743-PGC)
                                                         (D. Utah)
 ALEJANDRO SALOME-
 GONZALEZ,

          Defendant - Appellant.


                             ORDER AND JUDGMENT *


Before KELLY, McKAY, and LUCERO, Circuit Judges. **


      Defendant-Appellant Alejandro Salome-Gonzales appeals from the district

court’s imposition of his sentence. He argues on appeal that the district court

erred in sentencing him in accordance with an approach that the district court

developed the day after United States v. Booker, 543 U.S. 220 (2005), and refined


      *
        This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. This 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.
      **
         After examining the briefs and the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1(G). The cause is therefore ordered submitted without oral argument.
a few weeks later. Under this approach, the district court gives “considerable

weight” to the Sentencing Guidelines, and will impose a guideline sentence in all

but “unusual cases for clearly identified and persuasive reasons.” United States v.

Wilson, 350 F. Supp. 2d 910, 911-12 (D. Utah 2005); see also United States v.

Wilson, 355 F. Supp. 2d 1269, 1272 (D. Utah 2005) (on motion for

reconsideration). Mr. Salome-Gonzalez argues that the district court imposed too

high a standard in refusing to give him a non-guidelines sentence. Specifically,

he argues the court should have sentenced him outside the guidelines range based

upon strong family support, economic hardship, and lack of criminal history. We

exercise jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a), and

affirm.

      The parties are familiar with the facts leading up to Mr. Salome-Gonzales’s

guilty plea and we need not repeat them here. Mr. Salome-Gonzales pled guilty to

possession of methamphetamine with intent to distribute, in violation of 21 U.S.C.

§ 841(a)(1). The probation office prepared a pre-sentence report (“PSR”).

Initially, the PSR calculated a guidelines range of 135-168 months imprisonment.

Mr. Salome-Gonzales objected to the PSR and argued several grounds for a lower

sentence, including his limited role as a courier, his lack of criminal history, his

personal and family characteristics including four young children and a supportive

family, his stable employment history, and that a lower sentence would fulfill


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societal and governmental interests. I R. Doc. 24 at 4-6. He also argued for a

downward adjustment based upon his limited role in the offense, U.S.S.G.

§ 3B1.2(a)-(b), and for a safety valve reduction, U.S.S.G. § 5C1.2. In response to

these objections, the probation office amended the PSR, concluding that Mr.

Salome-Gonzales was a minor participant in the offense and that he qualified for

the safety valve reduction. Based on this amended PSR, Mr. Salome-Gonzales’s

guidelines range was 70-87 months imprisonment.

      The district court conducted a sentencing hearing. At that hearing, Mr.

Salome-Gonzales indicated he had no objection to the amended PSR. II R. at 4.

The district court informed the parties that it would follow the approach discussed

above. Mr. Salome-Gonzales’s counsel argued that even under the court’s

approach, this was an unusual case and that the elements in 18 U.S.C. § 3553(a)

would justify a lower sentence. The district court announced that it would not

vary from the guidelines and sentenced Mr. Salome-Gonzales, at the lower end of

the guidelines range, to 70 months imprisonment.

      Subsequent to sentencing, we decided United States v. Kristl, 437 F.3d

1050, 1054 (10th Cir. 2006), holding that a sentence properly calculated under the

sentencing guidelines is entitled to a rebuttable presumption of reasonableness

“that either the defendant or the government may rebut by demonstrating that the

sentence is unreasonable when viewed against the other factors delineated in


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§ 3553(a).” This is not a conclusive presumption; were it so the advisory

guidelines would become mandatory contrary to Booker. Kristl, 437 F.3d at 1054.

Though concerned with our appellate standard of review, we think that such an

approach informs what role the guidelines have in a district court’s sentencing

procedure. Rather than comment on the frequency with which properly-calculated

guideline sentences will be appropriate, the paramount inquiry is whether the

sentence imposed is reasonable or unreasonable when considered against the

record developed in relation to the factors contained in § 3553(a). Plainly, the

district court must consider the guidelines sentence, but it also must consider the

parties’ presentations on the appropriate sentence under 18 U.S.C. § 3553(a).

      The district court recognized that the guidelines are advisory, and stated

that “the defendant has already gotten considerable benefit from the way things

have played out in this case, and in light of that I think that a 70-month sentence

is appropriate, having considered all the arguments.” II R. at 8. We do not

require a recitation by a district judge on each of the § 3553(a) factors, and

though the district court perhaps could have justified a lower sentence based upon

the nature and circumstances Mr. Salome-Gonzales’s personal history and

characteristics, it was not required to do so. See United States v. Mares, — F.3d

—, 2006 WL 752017, at *8 (10th Cir. Mar. 24, 2006). Having reached this

conclusion in light of our now more developed precedent, we need not address the


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district court’s comprehensive views on the Sentencing Guidelines contained in

its published opinions. Sentencing must be an individual endeavor. Regardless

of the district court’s enthusiasm for the Sentencing Guidelines, sound reasons

were apparent for the sentence imposed, including the need to avoid sentencing

disparities and the seriousness of the crime as reflected in the quantity. 18 U.S.C.

§ 3553(a)(2), (6); United States v. Galarza-Payan,— F.3d —, 2006 WL 689447

(10th Cir. Mar. 20, 2006). Accordingly, we find that any error in the process was

harmless because it did not affect the selection of the sentence imposed. See

Williams v. United States, 503 U.S. 193, 203 (1992) (remand appropriate only

when error was not harmless).

      AFFIRMED.

                                       Entered for the Court


                                       Paul J. Kelly, Jr.
                                       Circuit Judge




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