                                                                        FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                                                                   May 29, 2009
                    UNITED STATES COURT OF APPEALS
                                                 Elisabeth A. Shumaker
                                                                    Clerk of Court
                                 TENTH CIRCUIT



 UNITED STATES OF AMERICA,

               Plaintiff-Appellee,                       No. 08-2278
          v.                                             (D. of N.M.)
 JOSE LUIS SAENZ-HOLGUIN,                        (D.C. No. CR-06-2091-WJ)

               Defendant-Appellant.


                           ORDER AND JUDGMENT *


Before TACHA, TYMKOVICH, and GORSUCH, Circuit Judges. **


      Jose Luis Saenz-Holguin pleaded guilty to illegally entering the United

States after committing an aggravated felony, a violation of 8 U.S.C.

§ 1326(b)(2). Prior to this offense, Saenz-Holguin had been deported to his home

country of Mexico on three prior occasions, following convictions for various

crimes including marijuana trafficking and robbery. Because his robbery offense



      *
         This order and judgment is not binding precedent except under the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.
      **
         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.
was a “crime of violence” under the United States Sentencing Guidelines, see

USSG § 2L1.2 cmt. 1(B)(iii), he received a sixteen-point enhancement under

section 2L1.2(b)(1)(A)(ii). His resulting guidelines range was 70 to 87 months’

imprisonment.

      Despite this criminal history, the district judge exercised discretion under

USSG § 5H1.6 to grant Saenz-Holguin a downward departure due to his unique

family circumstances. Saenz-Holguin’s four children, who live in Mexico, had

been in the care of his mother and brother, but they both died and the children

were separated—two went to other relatives, two were sent to an orphanage. In

granting the departure, the sentencing judge noted, “The loss of caretaking and

financial support [for these children] substantially exceeds the harm ordinarily

incident to incarceration for a similarly situated defendant.” R. Vol. 3 at 19–20.

“Based on these findings,” the judge stated, “I determine that the defendant’s total

adjusted offense level should be reduced by two levels.” Id. at 20.

      The district court’s downward departure resulted in a sentencing range of

57 to 71 months’ imprisonment. The court ultimately sentenced Saenz-Holguin to

57 months.

      Saenz-Holguin appeals, urging us to overturn his sentence. He contends

that despite the downward departure, his sentence is still unreasonable. He does

not dispute the district court’s calculation of his guidelines range, but confines his

claim to a substantive reasonableness challenge. He asserts his sentence is longer

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than necessary to further the goals of 18 U.S.C. § 3553(a)(2): retribution,

deterrence, incapacitation, and rehabilitation. See Rita v. United States, 551 U.S.

338, 347–48 (2007) (listing these as the four “basic aims” of sentencing).

      Exercising jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742, we

reject Saenz-Holguin’s arguments and affirm the district court.

                             *            *            *

      We apply a presumption of reasonableness to a sentence that is within a

properly-calculated guidelines range. United States v. Kristl, 437 F.3d 1050,

1054 (10th Cir. 2006). The presumption is warranted because when a district

court imposes a sentence within the guidelines range, both the Sentencing

Commission and the district court have independently concluded that the sentence

is appropriate. Rita, 551 U.S. at 347. This “double determination significantly

increases the likelihood that the sentence is a reasonable one.” Id.

      In addition to applying a presumption of reasonableness, we also review the

district court’s sentencing decision under the deferential abuse of discretion

standard. United States v. Sells, 541 F.3d 1227, 1237 (10th Cir. 2008), cert.

denied, 129 S. Ct. 1391 (2009). Under this standard, we may reverse Saenz-

Holguin’s sentence only if the district court’s sentencing decision was “arbitrary,

capricious, whimsical, or manifestly unreasonable.” Id. (quoting United States v.

Munoz-Nava, 524 F.3d 1137, 1146 (10th Cir. 2008)).




                                         -3-
      In his appellate brief, Saenz-Holguin acknowledges he must overcome the

presumption of reasonableness attached to his sentence, but ignores the relevant

standard of review and fails to explain how the district court abused its discretion.

Our own review of the record convinces us that the district court carefully and

methodically applied the 18 U.S.C. § 3553(a) factors. The court adequately

explained its reasoning and concluded that its chosen sentence satisfied the four

goals of sentencing. The court therefore acted within its discretion.

      Instead of explaining why he prevails under the applicable standard of

review, Saenz-Holguin relies on arguments suggesting the Guidelines and our

federal criminal laws inevitably lead to unreasonable sentences. We conclude

none of these various policy-based arguments has merit.

      First, Saenz-Holguin argues his sixteen-point enhancement for robbery

under USSG § 2L1.2(b)(1)(A)(ii) is “a tail wagging the dog,” because it accounts

for a large measure of his sentence. Aplt. Br. at 9. This alone, he claims, shows

his sentence is unreasonable.

      As the government points out, a district court does not abuse its discretion

merely because it refuses to depart from a properly-calculated guidelines range.

See United States v. Wilken, 498 F.3d 1160, 1172–73 (10th Cir. 2007). And we

will not invalidate a sentence simply because a defendant disagrees with the

policies behind the Guidelines. Id.




                                         -4-
      Second, Saenz-Holguin claims his crime of illegally entering the United

States is victimless, and he entered the United States only to seek economic

opportunity to support his children. He asserts “there is a vigorous ongoing

public debate . . . about the best approach to the phenomenon of individuals

entering the United States in search of a better life.” Aplt. Br. at 13.

      Saenz-Holguin ignores that his crime was not merely illegal entry; he

pleaded guilty under 8 U.S.C. § 1326(b)(2) to reentering the United States after

committing an aggravated felony—specifically, robbery. He also ignores that

during his many illegal visits to this country, he has been convicted of six

felonies and nine misdemeanors. He does not dispute he committed these crimes,

nor does he dispute that during the robbery, he hit his victim in the face, held a

gun to her head, and took $100 from her. His crime clearly was not victimless.

      Furthermore, it is not our place to override federal statutes on policy

arguments better left to Congress. Congress has determined that Saenz-Holguin’s

crime is a serious one, and the district court properly treated it as such. See

United States v. Navarrete-Medina, 554 F.3d 1312, 1314 (10th Cir. 2009).

      Third, Saenz-Holguin argues that because he will be deported after his

sentence, his imprisonment will not serve the interest of incapacitation. But

Saenz-Holguin has illegally entered this country at least four times, and has

demonstrated a propensity for violent, criminal conduct while here. It is a non




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sequitur to argue incapacitation is unimportant merely because he once again will

be deported after serving his current criminal sentence.

      Fourth and finally, Saenz-Holguin argues that because he is ineligible for

most prison rehabilitation programs due to his status as an illegal alien, his

sentence will not serve the sentencing goal of rehabilitation. This, again, is an

argument for Congress, not the courts. In any event, the district court properly

considered the goal of rehabilitation and determined that it was satisfied in this

case. The court found that Saenz-Holguin is a skilled carpenter and may pursue

that profession in Mexico after serving his criminal sentence in the United States.

The district court’s finding does not amount to an abuse of discretion.

                             *            *             *

      In sum, we conclude the district court acted within its discretion in

sentencing Saenz-Holguin to a reasonable prison term of 57 months. His policy-

based arguments against his sentence lack merit. We therefore AFFIRM the

district court’s sentence.

                                        Entered for the Court

                                        Timothy M. Tymkovich
                                        Circuit Judge




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