                                                                        F I L E D
                                                                United States Court of Appeals
                                                                        Tenth Circuit
                    UNITED STATES CO URT O F APPEALS
                                                                        March 28, 2007
                                 TENTH CIRCUIT                      Elisabeth A. Shumaker
                                                                        Clerk of Court


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

               Plaintiff - Appellee,                     No. 05-1566
          v.                                              D. Colorado
 R OBER TO ESTR AD A -LO ZA NO,                   (D.C. No. 05-CR -220-PSF)

               Defendant - Appellant.



                            OR D ER AND JUDGM ENT *


Before H E N RY, BR ISC OE, and O’BRIEN, Circuit Judges.




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

unanimously that oral argument would not materially assist in the determination

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

therefore ordered submitted without oral argument.

      Roberto Estrada-Lozano pled guilty to illegal reentry after deportation

subsequent to an aggravated felony conviction in violation of 8 U.S.C. § 1326(a),

(b)(2). He was sentenced to 57 months imprisonment. He appeals from his


      *
        This order and judgment is not binding precedent except under the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.
sentence. W e exercise jurisdiction under 18 U.S.C. § 3742(a) and 28 U.S.C. §

1291 and AFFIRM .

                                  I. Background

      Estrada-Lozano is a citizen of M exico. W hen he was thirteen, he moved to

the United States w ith his mother. In M ay 1993 at age eighteen, he pled guilty to

misdemeanor use of a controlled substance and felony possession of cocaine for

sale in the State of California (Case No. 163403). He was sentenced to a

suspended sentence of 6 months imprisonment and 3 years probation. Three

months later he was arrested again in California for felony possession of

marijuana for sale (Case No. 167670). In November 1993, he pled guilty and was

sentenced to 16 months imprisonment. Simultaneously, his probation was

revoked in Case No. 163403 and he was sentenced to 2 years imprisonment, to

run concurrent with his 16-month sentence. As a result of his possession of

cocaine for sale conviction, Estrada-Lozano was deported on or about November

18, 1994.

      His absence from the United States appears to have been short-lived. From

December 1995 through February 2002, he was convicted in the State of Colorado

of five misdemeanor driving-related offenses and one misdemeanor damage to

property offense. He also fathered the child of an American citizen in

approximately 1999. In August 2004, the police in W heat Ridge, Colorado,

arrested him after receiving a 911 call from his girlfriend (and mother of his

                                        -2-
child) after he entered her residence through a w indow in violation of a temporary

restraining order. That conduct led to a charge of first degree felony trespass of a

dwelling, to w hich he pled guilty and was eventually sentenced to 2 years

probation. In M ay 2005, the United States Bureau of Immigration and Customs

Enforcement took him into custody.

      Estrada-Lozano was indicted for illegal reentry after deportation subsequent

to an aggravated felony conviction in violation of 8 U.S.C. § 1326(a), (b)(2).

Pursuant to a plea agreement with the government, he pled guilty. In exchange,

the government agreed to recommend a sentence at the bottom of the applicable

advisory guideline range and agreed to a 3-point downward adjustment for

acceptance of responsibility. A presentence investigation report (PSR ) was

prepared.

      The PSR determined Estrada-Lozano’s base offense level was 8 under the

applicable guideline USSG §2L1.2. 1 Because Estrada-Lozano had been

previously deported after a felony drug-trafficking conviction for which the

sentence imposed exceeded 13 months, the base offense level was increased 16

levels under U SSG §2L1.2(b)(1)(A). After applying a 3-level downward

adjustment for acceptance of responsibility, see USSG §3E1.1, the total offense



      1
        Estrada-Lozano was sentenced pursuant to the 2004 edition of the United
States Sentencing Commission Guidelines M anual. All citations to the guidelines
in this Order & Judgement refer to the 2004 guidelines unless otherwise
indicated.

                                         -3-
level was 21. Based on a Criminal History Category of IV, the sentencing

guideline range was 57-71 months imprisonment.

      Estrada-Lozano did not object to the PSR’s factual statements or guideline

calculations. Instead, he filed a motion for downward departure or for a sentence

below the guideline range in light of the factors set forth in 18 U.S.C. § 3553(a).

He claimed a downward departure was warranted because, inter alia, (1) his tw o

most offensive prior convictions (possession for sale of marijuana and cocaine)

involved small amounts of drugs and occurred when he was a teenager living in a

community where many of his peers w ere involved in the use and sale of small

amounts of drugs, (2) he had not been involved w ith the sale of drugs since those

convictions, (3) the impact of those convictions has been disproportionate to the

size and scale of those offenses, 2 and (4) he is culturally assimilated to the United

States. Specifically, he has lived here since he was thirteen, has been educated in

American high schools, has worked and contributed to society as a window

washer, has been in a committed relationship with a United States citizen, who is

      2
          Estrada-Lozano claimed:

      [He] was sentenced to a total of two years in prison, which was
      proportionate to the offenses. B ut the peripheral impact of the
      deportation and likely lifetime exile has been devastating beyond mere
      punishment. Not only was he cast from these shores, but he is now
      being punished because of those old mistakes by a very young man. He
      is looking at an additional three years because of the old drug
      convictions and the punishments received. It seems too much.

(R . Vol. I, Doc. 16 at 4.)

                                          -4-
also the mother of his child, has siblings who live in the United States and does

not know anyone in M exico. Based on the above factors, Estrada-Lozano argued

a 30-month sentence was appropriate. The government vigorously opposed the

motion.

      At the sentencing hearing, the court asked defense counsel what facts

suggested Estrada-Lozano would not return to the United States. In reply, defense

counsel said Estrada-Lozano was now aware of the consequences of illegally re-

entering the United States and has a number of opportunities in M exico due to his

American education and fluency in both English and Spanish. Estrada-Lozano also

personally informed the court he was sorry for illegally re-entering the country and

“it will never happen again.” (R. Vol. III at 8.) After consulting the advisory

guidelines, considering the sentencing factors set forth in 18 U.S.C. § 3553(a) and

reviewing the “very capable and articulate briefing on the m otion to depart

downward or otherwise sentence below the [guideline] range,” the court adopted the

PSR ’s guideline calculations and sentenced Estrada-Lozano to 57 months

imprisonment. (Id. at 9.) W hile acknowledging it was a “tough sentence,” the

district court found no reason to depart from the guideline range or impose a

sentence of variance with the guidelines 3 , stating:

      3
       A departure occurs “when a court reaches a sentence above or below the
recommended Guidelines range through application of Chapters Four or Five of
the Sentencing Guidelines.” United States v. Atencio, 476 F.3d 1099, 1101, n.1
(10th Cir. 2007). A variance occurs “when a court enhances or detracts from the
recommended range through application of § 3553(a) factors.” Id.

                                            -5-
      This particular defendant was put in a tough position as a youth. And,
      on the other hand, he has a criminal record that prevents him from
      becoming a citizen and prevents him from getting a lower sentence.

      And I do agree with the district judge in [United States v. M orales-
      Chaires, 430 F.3d 1124 (10th Cir. 2005)] that a sentence not only has to
      apply to this individual but it does have to fulfill the need to promote
      respect for the law .

(Id. at 9-10.) Estrada-Lozano timely appealed.

                                     II. Discussion

      Estrada-Lozano argues his sentence was neither reasoned nor reasonable when

viewed against the sentencing factors set forth in 18 U .S.C. § 3553(a). He also

claims affording a presumption of reasonableness to sentences within the guideline

range is unwarranted and in conflict with United States v. Booker, 543 U.S. 220

(2005).

      A. Reasonableness of Sentence

      Estrada-Lozano argues his sentence is unreasonable in light of the factors set

forth in § 3553(a) because the district court failed to consider his arguments

regarding (1) the deterrent effect prison had on him, i.e., he has not committed a

drug-related crime since his 1993 convictions, (2) his personal assurance he would

not re-enter the country illegally, and (3) his counsel’s assurance he would not

illegally return to the United States because he now understands the serious

consequences and has opportunities in M exico. Had the district court considered

these arguments, he claims, a lesser sentence w ould have been imposed because



                                           -6-
these facts adequately rebut the presumption of reasonableness accorded sentences

imposed within a properly calculated guideline range. Estrada-Lozano also asserts

the district court failed to provide reasons for rejecting his arguments. He alleges

such reasoning is necessary to assist this Court in its reasonableness review. 4

      W e review sentences imposed post-Booker for reasonableness. United States

v. Kristl, 437 F.3d 1050, 1053 (10th Cir. 2006). Reasonableness “necessarily

encompasses both the reasonableness of the length of the sentence, as well as the

method by which the sentence was calculated.” Id. at 1055; see also United States v.

M artinez, 455 F.3d 1127, 1132 (10th Cir.) (“[S]entences must be both substantively

and procedurally reasonable.”), cert. denied, 127 S.Ct. 570 (2006). In this case,

Estrada-Lozano is challenging both aspects of reasonableness. 5


      4
        Estrada-Lozano is not contesting the district court’s discretionary denial
of his motion for downward departure and rightly so because we do not have
jurisdiction to review it. United States v. Chavez-Diaz, 444 F.3d 1223, 1229
(10th Cir. 2006).
      5
         The government claims w e should review Estrada-Lozano’s arguments
under the plain-error standard. Relying on United States v. Lopez-Flores, it
claims that because Estrada-Lozano is challenging the method by which the
district court arrived at his sentence, as opposed to its length, his failure to object
to that method in the district court warrants plain-error review. 444 F.3d 1218,
1221-22 (10th Cir. 2006). Estrada-Lozano argues he is challenging both the
reasonableness of the method used by the district court to impose sentence and its
length. He further asserts Lopez-Flores has been limited by United States v.
Sanchez-Juarez, 446 F.3d 1109 (10th Cir. 2006), which did not apply plain error
review even though the defendant had not objected to the district court’s
sentencing method. W e agree with Estrada-Lozano that he is challenging both the
length of his sentence and the method used to impose it. However, we disagree
that Sanchez-Juarez limited the scope of Lopez-Flores. In Sanchez-Juarez, the
                                                                             (continued...)

                                            -7-
      As to the reasonableness of the length of his sentence, Estrada-Lozano does

not challenge the district court’s application of the guidelines or its calculation of the

guideline range. Thus, because he was sentenced within that range, his sentence is

entitled to a “rebuttable presumption of reasonableness.” Kristl, 437 F.3d at 1054

(“[A] sentence that is properly calculated under the Guidelines is entitled to a

rebuttable presumption of reasonableness.”). “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).” Id. at 1055. In rebuttal, Estrada-Lozano

claims the district court failed to consider his arguments and failed to provide

reasons for rejecting them. This argument requires us first to consider the

reasonableness of the method by which Estrada-Lozano’s sentence was imposed.

      In Booker, the Supreme Court remedied the constitutional infirmity of the

guidelines by invalidating their mandatory nature, requiring the district court to

consult them in an advisory fashion but permitting the court to tailor the sentence in

light of other sentencing goals set forth in 18 U.S.C. § 3553(a). 543 U.S. at 245-46

(severing and excising 18 U.S.C. § 3553(b)(1)). W hile the district court is required

to consider § 3553(a)’s sentencing factors when imposing sentence, we have not

required it to expressly mention each factor in imposing sentence. See Martinez, 455

      5
        (...continued)
standard of review was never addressed. Nevertheless, we need not resolve the
issue. If the plain error standard of review does not apply, our conclusion would
be the same— the method used to arrive at the sentence as well as the length of
the sentence are reasonable.

                                            -8-
F.3d at 1131-32 (rejecting defendant’s argument that the district court erred by not

specifically considering § 3553(a) where the court consulted the guidelines in an

advisory fashion, exercised its discretion in sentencing below the guideline range,

heard multiple arguments regarding the appropriate sentencing range and was

familiar w ith the relevant facts); United States v. Rines, 419 F.3d 1104, 1107 (10th

Cir. 2005) (noting that we do not require the district court to “march through

§ 3553(a)’s sentencing factors” when imposing sentence; upholding sentence w here

the district court stated it “looked at the record in its entirety,” heard arguments

regarding the appropriate sentence, and concluded a 70 month sentence was

appropriate) (quotations omitted), cert. denied, 126 S.Ct. 1089 (2006).

      In this case, the district court stated it had consulted the guidelines in an

advisory fashion and considered the § 3553(a) sentencing factors. 6 It further stated it

had reviewed the parties’ briefs on whether Estrada-Lozano should receive a

sentence below the advisory guideline range, which included the argument

concerning the deterrent effect prison life had on him. It also adopted the factual

statements and guideline applications in the PSR. The PSR contained a discussion of



      6
         Those factors include: the nature and circumstances of the offense; the
history and characteristics of the defendant; the need for the sentence imposed to
reflect the seriousness of the offense, promote respect for the law, provide just
punishment for the offense, afford adequate deterrence, protect the public, and
provide the defendant with needed educational or vocational training, medical
care or other correctional treatment in the most effective manner; pertinent
guidelines; pertinent policy statements; the need to avoid unwanted sentence
disparities; and the need to provide restitution. 18 U.S.C. § 3553(a).

                                            -9-
the § 3553(a) factors, focusing on Estrada-Lozano’s criminal history and the fact

previous probation and jail sentences had not deterred him from committing new

crimes, including first degree felony trespass of a dwelling. W hile the district court

did not expressly weigh each § 3553(a) factor, it did consider Estrada-Lozano’s

childhood and cultural assimilation to the United States, his criminal record, the

likelihood he would recidivate and, in particular, the need for the sentence to

promote respect for the law. Thus, the district court’s sentencing method was

proper.

      Estrada-Lozano relies on United States v. Sanchez-Juarez for the proposition

that a district court is required to state reasons for rejecting a non-frivolous motion

for a sentence below the advisory guideline range. 446 F.3d 1109 (10th Cir. 2006).

There, Sanchez-Juarez pled guilty to illegal reentry after deportation subsequent to

an aggravated felony conviction. He did not object to the PSR’s guideline

calculation, instead filing a sentencing memorandum arguing for a sentence below

the advisory guideline range. He claimed a lower sentence was warranted based on

the relatively minor nature of his prior aggravated felony, his exceptional family

circumstances (i.e., his having to support a wife and two children), the harsher

restrictions alien inmates receive in prison compared to their non-alien counterparts

and the sentencing disparity caused by the existence of “fast-track” programs in




                                           -10-
some jurisdictions but not in others. 7 The government opposed a sentence below the

advisory guideline range, claiming there was nothing atypical about Sanchez-

Juarez’s background as many defendants have dependent spouses and children. It

also asserted his prior alien transporting conviction was expressly addressed in the

guidelines as a conviction warranting a 16-level enhancement. The district court

adopted the PSR’s guideline calculation range and sentenced Sanchez-Juarez to the

bottom of that range. Sanchez-Juarez appealed, claiming his sentence was

procedurally unreasonable because the district court failed to state reasons for the

sentence it imposed and to consider his arguments that the § 3553(a) factors

warranted a sentence below the applicable guideline range.

      On appeal, we acknowledged that the district court’s decision to impose a

sentence at the bottom of the guideline range could be interpreted as a functional

rejection of Sanchez-Juarez’s arguments and a denial of his request for a below -

guideline sentence. Id. at 1115. However, because the court stated no reasons for

the sentence it imposed (other than citing Sanchez-Juarez’s offense conduct and

noting it had reviewed the PSR’s factual findings and considered the guideline

applications) and did not refer to the § 3553(a) factors, we concluded remand w as

appropriate. Id. at 1115, 1118. W hile we recognized that both before and after

Booker we have not demanded the district court to recite any magic words to show us



      7
       A “fast-track” program provides for reduced sentences in illegal reentry
cases where a defendant pleads guilty. Sanchez-Juarez, 446 F.3d at 1112.

                                          -11-
it considered the § 3553(a) factors, w e found this principle did not mean we could

presume the district court weighed the defendant’s arguments in light of § 3553(a)

where the record provides no indication it did so and no clear explanation of the

sentence imposed. Id. at 1115-16. W e also rejected the government’s argument that

the presumption of reasonableness we afford a sentence within the guideline range

renders moot any question concerning the adequacy of the district court’s sentencing

method. Id. at 1116-17. W e concluded that requiring the district court to state its

reasons for rejecting a party’s nonfrivolous motion for a sentence below the

guideline range was not incompatible with that presumption. Id. at 1117. In sum,

we held:

      W e are therefore persuaded that our pre-Booker requirement that district
      courts provide sufficient reasons to allow meaningful appellate review
      of their discretionary sentencing decisions continues to apply in the
      post-Booker context. In particular, where a defendant has raised a
      nonfrivolous argument that the § 3553(a) factors w arrant a
      below-Guidelines sentence and has expressly requested such a sentence,
      we must be able to discern from the record that the sentencing judge did
      not rest on the guidelines alone, but considered whether the guidelines
      sentence actually conforms, in the circumstances, to the statutory
      factors.

Id. at 1118 (quotations omitted).

      Sanchez-Juarez is clearly distinguishable. U nlike the district court in

Sanchez-Juarez, the court in this case stated it had considered the § 3553(a)

sentencing factors. The court’s discussion at sentencing supports this, as it expressly

mentioned Estrada-Lozano’s background, criminal history and the need for the



                                          -12-
sentence to promote respect for the law. It further considered whether Lozano-

Juarez was likely to illegally re-enter the country, as evidenced by its inquiry to

defense counsel seeking assurances that Estrada-Lozano would not return to the

United States without permission. It is also clear from the record the reasons the

court rejected Estrada-Lozano’s motion for a below-guideline sentence, i.e., his

criminal history and the need for the sentence to promote respect for the law.

M oreover, the PSR, unlike the PSR in Sanchez-Juarez, contained a discussion of the

§ 3553(a) factors and made a sentencing recommendation based on those factors.

Compare Sanchez-Juarez, 446 F.3d at 1115 n.6 (noting PSR , unlike others we had

seen, did not refer to or discuss the § 3553(a) factors or make a sentencing

recommendation based on those factors). Thus, the record reflects the district court

“did not rest on the guidelines alone, but considered whether the guidelines sentence

actually conforms, in the circumstances, to the statutory factors.” Id. at 1118

(quotations omitted). 8

      8
         W e recently clarified a district court’s duty of explanation at sentencing.
United States v. Ruiz-Terrazas, -- F.3d --, No. 06-2138, 2007 W L 576034 (10th
Cir. Feb. 26, 2007). There, like here, the district court entertained extensive
§ 3553(a) argument and explained on the record it had considered the § 3553(a)
factors. Nevertheless, Ruiz-Terrazas claimed the district court comm itted
reversible error because it failed to specifically state why it rejected his § 3553(a)
arguments. Applying plain error review, we concluded the district court
committed no error. Id. at *2. W e noted that while § 3553(c)(2) requires a
district court to provide a specific statement of reasons when imposing a sentence
outside the guidelines, § 3553(c)(1) only requires the court to provide a general
statement of reasons when imposing a sentence falling within the guideline range.
Id. W e also cited to United States v. Lopez-Flores, 444 F.3d 1218 (10th Cir.
                                                                             (continued...)

                                           -13-
      H aving found Estrada-Lozano’s sentence to be procedurally reasonable, w e

now turn to whether he has rebutted the presumption of reasonableness that attaches

to his correctly calculated guideline range sentence. He attempts to rebut the

presumption by pointing to the deterrent effect prison has had on him and his

assurances that he would not re-enter the country illegally. As to the former

argument, he claims he has not committed another drug-related crime since he was

released from prison in 1994. However, he has committed several non-drug related

crimes, including several driving-related misdemeanors, a damage to property

misdemeanor, a first degree felony trespass of a dwelling, and, of course, illegally

re-entering this country after being deported. W hile he downplays the seriousness of

these offenses, their commission demonstrate a disrespect for the law s of this

country. Indeed, one of the § 3553(a) factors the district court relied upon in

im posing sentence w as the need for the sentence to promote respect for the law .



      8
        (...continued)
2006), for the proposition that a district court need not recite any magic w ords to
prove it considered § 3553. Id. at *4 (quotations omitted). Lastly, we rejected
Ruiz-Terrazas’ reliance on Sanchez-Juarez. Id. at *5. W e concluded Sanchez-
Juarez and its progeny simply hold “we will step in and find error when the
record gives us reason to think that our ordinary (Lopez-Flores) presumption that
the district court knew and applied the law is misplaced.” Id. W e also
distinguished Sanchez-Juarez based on the fact there was no indication in
Sanchez-Juarez that the district court considered the § 3553(a) factors and we
could not discern a clear explanation for the sentence given. Id. Because the
district court had entertained Ruiz-Terranza’s § 3353(a) arguments, indicated on
the record it had considered the § 3553(a) factors and proceeded to explain its
reliance on sentencing guideline range, we determined Sanchez-Juarez’s
reasoning was inapplicable. The same is true here.

                                          -14-
      W e similarly reject Estrada-Lozano’s argument that a below guideline range

sentence was appropriate because he (as well as his counsel) assured the court he

would not illegally re-enter the country. The district court obviously considered

these assurances (indeed it asked for them) but still found a sentence below the

guideline range was not warranted. 9 Notwithstanding Estrada-Lozano’s personal

assurances, the district court did not err in concluding such assurances did not

warrant a sentence below the advisory guideline range (the national norm) in this

case. United States v. Gonzalez-H uerta, 403 F.3d 727, 738 (10th Cir.) (en banc),

cert. denied, 126 S.Ct. 495 (2005). His bilingual abilities and American education

were present before he illegally re-entered the country after his 1994 deportation.

M oreover, we presume such assurances are standard fare in cases such as this. That

does not make them credible.

      B. Rebuttable Presumption

      Estrada-Lozano claims affording a presumption of reasonableness to sentences

within the guideline range is unwarranted and in conflict with Booker. At the same

time he recognizes our contrary precedent. Kristl, 437 F.3d at 1054-55. The



      9
        That consideration could, and should, be fleeting. This defendant’s
assurances that he has learned his lesson and is now irrevocably comm itted to a
law abiding life hardly resonates in the crucible of unremitting criminal behavior.
And it is, indeed, mystifying how anyone would think the echo of hollow
prom ises uttered by defense counsel could add credence to the incredible. No
court should ever be required to give lengthy or serious consideration to such
cultivated and dubious assertions. Past behavior is the best predictor of future
behavior.

                                          -15-
argument has been preserved for further review, which is Estrada-Lozano’s stated

purpose for raising it.

      A FFIR ME D.

                                           ENTERED FOR THE COURT

                                           Terrence L. O’Brien
                                           Circuit Judge




                                        -16-
