                                                                       F I L E D
                                                                United States Court of Appeals
                                                                        Tenth Circuit
                      UNITED STATES CO URT O F APPEALS
                                                                        May 4, 2007
                                 TENTH CIRCUIT                     Elisabeth A. Shumaker
                            __________________________                 Clerk of Court

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

          Plaintiff-Appellee,
                                                        No. 06-2200
 v.                                               (D.Ct. No. CR-06-45-JH)
                                                          (D . N.M .)
 FRA NCISCO M EN DOZA -TO RR ES,

          Defendant-Appellant.
                        ____________________________

                                OR D ER AND JUDGM ENT *


Before TA CH A, Chief Circuit Judge, and BARRETT and BROR BY, Senior
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. 34.1.9(G). The case is

therefore ordered submitted without oral argument.



      Appellant Francisco M endoza-Torres pled guilty to one count of illegal



      *
         This order and judgment is not binding precedent except under the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.
reentry of a deported alien previously convicted of an aggravated felony in

violation of 8 U.S.C. § 1326(a)(1)–(2) and (b)(2). He now appeals his sentence,

arguing it is unreasonable when viewed under the 18 U.S.C. § 3553(a) sentencing

factors based on family circumstances, including his concern for his w ife’s health

and his children’s need for support and care, which compelled his illegal return to

the United States. In addition, he contends: 1) government officials repeatedly

misled him into believing he could return to the United States, and 2) the sixteen-

level enhancement under United States Sentencing Guidelines (“Guidelines” or

“U.S.S.G.”) § 2L1.2(b)(1)(A), for previously being deported following a

conviction for a felony crime of violence, unreasonably lengthened his sentence

under § 3553(a) because it fails to serve the traditional objectives of criminal

punishment, including retribution, deterrence, incapacitation, and rehabilitation.

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

and affirm M r. M endoza-Torres’s sentence.



                             I. Procedural Background

      After M r. M endoza-Torres pled guilty, the probation officer prepared a

presentence report calculating his sentence under the applicable Guidelines. The

probation officer set his base offense level at eight pursuant to U.S.S.G.

§ 2L1.2(a), increased his base level sixteen levels pursuant to § 2L1.2(b)(1)(A)

because he possessed three prior felony convictions for armed robbery

                                         -2-
constituting crimes of violence, and reduced his offense level by three levels for

acceptance of responsibility pursuant to § 3E1.1, resulting in a total offense level

of twenty-one. The presentence report also set M r. M endoza-Torres’s criminal

history category at IV, which, together with an offense level of twenty-one,

resulted in a recommended Guidelines sentencing range of fifty-seven to seventy-

one months imprisonment.



      The presentence report stated that during his interview with the probation

officer, M r. M endoza-Torres advised his wife w as diagnosed with ovarian cancer;

in addition, M r. M endoza-Torres’s wife advised the probation officer: 1) she had

been diagnosed three years earlier with a tumor in her uterus; 2) a recent biopsy

determined it was benign; and 3) surgery was scheduled to remove it. She further

advised: 1) her brothers offered assistance, including sending money and taking

the youngest three of their six children until her recovery; 2) her neighbors

offered to help by driving their children to and from school; 3) she received

financial support in the form of food stamps, M edicaid, and low-income housing;

and 4) she planned to resume her part-time catering business after recovery from

surgery.



      M r. M endoza-Torres filed a formal written objection to the presentence

report, which he renew ed at the sentencing hearing, requesting a downward

                                         -3-
departure under Chapter Five of the Guidelines based on his exceptional family

circum stance, w hich he explained caused his illegal reentry into the country. 1 H e

based his claim on his belief at the time of his reentry that his wife had ovarian

cancer and his children needed his support. At the sentencing hearing, he also

argued the government was equitably estopped from prosecuting and sentencing

him because when he was deported in 1992, 1993, 2001, and 2004, the

government misled him into thinking he could return to the United States by

telling him to contact a probation officer or department on his return. In

response, the government pointed out that regardless of what M r. M endoza-Torres

was told by state authorities, in 2004 he signed Form I-294, called “W arning to

Aliens Ordered Removed or Deported,” in which he acknowledged he was

prohibited from entering, attempting to enter, or being in the United States at any

time because he had been convicted of an aggravated felony, and that he must

obtain permission from the Attorney General to reapply for admission to the

United States.



      After hearing and considering the parties’ arguments, the district court

stated it had reviewed the presentence report and factual findings and considered

the advisory Guidelines applications, the 18 U .S.C. § 3553(a) sentencing factors,

      1
         Specifically, U.S.S.G. § 5H1.6 states that family ties and responsibilities
“are not relevant in determining whether a sentence should be below the
applicable guideline range.”

                                          -4-
and the documents submitted by M r. M endoza-Torres. It further stated that it

must look at all the facts and impose what it believed to be a reasonable sentence

based on those facts as well as the statutory sentencing factors. It then sentenced

M r. M endoza-Torres to the low end of the Guidelines range to fifty-seven months

imprisonment. In so doing, the district court stated it understood M r. M endoza-

Torres’s argument about his wife’s medical condition, but that an important

consideration in its sentencing decision was the availability of individuals to help

her. The district court also stated it could not ignore his criminal history record,

and that based on everything it reviewed, a fifty-seven-month sentence was

reasonable.



                                    II. Discussion

      On appeal, M r. M endoza-Torres argues a fifty-seven-month sentence is

unreasonable under the 18 U.S.C. § 3553(a) factors as punishment for his mere

crossing of an artificial, political boundary line to be with his wife, after her

initial diagnosis of ovarian cancer; and his children, who suffer depression caused

by separation from their father. He also renews his argument his sentence is

inappropriate because the government misled him into believing he could reenter

the country so long as he advised his probation officer. Finally, based on the

record provided, it appears that for the first time on appeal, M r. M endoza-Torres

suggests the sixteen-level enhancement under U.S.S.G. § 2L1.2(b)(1)(A), for

                                           -5-
previously being deported following a conviction for a felony crime of violence,

unreasonably lengthened his sentence because it fails to serve the traditional

objectives of criminal punishment, including retribution based on the seriousness

of the offense and respect for the law, deterrence from committing future crimes,

incapacitation to protect the public, and rehabilitation.



      W e begin our discussion by clarifying that a sentence above or below the

recommended Guidelines range based on an application of Chapters Four or Five

of the Guidelines is referred to as a “departure,” while a sentence above or below

the recommended Guidelines range through application of the sentencing factors

in 18 U.S.C. § 3553(a) 2 is called a “variance.” United States v. Atencio, 476 F.3d



      2
          18 U.S.C. § 3553(a) provides, in part, the court shall consider:

      (1) the nature and circumstances of the offense and the history and
      characteristics of the defendant;
      (2) the need for the sentence imposed--
             (A) to reflect the seriousness of the offense, to promote respect
             for the law, and to provide just punishment for the offense;
             (B) to afford adequate deterrence to criminal conduct;
             (C) to protect the public from further crimes of the defendant;
             and
             (D) to provide the defendant with needed educational or
             vocational training, medical care, or other correctional
             treatment in the most effective manner;
      (3) the kinds of sentences available; ...
      (6) the need to avoid unwarranted sentence disparities among
      defendants with similar records who have been found guilty of
      similar conduct; and
      (7) the need to provide restitution to any victims of the offense.

                                          -6-
1099, 1101 n.1 (10th Cir. 2007) (en banc request denied). Thus, on appeal, it is

evident M r. M endoza-Torres is no longer requesting a downward departure under

Chapter Five, but claiming his sentence is unreasonable under the § 3553(a)

factors warranting a variance for a below-Guidelines sentence based on the same

family circumstances previously raised.



      W hile M r. M endoza-Torres did not previously frame his objections

expressly in the context of a variance under § 3553(a), we do not require a

defendant to make such an objection in order to preserve a claim his sentence is

unreasonably long under those factors. See United States v. Torres-Duenas, 461

F.3d 1178, 1183 (10th Cir. 2006), petition for cert. filed (Nov. 22, 2006) (No. 06-

7990). Instead, we review for reasonableness the sentence’s length, as guided by

the factors in 18 U.S.C. § 3553(a). See id. These factors “include the nature of

the offense and characteristics of the defendant, as well as the need for the

sentence to reflect the seriousness of the crime, to provide adequate deterrence, to

protect the public, and to provide the defendant with needed training or treatment

....” United States v. Kristl, 437 F.3d 1050, 1053 (10th Cir. 2006) (per curiam).

W e have determined a presumption of reasonableness attaches to a sentence, like

here, which is within the correctly-calculated Guidelines range. See id. at 1053-

54. W e require reasonableness in two respects – “the length of the sentence, as

well as the method by which the sentence was calculated.” Id. at 1055 (emphasis

                                          -7-
omitted). If the district court “properly considers the relevant Guidelines range

and sentences the defendant within that range, the sentence is presumptively

reasonable.” Id. “This is a deferential standard that either the defendant or the

government may rebut by demonstrating that the sentence is unreasonable when

viewed against the other factors delineated in § 3553(a).” Id. at 1054. In

determining whether the district court properly considered the applicable

Guidelines range, we review its legal conclusions de novo and its factual findings

for clear error. See id.



      W e have held “[t]here is no question that, in addition to guiding our

reasonableness review on appeal, the sentencing factors set forth in 18 U.S.C.

§ 3553(a) must be considered by the district court itself when imposing a

sentence.” United States v. Sanchez-Juarez, 446 F.3d 1109, 1115 (10th Cir.

2006). “W hen the defendant has not raised any substantial contentions

concerning non-Guidelines § 3553(a) factors and the district court imposes a

sentence within the Guidelines range, our post-Booker precedents do not require

the court to explain on the record how the § 3553(a) factors justify the sentence.”

United States v. Lopez-Flores, 444 F.3d 1218, 1222 (10th Cir. 2006), petition for

cert. filed (Jul. 7, 2006) (No. 06-5217). W hile “we will not demand that the

district court recite any magic w ords” to support its conclusions, neither will w e

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

                                          -8-
factors where the record provides no indication that it did so and no clear

explanation of the sentence imposed.” Sanchez-Juarez, 446 F.3d at 1115-16

(quotation marks and citations omitted).

      [W ]here a defendant has raised a nonfrivolous argument that the
      § 3553(a) factors warrant 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 1117 (quotation marks, alterations, and citation omitted).



      Because the district court in this case applied the relevant Guidelines range

and sentenced M r. M endoza-Torres w ithin that range, his sentence is

presumptively reasonable and he must rebut this presumption by demonstrating

the sentence is unreasonable in light of the sentencing factors in § 3553(a). In

attempting to rebut this presumption, M r. M endoza-Torres argues his sentence is

unreasonable based on his extraordinary family circumstance. W e disagree.



      In the instant case, the district court stated it understood M r. M endoza-

Torres’s argument about his wife’s medical condition, but that an important

consideration in its sentencing decision was the availability of other individuals to

help her. From a review of the record, it is also clear the district court considered

M r. M endoza-Torres’s family circumstance together with the other § 3553(a)



                                           -9-
sentencing factors, including his criminal history record, and based on everything

it reviewed, determined a fifty-seven-month sentence w as reasonable. Thus, M r.

M endoza-Torres’s family circumstance is but one of the factors the district court

considered, and it was not required to single out or give more weight to that

factor than any other factor. Therefore, M r. M endoza-Torres has not

demonstrated his family circumstance, when viewed in light of the other

§ 3553(a) factors, is sufficiently compelling for the purpose of making his

sentence unreasonable.



      W e next address M r. M endoza-Torres’s argument on appeal that the

sixteen-level enhancement under U.S.S.G. § 2L1.2(b)(1)(A), for previously being

deported following a conviction for a felony crime of violence, unreasonably

lengthened his sentence under § 3553(a) because it fails to serve the traditional

objectives of criminal punishment, including retribution, deterrence,

incapacitation, and rehabilitation. To the extent M r. M endoza-Torres is claiming

the district court erroneously applied this Guidelines section to his sentence, we

review his claim for the first time on appeal for plain error. See Torres-Duenas,

461 F.3d at 1182-83. “Plain error occurs when there is (1) error, (2) that is plain,

which (3) affects substantial rights, and which (4) seriously affects the fairness,

integrity, or public reputation of judicial proceedings.” Id. at 1180 (quotation

marks and citation omitted). However, because the record patently discloses M r.

                                         -10-
M endoza-Torres was previously deported following three convictions for armed

robbery constituting crimes of violence, it is clear the district court did not err in

applying § 2L1.2(b)(1)(A). Having found no error, we need not address the

remaining disjunctive plain error elements, other than note M r. M endoza-Torres

has not directed us to any fact or issue of law that renders the application of

§ 2L1.2(b)(1)(A) unreasonable or inappropriate.



      To the extent M r. M endoza-Torres is claiming his sentence is unreasonably

long under the § 3553(a) factors based on the issues of retribution, deterrence,

incapacitation, and rehabilitation, we will review his claim as he was not required

to raise the issue his sentence is unreasonably long in order to preserve it for

review. See id. at 1183. However, because M r. M endoza-Torres did not

previously raise any substantial contentions relating to his arguments concerning

retribution, deterrence, incapacitation, and rehabilitation, and the district court

imposed a sentence within the Guidelines range, the district court was not

required to explain on the record how those factors justified the sentence. See

Lopez-Flores, 444 F.3d at 1222.



      Having determined the district court was not required to explicitly discuss

the contentions not raised by M r. M endoza-Torres, he has not demonstrated his

sentence does not reasonably reflect the § 3553(a) factors for consideration,

                                          -11-
including the nature of the offense and his characteristics, including his extensive

criminal history as well as the need for the sentence to reflect the seriousness of

the crime, to provide adequate deterrence, and to protect the public. M ore

specifically, the record shows M r. M endoza-Torres repeatedly illegally reentered

the country following his numerous deportations, and, during one period of

reentry, in 1996, he committed three counts of armed robbery, which is not a

trivial offense. He has now again illegally reentered the country, thereby

demonstrating the need for a sentence sufficient to provide future deterrence and

protect the public.



      Finally, we reject M r. M endoza-Torres’s claim the government is equitably

estopped from sentencing him because it allegedly misled him into believing he

could reenter the country. As the government points out, M r. M endoza-Torres

previously acknowledged he was prohibited from entering the United States due

to his conviction for an aggravated offense and that he must obtain permission

from the Attorney General to reapply for admission to the United States.

M oreover, regardless of whether M r. M endoza-Torres did not understand his

reentry into the U nited States w as illegal or the consequences of his reentry, we

have held “nothing more than a showing of general intent is required,” and “the

government need not show that [the] defendant willfully and knowingly engaged

in criminal behavior, but only that the defendant’s acts were willful and knowing

                                         -12-
– that [he] willfully and know ingly reentered the U nited States and that he did so

without the Attorney General’s permission.” United States v. Gutierrez-Gonzalez,

184 F.3d 1160, 1165 (10th Cir. 1999). Given M r. M endoza-Torres pled guilty to

illegal reentry, which includes an intention to willfully and knowingly reenter the

country, his argument he did not understand his reentry was criminal or involved

penalties is irrelevant for the purposes of this appeal.



      Under the circumstances presented, it was not unreasonable for the district

court to determine a sentence imposed at the bottom of the applicable Guidelines

range sufficiently reflected the factors in § 3553(a), and M r. M endoza-Torres has

not otherwise demonstrated his sentence is unreasonable when viewed against

those factors.



                                   III. Conclusion

      For these reasons, we A FFIRM M r. M endoza-Torres’s sentence.



                                        Entered by the C ourt:

                                        W ADE BRO RBY
                                        United States Circuit Judge




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