                                                                     F I L E D
                                                               United States Court of Appeals
                                                                       Tenth Circuit
                 UNITED STATES COURT OF APPEALS
                                                                    October 13, 2006
                                 TENTH CIRCUIT                    Elisabeth A. Shumaker
                                                                      Clerk of Court



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

          Plaintiff-Appellee,
                                                        No. 05-2324
 v.                                              (D.C. No. CR -05-1218 JP)
                                                        (D ist. N.M .)
 CRESCENCIO M UN OZ-OR TIZ,

          Defendant-Appellant.




                          ORDER AND JUDGMENT *


Before M U RPH Y, SE YM OU R, and M cCO NNELL, Circuit Judges.




      Crescencio M unoz-Ortiz appeals the district court’s imposition of a

sentence of 37 months subsequent to his pleading guilty to illegally reentering the

United States after deportation for a previous conviction for an aggravated felony.

W e affirm.


      *
       After examining appellant’s brief and the 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) and 10th Cir. R.
34.1(G). The case is therefore submitted without oral argument. This order and
judgment is not binding precedent, except under the doctrines of law of the case,
res judicata, or 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.
      On April 2, 2005, United States Border Patrol Agents encountered M r.

M unoz-O rtiz at the Santa Teresa port of entry in Dona Ana County, New M exico.

An investigation of M r. M unoz-Ortiz’s history established that he was deported to

M exico on July 12, 2003, and had been convicted of the felony of committing or

attempting a lew d act upon a child in South Carolina on M ay 30, 1996. M r.

M unoz-Ortiz was then arrested and later pled guilty to illegally reentering the

United States in violation of 8 U.S.C. § 1326(b)(2). The United State Probation

office prepared a presentence report (PSR ) calculating a sentence range based on

the United States Sentencing Guidelines. The PSR assigned a base offense level

of 8 for illegal reentry and recommended a 16 level enhancement pursuant to

U.S.S.G. 2L1.2(b)(1)(A) for M r. M unoz-Ortiz’s prior conviction for a lewd act

upon a child under South Carolina law. The PSR further recommended a 3 level

reduction in the offense level for acceptance of responsibility. The resulting

offense level of 21, in conjunction with a criminal history category of I, resulted

in a guidelines sentencing range of 37 to 46 months.

      In response to the PSR, M r. M unoz-Ortiz filed a sentencing memorandum

requesting a reduction in the sixteen-level enhancement. He argued that under

United States v. Booker, 543 U.S. 220 (2005), the district court was required to

consider the factors set forth in 18 U.S.C. § 3553(a), and that those factors

warranted a sentence below the guideline sentencing range. M r. M unoz-Ortiz

argued that his pure motives for reentry, to “resume his role as father and provide

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a stable environment for his children,” and his voluntary disclosure of the actions

that led to his sole felony conviction call for a sentence below the Guidelines

range. Rec. vol. II at 4. He specifically stated that his reasons for re-entry were

not “solely to find work,” but were focused on remedying his w ife’s struggles to

raise their three children in the United States. Id. at 9. Counsel for M r. Ortiz-

M unoz reiterated these arguments at the sentencing hearing, and claimed his

client’s case is “outside the heartland of cases that typically might come before

this Court.” Rec. vol. IV at 11. The district court subsequently imposed a

sentence of 37 months, the bottom of the guideline range recommended by the

PSR.

       On appeal, M r. M unoz-Ortiz contends the district court’s imposition of a

sentence at the bottom of his guideline range was substantively unreasonable in

light of United States v. Booker, 543 U.S. 220 (2005), and the factors outlined in

18 U.S.C. § 3553(a). Specifically, he claims that the “nature and circumstances

of the offense and the history characteristics of the defendant weigh heavily in

favor of a lesser sentence,” and were not properly taken into account by the

district court. Aplt. Br. at 17.

       “Under Booker, we are required to review district court sentencing

decisions for ‘reasonableness.’” United States v. Cage, 451 F.3d 585, 591 (10th

Cir. 2006). In United States v. Kristl, 437 F.3d 1050 (10th Cir. 2006), we

announced a two-step approach to review the procedural and substantive

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components of sentences post-Booker. First, if challenged, we consider whether

the district court properly calculated the defendant’s guidelines sentence and

considered the factors set forth in 18 U.S.C. § 3553(a). United States v. Sanchez-

Juarez, 446 F.3d 1109, (10th Cir. 2006); United States v. Chavez-Diaz, 444 F.3d

1223, 1229 (10th Cir. 2006). If the district court properly determined the

guidelines sentence, we then determine whether the sentence imposed is

reasonable in light of the factors set forth in 18 U.S.C. § 3553(a). Kristl, 437

F.3d at 1054-55. Sentences imposed within the advisory guideline range are

presumed reasonable. Id. at 1054. “The defendant may rebut this presumption by

demonstrating that the sentence is unreasonable in light of the . . . sentencing

factors laid out in § 3553(a).” Id. at 1055.

      M r. M unoz-Ortiz neither challenges the district court’s calculation of the

guidelines nor asserts the § 3553(a) factors were not considered by the district

court. Therefore, his w ithin guidelines sentence is “entitled to a rebuttable

presumption of reasonableness.” Id., 437 F.3d at 1054. To rebut this

presumption, M r. M unoz-Ortiz must demonstrate “that the sentence is

unreasonable when viewed against the other factors delineated in § 3553(a).” Id.

      M r. M unoz-Ortiz seeks to rebut this presumption by contending his motive

for illegally crossing the border, namely, to alleviate his family’s hardship,

warrants a lower sentence. At the sentencing hearing, M r. M unoz-Ortiz presented

the district court with an oral recounting of the suggested mitigating factors

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presented in his sentencing memorandum. The court noted that it had

“considered all [the] information” presented by the government and M r. M unoz-

Ortiz, and was aware that family issues in this case represented “another sad

situation.” Rec. vol. IV at 12, 15. The court, however, was unpersuaded that “a

sentence outside the guidelines would be justified” in this case. Id. at 15. There

is nothing to indicate that the court’s consideration of the factors of §3553(a),

including the “the history and characteristics of the defendant” that created this

“sad situation,” was unreasonable. See 18 U.S.C. § 3553(a)(1). The court

considered the relevant factors required by § 3553(a) and the circumstances of

this case, and we cannot say it acted unreasonably in rejecting M r. M unoz-O rtiz’s

request for a lower sentence.

      W e A FFIR M .

                                        ENTERED FOR THE COURT


                                        Stephanie K. Seymour
                                        Circuit Judge




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