                                                                       F I L E D
                                                                United States Court of Appeals
                                                                        Tenth Circuit
                      UNITED STATES CO URT O F APPEALS
                                                                      March 29, 2007
                                   TENTH CIRCUIT                    Elisabeth A. Shumaker
                                                                        Clerk of Court

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

          Plaintiff-Appellee,
                                                        No. 06-3307
 v.                                            (D.Ct. No. 06-CR-10049-W EB)
                                                          (D . Kan.)
 N A BO R M A RTIN EZ-V ILLA ,

          Defendant-Appellant.




                                OR D ER AND JUDGM ENT *


Before TA CH A, Chief Circuit Judge, 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.




      *
         This order and judgment is not binding precedent except under the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.
      Appellant Nabor M artinez-Villa pled guilty to one count of reentry of a

deported alien previously convicted of an aggravated felony in violation of 8

U.S.C. § 1326(a) and (b)(2). He now appeals his sentence, contending it is

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

because of his medical problems and advanced age. W e exercise jurisdiction

pursuant to 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291 and affirm M r. M artinez-

Villa’s conviction and sentence.



                             I. Procedural Background

      After M r. M artinez-Villa pled guilty, the probation officer prepared a

presentence report calculating M r. M artinez-Villa’s sentence under the applicable

United States Sentencing Guidelines (“Guidelines” or “U.S.S.G.”). 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 U.S.S.G. § 2L1.2(b)(1)(A) due

to a prior felony conviction for a drug trafficking offense, and reduced his offense

level by three levels for acceptance of responsibility pursuant to U.S.S.G.

§ 3E1.1, resulting in a total offense level of twenty-one. The presentence report

also set M r. M artinez-Villa’s criminal history category at III, which, together with

an offense level of twenty-one, resulted in a Guidelines sentencing range of forty-

six to fifty-seven months imprisonment.




                                          -2-
      M r. M artinez-Villa filed a formal written objection to the presentence

report requesting a “departure” from the forty-six- to fifty-seven-month

Guidelines range based on his advanced age and poor health. In support, M r.

M artinez-Villa pointed out he is sixty-seven years old and his health is

deteriorating, given he: 1) suffers from diabetes which is not under control; 2) is

blind in his right eye, has diminished vision in his left eye, and experiences

tearing and sensitivity to light in both eyes; 3) suffers from severe headaches

requiring him to lie down; 4) has a chronic, significant and uncontrollable cough

which causes a choking sensation and may be related to tuberculosis; 5)

previously had surgery for varicose veins; and 6) has very little mobility due to

these combined health issues. He further claimed a forty-six- to fifty-seven-

month sentence would be inappropriate because of: 1) his medical problems,

which would prevent him from committing future crimes; 2) his unemployability;

and 3) the mitigating circumstance under which he illegally returned to the United

States, which involved repairing his home in Kansas after its burglary. W hile he

acknowledged one factor alone might not warrant a below-Guidelines-range

sentence, he suggested the combination of these factors did warrant a lesser

sentence.



      The government responded, explaining no compelling grounds for a

downward departure existed, given M r. M artinez-Villa’s thirty-year history of

                                          -3-
making the arduous trip back and forth between the United States and M exico

despite his claim of medical problems and that his alleged medical problems are

comm on and do not take him outside the heartland of criminal defendants. The

probation officer responded by pointing out that U.S.S.G. § 5H1.1 states age is

not ordinarily relevant unless the defendant is infirm and home confinement

might be equally efficient and less costly. 1 He also explained that, under

U.S.S.G. § 5H1.4, physical condition is not ordinarily relevant for a departure

unless an extraordinary physical impairment exists. 2 The probation officer then

concluded he did not believe M r. M artinez-Villa’s described medical conditions

or age rose to the level of an “extraordinary physical impairment,” made him a

“seriously infirm defendant,” or would exclude him from the heartland of other

cases. To illustrate his point, the probation officer noted M r. M artinez-Villa’s

age and alleged medical impairments did not keep him from operating a motor

vehicle when he w as stopped in connection with the instant offense or otherwise



      1
         Specifically, § 5H1.1 states, in part, “[a]ge (including youth) is not
ordinarily relevant in determining whether a departure is warranted,” but that
“[a]ge may be a reason to depart downward in a case in which the defendant is
elderly and infirm and where a form of punishment such as home confinement
might be equally efficient as and less costly than incarceration.”
      2
         Section 5H1.4 states, in part, “[p]hysical condition or appearance,
including physique, is not ordinarily relevant in determining whether a departure
may be warranted,” except “an extraordinary physical impairment may be a
reason to depart downward,” such as “in the case of a seriously infirm defendant”
where “home detention may be as efficient as, and less costly than,
imprisonment.”

                                         -4-
prevent him from maintaining his mobility in the community of Liberal, Kansas,

where his house is located.



      At sentencing, M r. M artinez-Villa renewed the same departure request and

the district court judge responded by first expressly restating M r. M artinez-Villa’s

arguments in support of such a request, noting his claims of poor health, including

his allegations of diabetes; blindness in the right eye; difficulty seeing with the

left eye; light sensitivity; bad headaches; chronic cough; and a lack of mobility,

causing him not to be a re-offend threat. The district court then orally recited the

policy statements in U.S.S.G. § 5H1.1 and § 5H1.4 and found M r. M artinez-

Villa’s medical conditions did not rise to the level of “extraordinary” for the

purpose of granting a departure. The district court also determined M r. M artinez-

Villa’s claim of limited mobility was incredible and inconsistent because he

recently operated a motor vehicle and was able to return to the United States after

his deportation two years ago.



      After M r. M artinez-Villa stated he had no other objections to the

presentence report, the district court applied the relevant Guidelines range of

forty-six to fifty-seven months and sentenced M r. M artinez-Villa to forty-six

months imprisonment followed by two years supervised release. In so doing, it

stated it considered the factors set forth in 18 U.S.C. § 3553(a) and the advisory

                                          -5-
Guidelines range and that a sentence at the low end of that range would serve the

purpose of incapacitating and punishing M r. M artinez-Villa for a period of time,

and the supervised release would allow his reintegration into the community as

well as a deterrence from subsequent criminal behavior if he is ever lawfully

released in the United States.



                                    II. Discussion

      On appeal, M r. M artinez-Villa argues the district court’s refusal to depart

downward below the applicable Guidelines range due to his combined serious

medical problems and advanced age was “unreasonable” under the sentencing

factors set forth in 18 U.S.C. § 3553(a). W hile M r. M artinez-Villa acknowledges

the Guidelines range was correctly calculated, he contends the 18 U.S.C.

§ 3553(a) factors warrant a below-Guidelines sentence and that the forty-six-

month sentence is unreasonable. In support, M r. M artinez-Villa outlines the

various medical ailments previously raised and addressed by the district court,

and contends it did not consider them “in combination with each other, but rather,

independently from each other.” In addition, he suggests the district court

erroneously failed to consider his age as a factor, given it did not explicitly

mention his age in its decision. Finally, M r. M artinez-Villa does not reference

either U .S.S.G. § 5H1.1 or § 5H1.4, which he previously raised in support of his

request for a downward departure.

                                          -6-
      The government opposes the appeal. It points out M r. M artinez-Villa’s

medical problems are undocumented and the district court found his immobility

claims incredible, given the uncontested facts he was able to drive a car and could

travel from M exico to the United States, which the record shows he did for the

purpose of making repairs to his house. As to the age issue, the government

points out the district court judge sentencing M r. M artinez-Villa was ninety-nine

years old, or thirty-two years older than M r. M artinez-Villa, which implies he

considered M r. M artinez-V illa’s age and alleged infirmity.



      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) 3 is called a “variance.” United States v. Atencio, 476 F.3d

      3
          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
                                                                       (continued...)

                                          -7-
1099, 1101 n.1 (10th Cir. 2007) (en banc request denied). Thus, on appeal, it is

evident M r. M artinez-Villa is now claiming his sentence is unreasonable under

the § 3553(a) factors and a variance should be applied for a below -Guidelines-

range sentence. He bases his claim on the same health and age issues he

previously raised to support his downward departure under U.S.S.G. §§ 5H1.1 and

5H1.4. W hile M r. M artinez-Villa 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.



      W e have determined a presumption of reasonableness attaches to a

sentence, like here, which is within the correctly-calculated Guidelines range.

See United States v. Kristl, 437 F.3d 1050, 1053-54 (10th Cir. 2006) (per curiam).

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

      3
       (...continued)
             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.

                                         -8-
as the method by which the sentence w as calculated,” the latter of which M r.

M artinez-V illa does not contest. Id. at 1055 (emphasis omitted). If the district

court “properly considers the relevant Guidelines range and sentences the

defendant within that range, the sentence is presumptively reasonable,” but “[t]he

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. 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. Id. at 1054.



      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 here, as here, the district court allows a defendant to make an argument

that any of these factors warrant a below-Guidelines-range sentence and then

imposes a sentence at the low end of the Guidelines range, we have said this “may

fairly be read as a functional rejection of [his] arguments and a denial of his

request for a below-Guidelines sentence.” Id. W hen addressing a district court’s

consideration of the § 3553(a) factors, “[w]e do not require a ritualistic

incantation to establish consideration of a legal issue, nor do we demand that the

                                          -9-
district court recite any magic w ords to show us that it fulfilled its responsibility

to be mindful of the factors that Congress has instructed it to consider.” United

States v. Lopez-Flores, 444 F.3d 1218, 1222 (10th Cir. 2006) (quotation marks

and citation omitted), petition for cert. filed (Jul. 7, 2006) (N o. 06-5217). W hile

“we will not demand that the district court recite any magic w ords” to support its

conclusions, neither w ill we “presume the district court weighed a party’s

arguments in light of the § 3553(a) 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). However, “[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.” Lopez-Flores, 444

F.3d at 1222.



      W ith these principles in mind, we note the district court in this case



                                          -10-
explicitly considered the factors in § 3553(a) and did so in conjunction with the

mitigating age and health circumstances described by M r. M artinez-Villa. Thus,

the record provides a clear “indication” it considered the requisite factors,

together with M r. M artinez-V illa’s health and age arguments, for a below-

Guidelines-range sentence. See Sanchez-Juarez, 446 F.3d at 1115-16. In

addition, when the district court imposed a sentence at the low end of the

Guidelines range, it was “a functional rejection of [his] arguments,” including his

advanced age and poor health, and therefore, it constituted a “denial of his request

for a below-Guidelines sentence.” Id. at 1115. M oreover, as previously stated,

“[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.” Lopez-Flores, 444

F.3d at 1222. Finally, because the district court properly considered the relevant

Guidelines range and sentenced M r. M artinez-Villa within that range, his sentence

is presumptively reasonable and he clearly has not rebutted this presumption by

demonstrating the sentence is unreasonable in light of the sentencing factors in

§ 3553(a). See Kristl, 437 F.3d at 1055. In other words, he has not shown his age

and health, when view ed in light of the § 3553(a) factors, are sufficiently

compelling to transform his presumptively reasonable sentence into an

unreasonable one.

                                         -11-
                                III. Conclusion

      For these reasons, we A FFIRM M r. M artinez-Villa’s conviction and

sentence.



                                     Entered by the C ourt:

                                     W ADE BRO RBY
                                     United States Circuit Judge




                                      -12-
