                                                                       FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                                                                  January 4, 2008
                    UNITED STATES COURT OF APPEALS
                                                 Elisabeth A. Shumaker
                                                                    Clerk of Court
                                 TENTH CIRCUIT



 UNITED STATES OF AMERICA,

               Plaintiff - Appellee,                     No. 07-2021
          v.                                           (D. New Mexico)
 FRANCISCO TRINIDAD-TOLEDO,                       (D.C. No. CR-06-1646-JB)

               Defendant - Appellant.


                            ORDER AND JUDGMENT *


Before KELLY, MURPHY, 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.




      *
        This order and judgment is not binding precedent except under the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.
I.    Introduction

      Appellant Francisco Trinidad-Toledo pleaded guilty to one count of illegal

reentry of a deported alien, in violation of 8 U.S.C. §§ 1326(a) and (b). The

district court sentenced him to forty-one months’ imprisonment, the low end of

the advisory guidelines range. Trinidad-Toledo now appeals the sentence

imposed by the district court, arguing the court erred when it refused to depart

downward and that the sentence is substantively unreasonable based on

consideration of the factors set forth in 18 U.S.C. § 3553(a). See United States v.

Booker, 543 U.S. 220, 261 (2005). Exercising jurisdiction pursuant to 28 U.S.C.

§ 1291 and 18 U.S.C. § 3742(a), we affirm Trinidad-Toledo’s sentence.

II.   Background

      Trinidad-Toledo, a citizen of Mexico, was deported in 2004 subsequent to a

Texas state conviction for aggravated assault with a deadly weapon. On May 18,

2006, United States Border Patrol agents took Trinidad-Toledo into custody near

Columbus, New Mexico. A subsequent record check revealed both the Texas

conviction and the previous deportation. Trinidad-Toledo was then charged with

illegal reentry by a deported alien previously convicted of an aggravated felony, a

violation of 8 U.S.C. §§ 1326(a) and (b). Trinidad-Toledo pleaded guilty to the

charge and the United States Probation Office prepared a Presentence

Investigation Report (“PSR”). The PSR calculated the base offense level at eight

and then increased it sixteen levels pursuant to USSG § 2L1.2(b)(1)(A)(ii)

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because of the prior Texas felony conviction. The PSR also applied a three-level

reduction for acceptance of responsibility pursuant to USSG § 3E1.1, resulting in

a total offense level of twenty-one. Combined with Trinidad-Toledo’s criminal

history category of II, this offense level resulted in an advisory guidelines

sentencing range of forty-one to fifty-one months’ imprisonment.

       Trinidad-Toledo did not submit any objections to the PSR but filed a

sentencing memorandum requesting a downward departure under USSG § 5H1.6

or a variance from the advisory guidelines range based on a consideration of the

factors set forth in 18 U.S.C. § 3553(a). At the sentencing hearing, the district

court denied Trinidad-Toledo’s request for a downward departure, concluding his

family circumstances did not justify the departure. The court specifically stated it

was not exercising its discretion to depart downward. After considering the

§ 3553(a) factors, the court sentenced Trinidad-Toledo to forty-one months’

imprisonment, the low end of the advisory guidelines range.

III.   Discussion

       Trinidad-Toledo first seeks to directly appeal the district court’s refusal to

grant him a § 5H1.6 downward departure. This court has no jurisdiction to

review the district court’s discretionary decision to deny the departure. United

States v. Sierra-Castillo, 405 F.3d 932, 936-37 (10th Cir. 2005). Accordingly,

this court reviews Trinidad-Toledo’s sentence only for substantive

reasonableness, “tak[ing] into account [his] asserted grounds for departure” when

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conducting that review. United States v. Chavez-Diaz, 444 U.S. 1223, 1229 (10th

Cir. 2006).

      Because Trinidad-Toledo’s sentence falls within a properly calculated

guidelines range, 1 it is entitled to a rebuttable presumption of substantive

reasonableness. United States v. Kristl, 437 F.3d 1050, 1053 (10th Cir. 2006); see

also Rita v. United States, 127 S. Ct. 2456, 2462-63 (2007). Having reviewed the

record and considered Trinidad-Toledo’s arguments, we conclude he has failed to

rebut that presumption. His sentence is substantively reasonable.

IV.   Conclusion

      The sentence imposed by the district court is affirmed.

                                                ENTERED FOR THE COURT


                                                Michael R. Murphy
                                                Circuit Judge




      1
       Trinidad-Toledo’s only challenge to the accuracy of the guidelines
calculation is based on the district court’s refusal to grant the downward
departure, a decision we cannot review because we lack jurisdiction. United
States v. Chavez-Diaz, 444 F.3d 1223, 1229 (10th Cir. 2006).

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