                                                                        FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                                                                  October 18, 2010
                      UNITED STATES COURT OF APPEALS
                                                   Elisabeth A. Shumaker
                                                                    Clerk of Court
                                   TENTH CIRCUIT


 UNITED STATES OF AMERICA,

          Plaintiff - Appellee,

 v.                                                      No. 09-4196
                                               (D.C. No. 1:09-CR-00063-TC-1)
 MARIA GUADALUPE IRAZOQUI-                                (D. Utah)
 LEYVA, a/k/a Maria Leyva, a/k/a
 Maria Guadalupe Leyva, a/k/a Maria
 Guadalupe Irazoquie-De La Rosa,
 a/k/a Maria Irazoqui-Layva, a/k/a
 Maria Irazoqui,

          Defendant - Appellant.


                              ORDER AND JUDGMENT *


Before KELLY, LUCERO, and HOLMES, Circuit Judges.


      Defendant-Appellant Maria Guadalupe Irazoqui-Leyva pled guilty to illegal

reentry to the United States, 8 U.S.C. § 1326, and was sentenced to 37 months’

imprisonment to be followed by 36 months’ supervised release. She now appeals,

contending her sentence is procedurally and substantively unreasonable. Ms.

Irazoqui concedes that she cannot prevail on her procedural reasonableness claim


      *
        This order and judgment is not binding precedent, except under the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.
under our plain error standard, however, and raises it only to preserve the issue

for future review. Aplt. Br. at 7-8; see United States v. Poe, 556 F.3d 1113, 1128

(10th Cir. 2009). Our jurisdiction arises under 28 U.S.C. § 1291 and 18 U.S.C. §

3742(a) and we affirm.



                                     Background

      On August 18, 2009, Ms. Irazoqui-Leyva consented to a presentence

investigation in advance of a plea. 1. Supp. R. at 7. The resulting presentence

report (PSR) calculated Ms. Irazoqui-Leyva’s advisory guidelines imprisonment

range as 37 to 46 months based on a total offense level of 17 and a criminal

history category of IV. 2 R. at 15. The government determined that Ms.

Irazoqui-Leyva met the eligibility requirements for the “fast track” benefit. 1.

Supp. R. at 8. Had she entered into a fast-track plea agreement she would have

been eligible for a two-level downward departure upon a government motion

pursuant to United States Sentencing Guideline (USSG) § 5K3.1, resulting in a

range of imprisonment from 30 to 37 months. 2 R. at 16. See United States v.

Morales-Chaires, 430 F.3d 1124, 1127 (10th Cir. 2005) (“In jurisdictions where

fast-track programs have been authorized by the Attorney General, defendants

must ‘agree to the factual basis [of the criminal charge] and waive the rights to

file pretrial motions, to appeal, and to seek collateral relief (except for ineffective

assistance of counsel).’” (alteration in original) (quoting United States v.

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Melendez-Torres, 420 F.3d 45, 52 (1st Cir. 2005))). In addition to the potential

for a fast-track departure, the PSR noted Ms. Irazoqui-Leyva’s need to care for

six children currently in the custody of her mother, who suffers from health

problems, as a mitigating factor that could justify a sentence below the guideline

range. 2 R. at 18.

         Ms. Irazoqui-Leyva entered a plea of guilty without a plea agreement on

October 13, 2009. She did not enter into a fast-track plea agreement, hoping for

an even lower sentence. 3 R. at 14-15. At the sentencing hearing which

immediately followed the plea, Ms. Irazoqui-Leyva requested that the district

court vary not only from the bottom of the Guideline range (37-46 months) but

also from the range that would have applied had she been sentenced after entering

a plea pursuant to the fast-track program (30-37 months). 3 R. at 19.



                                       Discussion

         We review the district court’s sentence for reasonableness under an abuse

of discretion standard. United States v. Booker, 543 U.S. 220, 261 (2005); Gall

v. United States, 552 U.S. 38, 51 (2007). In examining the reasonableness of a

sentence, we review the district court’s factual findings for clear error and legal

determinations de novo. United States v. Kristl, 437 F.3d 1050, 1054 (10th Cir.

2006).

         Ms. Irazoqui-Leyva does really not dispute the district court’s application

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of the guidelines; therefore the sentence imposed is presumptively reasonable.

See id. at 1055 (“If [] the district court properly considers the relevant Guidelines

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

presumptively reasonable. 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).”). She asserts that the sentence overcomes the

presumption of reasonableness because (a) USSG § 2L1.2 overstates the

significance of her conduct and (b) the Guideline range fails to account for

numerous mitigating facts. See Aplt Br. at 10-13 (discussing United States v.

Paul, 561 F.3d 970 (9th Cir. 2009) (mitigating facts) and United States v.

Amezcua-Vasquez, 567 F.3d 1050 (9th Cir. 2009) (overstatement of prior

criminal record)); id. at 5 (arguing that a sentence within the guideline range be

evaluated for substantive reasonableness based upon (1) whether a guideline

overstates relevant conduct and (2) whether the applicable guideline range does

not account for the numerous factors that should be considered at sentencing).

      Ms. Irazoqui-Leyva asserts that § 2L1.2 overstates the significance of her

prior criminal record because it double counts her prior convictions and the

enhancement is unnecessarily high and not empirically based. Aplt. Br. at 13.

However, we routinely uphold the practice of taking a conviction into account in

both the computation of the offense level enhancement and of the criminal history

points where authorized by the Guidelines. See USSG § 2L1.2(b)(1), cmt. n. 6

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(“A conviction taken into account under subsection (b)(1) is not excluded from

consideration of whether that conviction receives criminal history points pursuant

to Chapter Four, Part A (Criminal History).”); United States v. Ruiz-Terrazas, 477

F.3d 1196, 1204 (10th Cir. 2007). Her argument that the enhancement is too high

and not empirically based is not a challenge to the district court’s exercise of

discretion but a challenge to the Guideline itself. See United States v.

Aguilar-Huerta, 576 F.3d 365, 368 (7th Cir. 2009) (“But what is the space

between invalidating a guideline and refusing ever to apply it because it’s no

good? We don’t think there is any, and therefore there would be little point in

remanding for resentencing so that the defendant could argue invalidity–which is

what his argument amounts to, though not labeled as such–to the district judge.”).

And, as Ms. Irazoqui-Leyva aptly recognizes, Aplt. Br. 21, there are

circumstances in which it is appropriate for a sentencing court to impose a

sentence below a guideline but in which it is not required to do so. While the

district court would have had substantial leeway to accept Ms. Irazoqui-Leyva’s

argument that the enhancement is excessive, it was not required to. Accord

United States v. Lopez-Reyes, 589 F.3d 667, 671 (3d Cir. 2009) (“[A] district

court is not required to engage in ‘independent analysis’ of the empirical

justifications and deliberative undertakings that led to a particular Guideline.”);

Aguilar-Huerta, 576 F.3d at 367-68 (“[W]e do not think a judge is required to

consider, not a nonfrivolous argument that a guideline produces an unsound

                                         -5-
sentence in the particular circumstances of the case, but an argument that a

guideline is unworthy of application in any case because it was promulgated

without adequate deliberation.”); United States v. Mondragon-Santiago, 564 F.3d

357, 367 (5th Cir. 2009) (“In appropriate cases, district courts certainly may

disagree with the Guidelines for policy reasons and may adjust a sentence

accordingly. But if they do not, we will not second-guess their decisions under a

more lenient standard simply because the particular Guideline is not

empirically-based.”).

      In support for the second portion of her argument, as examples of numerous

mitigating facts in her case, Ms. Irazoqui-Leyva asserts both her cultural

assimilation to the United States and her substantial compliance with Utah’s fast-

track program, in which she opted not to participate. Aplt. Br. 22, 29. With

respect to cultural assimilation she cites departure language recently promulgated

by the Sentencing Commission that is slated to go into effect November 1, 2010.

Aplt. Rep. Br. 14. This language was not in effect at the time of Ms. Irazoqui-

Leyva’s sentencing and therefore we need not consider its impact on the outcome

of this case. However, we may consider Ms. Irazoqui-Leyva’s cultural

assimilation as part of our review of the district court’s sentence for abuse of

discretion. See United States v. Galarza-Payan, 441 F.3d 885, 889-90 (10th Cir.

2006) (“The extensiveness of ‘family and cultural ties,’ however the factor is

characterized, will still be part of tailoring an appropriate sentence. But it is also

                                          -6-
clear in assessing the reasonableness of a sentence that a particular defendant’s

cultural ties must be weighed against other factors such as (1) sentencing

disparities among defendants with similar backgrounds and characteristics, and

(2) the need for the sentence to reflect the seriousness of the crime and promote

respect for the law.”).

      With respect to her compliance with the fast-track program, Ms. Irazoqui-

Leyva directs our attention to the split among the circuits that has emerged

regarding whether sentencing courts in non-fast-track districts have discretion to

grant below-Guidelines sentences to mitigate disparity with sentences in fast-

track districts. Aplt. Br. 30-31. In United States v. Martinez-Trujillo this circuit

answered in the negative the question “whether sentencing disparities caused by

the existence of fast-track programs are or are not, or may be in certain

circumstances, considered unwarranted under § 3553(a)(6).” 468 F.3d 1266, 1268

(10th Cir. 2006). But this case does not present an inter-district disparity caused

by the unavailability of a fast-track option. Instead it concerns intra-district

disparity among those defendants who participate in the fast-track program,

waiving their attendant rights, and those who, like Ms. Irazoqui-Leyva, forgo the

conditions and benefits of fast track. Ms. Irazoqui-Leyva in effect argues that her

eligibility for the fast-track program should entitle her to its benefits, which is

surely not the case. See id. at 1269 (“[T]he decision that a defendant be

‘fast-tracked’ is not made by the defendant but by the United States Attorney.”

                                          -7-
(citing USSG § 5K3.1)).

      18 U.S.C. § 3553(a) instructs sentencing courts to take into account factors

including “the nature and circumstances of the offense and the history and

characteristics of the defendant,” 18 U.S.C. § 3553(a)(1), as well as “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; and (C) to protect the public from

further crimes of the defendant.” Id. § 3553(a)(2). Ms. Irazoqui-Leyva had three

misdemeanor convictions, in 2001, 2005, and 2006, of possession of drug

paraphernalia, and two felony convictions of possession of cocaine,

methamphetamine, and marijuana with intent to distribute in 2006 and 2007. 2 R.

at 1. Her drug convictions particularly concerned the court, despite her

compelling personal circumstances. 3 R. at 30. In sentencing her to 37 months in

custody, the low end of the Guideline range, the district court balanced her

serious and extensive criminal history with her difficult circumstances, desire to

care for her children, and feasible plans for the future. 3 R. at 30.

      We hold that Ms. Irazoqui-Leyva’s 37-month sentence is within the range

of rationally permissible choices, and the district court did not abuse its discretion

in rejecting a further downward departure or variance from the Guidelines. See

United States v. Chavez-Suarez, 597 F.3d 1137, 1139 (10th Cir. 2010). Because

Ms. Irazoqui-Leyva’s sentence was procedurally and substantively reasonable, the

                                         -8-
judgment must be

     AFFIRMED.

                   Entered for the Court



                   Paul J. Kelly, Jr.
                   Circuit Judge




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