                                                                       F I L E D
                                                                United States Court of Appeals
                                                                        Tenth Circuit
                    UNITED STATES CO URT O F APPEALS
                                                                        May 17, 2007
                                 TENTH CIRCUIT                      Elisabeth A. Shumaker
                                                                        Clerk of Court


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

               Plaintiff - Appellee,                     No. 06-2166
          v.                                           (D. New M exico)
 ENRIQU E ENRIQU EZ-BO JOR QU EZ,                 (D.C. No. CR-05-1306-BB)

               Defendant - Appellant.



                            OR D ER AND JUDGM ENT *


Before KELLY, A ND ER SO N, and HENRY, Circuit Judges.




      Defendant/appellant Enrique Enriquez-Bojorquez, a citizen of M exico, pled

guilty to one count of illegal reentry by an alien previously convicted of an

aggravated felony, in violation of 8 U.S.C. § 1326(a)(1), (a)(2) and (b)(2). He

was sentenced to forty-one months’ imprisonment, followed by two years of

supervised release. Enriquez-Bojorquez appeals that sentence, which we affirm.




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        This order and judgment is not binding precedent except under the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

      On January 21, 1991, Enriquez-Bojorquez was convicted of aggravated

assault on a peace officer and driving under the influence. Aggravated assault is

an aggravated felony for federal immigration purposes. 8 U.S.C.

§ 1101(a)(43)(F). He received a three-year sentence, which was suspended on the

condition that he successfully complete eighteen months of probation. Enriquez-

Bojorquez was deported to M exico in February 1991.

      He was found again in the United States in August 1991, was convicted of

illegal reentry, and was again deported in August 1992. Enriquez-Bojorquez was

found once again in the United States in September 1997, was convicted of illegal

reentry and was deported for a third time in January 2001. The instant offense

occurred when, on April 3, 2005, Enriquez-Bojorquez illegally reentered the

United States and was arrested by agents at the border. As indicated, he pled

guilty to illegal reentry by an alien with a previous conviction for an aggravated

felony, i.e., the aggravated assault in 1991.

      In preparation for sentencing, the United States Probation Office prepared a

presentence report (“PSR”), which calculated an advisory sentencing range under

the United States Sentencing Commission Guidelines M anual (“USSG”) (2004).

The PSR determined that Enriquez-Bojorquez’s base offense level was eight. It

recommended a sixteen-level enhancement because Enriquez-Bojorquez had been

previously convicted of an aggravated felony, see USSG §2L1.2(b)(1)(A), and a

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three-level reduction for acceptance of responsibility. See USSG §3E1.1. W ith a

total adjusted offense level of twenty-one and a criminal history category of II,

the advisory Guideline sentencing range w as forty-one to fifty-one months.

      Enriquez-Bojorquez filed a Sentencing M emorandum in which he sought a

sentence of from eighteen to twenty-four months. He argued that the nature and

circumstances of his reentry, which “was to locate his [missing] son, to

reestablish their relationship and to eventually find work [in the United States] to

support his son and [his] mother w ho lives in M exico and is in failing health,”

Sentencing M em. at 7, R. Vol. I, doc. 26, justified a below-G uidelines sentence.

Enriquez-Bojorquez further discussed his personal history and characteristics and

argued that the circumstances of the offense underlying his aggravated felony

conviction did not warrant a sixteen-level enhancement because the case was

quickly resolved, resulted in a suspended sentence, and caused injury only to him.

He also argued that the advisory Guideline sentence was unreasonable because a

lesser sentence would still reflect the seriousness of the offense, promote respect

for the law, provide just punishment, deter future criminal conduct, protect the

public, and reflect his lack of access to programs otherwise available to

incarcerated U nited States citizens.

      The government opposed Enriquez-Bojorquez’s request for a sentence

below the advisory Guideline range because the advisory Guideline sentence was

comparable to other sentences of those convicted of the same offense, and thus

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the Guideline sentence avoided the creation of disparities among defendants w ith

similar profiles.

      At the sentencing hearing, Enriquez-Bojorquez did not object to the factual

findings of the PSR. Rather, he argued that most of his prior convictions

occurred when he was younger, that the convictions w ere too old to be the basis

for criminal history points, and that he reentered the United States for economic

and family reasons, like many other aliens.

      The district court noted that it was “sympathetic” to Enriquez-Bojorquez’s

arguments, but that his case w as “a fairly typical heartland case” that the court

sees “routinely” and there was accordingly no basis for a departure from the

advisory Guideline range. Tr. of Sentencing Hr’g at 12, R. Vol. III. The court

therefore sentenced Enriquez-Bojorquez to forty-one months’ imprisonment, at

the bottom of the Guideline range.

      Enriquez-Bojorquez appeals, repeating his arguments that his 1991

conviction is so old that it should be ignored in computing his sentence, and that

his sentence “in light of Section 3553 leads to the conclusion that the sentence in

this case was greater than necessary to advance the sentencing goals articulated in

Section 3553, is unreasonable, and should therefore be vacated.” A ppellant’s

Reply Br. at 1.




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                                   D ISC USSIO N

      Since the Supreme Court’s decision in United States v. Booker, 543 U.S.

220 (2005), the formerly mandatory federal sentencing Guidelines are now

advisory. “Post-Booker, we review sentencing decisions for reasonableness,

which has both procedural and substantive components.” United States v.

Atencio, 476 F.3d 1099, 1102 (10th Cir. 2007). “In setting a procedurally

reasonable sentence, a district court must calculate the proper advisory Guidelines

range and apply the factors set forth in § 3553(a).” Id. “A substantively

reasonable sentence ultimately reflects the gravity of the crime and the § 3553(a)

factors as applied to the case.” Id.

      Because district courts continue to calculate a Guidelines sentence as part

of their determination of a reasonable sentence, “we continue to review the

district court’s application of the Guidelines de novo, and we review any factual

findings for clear error.” U nited States v. Townley, 472 F.3d 1267, 1275-76 (10th

Cir. 2007), petition for cert. filed (M ar. 12, 2007) (No. 06-10032). W here a

district court “correctly applies the Guidelines and imposes a sentence within the

applicable Guideline range, that sentence ‘is entitled to a rebuttable presumption

of reasonableness.’” Id. at 1276 (quoting United States v. Kristl, 437 F.3d 1050,

1054 (10th Cir. 2006) (per curiam)). 1

      1
      W e note that the Supreme Court has heard oral argument in two cases
which may impact the way we review sentences after Booker, in particular, the
                                                                   (continued...)

                                         -5-
      W hile Enriquez-Bojorquez appears for the most part to challenge the

substantive reasonableness of his sentence, he does argue that the district court

“adhered strictly to the advisory guideline enhancement” and failed to consider

Enriquez’s circumstances and/or apply the sentencing factors contained in 18

U.S.C. § 3553(a). Appellant’s Br. at 22. Accordingly, we address the

reasonableness of his sentence both procedurally and substantively.

      Because Enriquez-Bojorquez did not object to the procedure by which his

sentence was determined and explained, we may reverse it only in the presence of

plain error. United States v. Ruiz-Terrazas, 477 F.3d 1196, 1199 (10th Cir.

2007). “Plain error occurs w hen there is (i) error, (ii) that is plain, which (iii)

affects the defendant’s substantial rights, and which (iv) seriously affects the

fairness, integrity, or public reputation of judicial proceedings.” Id.

      W ith respect to procedural reasonableness, “[i]t is well-established that w e

do not ‘demand that the district court recite any magic w ords to show us that it

fulfilled its responsibility to be mindful of the factors [in § 3553(a)] that Congress

has instructed it to consider.” United States v. Jarrillo-Luna, 478 F.3d 1226, 1229

(10th Cir. 2007) (quoting United States v. Contreras-M artinez, 409 F.3d 1236,

      1
        (...continued)
validity or not of the presumption of reasonableness we have accorded to within-
Guidelines sentences. See United States v. Rita, 177 Fed. Appx. 357 (4th Cir.),
cert. granted, 127 S. Ct. 551 (2006) (No. 06-5754); United States v. Claiborne,
439 F.3d 479 (8th Cir.), cert. granted, 127 S. Ct. 551 (2006) (No. 06-5618).
Accordingly, we consider the reasonableness of Enriquez-Bojorquez’s sentence
both with and without a presumption of reasonableness.

                                           -6-
1242 (10th Cir. 2005)). “However, it is equally clear that, ‘although the district

court is not obligated to expressly weigh on the record each of the factors set out

in § 3553(a), it must state its reasons for imposing a given sentence.’” Id.

(quoting United States v. Sanchez-Juarez, 446 F.3d 1109, 1116 (10th Cir. 2006)

(quotation marks omitted)).

      In this case, the district court stated at sentencing that it had reviewed

Enriquez-Bojorquez’s Sentencing M emorandum, listened to his oral arguments

and considered an additional letter w ritten on Enriquez’s behalf. The court

further stated that it was sympathetic to Enriquez-Bojorquez’s circumstances, but

noted that his situation was not substantially different from many other aliens

who illegally reenter the United States. The court also addressed Enriquez-

Bojorquez’s argument that the sentence for his current offense of reentry, which

he characterizes as a victimless crime, is longer than his sentence for his prior

aggravated assault offense, and noted that the criminal justice system is designed

to be cumulative in order to deter future criminal conduct. The court discussed

Enriquez-Bojorquez’s “cumulative” criminal history, and then addressed

Enriquez-Bojorquez’s argument that his reentry was motivated by family and

economic factors:

      This is a fairly typical heartland case, frankly, under the guidelines.
      I see this routinely. Unfortunately, families are divided by the
      border, and a lot of times they are divided in very emotional and gut-
      wrenching situations where someone is sick or dying and folks are
      emotionally compelled to cross the border. But the law does not

                                          -7-
      provide any solace for that. And the economic circumstances are
      certainly the primary motivating factor for the vast majority of
      people that are coming across the border. So neither of those
      [arguments] or the combination would justify downward departure.

Tr. of Sentencing Hr’g at 12, R. Vol. III.

      W e are confident that the district court properly discharged its duty to give

reasons for imposing the forty-one-month sentence it did. It is clear that the court

did not simply apply the Guideline sentence; rather, it considered the

circumstances of Enriquez-Bojorquez’s offense, and explained why it was not

convinced by his arguments to sentence him differently. Nothing more is

required. See Jarrillo-Luna, 478 F.3d at 1230 (“W e have never held . . . that the

district court must list the reasons why it could have chosen a different sentence

and then explain why it rejected them.”).

      W ith respect to the substantive reasonableness of Enriquez-Bojorquez’s

sentence, we hold that, with or without the presumption of reasonableness

accorded a within-Guidelines sentence, the sentence imposed here was

reasonable. As the district court noted, Enriquez-Bojorquez’s situation was not

substantially different from many other illegal reentrants. W hile Enriquez-

Bojorquez’s prior aggravated assault conviction was some fourteen to fifteen

years before, that alone does not justify ignoring it as a part of his criminal

history. Furthermore, the district court noted the “cumulative” nature of his

criminal history, and further noted that the reasons Enriquez-Bojorquez gave for



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reentering the United States w ere, essentially, run-of-the-mill. W e accordingly

hold that the sentence imposed is reasonable, in light of the § 3553(a) sentencing

factors.



                                  C ON CLU SIO N

      For the foregoing reasons, we AFFIRM the sentence in this case.

                                               ENTERED FOR THE COURT


                                               Stephen H. Anderson
                                               Circuit Judge




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