                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                      UNITED STATES CO URT O F APPEALS
                                                                       August 20, 2007
                                   TENTH CIRCUIT                     Elisabeth A. Shumaker
                                                                         Clerk of Court

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

          Plaintiff - Appellee,
                                                         No. 06-2323
 v.                                               (D.C. No. CR-06-1245 BB)
                                                          (D .N.M .)
 JOSE ESTEBAN M END EZ-
 M ONTES,

          Defendant - Appellant.



                              OR D ER AND JUDGM ENT *


Before KELLY, M U RPH Y, and O’BRIEN, Circuit Judges. **


      Defendant-Appellant José Esteban M éndez M ontes pleaded guilty to illegal

reentry after deportation in violation of 8 U.S.C. § 1326(a)(1) & (2), and

§ 1326(b)(2), and was sentenced to forty-six months’ imprisonment and three

years’ unsupervised release. On appeal, M r. M éndez argues that the district court

incorrectly analyzed his motion for a variance under United States v. Booker, 543

      *
        This order and judgment is not binding precedent, except under the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.
      **
         After examining the briefs and the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1(G). The cause is therefore ordered submitted without oral argument.
U.S. 220 (2005), as a motion for a downward departure under the Sentencing

Guidelines. M r. M éndez also argues that his sentence is procedurally and

substantively unreasonable under Booker. Exercising jurisdiction pursuant to 28

U.S.C. § 1291 and 18 U.S.C. § 3742(a), we conclude that the district court

properly analyzed M r. M éndez’s motion under the standard for a downward

departure and that M r. M éndez’s sentence is procedurally and substantively

reasonable. W e therefore affirm.


                                    Background

      M r. M éndez pleaded guilty on June 20, 2006. The pre-sentence

investigation report (PSR ) characterized his prior conviction for aggravated

assault with a deadly weapon as a “crime of violence” and recommended that the

district court enhance his base offense level by sixteen levels. W ith the

enhancement and a three-level reduction for acceptance of responsibility, the PSR

concluded that M r. M éndez had a total offense level of twenty-one and a criminal

history category III. It calculated an advisory Guidelines sentence of forty-six to

fifty-seven months’ imprisonment with two to three years’ supervised release.

      On September 29, 2006, M r. M éndez filed a “Sentencing M emorandum and

M otion for Downward Departure.” R. Doc. 17. In the filing, he raised three

arguments for a lower sentence:

      (1)    his conduct in returning to the United States was precipitated
             solely by his fervent desire to assist in the financial well-being

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                of his family and thus was a lesser harm within the meaning of
                U.S.S.G. § 5K2.11 and 5K2.0;

      (2)       his Criminal History Category of III significantly over-
                represents both the seriousness of his history and the
                likelihood that he will commit further crimes, U.S.S.G. §
                4A1.3.; and

      (3)       the combination of these factors takes the case out of the
                heartland of illegal reentry cases, see § 5K2.0, comment.;
                United States v. Koon, 518 U.S. 81, 111-112 (1996); United
                States v. Sklar, 920 F.2d 107, 116 (1st Cir. 1990).

Id. at 1. He also noted that the district court could consider the factors in 18

U.S.C. § 3553(a), but the motion’s conclusion unmistakably sought a downward

departure. Id. at 10. On October 23, 2006, the district court conducted a

sentencing hearing and stated that it had read the motion. Other than the

objections listed in his motion, M r. M éndez did not object to the calculation of

the advisory Guidelines range. Defendant’s counsel then renewed his motion for

a downward departure, and also injected an argument based on Booker, stating:

“But I think, ultimately, I would rely more on Booker grounds than family

circumstances. . . . But I would ask the C ourt to depart in this case.” Sent. Tr.

(IV R.) at 3. Defendant’s counsel and the district court then discussed M r.

M éndez’s criminal history and his prior conviction for aggravated assault.

      After the exchange regarding M r. M éndez’s criminal history, the district

court stated:

      All right. Well, his criminal record, frankly, persuades me that a
      dow nw ard departure under Booker is not well taken. He’s got two

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       assaults and controlled substance violations. Unlike the last
       defendant, he really does not have a criminal record that gives me
       any confidence that he will not be back in our system.

Id. at 5. The district court then discussed the aggravated assault and robbery

convictions with M r. M éndez himself. Id. at 5-6. Then, the district court

imposed its sentence, stating:


             The Court has reviewed the presentence report and factual
       findings and has also considered the Sentencing Guideline
       recommendations, as well as the factors set forth in 18 United States
       Code, Section 3553. The offense level is 21, the criminal history is
       category 3, the guideline imprisonment range is, therefore, 46 to 57
       months.

              The Court notes that defendant reentered the United States
       after having previously been deported following an aggravated felony
       conviction. Therefore . . . . the Defendant . . . will be [sentenced] to
       serve a term of 46 months.

Id. at 7-8.


                                     Discussion

       M r. M éndez now argues that the district court erred by applying a

Guidelines departure analysis to his motion and that the forty-six month sentence

is procedurally and substantively unreasonable. W ith regard to his first argument,

M r. M éndez failed to object at the sentencing hearing, so review is for plain error.

See United States v. Romero, – F.3d –, 2007 W L 1874231, at *3 (10th Cir. 2007).

M r. M éndez relies upon our decision in United States v. Begay, 470 F.3d 964

(10th Cir. 2006), where we excused a defendant’s failure to object based on the

                                         -4-
district court’s novel (and incorrect) view of the Guidelines, a view that counsel

could not anticipate before it was too late to object. Begay is factually

inapposite. Here, M r. M éndez specifically argued for a downward departure in

his written motion, even citing the relevant departure provisions of the

Guidelines. Although he invoked Booker at the sentencing hearing, he still asked

the district court to “depart.” Consequently, when the district court noted that it

did not think M r. M éndez was entitled to a “downward departure,” it conducted

exactly the analysis M r. M éndez asked for, so there was no error, plain or

otherwise. Regardless, even if there were error, we would not recognize it under

the plain error standard because it did not “seriously affect[] the fairness,

integrity, or public reputation” of the proceedings. See Romero, 2007 W L

1874231, at *5.

      W ith regard to M r. M éndez’s argument that the district court nonetheless

imposed a sentence that is procedurally and substantively unreasonable under

Booker, we are unpersuaded. W e have noted that reasonableness has both

procedural and substantive elements. See United States v. Cage, 451 F.3d 585,

591 (10th Cir. 2006). In Rita v. United States, 127 S. Ct. 2456 (2007), 1 the

Supreme Court suggested that reasonableness review is the same as review for

abuse of discretion. Id. at 2465. M r. M éndez failed to object to the procedural

      1
       M r. M éndez requested that we hold this matter in abeyance pending the
Supreme Court’s decisions in Rita and Claiborne v. United States. Aplt. Br. at
25. That request is now moot.

                                          -5-
reasonableness of his sentence at the sentencing hearing, so his Booker procedural

reasonableness challenge is subject to review for plain error. See Romero, 2007

W L 1874231, at *3. M r. M éndez argues that the district court failed to analyze

the sentencing factors in § 3553(a), that it failed to explain why it rejected M r.

M éndez’s motion for a downward departure, and that it failed generally to give a

sufficient explanation for his forty-six month sentence.

      In Rita, the Supreme Court made clear that a district court need only set

forth enough explanation to “satisfy the appellate court that [it] has considered

the parties’ arguments and has a reasoned basis for exercising [its] own legal

decisionmaking authority.” 127 S. Ct. at 2468. Additionally, the Court noted that

“when a judge decides simply to apply the Guidelines to a particular case, doing

so will not necessarily require lengthy explanation.” Id. The Court stated that

“[t]he law leaves much, in this respect, to the judge’s own professional

judgment.” Id.

      In this case, the district court engaged in a colloquy with both M r. M éndez

and his counsel regarding the arguments for a downward departure. It rejected

those arguments based on M r. M éndez’s criminal record and the likelihood of his

recidivism. Based on the record, it is clear that the district court considered M r.

M éndez’s motive for returning to the United States and the atypicality of his

conviction for aggravated assault with a deadly weapon. The district court

indicated that it had read the motion which addressed M r. M éndez’s motive, see

                                          -6-
R. Doc. 17, at 4-6, and it heard argument on the circumstances surrounding the

conviction for aggravated assault, Sent. Tr. (IV R.) at 4-5. The district court

indicated that it had considered the § 3553(a) factors, and there is no reason to

believe it forgot the facts of the case as it declined to vary from the recommended

Guidelines sentence. As in Rita, the record in this case makes clear that the

district court considered M r. M éndez’s arguments, evaluated the evidence, and

exercised its own discretion in applying the § 3553(a) factors. The district court

“simply found these circumstances insufficient to warrant a sentence lower than

the Guidelines range.” See Rita, 127 S. Ct. at 2469. W e conclude that the district

court did not abuse its discretion with regard to its sentencing procedure, and so

there is no error, plain or otherwise.

      Likewise we conclude that M r. M éndez’s sentence is substantively

reasonable. A sentence w ithin the advisory Guidelines range carries a

presumption of reasonableness. United States v. Kristl, 437 F.3d 1050, 1054

(10th Cir. 2006); see also Rita, 127 S. Ct. at 2462 (upholding the appellate

presumption of reasonableness). M r. M éndez’s sentence of forty-six months’

imprisonment is at the low end of the advisory Guidelines range. He argues that

this sentence is too long because he suffered an abusive childhood and because

the victim of his aggravated assault was abusive. The district court considered

these arguments and found that they were insufficient to justify a reduction in his

sentence, given M r. M éndez’s propensity to commit crime. W e must defer to the

                                         -7-
district court, whose exercise of discretion was well within the bounds of

permissible choice. See U nited States v. Nickl, 427 F.3d 1286, 1300 (10th Cir.

2005).

         A FFIR ME D.

                                       Entered for the Court


                                       Paul J. Kelly, Jr.
                                       Circuit Judge




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