                                                                         F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                  e raaUNITED 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. 07-4035
          v.                                               (D. Utah)
 V IN CEN TE H ER NA N D EZ-G ARCIA,            (D.C. No. 2:06-CR-00459-DB)
 A/K /A PEDRO PEREZ-ELIN EZ,

               Defendant - Appellant.




                            OR D ER AND JUDGM ENT *


Before H E N RY, T YM KOV IC H, and HO LM ES, Circuit Judges. **


      Vincente H ernandez-Garcia pleaded guilty to conspiring to distribute fifty

grams or more of methamphetamine, in violation of 21 U.S.C. § 846(b)(1)(A),

and illegally re-entering the United States after deportation, in violation of 8

U.S.C. § 1326. The district court sentenced him to 97 months’ imprisonment




      *
         This order and judgment is not binding precedent except under the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 appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See F ED . R. A PP . P. 34(a)(2); 10 TH C IR . R. 34.1(G). The case is
therefore ordered submitted without oral argument.
followed by 3 years’ supervised release. M r. Hernandez-Garcia now challenges

the reasonableness of his sentence. Our jurisdiction arises under 18 U.S.C. §

3742(a) and 28 U.S.C. § 1291, and we affirm.

                                 I. BACKGROUND

      A federal grand jury indicted M r. Hernandez-Garcia on multiple counts of

distributing methamphetamine, one count of conspiracy to distribute fifty grams

or more of methamphetamine, and one count of illegal re-entry of a previously

deported alien. Pursuant to a plea agreement, M r. Hernandez-Garcia pleaded

guilty to the conspiracy count and the illegal re-entry count.

      At sentencing, the district court calculated the sentencing range

recommended by the United States Sentencing Guidelines (“Guidelines”) to be 97

to 121 months. M r. Hernandez-Garcia agreed that the court’s calculation was

correct, but requested a below-Guidelines sentence. He argued the sentences

within the recommended range were “too long” and “not necessary . . . to provide

the amount of time that justice requires.” Rec. vol. II, at 5. He also reminded the

court that it “has a lot of discretion to fashion a reasonable sentence.” Id. The

government, in accordance with the plea agreement, recommended a low-end

Guidelines sentence.

      The district court agreed with the government and sentenced M r.

Hernandez-Garcia to 97 months’ imprisonment followed by 3 years’ supervised

release. In responding to M r. H ernandez-Garcia’s argument for a below-

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Guidelines sentence, the district court stated that “[t]here is a lot of merit to [the]

argument about these sentences being too high.” Id. at 6. However, it ultimately

concluded that M r. Hernandez-Garcia’s arguments “are probably better directed to

the Sentencing Commission and to Congress than to individual judges at this

stage of our ongoing sentencing efforts in this country, which is fair, to provide

overall deterrents. Your remarks are not rejected out of hand, but I think in this

particular instance the guidelines need to be followed.” Id. at 8. M r. Hernandez-

Garcia timely appealed.

                                   II. DISCUSSION

      Under United States v. Booker, 543 U.S. 220 (2005), we review sentences

for reasonableness. United States v. Kristl, 437 F.3d 1050, 1054 (10th Cir. 2006)

(per curiam). Reasonableness has procedural and substantive components which

encompass, respectively, “the method by which the sentence was calculated” and

“the length of the sentence.” Kristl, 437 F.3d at 1055 (emphasis omitted).

      In setting a procedurally reasonable sentence, the district court must

appreciate the advisory nature of the Guidelines, correctly calculate the applicable

Guidelines range, and consider the factors contained in 18 U.S.C. § 3553(a). See

United States v. Sanchez-Juarez, 446 F.3d 1109, 1114-15 (10th Cir. 2006). “A

substantively reasonable sentence ultimately reflects the gravity of the crime and

the § 3553(a) factors as applied to the case.” United States v. Atencio, 476 F.3d

1099, 1102 (10th Cir. 2007). If the district court did not comm it any procedural

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errors in arriving at a sentence and imposed a sentence within the recommended

Guidelines range, we presume that sentence is substantively reasonable. K ristl,

437 F.3d at 1054; see Rita v. United States, 127 S. Ct. 2456, 2462 (2007) (holding

that “a court of appeals may apply a presumption of reasonableness” to

within-G uidelines sentences).

      On appeal, M r. Hernandez-Garcia does not attempt to rebut the

presumption of reasonableness afforded to his low-end Guidelines sentence by

pointing to any § 3553(a) factor. Instead, he tersely argues that his sentence is

procedurally unreasonable because “the district court used the Guidelines as a

starting place and w hile agreeing that the sentence may be too long, nevertheless

felt constrained to impose it.” Aplt’s Br. at 2-3; see id. at 5 (“[T]here is no

presumptive starting point using the Guidelines.”). M r. Hernandez-Garcia failed

to object on this basis, but we need not move past the first prong of plain error

review because the district court committed no error. See United States v.

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

      To begin, contrary to M r. Hernandez-Garcia’s argument, there was nothing

wrong with the district court using the advisory Guidelines range as a “starting

place” in crafting his sentence. United States v. Terrell, 445 F.3d 1261, 1264

(10th Cir. 2006) (stating that “[t]he Guidelines continue to be the starting point

for district courts” when imposing terms of imprisonment) (internal quotation

marks omitted); see Rita, 127 S. Ct. at 2464 (“[S]entencing judge[s], as a matter

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of process, will normally begin by considering the presentence report and its

interpretation of the Guidelines.”). M oreover, the record shows that the district

court did not place undue weight on the recommended Guidelines range because it

expressly recognized the Guidelines were advisory and properly considered the

circumstances underlying M r. Hernandez-Garcia’s case when crafting his

sentence. See Rec. vol. III, at 7-8 (noting that “the guidelines are not mandatory”

and stating that in “this particular instance the guidelines need to be followed”

(emphasis added)). Accordingly, we conclude the district court did not err. See

Rita, 127 S. Ct. at 2468 (“[W]hen a judge decides simply to apply the Guidelines

to a particular case, doing so will not necessarily require lengthy explanation.

Circumstances may well make clear that the judge rests his decision upon the

[Sentencing] Commission’s ow n reasoning that the G uidelines sentence is a

proper sentence (in terms of § 3353(a) and other congressional mandates) in the

typical case, and that the judge has found that the case before him is typical.”).

                                III. CONCLUSION

      For the foregoing reasons, M r. Hernandez-Garcia’s sentence is hereby

AFFIR M ED.

                                                Entered for the Court,


                                                Robert H. Henry
                                                Circuit Judge




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