                                                                           FILED
                                                               United States Court of Appeals
                                                                       Tenth Circuit

                      UNITED STATES COURT OF APPEALS                  April 22, 2008

                                   TENTH CIRCUIT                   Elisabeth A. Shumaker
                                                                       Clerk of Court


 UNITED STATES OF AMERICA,

          Plaintiff - Appellee,
                                                        No. 07-2198
 v.                                              (D.C. No. CR-06-2269-JCH)
                                                          (D.N.M.)
 JOSE VALENTIN MELENDEZ-
 DONES,

          Defendant - Appellant.


                              ORDER AND JUDGMENT *


Before KELLY, ANDERSON, and McCONNELL, Circuit Judges. **


      Defendant-Appellant Jose Valentin Melendez-Dones appeals from the

sentence imposed following his guilty plea to one count of reentry of a removed

alien in violation of 8 U.S.C. § 1326(a), (b)(2). He was sentenced to 70 months’

imprisonment—a term at the low end of the applicable Guidelines

range—followed by two years’ unsupervised release. On appeal, Mr. Melendez

      *
        This order and judgment is not binding precedent, except under the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.
argues that his sentence is substantively unreasonable. Our jurisdiction arises

under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a), and we affirm.

      A sentence within the correctly determined Guidelines range is entitled to a

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

(10th Cir. 2006). Mr. Melendez argues that this presumption is no longer valid

after Gall v. United States, 128 S. Ct. 586 (2007), and Kimbrough v. United

States, 128 S. Ct. 558 (2007). See Aplt. Reply Br. at 2, 7. However, Gall clearly

states that “[i]f the sentence is within the Guidelines range, the appellate court

may, but is not required to, apply a presumption of reasonableness.” 128 S. Ct. at

597. We review a sentencing decision for reasonableness under an abuse of

discretion standard. United States v. Sutton, — F.3d —, No. 07-1223, 2008 WL

879429, *3 (10th Cir. Apr. 3, 2008).

      The reasonableness of a sentence “includes a procedural component, which

includes how the sentence was calculated, and substantive component concerning

the length of the sentence actually imposed.” Id. Mr. Melendez concedes that the

district court correctly calculated the Guidelines range, Aplt. Br. at 10, and only

argues that his sentence was substantively unreasonable. First, he argues that his

criminal history double counts his prior convictions. See U.S.S.G. § 2L1.2(b)(1).

We have routinely upheld this practice as reasonable where the Guidelines

authorize it. See U.S.S.G. § 2L1.2(b)(1), cmt. n. 6; United States v. Ruiz-

Terrazas, 477 F.3d 1196, 1204 (10th Cir. 2007). The district court did not abuse

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its discretion in rejecting arguments that Mr. Melendez’s two prior violent felony

convictions—attempted armed robbery and aggravated burglary—over-

represented the seriousness of his criminal history, particularly given Mr.

Melendez’s lengthy criminal history and recidivism. Second, Mr. Melendez

argues that his cultural assimilation and his reason for illegally reentering the

United States, to visit his terminally ill sister, also cause his sentence to be

substantively unreasonable. We have not previously determined whether cultural

assimilation is an appropriate ground for departure, and we decline to address the

question here. See United States v. Galarza-Payan, 441 F.3d 885, 889–90 (10th

Cir. 2006). Mr. Melendez has failed to demonstrate that these facts cause the

sentence to be unreasonable based on the sentencing factors in 18 U.S.C. §

3553(a), particularly given that having been removed to Mexico in July 2005 after

serving a federal sentence for reentry, he returned to the United States and was

convicted of a controlled substance offense. See Kristl, 437 F.3d at 1055; II R.

(PSR) 9, ¶ 24.

      AFFIRMED.

                                         Entered for the Court


                                         Paul J. Kelly, Jr.
                                         Circuit Judge




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