                                                                           FILED
                                                               United States Court of Appeals
                                                                       Tenth Circuit
                    UNITED STATES COURT OF APPEALS
                                                                      January 24, 2008
                                 TENTH CIRCUIT                     Elisabeth A. Shumaker
                                                                       Clerk of Court

 UNITED STATES OF AMERICA,

               Plaintiff - Appellee,                     No. 07-2005
          v.                                                D. N.M.
 LUIS ENRIQUE CARDENAS-                          (D.C. No. CR-05-1339-WPJ)
 MICHEL,

               Defendant - Appellant.


                            ORDER AND JUDGMENT *


Before MURPHY, EBEL, and O’BRIEN, Circuit Judges.



      Luis Enrique Cardenas-Michel was charged with unlawfully re-entering the

United States after deportation following a conviction for an aggravated felony.

Pursuant to a plea agreement, Cardenas-Michel pled guilty in exchange for the

government’s agreement it would not oppose a sentence at the low end of the

United States Sentencing Guidelines range. The district court sentenced

Cardenas-Michel to a 46 month term of imprisonment, a term at the low end of



      *
        This order and judgment is not binding precedent except under the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.
the guideline range (46-57 months). He appeals from that sentence. We affirm.

                               I. BACKGROUND

      In late February 2005, Cardenas-Michel was found in New Mexico after

being deported in 1998 subsequent to his conviction for escape following his

arrest for being a felon in possession of a firearm. Immigration agents discovered

he had also been deported in 1994 after serving a two-year sentence for

possession or purchase of a controlled substance. On August 1, 2005, Cardenas-

Michel pled guilty to illegal re-entry after an aggravated felony conviction in

violation of 8 U.S.C. § 1326(a)(1) & (2) and § 1326(b)(2). The probation office

prepared a presentence report (PSR) using the 2004 edition of the guidelines

manual. It determined his base offense level was 8. See USSG §2L1.2(a).

Because Cardenas-Michel was previously deported after being convicted of a drug

trafficking offense for which the sentence imposed exceeded 13 months, the

probation office increased his offense level by 16. See USSG

§2L1.2(b)(1)(A)(C). After a 3-level reduction for accepting responsibility under

USSG § 3E1.1, his total offense level was 21. With a Criminal History Category

of III, the guidelines range was 46 to 57 months imprisonment.

      Cardenas-Michel objected to the PSR. He did not claim the guideline

calculations were erroneous, but requested a substantial downward variance 1

      1
        A departure occurs “when a court reaches a sentence above or below the
recommended Guidelines range through application of Chapters Four or Five of
the Sentencing Guidelines.” United States v. Atencio, 476 F.3d 1099, 1101, n.1

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under the factors in 18 U.S.C. § 3553(a). 2 He explained he initially entered into

the United States to escape his impoverished circumstances in Mexico. The only

reason he returned after his deportations was to support and nurture his wife and

three children who reside in California. He claimed he pled guilty to the charge

of possession of a controlled substance only to protect his family and younger

brother from possible arrest or harm from others. The escape charge was not an

escape from a correctional facility. Rather, he just walked out of a hospital while

he was being treated for his injuries from the shooting that led to his felon in


(10th Cir. 2007). A variance occurs “when a court enhances or detracts from the
recommended range through application of § 3553(a) factors.” Id.

      2
        Under section 3553(a), the sentencing court must consider:
      (1) the nature and circumstances of the offense and the history and
      characteristics of the defendant;
      (2) 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;
      (C) to protect the public from further crimes of the defendant; and
      (D) to provide the defendant with needed educational or vocational
      training, medical care, or other correctional treatment in the most
      effective manner;
      (3) the kinds of sentences available;
      (4) the kinds of sentence and the sentencing range established [by the
      guidelines];
      (5) any pertinent policy statement [issued by the Sentencing
      Commission] . . .;
      (6) the need to avoid unwarranted sentence disparities among
      defendants with similar records who have been found guilty of
      similar conduct; and
      (7) the need to provide restitution to any victims of the offense.


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possession arrest. Given the extenuating circumstances and the passage of time

since his indiscretions, he argued the 16-level enhancement over-represented the

likelihood of recidivism and his danger to the community. He proposed a

sentence of 21 months would promote the sentencing objectives found in

18 U.S.C. § 3553(a). The district court was not persuaded and sentenced

Cardenas-Michel to 46 months imprisonment.

                                II. DISCUSSION

      On appeal, Cardenas-Michel asserts his 46 month sentence is unreasonable

because it is greater than necessary to advance the sentencing goals set forth in

18 U.S.C. § 3553(a)(2). Because Cardenas-Michel concedes his sentence is

procedurally correct, we review the district court’s sentencing determination for

an abuse of discretion. United States v. Gall, 128 S.Ct. 586, 594 (2007) (“Our

explanation of ‘reasonableness' review in the Booker opinion made it pellucidly

clear that the familiar abuse-of-discretion standard of review now applies to

appellate review of sentencing decisions.”); United States v. Garcia-Lara, 499

F.3d 1133, 1135-36 (10th Cir. 2007). A sentence within the properly calculated

Guidelines range is presumptively reasonable on appeal. Rita v. United States,

127 S.Ct. 2456, 2462 (2007).

      Cardenas-Michel contends “[t]here is no reasonable justification for the

district court’s inflexible adherence to a merely advisory guideline,” and “[t]he

sentencing court failed to articulate any rationale for the sentence imposed, other

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than its statement that the guidelines are presumed to be correct and reasonable.”

(Appellant’s Br. at 11.) After a careful review of the record, we find this

statement to be incorrect. The sentencing court noted Cardenas-Michel’s

arguments as well as other factors considered by the court. A decision to simply

apply the guidelines to a particular case, “will not necessarily require lengthy

explanation. Circumstances may well make clear that the judge rests his decision

upon the Commission’s own reasoning that the Guidelines sentence is a proper

sentence.” United States v. Angel-Guzman, 506 F.3d 1007, 1016 (10th Cir. 2007)

(quoting Rita, 127 S.Ct. at 2468). “After settling on the appropriate sentence,

[the district court] must adequately explain the chosen sentence to allow for

meaningful appellate review and to promote the perception of fair sentencing.”

Gall, 128 S.Ct. at 597 (citing Rita, 127 S.Ct. at 2456). We are satisfied that the

district court properly considered the § 3553 factors here and imposed a

reasonable sentence. We discern no abuse of discretion.

      AFFIRMED.

                                               ENTERED FOR THE COURT


                                               Terrence L. O’Brien
                                               Circuit Judge




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