                                                                       FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit
                    UNITED STATES COURT OF APPEALS
                                                                 February 12, 2010
                                 TENTH CIRCUIT
                                                                Elisabeth A. Shumaker
                                                                    Clerk of Court

 UNITED STATES OF AMERICA,

               Plaintiff - Appellee,                     No. 09-2211
          v.                                           (D. New Mexico)
 ALBERTO MATURIN-BARRAZA,                       (D.C. No. 09-CR-01448-JAP)

               Defendant - Appellant.


                            ORDER AND JUDGMENT *


Before HARTZ, ANDERSON, and TYMKOVICH, Circuit Judges.



      After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist in the determination

of this appeal. See Fed. R. App. P. 34(a)(2); 10 th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.

      Defendant and appellant Alberto Maturin-Barraza pled guilty to an

information accusing him of illegal reentry after deportation for an aggravated

felony, in violation of 8 U.S.C. §§ 1326(a) and (b). He was sentenced to thirty


      *
        This order and judgment is not binding precedent except under the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.
months’ imprisonment. Mr. Maturin-Barraza appeals that sentence, arguing it is

substantively unreasonable. This appeal followed, in which we affirm the

sentence.



                                BACKGROUND

      Mr. Maturin-Barraza was born in Mexico, but came to the United States

when he was approximately five years old. He spent most of the remainder of his

time in the United States, attending schools in El Paso, Texas, marrying a United

States citizen, and fathering two children who are United States citizens.

      Mr. Maturin-Barraza dropped out of high school in ninth grade and quickly

developed an addiction to drugs and alcohol. He committed a number of crimes,

including two burglary offenses, five driving while intoxicated offenses, three

domestic violence offenses, one larceny offense, and one failure to identify

himself. He was ultimately deported to Mexico on June 5, 2005, following his

conviction for an aggravated felony.

      On April 4, 2009, United States Immigration and Customs Enforcement

(“ICE”) agents found Mr. Maturin-Barraza at the Dona Ana County Detention

Center in Las Cruces, New Mexico. He had been arrested for aggravated driving

while intoxicated, among other offenses. Mr. Maturin-Barraza admitted he was a

citizen of Mexico and that he had no immigration documents showing that he was




                                        -2-
in the United States legally. A records check revealed Mr. Maturin-Barraza’s

prior deportations.

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

presentence report (“PSR”). The PSR calculated a base offense level of eight,

which it increased by eight levels because Mr. Maturin-Barraza had previously

been deported after a conviction for an aggravated burglary (i.e., a second degree

felony burglary for which he was convicted on January 22, 1991). After a three-

level reduction for acceptance of responsibility, Mr. Maturin-Barraza’s total

offense level was thirteen. With a criminal history category of V, based upon his

11 criminal history points, the advisory United States Sentencing Commission,

Guidelines Manual (“USSG”) sentencing range was thirty to thirty-seven months.

       Prior to sentencing, Mr. Maturin-Barraza filed a sentencing memorandum,

in which he asked the court to sentence him to eighteen months’ imprisonment.

He argued that an eighteen-month sentence was appropriate because: (1) “it

would recognize the relatively minor nature of [his] offense”; (2) his criminal

history category over-represented the seriousness of his criminal history; and (3)

there were “unique” mitigating circumstances surrounding his case, in that he was

culturally assimilated to the United States, his criminal history stemmed from his

long-time addiction to alcohol and marijuana, and he had two teen-aged children

(both United States citizens) and he only returned to visit them. Sentencing Mem.

at 1, R. Vol. 1 at 15.

                                         -3-
      The government argued that Mr. Maturin-Barraza’s thirteen convictions

over the preceding twenty-one years warranted his placement in criminal history

category V. It further argued that Mr. Maturin-Barraza’s circumstances were not

unique and did not warrant a downward departure or variance from the advisory

range. The government then requested a sentence above thirty months, on the

ground that Mr. Maturin-Barraza had received a thirty-month sentence for his

previous reentry conviction, and that sentence obviously did not deter him from

committing the same crime again.

      At the sentencing hearing, the district court denied Mr. Maturin-Barraza’s

request for a downward departure or variance, and sentenced him to thirty

months, which was the bottom of the advisory guideline range. The court

explained its reasoning as follows:

      [A]fter considering the defendant’s sentencing memorandum, the
      probation’s addendum to the Presentence Report that responded to it,
      and [the prosecutor’s] position, it’s my finding that the probation
      office correctly analyzed this, that the Criminal History Category V
      is the appropriate criminal history category. Despite the fact that two
      of the felonies are old, he has three felony convictions; 10
      misdemeanor convictions, eight of which are particularly
      troublesome, with three domestic violence and the five DWIs. And I
      think Criminal History Category V, looking at the background and
      the propensity to continue committing crimes, suggests that Category
      V is the appropriate category.
             With respect to the other requests for departure, the one
      regarding cultural assimilation requested under Section 5K2.0, I
      agree with the probation office that that is not warranted, although I
      acknowledge that Mr. Maturin has basically grown up in the United
      States, speaks English, has siblings living . . . here as well as in


                                        -4-
      Mexico. My understanding is, though, that his girlfriend does live in
      Mexico. . . .

                                       ....

            The ground of mental and emotional conditions, 5H1.3, it is
      unfortunate that Mr. Maturin has had a lifelong problem with alcohol
      and also marijuana. I do intend to follow the suggestion of probation
      and recommend participation in the Bureau of Prisons 500-hour drug
      and alcohol treatment program which should benefit Mr. Maturin,
      although he would not be able to reduce the length of his sentence by
      reason of his participation in that.

                                       ....

             Then I think that probation has correctly determined that the
      request for downward departure under 5H1.6 for family ties and
      responsibility should be denied in that this is not outside the
      heartland of cases and very similar to many other cases that come
      before the Court. So I’m going to deny the request for downward
      departure in criminal history category as well as in offense levels.

Tr. of Sentencing Hr’g at 6-8, R. Vol. 3 at 8-10. The court accordingly imposed a

sentence of thirty months. This appeal followed.

      On appeal, Mr. Maturin-Barraza argues that his thirty-month sentence is

substantively unreasonable “and far more severe than necessary to achieve the

sentencing aims established by Congress in 18 U.S.C. § 3553(a), especially in

light of the nature of the offense and Mr. Maturin-Barraza’s unique history and

characteristics.” Defendant-Appellant’s Br. in Chief at 6.




                                        -5-
                                  DISCUSSION

      On appeal, we review sentences for reasonableness, using a deferential

abuse of discretion standard. United States v. Haley, 529 F.3d 1308, 1311 (10 th

Cir. 2008) (citing Gall v. United States, 552 U.S. 38, 46 (2007)), cert. denied,

Haley v. United States, 129 S. Ct. 428 (2008). When, as here, a sentence is

within the applicable advisory guidelines range, we employ a rebuttable

presumption of reasonableness. United States v. Kristl, 437 F.3d 1050, 1054 (10 th

Cir. 2006) (per curiam). This presumption of reasonableness can be rebutted by

showing that the sentence imposed is unreasonable in light of the factors stated in

18 U.S.C. § 3553(a). 1 We conclude that the sentence imposed is substantively

reasonable and the district court did not abuse its discretion in imposing the

sentence.

      Mr. Maturin-Barraza argues that he only returned to the United States to

see his children, and that the commission of such a non-violent crime motivated

by the desire to see his children warrants a lesser sentence than the thirty months

imposed. We disagree. “We have consistently observed that reentry of an ex-

felon is a serious offense.” United States v. Martinez-Barragan, 545 F.3d 894,

905 (10 th Cir. 2008) (citing United States v. Davila-Salvatierra, 229 Fed. Appx.

727, 731 (10 th Cir. 2007) (unpublished)). Mr. Maturin-Barraza also argues that


      1
       Mr. Maturin-Barraza does not appeal the procedural reasonableness of the
sentence.

                                         -6-
his “unique” circumstances—his cultural assimilation in the United States, his

long-term addition to drugs and alcohol which led to his criminal conduct, and his

two teen-aged children whom he wished to visit—militate in favor of a lesser

sentence. We agree with the district court’s rejection of this argument. As the

court indicated, many defendants explain their motivation to reenter this country

illegally as predicated upon their family ties in this country. We have repeatedly

rejected that explanation, standing by itself, as a basis to vary from the advisory

guidelines sentence, provided the sentence imposed is otherwise consistent with

the sentencing factors of § 3553(a). 2

      Finally, we agree with the district court’s rejection of Mr. Maturin-

Barraza’s argument that his criminal history was overstated. We have carefully

reviewed the record in this case, including the PSR, and find that the district court

correctly calculated Mr. Maturin-Barraza’s criminal history.

      In sum, we find that Mr. Maturin-Barraza has failed to rebut the

presumption of reasonableness attached to his sentence. Further, we find no

abuse of discretion in the district court’s selection of thirty months as a

reasonable and appropriate sentence for Mr. Maturin-Barraza, in light of all the

sentencing factors of 18 U.S.C. § 3553(a). We accordingly affirm the sentence

imposed.

      2
       Furthermore, we note that Mr. Maturin-Barraza has a girlfriend in Mexico,
with whom he is expecting a child. Thus, Mr. Maturin-Barraza’s cultural and
familial ties to Mexico are not insignificant.

                                          -7-
                         CONCLUSION

For the foregoing reasons, the sentence is AFFIRMED.

                                     ENTERED FOR THE COURT


                                     Stephen H. Anderson
                                     Circuit Judge




                               -8-
