                                                                         FILED
                                                             United States Court of Appeals
                                                                     Tenth Circuit
                    UNITED STATES COURT OF APPEALS March 26, 2009

                                TENTH CIRCUIT                    Elisabeth A. Shumaker
                                                                     Clerk of Court


 UNITED STATES OF AMERICA,
               Plaintiff–Appellee,                       No. 08-2090
          v.                                   (D.C. No. 06-CR-01841-JAP-1)
 GENOVEVO GALLEGOS–CASTRO,                                 (D. N.M.)
               Defendant–Appellant.


                           ORDER AND JUDGMENT *


Before HARTZ, McKAY, and O’BRIEN, Circuit Judges.


      After examining the briefs and the 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); 10th Cir. R. 34.1(G).

This case is therefore ordered submitted without oral argument.

      Defendant Genovevo Gallegos-Castro pled guilty to illegally reentering the

United States in violation of 8 U.S.C. § 1326. The district court imposed a

sentence of seventy-seven months’ imprisonment, at the bottom of the calculated

Guidelines range. On appeal, Defendant argues that this sentence was not



      *
        This order and judgment is not binding precedent, except under the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.
procedurally or substantively reasonable.

      In reviewing a challenge to the procedural reasonableness of a sentence, we

generally review the district court’s legal conclusions de novo and its factual

findings for clear error. See United States v. Kristl, 437 F.3d 1050, 1055 (10th

Cir. 2006). However, where a party fails to raise a contemporaneous objection to

the district court’s sentencing procedures, we review the appeal on that ground

only for plain error. See United States v. McComb, 519 F.3d 1049, 1054 (10th

Cir. 2007). Here, Defendant did not object to the process by which the guideline

range was calculated, and we thus review his procedural reasonableness argument

only for plain error.

      Defendant suggests that his sentence was procedurally unreasonable

because the sixteen-level enhancement the district court imposed for a prior

violent felony was overly punitive and resulted in double-counting. However, the

Guidelines expressly permit the double-counting that occurred here, see U.S.S.G.

§ 2L1.2 n.6, and we have “routinely upheld as reasonable the use of prior

convictions to calculate both the criminal history category and a sentence

enhancement where, as here, the Guidelines authorize it.” United States v. Ruiz-

Terrazas, 477 F.3d 1196, 1204 (10th Cir.), cert. denied, 128 S. Ct. 113 (2007).

Moreover, we note that Defendant was convicted of the serious violent offenses

of aggravated assault and shooting at an inhabited house, dwelling, or vehicle.

Under these circumstances, we conclude that the court did not err, much less

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commit plain error, by imposing the sixteen-level enhancement at issue here.

      Defendant also suggests that his sentence was procedurally unreasonable

because the court should have departed downward from the Guidelines pursuant

to U.S.S.G. § 4A1.3. However, we do not have jurisdiction to review the district

court’s discretionary refusal to grant a downward departure request. See United

States v. Castillo, 140 F.3d 874, 887 (10th Cir. 1998).

      Defendant further argues that the sentence imposed was not substantively

reasonable. We review the substantive reasonableness of a sentence for abuse of

discretion, “afford[ing] substantial deference to [the] district court[].” United

States v. Smart, 518 F.3d 800, 806 (10th Cir. 2008). Where the district court

correctly calculates the applicable sentencing range and sentences the defendant

within that range, the resulting sentence is entitled to a rebuttable presumption of

reasonableness. See Kristl, 437 F.3d at 1054.

      Defendant argues that several factors weighed in favor of a below-

Guidelines sentence—his cultural assimilation to the United States, his parents

and siblings’ status as legal residents or citizens of the United States, the fact that

he returned to the United States to visit his family, his intellectual limitations, the

fact that reentry “is a status offense and does not involve violence” (Appellant’s

Br. at 12), the age of the felony conviction that resulted in the sixteen-level

enhancement, and the fact that the majority of his criminal history points

stemmed from immigration offenses. He also again argues that the sixteen-level

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enhancement was overly punitive and resulted in double-counting the prior felony

conviction. We have rejected these or similar arguments in numerous

immigration cases. See, e.g., United States v. Melendez-Dones, 274 F. App’x

726, 728 (10th Cir. 2008) (rejecting substantive reasonableness challenge where

defendant argued that the seriousness of his criminal history was over-

represented, that his criminal history double-counted his prior convictions, that he

was culturally assimilated to the United States, and that he reentered to visit his

terminally ill sister); United States v. Prieto-Chavez, 268 F. App’x 695, 698, 703

(10th Cir. 2008) (rejecting substantive reasonableness challenges based on

double-counting, medical problems, and cultural assimilation); United States v.

Enriquez-Bojorquez, 231 F. App’x 824, 825-26, 828 (10th Cir. 2007) (affirming

within-Guidelines sentence where defendant reentered the country for family and

economic reasons, his prior aggravated assault conviction was fourteen or fifteen

years old, and he argued that reentry is a victimless crime). We similarly

conclude that the factors cited by Defendant in this case are insufficient to

overcome the presumption of reasonableness attached to his properly-calculated

Guidelines sentence on appeal. We cannot say that the district court abused its

discretion by imposing a sentence at the bottom of the Guidelines range here,

where Defendant had prior felony convictions for aggravated assault, shooting at

an inhabited house, dwelling, or vehicle, and possessing a firearm as a felon, and

where his previous fifty-seven month sentence for reentry failed to deter him from

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committing this crime.

      For the foregoing reasons, we AFFIRM Defendant’s conviction and

sentence.

                                           Entered for the Court



                                           Monroe G. McKay
                                           Circuit Judge




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