                                                                          FILED
                                                              United States Court of Appeals
                                                                      Tenth Circuit
                    UNITED STATES COURT OF APPEALS
                                                                  December 18, 2007
                                 TENTH CIRCUIT
                                                                  Elisabeth A. Shumaker
                                                                      Clerk of Court

 UNITED STATES OF AMERICA,

               Plaintiff-Appellee,                      No. 07-2015
          v.                                          (D. New Mexico)
 JUAN CARLOS MIGUEL-                            (D.C. 2:06-CR-01745-001JH)
 MIGUEL,

               Defendant-Appellant.



                           ORDER AND JUDGMENT *


Before HENRY, TYMKOVICH, and HOLMES, Circuit Judges. **



      Juan Carlos Miguel-Miguel pleaded guilty to one count of unlawful reentry

of a deported alien, a violation of 8 U.S.C. § 1326(a) and (b). The district court

sentenced him to forty-one months’ imprisonment and two years’ supervised



      *
         This order and judgment is not binding precedent except under the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 to grant the parties’ request for a decision on the briefs
without oral argument. See F ED . R. A PP . P. 34(f) and 10 TH C IR . R. 34.1(G). The
case is therefore ordered submitted without oral argument.
release. In this appeal, Mr. Miguel-Miguel argues that his sentence is

unreasonable. We disagree and therefore affirm his sentence.



                               I. BACKGROUND

      In May 2006, about twenty miles west of Columbus, New Mexico, a Border

Patrol agent discovered Mr. Miguel-Miguel and other undocumented aliens

attempting to conceal themselves in the brush. Mr. Miguel-Miguel had previously

lived in the United States, but had been deported in May 2005, after having been

convicted of aggravated robbery in the Circuit Court of Cook County, Illinois.

Mr. Miguel-Miguel was seventeen when he committed the aggravated robbery,

but he was sentenced as an adult for that offense.

      The presentence report assigned a base offense level of 8 but added a 16-

level enhancement under § 2L1.2(b)(1)(A) of the United States Sentencing

Guidelines because the Illinois aggravated robbery conviction constituted a crime

of violence. The presentence report also applied a three-level reduction in the

offense level for acceptance of responsibility. See USSG § 3E1.1.

      Mr. Miguel-Miguel’s criminal history also included two misdemeanor

convictions for criminal trespass to a vehicle and reckless conduct. Like the

aggravated robbery conviction, the misdemeanors were committed when he was

seventeen and resulted in adult sentences. Based on the aggravated robbery

conviction, and the fact that the instant offense was committed when he was on


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parole and less than two years after his release from custody, the presentence

report assigned a criminal history score of III. The resulting Guideline range was

46 to 57 months.

      At the sentencing hearing, Mr. Miguel-Miguel’s counsel requested that the

court reduce his criminal history category because it over-represented his criminal

record. She also noted his young age when he committed the aggravated robbery

and the difficult family circumstances that he had suffered: his father was killed

when Mr. Miguel-Miguel was quite young, and his mother abandoned the family.

In response, the prosecutor stated that he did not object to the reduction in the

criminal history category. The district court granted Mr. Miguel-Miguel’s request

and reduced the criminal history score to II. The resulting Guideline range was

41 to 51 months.

      The court sentenced him to the low end of that range. In explaining that

decision, the court referred to “the defendant’s family history, his own history and

characteristics, as I’m required to do under [18 U.S.C. §] 3553 specifically, his

father’s death and his mother abandoning the defendant at a young age.” Rec.

vol. III, at 5-6. The court also noted that the Mr. Miguel-Miguel had reentered the

United States after a felony conviction and subsequent deportation.

                                 II. DISCUSSION

      On appeal, Mr. Miguel-Miguel argues that his forty-one month sentence is

unreasonable because it is greater than necessary to advance the sentencing goals


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set forth in 18 U.S.C. § 3553(a)(2): retribution, deterrence, incapacitation, and

rehabilitation. He characterizes his unlawful reentry conviction as “a crime

without a victim,” Aplt’s Br. at 11, and as “a regulatory offense . . . involving

conduct that is not inherently wrong.” Id. at 12.

      We review a district court’s sentencing determination for an abuse of

discretion, asking whether the sentence is reasonable in light of the factors set

forth in 18 U.S.C. § 3553(a); United States v. Gall,     S Ct. ___, 2007 WL

4292116, at *6 (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 (10th Cir. 2007). A sentence within the

properly calculated Guidelines range is presumptively reasonable on appeal. Id.

      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,



                                          -4-
                   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.


18 U.S.C. § 3553(a). “[T]he sentencing factors in § 3553(a) delimit a district

court’s discretion.” Garcia-Lara, 499 F.3d at 1137.

      Section 3553(c) requires the court “at the time of sentencing . . . [to] state

in open court the reasons for its imposition of the particular sentence.”

Nevertheless, “‘when 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

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

United States v. Angel-Guzman, __F.3d__, 2007 WL 3146825, at *7 (10th Cir.

Oct. 30, 2007) (quoting Rita v. United States, 127 S. Ct. 2456, 2468 (2007)). See

also United States v. Lopez-Flores, 444 F.3d 1218, 1222 (10th Cir. 2006) (“When

the defendant has not raised any substantial contentions concerning non-

Guidelines § 3553(a) factors and the district court imposes a sentence within the

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Guidelines range” the court is not required “to explain on the record how the §

3553(a) factors justify the sentence.”).

      Here, upon review of the record, we are satisfied that the district court

properly considered the § 3553 factors and imposed a reasonable sentence. In

reducing his criminal history category from III to II, the court noted Mr. Miguel-

Miguel’s young age at the time of his aggravated robbery conviction as well as

his difficult family circumstances. The court thus indicated that it was not bound

by the Guidelines but could exercise its discretion to impose a sentence based

upon all of the § 3553(a) factors and the evidence in the record.

      Although Mr. Miguel-Miguel’s appellate brief makes plausible arguments

for a lesser sentence, they do not establish that the 41-month sentence is

unreasonable. As the government observes, the information in the presentence

report provides support for that sentence. The aggravated robbery was a serious

offense, and Mr. Miguel-Miguel illegally reentered the United States less than

two years after he was released from custody. Moreover, Mr. Miguel-Miguel had

two other criminal convictions. Thus, the district court did not abuse its

discretion in declining to reduce his sentence any further.




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                     III. CONCLUSION

We therefore AFFIRM Mr. Miguel-Miguel’s sentence.




                                    Entered for the Court


                                    Robert H. Henry
                                    Circuit Judge




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