                                                                            FILED
                                                                United States Court of Appeals
                                                                        Tenth Circuit

                                                                       August 19, 2008
                    UNITED STATES COURT OF APPEALS
                                                                    Elisabeth A. Shumaker
                                                                        Clerk of Court
                                 TENTH CIRCUIT



 UNITED STATES OF AMERICA,

              Plaintiff - Appellee,

 v.                                                      No. 08-2027
                                                       (D. New Mexico)
 JORGE CABANILLAS,                                   (D.C. No. 07-1412 JB)

              Defendant - Appellant.


                            ORDER AND JUDGMENT *


Before HENRY, Chief Judge, ANDERSON, and BALDOCK, Circuit Judges.


      Jorge Cabanillas pleaded guilty to illegally reentering the United States

after deportation, in violation of 8 U.S.C. § 1326(a), and (b), and the district court

sentenced him to forty-six months’ imprisonment. Mr. Cabanillas now appeals

his sentence, arguing that it was substantively unreasonable due to the district

court’s failure to grant a downward variance pursuant to 18 U.S.C. § 3553(a). We



      *
        After examining the briefs and appellate record, this panel has determined
unanimously to honor the parties’ request for a decision on the briefs without oral
argument. See F ED . R. A PP . P. 34(f); 10 TH C IR . R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent except under the doctrines of law of the case, res judicata, and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 F ED . R. A PP . P. 32.1 and 10 TH C IR . R. 32.1.
have jurisdiction under 18 U.S.C. § 3231 and affirm the district court’s decision.

                                I. BACKGROUND

      In 1990, Mr. Caballinas, a citizen of Mexico who had lived in the United

States since childhood, pleaded guilty to attempted murder in the Superior Court

of California, in Los Angeles, and was sentenced to seven years’ imprisonment.

After his release, Mr. Cabanillas violated the conditions of his parole and was

sentenced to one year of imprisonment. After he served this sentence,

immigration officers deported Mr. Cabanillas to Mexico, but he illegally returned

to California soon thereafter. Years after his illegal reentry, Mr. Cabanillas

voluntarily testified for the prosecution in a high profile murder trial against

members of a gang to which he had once belonged. He later relocated to

Chaparral, New Mexico, where he lived with his wife and five children, all of

whom are American citizens, until his arrest for illegal reentry in June 2007.

      Under the United States Sentencing Guidelines, the base offense level for

illegal reentry is 8. U.S.S.G. § 2L1.2. Mr. Cabanillas received a 16-level

enhancement because the district court concluded that he had previously been

convicted of a “crime of violence” as U.S.S.G. § 2L1.2 defines that term, see

U.S.S.G. § 2L1.2(b)(1)(A)(ii); cmt. n.1(B)(iii) (defining “crime of violence”), but

he received a 3-level decrease for acceptance of responsibility. See U.S.S.G. §

3E1.1. In combination with Mr. Cabanillas’s criminal history category III, the

total offense level of 21 yielded an advisory Guidelines range of 46 to 57 months’

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imprisonment.

      Before sentencing, Mr. Cabanillas filed a motion requesting a downward

variance under 18 U.S.C. § 3553(a) based upon cultural assimilation and his

vulnerability to retaliation in prison due to his prior testimony against gang

members. With respect to cultural assimilation, Mr. Cabanillas contended that his

continued presence in the United States as well as his family ties here, rendered

him less blameworthy for illegally reentering and remaining in the country.

      The district court determined that a variance was not appropriate and

sentenced Mr. Cabanillas to 46 months’ imprisonment, the bottom of the advisory

Guidelines range. Further, the court announced that “even were a departure

warranted under the facts of this case, the Court would not exercise its discretion

to depart.” Rec. doc. 26, at 2. Mr. Cabanillas timely filed this appeal, arguing

that, in light of the court’s denial of his requests for a variance, his sentence was

substantively unreasonable.

                                  II. DISCUSSION

      We review district court sentencing decisions for reasonableness, applying

an abuse-of-discretion standard. Gall v. United States, — U.S. — , 128 S. Ct.

586, 594 (2007); United States v. Smart, 518 F.3d 800, 806 (10th Cir. 2008). As

we have explained, reasonableness has both a procedural and a substantive

component. United States v. Sutton, 520 F.3d 1259, 1262 (10th Cir. 2008).

Procedural reasonableness is attained when a district court correctly calculates

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the advisory Guidelines range and applies the factors set forth in § 3553(a). See

id. A sentence is substantively reasonable if “it ultimately reflects the gravity of

the crime and the § 3553(a) factors as applied to the case.” United States v.

Atencio, 476 F.3d 1099, 1102 (10th Cir. 2007), overruled in part on other

grounds by Irizzarry v. United States, 128 S. Ct. 2198, 2203-04 (2008). “If the

district court correctly calculates the Guidelines range based upon the facts and

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

reasonableness.” Sutton, 520 F.3d at 1262. To rebut this presumption, a

defendant must show that in light of the § 3553(a) factors, the sentence is

unreasonable. United States v. Kristl, 437 F.3d 1050, 1054-55 (10th Cir. 2006).

      Mr. Cabanillas concedes that the district court correctly calculated his

advisory Guidelines range, but he seeks to rebut our presumption of the

sentence’s substantive reasonableness by arguing that he has culturally

assimilated to the United States and by asserting that his prior cooperation with

law enforcement creates a risk of retaliation by his fellow prisoners. We first

consider Mr. Cabanillas’s cultural assimilation claim and then turn to his

retaliation argument.

A.    Cultural Assimilation

      Mr. Cabanillas’s contention that his extensive ties with the United States

warranted a “modest downward variance,” Aplt’s Br. at 2, relies primarily on the

reasoning of one of our sister circuits, which we have not expressly adopted.

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Before the Supreme Court decided United States v. Booker, 543 U.S. 220 (2005),

the Ninth Circuit recognized “cultural assimilation” as an appropriate basis for

departure from the mandatory Guidelines sentencing range, reasoning that it was

“akin to the factor of family and community ties” and could appropriately be

considered as part of a defendant’s personal history. United States v. Lipman,

133 F.3d 726, 731 (9th Cir. 1998) (internal quotation marks omitted); see also 18

U.S.C. § 3553(a)(1). In the context of illegal reentry, the court theorized, an

individual is less culpable when he has come back to the United States to join his

family, and not to engage in criminal or economic activity. Lipman, 133 F.3d at

730. At least two other circuits adopted an approach similar to that of the Ninth

Circuit. United States v. Rodruiguez-Montelongo, 263 F.3d 429, 433 (5th Cir.

2001); United States v. Sanchez-Valencia, 148 F.3d 1273, 1274 (11th Cir. 1998).

But see United States v. Mejia, 309 F.3d 67, 71 (1st Cir. 2002) (finding family

ties to the United States to be a “discouraged factor” under the Guidelines).

      Without rejecting or endorsing the reasoning of our sister circuits, we have

observed that “in the altered post-Booker sentencing landscape[,] . . . family and

cultural ties, however the factor is characterized, will [] be part of tailoring an

appropriate sentence.” United States v. Galarza-Payan, 441 F.3d 885, 889 (10th

Cir. 2006) (internal quotation marks omitted). Of course, “a particular

defendant’s cultural ties must be weighed against other factors such as (1)

sentencing disparities among defendants with similar backgrounds and

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characteristics, and (2) the need for the sentence to reflect the seriousness of the

crime and promote respect for the law.” Id. at 889-890 (citing § 3553(a)(2), (6)).

      Notwithstanding Mr. Cabanillas’s extensive ties to the United States, the

district court’s denial of a downward variance in this case was reasonable,

particularly in light of countervailing factors. Expressing a concern for

sentencing disparities, the court observed that Mr. Cabanillas’s status as a long

term illegal resident in the United States was not unique: “Many people in [Mr.]

Cabanillas’s situation come to the United States at a young age and have spent

considerable time, if not most of their lives, here, so his situation is not

distinguishable from others that have been before the Court.” Rec. vol. I, doc. 26,

at 2. Moreover, the court noted that much of Mr. Cabanillas’s purported

assimilation was not “of a law-abiding nature,” as he had been convicted of

several crimes in the United States. Id. In light of this analysis, we are

convinced that the court properly considered Mr. Cabanillas’s personal history

and reached the reasonable conclusion that a variance based upon cultural

assimilation was not warranted.

B.    Retaliation

      While we have not considered this issue at length since the Supreme Court

decided Booker, we have recognized that, in certain limited circumstances, a

defendant’s susceptibility to retaliation in prison may be an acceptable basis for

downward adjustment. See United States v. LaVallee, 439 F.3d 670, 708 (10th

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Cir. 2006) (upholding a downward departure based on the defendant’s

susceptibility to abuse in prison). Here, the court acknowledged that Mr.

Cabanillas put himself at risk by cooperating with the government in the

prosecution of a fellow gang member, but stated that “it is not uncommon for

persons to cooperate with the government and thereby put their lives in jeopardy.”

Rec. vol. I, doc. 26, at 3. The court noted, “[T]he Bureau of Prisons is

accustomed to handling prisoners who previously belonged to gangs and is

capable of ensuring [Mr. Cabanillas’s] safety as much as it is of any former gang

member.” Id. The court further observed, “[Mr. Cabanillas’s] life is in danger

whether he is imprisoned or not.” Id. (internal quotation marks omitted).

      Like the district court, we acknowledge “that [Mr.] Cabanillas played an

important role in the conviction of a person involved in the gang-related murder

of a woman and her child. There is no doubt that his cooperation with

government officials in Los Angeles has placed his life in jeopardy.” Id. at 3.

However, the district court was correct to observe that the incarceration of former

gang members who have testified on behalf of the government is not uncommon.

We note the district court’s firm confidence that the Bureau of Prisons to ensure

Mr. Cabanillas’s safety, and we are of the belief that the Bureau will take all steps

necessary to justify the district court’s confidence. Therefore, we cannot say that

the district court’s denial of a variance was unreasonable in this case.




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                                III. CONCLUSION

      Accordingly, we AFFIRM the decision of the district court. The motion to

seal the briefs and the record is granted.



                                       Entered for the Court


                                       Robert H. Henry
                                       Chief Circuit Judge




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