                                                                       FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                     UNITED STATES COURT OF APPEALS March 10, 2009
                                                                Elisabeth A. Shumaker
                                 TENTH CIRCUIT
                                                                    Clerk of Court
                            __________________________

 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,
                                                        No. 08-2215
 v.                                          (D.Ct. No. 1:08-CR-00587-JCH-1)
                                                         (D. N.M.)
 HUGO ORNELAS-BURROLA,

          Defendant-Appellant.
                        ____________________________

                                ORDER AND JUDGMENT *


Before BARRETT, ANDERSON, and BRORBY, 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); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.



      Appellant Hugo Ornelas-Burrola pled guilty to one count of illegal re-entry

of a deported alien in violation of 8 U.S.C. § 1326(a)(1) and (2) and (b)(2). On

      *
         This order and judgment is not binding precedent except under the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.
appeal, Mr. Ornelas-Burrola argues his forty-one-month sentence is substantively

unreasonable under the 18 U.S.C. § 3553(a) sentencing factors because the

district court: (1) considered his eight-year-old drug conviction, even though he

no longer poses a risk of committing future drug crimes; and (2) failed to consider

uncontested evidence he planned to move his family from the United States to

Mexico to work and live on his father’s farm after his release from prison,

thereby establishing he posed no risk of re-entry into the United States. We

exercise jurisdiction pursuant to 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291 and

affirm Mr. Ornelas-Burrola’s sentence.



                             I. Procedural Background

      On April 28, 2008, Mr. Ornelas-Burrola pled guilty to one count of illegal

re-entry of a deported alien, in violation of 8 U.S.C. § 1326(a)(1) and (2) and

(b)(2), without benefit of a formal plea agreement. Following his guilty plea, a

probation officer prepared a presentence report calculating his sentence under the

applicable 2007 United States Sentencing Guidelines (“Guidelines” or

“U.S.S.G.”). The probation officer set Mr. Ornelas-Burrola’s base offense level

at eight, pursuant to U.S.S.G. § 2L1.2(a), and increased his base level sixteen

levels, pursuant to § 2L1.2(b)(1)(A)(i), because he had previously been deported

following his 2001 felony convictions on four counts of trafficking in a controlled

substance – cocaine – for which he received a four-year sentence on each count,

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to run concurrently. In calculating Mr. Ornelas-Burrola’s sentence, the probation

officer recommended a three-level offense reduction for acceptance of

responsibility, for a total offense level of twenty-one, which, together with his

criminal history category of II, resulted in a recommended Guidelines range of

forty-one to fifty-one months imprisonment. Finally, the probation officer stated

that after assessing Mr. Ornelas-Burrola’s criminal and social history, no

circumstances took him out of the heartland of cases involving similarly-situated

defendants, and therefore no departure issues existed.



      Mr. Ornelas-Burrola filed a sentencing memorandum requesting a variance

for a reduction of his sentence below the applicable Guidelines range, arguing a

sixteen-level enhancement was inappropriate under the sentencing factors in 18

U.S.C. § 3553(a), based on both his criminal history and other personal history

and characteristics. Specifically, as to his criminal history, he argued his 2001

convictions for selling cocaine resulted from his addiction to cocaine and need to

support that addiction, and that he had overcome his addiction and had no other

criminal convictions, other than an unresolved charge for driving while under the

influence following his arrest in January 2008. Based on these circumstances, he

asserted his criminal history category of II did not represent an accurate

assessment of his recidivism or the need for deterrence, and that a criminal

history category of I would better serve the sentencing purposes of 18 U.S.C.

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§ 3553(a). With regard to his family circumstances, he explained he was working

to provide support for his family before returning to the United States and

returned to be with his wife and seven-year-old daughter, who is a United States

citizen. Mr. Ornelas-Burrola argued his “motive” in returning to the United

States should significantly reduce his sentence for his instant offense of illegal re-

entry. As a result, he argued, a sentence of forty-one-months imprisonment treats

him “more harshly than his circumstances warrant and thus creates an

unwarranted disparity between his sentence and the sentence[s] of others who

actually receive the lower sentence[s] their similar circumstances justify.” R.,

Vol. 1 at 19.



      The government prepared a response in opposition to Mr. Ornelas-Burrola’s

request, pointing out that even though his prior four drug trafficking offenses

were brought in two separate cases, he was only assessed three criminal history

points. It also noted that in January 2008 he was arrested using one of his three

aliases and has pending charges for driving under the influence; resisting,

evading, or obstructing an officer; concealing identification; and driving without

a license. In addition, it pointed out his prior incarceration and entanglements

with immigration officials and the criminal justice system did not deter him from

returning to the United States and that most defendants charged with illegally re-

entering the United States could make similar arguments that they returned to the

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United States to help support their families.



      At the sentencing hearing, Mr. Ornelas-Burrola’s counsel advised the

district court that Mr. Ornelas-Burrola had no objection to the factual findings in

the presentence report but was continuing to seek a lower sentence, as previously

requested. After hearing the parties’ arguments on the appropriate sentence, the

district court stated it had reviewed the unopposed presentence report factual

findings; Mr. Ornelas-Burrola’s request for a lower sentence and the

government’s response thereto; and a number of letters provided in support of Mr.

Ornelas-Burrola, and that it had also considered the advisory Guidelines

applications and the factors set forth in 18 U.S.C. § 3553(a). It then explained

that it did not believe Mr. Ornelas-Burrola’s criminal history was overstated and

that, even taking into consideration his history and characteristics, it simply could

not ignore the 2001 trafficking convictions, which it considered very serious and

warranted a sentence within the advisory Guidelines range in conjunction with the

§ 3553(a) sentencing factors. It further stated it believed a sentence of forty-one

months was sufficient and not greater than necessary to accomplish the goals of

sentencing, after reviewing the other § 3553(a) factors and considering the fact

Mr. Ornelas-Burrola’s illegal re-entry occurred after having been previously

convicted of a felony. The district court then sentenced Mr. Ornelas-Burrola at

the low end of the Guidelines range to forty-one months imprisonment and two

                                         -5-
years supervised release.


                                   II. Discussion

      On appeal, Mr. Ornelas-Burrola argues his forty-one-month sentence is

substantively unreasonable under the 18 U.S.C. § 3553(a) sentencing factors

because the district court: (1) considered his eight-year-old drug conviction, even

though he no longer poses a risk of committing future drug crimes; and (2) failed

to consider uncontested evidence he planned to move his family from the United

States to Mexico to work and live on his father’s farm on his release from prison,

thereby establishing he posed no risk of re-entry into the United States.



      “Our appellate review for reasonableness includes both a procedural

component, encompassing the method by which a sentence was calculated, as well

as a substantive component, which relates to the length of the resulting sentence.”

United States v. Smart, 518 F.3d 800, 803 (10 th Cir. 2008). “A challenge to the

sufficiency of the § 3553(a) justifications relied on by the district court implicates

the substantive reasonableness of the resulting sentence.” Id. at 804. In

reviewing a sentence for substantive reasonableness, we give deference to the

district court under an abuse of discretion standard. See id. at 805-06. If the

sentence is within the correctly-calculated Guidelines range, we may apply a

presumption of reasonableness. See United States v. Kristl, 437 F.3d 1050, 1053-


                                         -6-
55 (10 th Cir. 2006) (per curiam). A defendant may rebut this presumption by

demonstrating the sentence is unreasonable when viewed under the § 3553(a)

factors. Id. at 1054-55.



      In this case, Mr. Ornelas-Burrola does not dispute that the district court

correctly calculated and applied the relevant Guidelines range and sentenced him

within that range. Therefore, his sentence is presumptively reasonable. Mr.

Ornelas-Burrola must rebut this presumption by demonstrating his sentence is

unreasonable in light of the sentencing factors in § 3553(a). However, for the

same reason cited by the district court, Mr. Ornelas-Burrola has not demonstrated

the district court abused its discretion in considering his prior drug trafficking

convictions in sentencing him within the applicable Guidelines range. Drug

trafficking is indeed a very serious offense, and, consequently, we cannot say the

district court abused its discretion in considering it in assessing the length of Mr.

Ornelas-Burrola’s sentence. In addition, Mr. Ornelas-Burrola’s arguments

concerning his family circumstances and risk of re-entry are not sufficiently

compelling for the purpose of making his forty-one-month sentence unreasonable.

Thus, we conclude the district court did not abuse its discretion in imposing a

sentence at the bottom of the applicable Guidelines range, and Mr. Ornelas-

Burrola has not demonstrated, as required, that his sentence is substantively

unreasonable under the § 3553(a) factors.

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                         III. Conclusion

For these reasons, we AFFIRM Mr. Ornelas-Burrola’s sentence.

                             Entered by the Court:

                             WADE BRORBY
                             United States Circuit Judge




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