                                                                       F I L E D
                                                                United States Court of Appeals
                                                                        Tenth Circuit
                      UNITED STATES CO URT O F APPEALS
                                                                       April 24, 2007
                                 TENTH CIRCUIT                     Elisabeth A. Shumaker
                            __________________________                 Clerk of Court

 U N ITED STA TES O F A M ER ICA,

          Plaintiff-Appellee,
                                                        No. 06-1391
 v.                                             (D.Ct. No. 06-cr-00143-LTB)
                                                         (D . Colo.)
 A RM A ND O BA RA JA S-G A RC IA,
 also known as A rmando Garcia
 Barajas, also known as M artin Nunez,

          Defendant-Appellant.
                        ____________________________

                                OR D ER AND JUDGM ENT *


Before TA CH A, Chief Circuit Judge, and BARRETT and BROR BY, Senior
Circuit Judges.




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

unanimously that oral argument would not materially assist the determination of

this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1.9(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         This order and judgment is not binding precedent except under the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 Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
      Appellant Armando Barajas-Garcia pled guilty to one count of illegal

reentry of a deported alien previously convicted of an aggravated felony in

violation of 8 U.S.C. § 1326(a) and (b)(2). He now appeals his sentence, arguing:

1) it is unreasonable when viewed under the 18 U.S.C. § 3553(a) sentencing

factors, and 2) a downward departure is warranted under the United States

Sentencing Guidelines (“Guidelines” or “U.S.S.G.”). H e premises both

arguments on mitigating circumstances involving the neglect of his son by his

son’s biological mother, which M r. Barajas-Garcia contends compelled his illegal

return to the United States. In addition, for the purpose of preserving the issue

for further appeal, M r. Barajas-Garcia challenges this court’s decision in United

States v. M artinez-Trujillo, 468 F.3d 1266 (10th Cir. 2006), which holds a

sentence is not rendered unreasonable if a sentencing court does not consider

disparities between defendants sentenced in fast-track and non-fast-track

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

U.S.C. § 1291 and affirm M r. Barajas-G arcia’s conviction and sentence.



                             I. Procedural Background

      After M r. Barajas-Garcia pled guilty, the probation officer prepared a

presentence report calculating his sentence under the applicable Guidelines. The

probation officer set his base offense level at eight pursuant to U.S.S.G.

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

                                         -2-
§ 2L1.2(b)(1)(A) because he possessed a prior felony conviction for aggravated

assault, and reduced his offense level by three levels for acceptance of

responsibility pursuant to U.S.S.G. § 3E1.1, resulting in a total offense level of

twenty-one. The presentence report also set M r. Barajas-Garcia’s criminal history

category at IV, which, together with an offense level of twenty-one, resulted in a

recommended Guidelines sentencing range of fifty-seven to seventy-one months

imprisonment.



      M r. Barajas-Garcia filed a formal written objection to the presentence

report, requesting a below -Guidelines sentence pursuant to 18 U.S.C. § 3553(a),

based on the nature of the offense and his history and characteristics and the

disparity of his sentence compared with those receiving shorter sentences in fast-

track programs utilized in other district courts. W ith respect to the nature of his

offense, M r. Barajas-Garcia asserted he did not illegally reenter the country to

comm it future crimes, but due to safety concerns for his son, whose biological

mother failed to adequately feed him, left him alone, and used drugs while he was

in her care. He also claimed his criminal history was over-represented,

explaining: 1) his prior assault conviction involved his ex-wife and was the only

act of violence in his otherwise peaceful life; and 2) his large number of driving




                                          -3-
under the influence (DUI) convictions 1 stemmed from drinking in response to his

ex-wife’s drug use and were all over ten years old, with the exception of one 2003

conviction, after which he completed a twenty-one-day alcohol treatment

program.



      At sentencing, M r. Barajas-Garcia renewed the same objections and

requested a below-Guidelines-range sentence based on the sentencing factors in

§ 3553(a). His counsel also explained that an additional family reason for his

illegal return to the United States was to assist his comm on-law wife with her

adult handicapped son. In opposition to M r. Barajas-Garcia’s request for a

below-Guidelines sentence, the government explained his sentence was not out of

the heartland of other cases, the government previously deported M r. Barajas-

Garcia on six other occasions, and M r. Barajas-Garcia possessed a lengthy

criminal history. It nevertheless requested a sentence at the bottom of the

Guidelines range at fifty-seven months imprisonment.



      After hearing and considering the parties’ arguments, the district court first

rejected M r. Barajas-Garcia’s fast-track sentencing claim, explaining it was

precluded by law. It then addressed the § 3553(a) factors, recognizing that M r.

      1
         The uncontested presentence report factual findings show M r. Barajas-
G arcia w as convicted of seven DUI-related offenses: in 1989, 1991, 1992 (two
times), 1994 (two times), and 2003.

                                        -4-
Barajas-Garcia’s claim of illegal reentry due to his family hardship must be

reviewed in light of § 3553(a), but also recognizing that most illegal reentries

stem from a range of family considerations and severities, including family

support, care for an elderly relative, illness of family members, and to be with a

spouse. It then found nothing unusual or sufficiently uncommon with regard to

M r. Barajas-Garcia’s family circumstance and that it did not “trump” the other

§ 3553(a) factors.



      In addressing the other factors, the district court explained M r. Barajas-

Garcia’s numerous illegal reentries into this country showed a strong motivation

for him to commit illegal reentry in the future and therefore implicated the

sentencing factor of deterrence from committing further criminal conduct. With

respect to his criminal history, the district court noted M r. Barajas-Garcia

possessed two prior violent felonies and numerous DUI convictions; his habitual

traffic offenses were significant given drunk drivers kill people; and his most

recent DUI conviction, stemming from conduct occurring on August 8, 2003,

suggested he retained a drinking problem although he might have taken steps to

address it. W ith respect to recidivism concerns, the district court explained M r.

Barajas-Garcia’s reentry into this country, together with his past criminal history,

indicated the seriousness of his offense and his disrespect for the law. Based on

its consideration of the factors in § 3553(a), the district court determined that a

                                          -5-
sentence at the bottom of the G uidelines range w as an appropriate sentence in M r.

Barajas-G arcia’s case and sentenced him to fifty-seven months imprisonment.



                                    II. Discussion

                    A. Unreasonableness of Sentence Based on
                              Family Circumstance

      On appeal, M r. Barajas-Garcia argues the Guidelines range imposed was

unreasonable because the district court failed to “accord adequate weight to the

fact that [M r. Barajas-Garcia] reentered the country out of fear for his child’s

safety.” He contends his illegal return to this country out of concern for the

physical safety of his child was “separate” from and “far above concerns for

supporting a family,” and therefore, the district court erroneously gave “minimal

weight to this factor.” W hile M r. Barajas-Garcia admits he previously framed his

request for a below-Guidelines sentence as a variance under § 3553(a) based on

the nature and circumstances of the offense, he suggests that on appeal we should

apply the law used in pre-Booker downward departure cases for extraordinary

family circumstances for the purpose of reducing his sentence. In so doing, he

relies on cases involving our pre-Booker consideration of U.S.S.G. § 5H1.6

relating to family ties and responsibilities.



      W e begin our discussion by clarifying that a sentence above or below the



                                           -6-
recommended Guidelines range based on an application of Chapters Four or Five

of the Guidelines is referred to as a “departure,” while a sentence above or below

the recommended Guidelines range through application of the sentencing factors

in 18 U.S.C. § 3553(a) 2 is called a “variance.” United States v. Atencio, 476 F.3d

1099, 1101 n.1 (10th Cir. 2007) (en banc request denied). Thus, on appeal, it is

evident M r. Barajas-Garcia is renewing his claim his sentence is unreasonable

under the § 3553(a) factors warranting a variance for a below-Guidelines sentence

and, for the first time on appeal, is suggesting we should also apply the law

applicable to downward departures in providing for such a below-Guidelines

sentence.




      2
          18 U.S.C. § 3553(a) provides, in part, the court shall 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, or other correctional
             treatment in the most effective manner;
      (3) the kinds of sentences available; ...
      (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.

                                          -7-
      Regarding M r. Barajas-Garcia’s renewed claim his sentence is unreasonable

under 18 U.S.C. § 3553(a), we review for reasonableness the sentence’s length, as

guided by the factors in § 3553(a). See United States v. Torres-Duenas, 461 F.3d

1178, 1183 (10th Cir. 2006), petition for cert. filed (Nov. 22, 2006) (No. 06-

7990). These factors “include the nature of the offense and characteristics of the

defendant, as well as the need for the sentence to reflect the seriousness of the

crime, to provide adequate deterrence, to protect the public, and to provide the

defendant with needed training or treatment ....” United States v. Kristl, 437 F.3d

1050, 1053 (10th Cir. 2006) (per curiam). W e have determined a presumption of

reasonableness attaches to a sentence, like here, which is within the correctly-

calculated Guidelines range. See id. at 1053-54. W e require reasonableness in

two respects – “the length of the sentence, as well as the method by which the

sentence was calculated,” the latter of which M r. Barajas-G arcia does not contest.

Id. at 1055 (emphasis omitted). If the district court “properly considers the

relevant Guidelines range and sentences the defendant within that range, the

sentence is presumptively reasonable.” Id. “This is a deferential standard that

either the defendant or the government may rebut by demonstrating that the

sentence is unreasonable w hen view ed against the other factors delineated in

§ 3553(a).” Id. at 1054. In determining whether the district court properly

considered the applicable Guidelines range, we review its legal conclusions de

novo and its factual findings for clear error. Id.

                                          -8-
         W e have held “[t]here is no question that, in addition to guiding our

reasonableness review on appeal, the sentencing factors set forth in 18 U.S.C.

§ 3553(a) must be considered by the district court itself when imposing a

sentence.” United States v. Sanchez-Juarez, 446 F.3d 1109, 1115 (10th Cir.

2006).

         [W ]here a defendant has raised a nonfrivolous argument that the
         § 3553(a) factors warrant a below-Guidelines sentence and has
         expressly requested such a sentence, we must be able to discern from
         the record that the sentencing judge did not rest on the guidelines
         alone, but considered whether the guidelines sentence actually
         conforms, in the circumstances, to the statutory factors.

Id. at 1117 (quotation marks, alterations and citation omitted).



         In this case, because the district court applied the relevant Guidelines range

and sentenced M r. Barajas-Garcia w ithin that range, his sentence is presumptively

reasonable and M r. Barajas-Garcia must rebut this presumption by demonstrating

the sentence is unreasonable in light of the sentencing factors in § 3553(a). In

attempting to rebut this presumption, M r. Barajas-Garcia contends the district

court failed to give appropriate weight to his compelling family circumstance.

W e disagree.



         M r. Barajas-Garcia’s family circumstance, as part of his characteristics and

history factor, is but one of the factors the district court considered, and it was not



                                            -9-
required to single out or give more weight to that factor than any other factor.

Instead, it is clear the district court considered the other § 3553(a) factors in

conjunction with the dire family circumstance described by M r. Barajas-G arcia.

In so doing, the district court determined that the serious nature of his offense and

his other characteristics and history, including his numerous illegal reentries, D U I

convictions, traffic offenses in light of his alcohol problem, and two prior violent

crime convictions, together with the sentencing factors of deterrence and respect

for the law, outweighed M r. Barajas-Garcia’s family circumstance, warranting a

sentence within the Guidelines range. Under these circumstances, we cannot say

M r. Barajas-Garcia has sufficiently rebutted the presumption his sentence is

reasonable. In other words, he has not demonstrated his family circumstance,

when viewed in light of the other § 3553(a) factors, is sufficiently compelling for

the purpose of making his sentence unreasonable.



      As to M r. Barajas-Garcia’s new request on appeal for a downward

departure, we have long declined to rule on issues not raised in the district court

when the defendant cannot show an impediment precluded his raising the issue or

that the ground not raised constituted plain error resulting in manifest injustice.

See United States v. Orr, 864 F.2d 1505, 1508 (10th Cir. 1988). M oreover, this

court has determined 8 U.S.C. § 1326, regarding the criminal conduct of illegal

reentry under which M r. Barajas-G arcia w as convicted, requires no specific

                                          -10-
motive or intent, so that an alien’s intent, motivation, or reasons for illegal entry

into the country, including family ties and responsibilities, cannot serve as a basis

for departure for the purpose of reducing a sentence. See United States v.

Hernandez-Baide, 392 F.3d 1153, 1157-58 (10th Cir. 2004), cert. granted on

other terms, 544 U.S. 1015 (2005), reinstated on remand, 146 Fed. Appx. 302

(10th Cir. Aug. 26, 2005). W hile the district court appropriately considered M r.

Barajas-Garcia’s family circumstance under the § 3553(a) sentencing factors, his

family circumstance serves no basis for a downward departure.



                  B. Unreasonableness of Sentence in Conjunction
                      W ith Fast-Track Sentencing Disparities

      In support of his claim his sentence is unreasonable under 18 U.S.C.

§ 3553(a)(6), M r. Barajas-Garcia contends this court erred in deciding M artinez-

Trujillo with regard to fast-track sentencing disparities. See 468 F.3d at 1268.

He raises his argument as a means of preserving the issue for future review on

appeal.



      In M artinez-Trujillo, we explained certain district courts employ a fast-

track program in which defendants receive lower sentences in exchange for

pleading guilty and waiving their right to file certain motions or appeal their

sentences. See 468 F.3d at 1267. In that case, we addressed a defendant’s



                                          -11-
argument that because he was sentenced in a district that did not utilize a fast-

track program, he experienced a sentencing disparity under 18 U.S.C.

§ 3553(a)(6) w ith defendants in fast-track systems receiving lesser sentences. Id.

W e concluded that because Congress permitted district courts to participate in

such fast-track programs, but did not revise the terms of § 3553(a)(6) regarding

sentencing disparities, Congress recognized sentencing disparities for some

defendants would result from such programs, but that such sentences would not

violate § 3553(a)(6). Id. at 1268-69 (relying on the Prosecutorial Remedies and

Other Tools to End the Exploitation of Children Today Act of 2003 (PROTECT

Act), Pub. L. No. 108-21, 117 Stat. 650 (codified in scattered sections of Titles 18

and 42 U.S.C.)). Because M artinez-Trujillo is controlling precedent in this

circuit, we cannot overturn that decision absent en banc review or an intervening

Supreme Court decision. See Torres-Duenas, 461 F.3d at 1183. Thus, we decline

to entertain M r. Barajas-Garcia’s challenge to this court’s decision in M artinez-

Trujillo with regard to fast-track sentencing disparities or otherwise consider

whether his sentence is unreasonable in light of that decision.




                                         -12-
                                III. Conclusion

      For these reasons, we A FFIRM M r. Barajas-Garcia’s conviction and

sentence.



                                    Entered by the C ourt:

                                    W ADE BRO RBY
                                    United States Circuit Judge




                                     -13-
