                                                                         FILED
                                                             United States Court of Appeals
                                                                     Tenth Circuit

                                                                      April 29, 2008
                    UNITED STATES COURT OF APPEALS Elisabeth A. Shumaker
                                                                      Clerk of Court
                                 TENTH CIRCUIT



 UNITED STATES OF AMERICA,

               Plaintiff - Appellee,                    No. 07-2251
          v.                                         (D. New Mexico)
 CARLOS ISAIAS GOMEZ-TORRES,                  (D.C. No. 1:07-cr-01147-BB-1)

               Defendant - Appellant.


                            ORDER AND JUDGMENT *


Before BRISCOE, MURPHY, and HARTZ, Circuit Judges.


      Carlos Isaias Gomez-Torres pleaded guilty in the United States District

Court for the District of New Mexico to the offense of unlawful reentry following

deportation after committing an aggravated felony. See 8 U.S.C. §§ 1326(a) and

(b)(2). The court sentenced him to 70 months’ imprisonment, the bottom of the

Guidelines range. On appeal Mr. Gomez-Torres contends that his sentence is




      *
       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(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not binding precedent except under the doctrines of law of the case, res judicata,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.
substantively unreasonable. We have jurisdiction under 28 U.S.C. § 1291 and

affirm.

      Under the United States Sentencing Guidelines Mr. Gomez-Torres was

assigned a base offense level of 8 for unlawfully entering the United States. See

USSG § 2L1.2(a). He received a 16-level enhancement because he had previously

been deported after being convicted of a crime of violence (aggravated battery

against a household member). See id. at § 2L1.2(b)(1)(A)(ii). After a 3-level

reduction for accepting responsibility, see id. at § 3E1.1, his total offense level

was 21. Ten criminal-history points placed him in criminal-history category V.

Of his ten points, two came from a conviction for driving while intoxicated and

driving without a license, one came from a conviction for interference with

communications, one came from a conviction for possession of a controlled

substance, and three came from a conviction for aggravated battery against a

household member and false imprisonment. He received two additional criminal-

history points because the instant offense was committed less than two years after

his release from custody and one more point because he committed the instant

offense while under supervised release. The resulting Guidelines range was 70-87

months’ imprisonment. Finding no facts justifying a variance, the district court

sentenced Mr. Gomez-Torres to 70 months’ imprisonment.

      On appeal Mr. Gomez-Torres argues that the following circumstances show

that his sentence is too harsh under the factors set forth in 18 U.S.C. § 3553(a):

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(1) The aggravated-battery offense was a minor one. The victim had even

submitted to the district court a statement that she had not been injured. The

Guidelines were particularly harsh because this offense not only increased his

criminal-history category but also greatly increased his offense level. (2) The

other prior offenses were also minor (for example, his drug offense involved only

1/1000 of an ounce of cocaine) and were instances of aberrant behavior unlikely

to occur again. (3) He has family ties to the United States, has lived most of his

adult life in the United States, had held the same job for ten years, and has

become culturally assimilated. Indeed, his reason for unlawfully returning to this

country was his desire to be with his children. (4) A Guidelines offense level of

24, which is the level for offenses such as aggravated sexual abuse of a minor, see

USSG § 2A3.4(b)(1), and bank robbery with a death threat, see id. § 2B3.1,

reflects great disparity in sentencing.

      Under United States v. Booker, 543 U.S. 220 (2005), “we review sentencing

decisions for reasonableness . . . .” United States v. Atencio, 476 F.3d 1099, 1102

(10th Cir. 2007). “A substantively reasonable sentence ultimately reflects the

gravity of the crime and the § 3553(a) factors as applied to the case.” Id. We

review under “the familiar abuse-of-discretion standard.” Gall v. United States,

128 S.Ct. 586, 594 (2007). Sentences within a correctly calculated Guidelines

range are accorded a presumption of reasonableness. United States v. Kristl, 437




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F.3d 1050, 1055 (10th Cir. 2006); see Rita v. United States, 127 S. Ct. 2456, 2462

(2007).

      Mr. Gomez-Torres has failed to overcome the presumption that his within-

Guidelines sentence was reasonable. In reviewing the reasonableness of a

sentence, we “defer not only to the district court’s factual findings but also to its

determinations of the weight to be afforded to such findings.” United States v.

Smart, 518 F.3d 800, 808 (10th Cir. 2008). Here, the district court stated:

             If I were writing on a clean slate, I might conclude that a
             sentence of less than 70 months was sufficient, but not
             greater than necessary to comply with [18 U.S.C. §]
             3553.

                   However, given his priors, I cannot ignore the
             violent nature of those priors, in spite of the victim’s
             statements. I think the guideline range is appropriate
             here. We frequently see people coming back into this
             country in this district who are coming back for family
             purposes, some much more compelling than this.

R. Vol. 3 at 15–16. The district court is in a far better position than we are to

assess the nature of prior offenses and whether a defendant’s circumstances are

exceptional. The court could reasonably have concluded (as it did) that the

§ 3553(a) factors warranted a 70-month sentence.

      We AFFIRM the judgment below.

                                        ENTERED FOR THE COURT


                                        Harris L Hartz
                                        Circuit Judge

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