                                                                         F I L E D
                                                                United States Court of Appeals
                                                                        Tenth Circuit
                    UNITED STATES CO URT O F APPEALS
                                                                         May 18, 2007
                                 TENTH CIRCUIT                      Elisabeth A. Shumaker
                                                                        Clerk of Court


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

               Plaintiff - Appellee,                     No. 06-1174
          v.                                             (D. Colorado)
 LUIS M AN UEL PRA DO -JIM ENEZ,                 (D.C. No. 05-CR-495-W DM )
 also know n as Luis Jimenez, also
 known as Louis Prado,

               Defendant - Appellant.



                            OR D ER AND JUDGM ENT *


Before KELLY, M U RPH Y, and O'BRIEN, 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(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        This order and judgment is not binding precedent except under the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.
I.    Introduction

      Appellant Luis Prado-Jimenez pleaded guilty to one count of illegal reentry

of a deported alien, in violation of 8 U.S.C. § 1326(a) and (b)(2). The district

court sentenced him to fifty-seven months’ imprisonment, the low end of the

advisory guidelines range. Prado-Jimenez now appeals the sentence imposed by

the district court, arguing it is substantively unreasonable based on consideration

of the factors set forth in 18 U.S.C. § 3553(a). See United States v. Booker, 543

U .S. 220, 261 (2005). Exercising jurisdiction pursuant to 28 U.S.C. § 1291, w e

affirm Prado-Jimenez’s sentence.

II.   Background

      In 2005, Prado-Jimenez was arrested for speeding in Colorado. A records

check revealed he had previously been deported from the United States. He was

arrested and eventually charged with illegal reentry by a deported alien previously

convicted of an aggravated felony, in violation of 18 U.S.C. § 1326(a) and (b)(2).

Prado-Jimenez pleaded guilty to the charge and the United States Probation

Office prepared a Presentence Investigation Report (“PSR”). The PSR calculated

the base offense level at eight but increased it sixteen levels pursuant to USSG

§ 2L1.2(b)(1)(A) because Prado-Jimenez had a prior felony conviction for a crime

of violence. The offense level was then reduced by three levels for acceptance of

responsibility pursuant to USSG § 3E1.1, yielding a total offense level of twenty-

one. Combined with Prado-Jimenez’s criminal history category of IV , this

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offense level resulted in an advisory guidelines sentencing range of fifty-seven to

seventy-one months’ imprisonment.

      Prado-Jimenez filed a written objection to the PSR, arguing the sixteen-

level increase to his base offense level violated his Sixth Amendment rights

because the fact of the prior conviction that triggered the increase was not found

by a jury beyond a reasonable doubt. 1 But see Almendarez-Torres v. United

States, 523 U.S. 224, 226-27 (1998); United States v. M oore, 401 F.3d 1220,

1223-24 (10th Cir. 2005). He also filed a sentencing memorandum, arguing a

variance from the advisory guidelines range w as appropriate based on the nature

of the offense of conviction, his history and characteristics, and the need to avoid

unwarranted sentencing disparities. See 18 U.S.C. § 3553(a). Specifically,

Prado-Jimenez asserted his offense was less serious because he illegally reentered

the country solely out of a desire to rejoin his immediate family, all of whom live

in the United States. W ith respect to his history and characteristics, he took the

position they warranted a lower sentence because he has no recent criminal

activity and maintained regular employment while in the United States. Finally,

he argued the absence of a fast-track program 2 in Colorado resulted in an


      1
      The district court rejected this argument as foreclosed by Supreme Court
precedent and Prado-Jimenez does not raise the issue in this appeal.
      2
       Fast-track programs permit defendants accused of certain immigration
offenses to “plead guilty early in the process and waive their rights to file certain
motions and to appeal, in exchange for a shorter sentence.” United States v.
                                                                        (continued...)

                                         -3-
unwarranted sentencing disparity between the advisory guidelines range

calculated in the PSR and sentences imposed for the same crime in jurisdictions

that have fast-track programs.

      At the sentencing hearing, the district court considered Prado-Jimenez’s

arguments but rejected his request for a sentencing variance. The district court

characterized Prado-Jimenez’s desire to be with his family as “understandable”

but expressed concern that Prado-Jimenez admitted to reentering the United States

illegally on two occasions almost immediately after being deported, thereby

showing a disrespect for the law and the inability to be deterred from engaging in

illegal conduct. The court acknowledged Prado-Jimenez’s criminal history was

limited to offenses occurring several years ago, but noted his prior offenses w ere

serious and evinced a significant disregard for the law. The district court also

rejected Prado-Jimenez’s fast-track argument, concluding fast-track sentences are

the exception rather than the norm and thus do not constitute a legitimate reason

to impose a sentence outside a presumptively reasonable guidelines range. Based

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

sentence at the bottom of the advisory guidelines range was appropriate and

sentenced Prado-Jimenez to fifty-seven months’ imprisonment.




      2
       (...continued)
M orales-Chaires, 430 F.3d 1124, 1127 (10th Cir. 2005).

                                         -4-
III.   Discussion

       This court reviews Prado-Jimenez’s sentence for reasonableness. Booker,

543 U.S. at 260-61. Our “[r]easonableness review is guided by the factors set

forth in 18 U.S.C. § 3553(a).” United States v. Kristl, 437 F.3d 1050, 1053 (10th

Cir. 2006). Those 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, [and] to protect the public.” Id. Because

Prado-Jimenez’s sentence falls within a properly calculated guidelines range, it is

entitled to a rebuttable presumption of substantive reasonableness. Id. at 1054.

       Consistent with the arguments he presented to the district court, Prado-

Jimenez asserts his sentence is unreasonable in light of the § 3553(a) factors,

because (1) his offense of conviction was motivated by a desire to be reunited

with his family; (2) he has an excellent employment history; (3) his prior criminal

offenses all occurred many years ago and he has “aged out” of a crime-filled

youth; (4) he is a fully assimilated American, having lived in the United States

since he was seven years old; and (5) the lack of a fast-track program in Colorado

creates an unwarranted sentencing disparity. 3 Prado-Jimenez’s specific arguments

       3
        Prado-Jimenez also argues (1) his sentence should be viewed in the larger
context of America’s reliance on immigrant labor, (2) his employers and their
clients have benefitted from his offense, (3) Bureau of Prisons regulations
governing deportable aliens impair the ability to provide him with educational or
vocational training during his incarceration, and (4) the “blindly punitive effect”
of the application of the sixteen-point enhancement mandated by USSG
                                                                       (continued...)

                                         -5-
are part of a broader assertion his sentence is substantively unreasonable because

it is too long.

       Prado-Jimenez’s fast-track argument is foreclosed by our recent decision in

United States v. M artinez-Trujillo, 468 F.3d 1266 (10th Cir. 2006). In M artinez-

Trujillo, we concluded sentencing disparities resulting from the existence of fast-

track programs in some jurisdictions are not unwarranted under § 3553(a)(6)

because they are specifically authorized by Congress. Id. at 1268-69. Having

reviewed and considered Prado-Jimenez’s other arguments, 4 we conclude they are

insufficient, even considered in the aggregate, to rebut the presumption his

sentence is reasonable. The district court adopted the uncontested factual

findings in the PSR and fully considered the arguments Prado-Jimenez presented


       3
       (...continued)
§ 2L1.2(b)(1)(A ) renders his sentence unreasonable. Because Prado-Jimenez did
not present any of these arguments to the district court, we do not consider them
here. See United States v. Alcaraz-Arellano, 441 F.3d 1252, 1260 (10th Cir.
2006).
       4
        This court has held that § 5K2.11 departures are not allowed in illegal
reentry cases because the crime of illegal reentry is not a specific intent crime.
United States v. Hernandez-Baide, 392 F.3d 1153, 1157-58 (10th Cir. 2004), cert.
granted & judgment vacated by Hernandez-Baide v. United States, 544 U.S. 1015
(2005), opinion reinstated by United States v. Hernandez-Baide, 146 F. App’x
302, 305 (10th Cir. 2005). Recognizing the analytical distinctions between
departures and variances, it could nevertheless be argued, based on the analysis of
departures in Hernandez-Baide, that it would be likewise improper for a district
court to vary from the advisory guidelines range based solely on the defendant’s
motivation for reentering the United States. W e leave the resolution of this issue
for another day since the government does not raise it and the sentence imposed
by the district court is otherw ise reasonable.


                                         -6-
in support of his request for a below-guidelines sentence. It then imposed a

sentence at the bottom of the correctly calculated advisory guidelines range.

Even in the absence of the Kristl presumption, we would conclude Prado-

Jimenez’s sentence is substantively reasonable.

IV.   Conclusion

      The sentence imposed by the district court is affirmed.

                                       ENTERED FOR THE COURT



                                       M ichael R. M urphy
                                       Circuit Judge




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