                                                                        F I L E D
                                                                United States Court of Appeals
                                                                        Tenth Circuit
                    UNITED STATES CO URT O F APPEALS
                                                                      February 14, 2007
                                 TENTH CIRCUIT                      Elisabeth A. Shumaker
                                                                        Clerk of Court


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

               Plaintiff-Appellee,                      No. 06-2032
          v.                                         (D. New M exico)
 M AR IO D E LA TO RRE-                        (D.C. No. 05-CR-1253 W PJ)
 RO DR IGU EZ,

               Defendant-Appellant.




                            OR D ER AND JUDGM ENT *


Before H E N RY, A ND ER SO N, and G O RSUCH , Circuit Judges. **


      M ario De La Torre-Rodriguez pleaded guilty to one count of re-entry of a

deported alien previously convicted of an aggravated felony in violation of 8

U.S.C. §§ 1326(a)(1), 1326(a)(2), and 1326(b)(2). The applicable advisory

Guideline range for his offense was 57 to 71 months. The district court sentenced




      *
        This order and judgment is not binding precedent except under the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.
      **
        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 F ED . R. A PP . P. 34(a)(2); 10 TH C IR . R. 34.1(G). The case is
therefore ordered submitted without oral argument.
him to 57 months. On appeal, M r. De La Torre-Rodriquez argues that the district

court erred in refusing his request for a 51 month sentence. Because the sentence

was reasonable, we affirm.

                                  I. Background

      M r. De La Torre-Rodriguez entered the United States illegally from M exico

in 1979. W hile he w as in the country from 1979 until his deportation in 2003, M r.

De La Torre-Rodriguez married and had two children. He also racked up nine

convictions for crimes ranging from public intoxication to drug trafficking. In

M ay of 2003, M r. De La Torre-Rodriguez was deported for reasons relating to a

1987 conviction of transporting or selling a controlled substance. He violated his

deportation by returning to the country later that same year. After crossing the

border, M r. De La Torre-Rodriguez worked as a carpenter in Arizona and,

according to his version of events, sent money to his w ife who was living in

California and had been diagnosed with breast cancer. In 2004, he traveled from

Arizona to El Paso, Texas to see his dying mother. On his way to Texas, New

M exico state police detained M r. De La Torre-Rodriguez on suspicion of being an

illegal alien. A subsequent background check revealed M r. De La Torre-

Rodriguez’s deportation.

     The Presentence Report (PSR ) set M r. De La Torre-Rodriguez’s base-level

offense for disregarding a deportation order at eight. He received a sixteen-level

increase for returning to the United States after being convicted of a drug

                                         2
trafficking offense for which the sentence was more than thirteen months in

prison. Based on his criminal history, the PSR placed M r. De La Torre-

Rodriguez in Criminal History Category VI, the highest category. W ith a three-

level downward adjustment for acceptance of responsibility and a two-level

reduction for accepting a “fast-track” plea, the advisory Guideline range was 63

to 78 months. At sentencing, the district court found that M r. De La Torre-

Rodriguez’s criminal history did not warrant Category VI classification and

reduced his criminal history to Category V, which made the advisory Guideline

range 57 to 71 months. M r. De La Torre-Rodriguez then requested a sentence of

51 months based on his wife’s health and his own psychological and physical

problems. The district court rejected the request for a variance and sentenced M r.

De La Torre-Rodriguez to 57 months.

                                  II. Discussion

      W e review criminal sentences for reasonableness. United States v. Kristl,

437 F.3d 1050, 1053 (10th Cir. 2006). Because “the Guidelines remain an

essential tool in creating a fair and uniform sentencing regime across the

country,” a sentence within the appropriate guideline range raises a rebuttable

presumption of reasonableness. Id. at 1054 (alteration and internal quotation

marks omitted). Nevertheless, we do not rely on the presumption of

reasonableness in assessing M r. D e La Torre-Rodriguez’s sentence.

      “Reasonableness review is guided by the factors set forth in 18 U.S.C. §

                                         3
3553(a), which 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 and treatment.” Id. at 1053 (internal citations

omitted). W e conclude that the sentence of 57 months is objectively reasonable

in light the § 3553(a) factors.

      W e also note that the district court’s well-reasoned sentencing order took

into account both of M r. D e La Torre-Rodriguez’s arguments for a below-

guideline sentence. The district court noted M r. De La Torre-Rodriguez’s health-

related argument, and recommended that M r. De La Torre-Rodriguez receive an

evaluation and any necessary medical care. In addition, the court found that M r.

De La Torre-Rodriguez’s family circumstances argument lacked credibility. The

court explained,

      what troubles me about [M r. De La Torre’s family circumstances
      argument] . . . seems to be a lack of proof on this, if a spouse, a
      loved one has been diagnosed with cancer in California, then it seems
      to me that . . . this defendant should have been in California
      providing, actually being there physically to support his wife w ho’s
      going through chemotherapy and radiation.

Rec. Vol. III, at 37.

      Given that it is the district court’s function to assess credibility, this

determination should not be disturbed absent evidence of clear error. See Kristl,

437 F.3d 1054 (“W hen reviewing a district court’s application of the Guidelines



                                           4
in the post-Booker era, we examine . . . issues of fact for clear error.”) (internal

quotation marks omitted). Our review of the record reveals no error, clear or

otherw ise.

                                   III. Conclusion

      Accordingly, we AFFIRM M r. De La Torre-Rodriguez’s sentence.


                                               Entered for the Court,



                                               Robert H. Henry
                                               Circuit Judge




                                           5
