                                                                       F I L E D
                                                                United States Court of Appeals
                                                                        Tenth Circuit
                    UNITED STATES CO URT O F APPEALS
                                                                       April 19, 2007
                                 TENTH CIRCUIT                      Elisabeth A. Shumaker
                                                                        Clerk of Court


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

               Plaintiff - Appellee,                     No. 06-2053
          v.                                           (D. New M exico)
 R OBER TO JU LIO D A V ILA -                     (D.C. No. CR-04-2314-JH)
 SA LV A TIER RA ,

               Defendant - Appellant.




                            OR D ER AND JUDGM ENT *


Before H E N RY, B AL DOC K , and HA RTZ, Circuit Judges.


      Julio Davila-Salvatierra pleaded guilty to illegal reentry after deportation

subsequent to an aggravated felony conviction, in violation of 8 U.S.C. § 1326(a),

(b)(2). The district court imposed a sentence at the bottom of the range suggested

by the U nited States Sentencing Guidelines (“U SSG” or “G uidelines”). M r.

Davila-Salvatierra now challenges the procedural and substantive reasonableness

of that sentence. W e take jurisdiction pursuant to 18 U.S.C. § 3742(a) and 28



      *
         This order and judgment is not binding precedent except under the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.
U.S.C. § 1291, and affirm.

                                I. BACKGROUND

      On August 19, 2004, Immigration and Customs Enforcement officials

encountered M r. D avila-Salvatierra in Dona Ana County, New M exico. He

admitted being a citizen of M exico and that he illegally entered the United States.

Shortly thereafter, M r. Davila-Salvatierra was indicted for illegal reentry after

deportation subsequent to an aggravated felony conviction. He pleaded guilty

pursuant to a plea agreement. In exchange, the government agreed to recommend

that M r. Davila-Salvatierra receive a sentence at the bottom of the applicable

advisory guideline range and to file a motion for an additional one-level reduction

in his total offense level for acceptance of responsibility.

      The United States Probation Office prepared a presentence investigation

report (“PSR”). The PSR determined M r. Davila-Salvatierra’s base offense level

was eight. See USSG § 2L1.2(a). Because he was previously convicted for

assault with a firearm on a person, the PSR increased the base offense level by

sixteen levels. See USSG § 2L1.2(b)(1)(A). Applying a two-level downward

adjustment for acceptance of responsibility, see USSG § 3E1.1(a), the PSR

calculated a total offense level of twenty-two. The PSR set M r. Davila-

Salvatierra’s criminal history category at V. M r. Davila-Salvatierra’s adjusted

offense level of twenty-two and criminal history category of V yielded a

suggested sentencing range of seventy-seven to ninety-six months’ imprisonment.

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The PSR also noted that “the probation office has identified no departure issues”

and “there are no circumstances that take the defendant’s case away from the

heartland of similarly situated defendants.” PSR ¶ 49.

      During a presentence interview with the Probation Office, M r. Davila-

Salvatierra’s counsel indicated that he believed a departure was warranted

because M r. Davila-Salvatierra only reentered the country after learning that his

mother was terminally ill and asked to visit with him before she died. Counsel

provided the Probation Office with evidence that M r. Davila-Salvatierra’s mother

did in fact pass away on December 23, 2004.

      In an addendum to the PSR, the Probation Office did not dispute that M r.

Davila-Salvatierra reentered the country to visit his dying mother. First

Addendum to the PSR at 1 (noting that M r.Davila-Salvatierra’s situation was “sad

and heartfelt”). It stated, however, that “this new information does not raise [sic]

to the level of a non-exhaustive set of circumstances warranting a departure. . . .

At this time, we have weighed the relevant departure issues applicable and do not

feel that any downward departure can be justified based on the current set of

circumstances.” Id. at 1-2.

      Prior to sentencing, M r. Davila-Salvatierra filed a motion requesting a

below-G uidelines sentence. He argued, inter alia, that the district court should

depart downward because he only reentered the United States to fulfill his dying

mother’s request, and he had “long suffered from severe depression, anxiety, and

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other mental health disorders.” Rec. vol. I, doc. 32, ¶ 19. He contended his

mother’s terminal condition was grounds for a departure because it constituted

extraordinary familial circumstances, see United States v. Rodriguez-Velarde, 127

F.3d 966, 968-69 (10th Cir. 1997), and caused him duress, see USSG § 5K2.12.

He argued his mental health issues constituted grounds for a departure based on

diminished capacity. See USSG § 5K1.13. Additionally, he requested a variance

based on the sentencing factors listed in 18 U.S.C. § 3553(a). The government

opposed M r. Davila-Salvatierra’s motion, arguing that his “situation defines the

heartland of similarly charge defendants.” Rec. vol. I, doc. 35, at 2.

      At sentencing, defense counsel reiterated M r. Davila-Salvatierra’s

mitigation arguments and requested a thirty-five-month sentence. M r. Davila-

Salvatierra also spoke on his own behalf. In response, the government simply

referenced its earlier opposition motion. Also, pursuant to the plea agreement,

the government moved for an additional one-level reduction in M r. Davila-

Salvatierra’s total offense level.

      The district court adopted the factual findings and Guideline calculations in

the PSR and granted the government’s motion, resulting in a new advisory

Guidelines range of seventy to eighty-seven months. The court then sentenced

M r. Davila-Salvatierra to seventy months’ imprisonment, with the following

explanation:

      The Court has reviewed the presentence report factual findings. The Court has

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      considered the advisory sentencing guideline applications. The Court has also
      considered the factors set forth in 18 U.S.C. § 3553. . . .

      I w ill say that I find that the sentence that I’ve stated is reasonable under all
      circumstances. I do note that the defendant has a fairly significant crim inal
      history in the United States apart from immigration issues and so my feeling
      is that that is a reasonable sentence under the circumstances.

      I will note also that it is my belief that the defendant used poor judgment as
      opposed to suffering from a significant reduced mental capacity, so I don’t
      find that the reduction or the downw ard departure is appropriate under the
      circumstances.

Id. vol. IV, at 8-10. This appeal followed.

                                 II. DISCUSSION

      W e review sentences imposed post-Booker for reasonableness. United

States v. Kristl, 437 F.3d 1050, 1054-55 (10th Cir. 2006). Reasonableness has

both procedural and substantive components which encompass, respectively, the

method by which the sentence was calculated and the length of the sentence. See

id. at 1055. In this case, M r. Davila-Salvatierra maintains his low-end Guidelines

sentence is both procedurally and substantively unreasonable.

                        A. P ROCEDURAL R EASONABLENESS

      To assess the procedural reasonableness of a defendant’s sentence, we

examine whether the district court appreciated the advisory nature of the

Guidelines, correctly calculated the applicable Guidelines range, and considered

the § 3553(a) factors when crafting the sentence. See U nited States v. Sanchez-

Juarez, 446 F.3d 1109, 1114-15 (10th Cir. 2006). W e also require the district



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court to explain its reasons for imposing a particular sentence. Id. at 1116

(“[T]he court’s failure to give reasons for its decision would leave us in a zone of

speculation on appellate review.”) (internal quotation marks omitted). In

particular, when a defendant makes “a nonfrivolous argument for leniency,” the

district court “must somehow indicate that [it] did not ‘rest on the guidelines

alone, but considered whether the guideline sentence actually conforms, in the

circumstances, to the statutory factors.’” United States v. Jarrillo-Luna, 478 F.3d

1226, 1230 (10th Cir. 2007) (quoting Sanchez-Juarez, 446 F.3d at 1117)

(emphasis added).

      M r. Davila-Salvatierra does not contend the district court was unaware of

its post-Booker ability to vary from the Guidelines or that it miscalculated the

advisory Guidelines range. Instead, he alleges the district court failed to properly

consider the § 3553(a) factors and adequately explain his sentence. For support,

he emphasizes that the court “made no mention of [his] uncontested factual basis

of entering the country solely to see his dying mother, nor did the court mention a

single 3553 factor other than [his] criminal history.” Aplt’s Br. at 13. He also

points out that the court did not acknowledge his argument that his mother’s

illness constituted grounds for a downward departure based on extraordinary

family circumstances and duress.

      W e first note that M r. Davila-Salvatierra did not object to the district

court’s explanation of his sentence. Consequently, we may vacate his sentence

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for procedural unreasonableness only in the presence of plain error. United States

v. Lopez-Flores, 444 F.3d 1218, 1221 (10th Cir. 2006). “Plain error occurs when

there is (i) error, (ii) that is plain, which (iii) affects the defendant’s substantial

rights, and which (iv) seriously affects the fairness, integrity, or public reputation

of judicial proceedings.” United States v. Ruiz-Terrazas, 477 F.3d 1196, 1199

(10th Cir. 2007). In this case, we need not move beyond the first prong of plain

error review because the district court committed no error.

       As w e recently made clear, a district court sufficiently explains its

imposition of a within-the-G uidelines sentence by entertaining the defendant’s

arguments for a below-Guidelines sentence, indicating on the record that it

considered the § 3553(a) factors, and “provid[ing] only a general statement of the

reasons for its imposition of the . . . sentence.” Ruiz-Terrazas, 477 F.3d at 1199

(internal quotation marks omitted). The district court need not explicitly

reference each of the § 3553(a) factors or respond to “every argument for

leniency that it rejects in arriving at a reasonable sentence.” Jarrillo-Luna, 478

F.3d at 1229. This is particularly true where, as here, the district court imposes a

sentence at the bottom of the recommended Guidelines range. See Sanchez-

Juarez, 446 F.3d at 1115 (noting that a district court’s “decision to impose a

sentence at the low end of the Guidelines range may fairly be read as a functional

rejection of [the defendant’s] arguments and a denial of his request for a

below-G uidelines sentence.”).

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      The district court adequately considered the § 3553(a) factors and

explained its imposition of M r. D avila-Salvatierra’s low-end Guidelines sentence.

First, the court entertained M r. Davila-Salvatierra’s mitigation arguments, which

were made in a motion and orally at the sentencing hearing. The court also stated

on the record that it had considered the § 3553(a) factors. Furthermore, the court

provided a general statement of reasons by citing the facts it found most relevant

to imposing a low -end Guidelines sentence, namely M r. Davila-Salvatierra’s

“fairly significant criminal history” and the court’s belief that he had “used poor

judgment as opposed to suffering from a significant reduced mental capacity”

when illegally reentering the country. Rec. vol. IV, at 10. Cf. Jarrillo-Luna, 478

F.3d at 1230 (holding that district court adequately explained defendant’s low-end

Guidelines sentence by stating that it “look[ed] ‘very carefully at the

circumstances of this man and his offense’ and then explaining what it considered

‘the two things that are most compelling’ from [the defendant’s] past”).

      Because the district court expressed a clear rationale for its decision, there

is no foundation for a finding of procedural unreasonableness. Thus, the district

court committed no error.

                       B. S UBSTANTIVE R EASONABLENESS

      To assess substantive reasonableness, we consider whether the sentence

imposed by the district court is unreasonable in light of the § 3553(a) factors.

Kristl, 437 F.3d at 1054. Because M r. Davila-Salvatierra’s sentence falls within

                                         -8-
the properly calculated advisory Guidelines range, it is entitled to a rebuttable

presumption of reasonableness. Id. However, because the Supreme Court

recently heard oral argument in two cases that may change the way federal

appellate courts review sentences post-Booker, see United States v. Rita, 177 Fed.

Appx. 357, cert. granted, 127 S. Ct. 551 (U.S. Nov 3, 2006) (No. 06-5754);

United States v. Claiborne, 439 F.3d 479 (8th Cir.), cert. granted, 127 S. Ct. 551

(U .S. Nov. 3, 2006) (No. 06-5618), w e decline to rely on this presumption.

      M r. Davila-Salvatierra generally argues his 70-month sentence was

“unreasonably long” in light of the fact that he reentered the United States to visit

his dying mother. Aplt’s Br. at 1. Although his mother’s illness and death are

tragic, after assessing M r. Davila-Salvatierra’s sentence in light of the § 3553(a)

factors, we conclude it is reasonable.

      First, the reentry of an ex-felon is a serious offense for which Congress has

imposed a statutory maximum sentence of 20 years. See 8 U.S.C. § 1326(b)(2).

M oreover, as the district court observed, M r. Davila-Salvatierra has a “fairly

significant criminal history,” which includes prior convictions for assault with a

firearm, being a felon in possession of a firearm, and illegal reentry of a deported

alien. PSR ¶ 24-26. Furthermore, the question confronting us on appeal is not

whether M r. Davila-Salvatierra could have been sentenced to a lower prison term,

but whether the given sentence is reasonable. See Jarrillo-Luna, 478 F.3d at 1229

(“To affirm, we must simply be satisfied that the chosen sentence, standing alone,

                                          -9-
is reasonable.”) (emphasis added). Considering the seriousness of the underlying

offense as well as M r. Davila-Salvatierra’s criminal history, a bottom-of-the-

G uidelines sentence provides just punishment, promotes respect for the law,

affords adequate deterrence, and protects the public from future harm. See U.S.C.

§ 3553(a)(1). Accordingly, M r. Davila-Salvatierra’s sentence is substantively

reasonable.

                                 III. CONCLUSION

         For the foregoing reasons, we AFFIRM the sentence imposed by the district

court.

                                                Entered for the Court,


                                                Robert H. Henry
                                                Circuit Judge




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