                                                                      F I L E D
                                                                United States Court of Appeals
                                                                        Tenth Circuit

                                                                        June 4, 2007
                      UNITED STATES CO URT O F APPEALS
                                                                   Elisabeth A. Shumaker
                                   TENTH CIRCUIT                       Clerk of Court



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

          Plaintiff-Appellee,
                                                        No. 06-4174
 v.
                                                 (D.C. No. 1:06-CR-2 PGC)
                                                         (D. Utah)
 SA N TIA G O SO SA -A CO STA ,

          Defendant-Appellant.



                                OR DER AND JUDGM ENT *


Before BR ISC OE, EBEL, and M CCO NNELL, Circuit Judges.


      Santiago Sosa-Acosta pled guilty to one count of possessing

methamphetamine with intent to distribute in violation of 21 U.S.C. § 841(a) and

received a sentence of 78 months’ imprisonment. He now appeals his sentence,

claiming that the district court erred both procedurally and substantively in

imposing a sentence at the bottom of the United States Sentencing Guidelines

range (the “Guidelines range”) for his offense. Taking jurisdiction under 18


      *
       After examining appellant’s brief and the 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) and 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order and judgment is not binding precedent, except under the doctrines of law of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.
U.S.C. § 3742(a) and 28 U.S.C. § 1291, we hold that the district court did not err

and therefore AFFIRM M r. Sosa-Acosta’s sentence.

                                 BACKGROUND

      In January 2006, M r. Sosa-Acosta, along with two other men, was indicted

on one count of possession with intent to distribute methamphetamine and one

count of possession with intent to distribute cocaine, each a violation of 21 U.S.C.

§ 841(a)(1) and 18 U.S.C. § 2. M r. Sosa-Acosta pled guilty to the first count of

the indictment and, as a part of his plea agreement, the government agreed to

dismiss the second count. The government also filed a motion for a three-level

downward departure from the applicable Guideline range pursuant to U.S.S.G. §

5K1.1 based on M r. Sosa-Acosta’s cooperation in testifying against one of his co-

defendants. 1

      At the sentencing hearing, the district court calculated M r. Sosa-A costa’s

base offense level at 28, taking into account a three-level reduction based upon

the government’s § 5K1.1 motion. Combined with M r. Sosa-Acosta’s criminal

history category of one, the court found that this yielded a Guideline range with a

low end of 78 months’ imprisonment.




      1
        U.S.S.G. § 5K1.1 provides that “[u]pon motion of the government stating
that the defendant has provided substantial assistance in the investigation or
prosecution of another person who has comm itted an offense, the court may
depart from the guidelines.”

                                        -2-
      The court then heard from defense counsel, who first emphasized that M r.

Sosa-Acosta suffers from a medical condition related to his kidney function and

asked that the court take this into account by recommending that M r. Sosa-Acosta

be placed in a prison with appropriate medical facilities. 2 The court agreed to this

request, noting the importance of ensuring that the Bureau of Prisons has the

information required to meet prisoners’ medical needs and stating that the court

would recommend placement in “a facility that can handle his kidney issues.”

Defense counsel also requested that M r. Sosa-Acosta not be placed in a prison

with any of his co-defendants or their family members, and the court agreed to

make such a recommendation.

      Finally, defense counsel requested a downward variance from the Guideline

range calculated by the court for M r. Sosa-Acosta’s offense:

      Beyond that, I would just – what is in the presentence report I think that
      the government has been – has been generous, hopefully appropriately
      so. And I don’t want to push this too much, but given the fact that M r.
      Sosa-Acosta has som e m edical issues . . . I w ould ask the court to
      consider giving him a sentence of 72 months, realizing that he probably
      is going to enjoy a reduced life expectancy. He is not exactly a young
      m an. And I realize that that is not – that is not premised on the
      guidelines. I don’t think there is anything that makes this extraordinary
      under the guidelines or I would have made that kind of argument. B ut

      2
       M r. Sosa-Acosta’s medical issues were discussed in the Presentence
Report (“PSR”) prepared by the U .S. Probation Office, which noted that M r.
Sosa-Acosta’s kidneys do not function at normal capacity and, as a result, he
requires monitoring for creatinine accumulation, elevated uric acid, and the
development of kidney stones. The PSR also stated that M r. Sosa-A costa suffers
from chronic renal failure and will require a kidney transplant within a few years,
and that failure to receive a new kidney will result in his death.

                                         -3-
      if you look at the factors under 3553(a), I mentioned, you know , just
      sort of his medical history and his treatment needs. But beyond that, it
      certainly does – does promote respect for the law in the sense that he
      still will get a stiff sentence but he will – but takes into consideration
      some of his unique medical circumstances.

The court responded by voicing concern that such a downward variance would not

be appropriate:

      Let me tell you what worries about me [sic] that. Yesterday I had one
      of the co-defendants who was one of the lesser players in the scheme
      than M r. Sosa-Acosta was. And I am afraid that if I drop him down,
      that maybe that is not being fair to a co-defendant that had a smaller
      role.

Defense counsel responded by arguing that such a sentencing discrepancy would

be reasonable, given the fact that M r. Sosa-Acosta had a medical problem and that

he was older than his co-defendants. The court, however, imposed a sentence of

78 months, the bottom of the Guideline range, stating that “I don’t see any good

reason for going below that here.”

      M r. Sosa-Acosta did not raise any objection after the court pronounced the

sentence, but subsequently filed this appeal. 3




      3
        M r. Sosa-Acosta’s appeal was not timely, as judgment was entered on his
sentence on June 29, 2006, and M r. Sosa-Acosta’s notice of appeal was not filed
until July 18, 2006. However, pursuant to Fed. R. App. P. 4(b)(4), the district
court granted a retroactive extension of the time for appeal. W e affirm the
district court’s finding of excusable neglect, and therefore accept jurisdiction over
M r. Sosa-Acosta’s appeal.

                                         -4-
                                  D ISC USSIO N

      “Under Booker, we are required to review district court sentencing

decisions for ‘reasonableness.’ Sentencing decisions must be reversed when a

sentence is unreasonable considering the factors enumerated in 18 U.S.C. §

3553(a).” United States v. Cage, 451 F.3d 585, 591 (10th Cir. 2006) (quoting

United States v. Booker, 543 U.S. 220, 261 (2005)). On appeal, M r. Sosa-Acosta

argues that his sentence was both procedurally and substantively unreasonable.

See id. (“Reasonableness has both procedural and substantive components.”). W e

address each of M r. Sosa-Acosta’s arguments in turn.

                            Procedural Reasonableness

      M r. Sosa-Acosta argues that his sentence was procedurally unreasonable

because the district court failed to “clearly consider[] the § 3553(a) factors and

explain[] its reasoning” in arriving at a within-Guidelines sentence of 78 months’

imprisonment. Id.    As an initial matter, w e note that M r. Sosa-Acosta failed to

object to the procedure by which his sentence was determined or explained at his

sentencing hearing; thus, we review only for plain error. United States v. Torres-

Duenas, 461 F.3d 1178, 1182-83 (10th Cir. 2006), petition for cert. filed (Nov.

22, 2006) (No. 06-7990); United States v. Lopez-Florez, 444 F.3d 1218, 1221

(10th Cir. 2006), petition for cert. filed (Jul. 7, 2006) (No. 06-5217). “Plain error

occurs when there is (1) error, (2) that is plain, which (3) affects substantial

rights, and which (4) seriously affects the fairness, integrity, or public reputation

                                         -5-
of judicial proceedings.” Lopez-Florez, 444 F.3d at 1222. W e need only proceed

as far as the first prong of this inquiry, however, because we hold that the district

court committed no error.

       M r. Sosa-Acosta contends that the court failed to properly address his

argument that his medical condition merited a below-Guidelines sentence under

the § 3553(a) statutory factors. Generally, when imposing a within-Guidelines

sentence, the district court is required only to issue “a general statement noting

the appropriate guideline range and how it was calculated,” United States v. Ruiz-

Terrazas, 477 F.3d 1196, 1202 (10th Cir. 2007) (quoting Lopez-Florez, 444 F.3d

at 1222), a requirement clearly met by the district court’s explanation including

M r. Sosa-Acosta’s base offense level, the adjustment for his cooperation with the

government, and his criminal history. M r. Sosa-Acosta, however, claims that his

argument at the sentencing hearing required more of the district court:

      [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.

United States v. Sanchez-Juarez, 446 F.3d 1109, 1117 (10th Cir. 2006) (first

alteration added, subsequent alterations and quotation omitted).

      Assuming that M r. Sosa-Acosta’s argument was nonfrivolous and that he

expressly requested a below -Guidelines sentence, Sanchez-Juarez nevertheless



                                         -6-
provides no basis for reversal. In Sanchez-Juarez, we reversed a sentence because

the district court “stated no reasons for the sentence it imposed” and “at no time

during the sentencing hearing or when imposing the sentence did the district court

refer to the § 3553(a) factors.” Id. at 1115. Here, however, it is quite clear from

the record that the district court considered M r. Sosa-Acosta’s argument in

arriving at his sentence. Indeed, the court responded directly to the argument,

stating in response that it was “worrie[d]” that imposing a below-Guidelines

sentence would create an unfair disparity with the sentence imposed just the day

before on one of his co-defendants — a concern that is explicitly recognized

under the statutory factors at § 3553(a)(6) and lies at the heart of the Guidelines.

See Booker, 543 U.S. at 253 (“Congress’ basic goal in passing the Sentencing Act

was to move the sentencing system in the direction of increased uniformity.”).

       In addition, the court spoke at length about M r. Sosa-Acosta’s medical

condition in agreeing to recommend his placement in a prison with adequate

medical facilities, thus indicating that the court was well aware of the medical

condition and its potential effects on M r. Sosa-Acosta’s time in prison. Finally,

in announcing a w ithin-Guidelines sentence, the court explained that it “d[id]n’t

see any good reason for going below that here.”

      Taken together, these statements are a satisfactory indication that the court

considered M r. Sosa-Acosta’s argument in light of the statutory factors and

rejected it, which is all that is required by statute or precedent. See Ruiz-

                                         -7-
Terrazas, 477 F.3d at 1202-03 (“The record before us reveals that the district

court entertained M r. Ruiz-Terrazas’s Section 3553(a) arguments at length;

indicated on the record that it had considered the Section 3553(a) factors; and

proceeded to explain its reliance on the range suggested by the sentencing

Guidelines. In our view , no more is required by statute or our precedents.”). M r.

Sosa-Acosta’s contention that the court must explicitly state every reason for

rejecting his sentencing arguments simply does not find support in the law of this

circuit. See Lopez-Flores, 444 F.3d at 1222 (“W e do not require a ritualistic

incantation to establish consideration of a legal issue, nor do we demand that the

district court recite any magic w ords to show us that it fulfilled its responsibility

to be mindful of the factors that Congress has instructed it to consider.”).

      Thus, we conclude that M r. Sosa-Acosta has failed to show that the district

court committed plain error in calculating or explaining his sentence, and

therefore we decline to reverse on grounds of procedural unreasonableness.

                            Substantive R easonableness

      M r. Sosa-Acosta also failed to explicitly object to the length of his sentence

at the sentencing hearing. However, “when the claim is merely that the sentence

is unreasonably long, we do not require the defendant to object in order to

preserve the issue.” Torres-Duenas, 461 F.3d at 1183. Thus, we review the

length of his sentence for reasonableness. Id.




                                          -8-
      Because the length of the sentence imposed upon M r. Sosa-Acosta was

within the Guidelines range, we afford it a presumption of reasonableness. Cage,

451 F.3d at 591; United States v. Kristl, 437 F.3d 1050, 1054 (10th Cir. 2006)

(per curiam). This presumption may be rebutted by “demonstrating that the

sentence is unreasonable when viewed against the other factors delineated in §

3553(a).” Kristl, 437 F.3d at 1054.

      M r. Sosa-Acosta cites no authority to directly rebut the presumption that

his within-Guidelines sentence was reasonable based on the facts of his case, and

never explains precisely what leads him to believe that a 72-month sentence

would be perfectly reasonable but a 78-month sentence entirely unreasonable.

Instead, he proposes a novel rule of law: “[W]here the Guidelines do not include a

relevant consideration, that consideration not only justifies but compels a

nonguideline sentence.” In other words, according to M r. Sosa-Acosta, if a

defendant argues for a downward variance based on a § 3553(a) factor not

explicitly mentioned in the Guidelines, then the court must grant the variance and

impose a below-Guidelines sentence unless the court can justify a within-

Guidelines sentence based on a counterbalancing § 3553(a) factor w eighing in

favor of a higher sentence.

      To begin with, even if we accepted this new rule, it is unclear that it would

be of any help in this case. To be sure, M r. Sosa-A costa argued for a downward

variance based on his medical condition, which falls within § 3553(a)(1)’s

                                        -9-
consideration of the “characteristics of the defendant”; however, the district court

responded by invoking § 3553(a)(6)’s “need to avoid unwarranted disparities

among defendants with similar records who have been found guilty of similar

conduct.” Under M r. Sosa-Acosta’s rule, these two opposing factors w ould

counterbalance one another and the district court would have met its burden to

demonstrate that a within-Guidelines sentence remains reasonable. 4

      But we must emphasize that, in any case, we do not adopt M r. Sosa-

Acosta’s proposed rule because it would fundamentally alter the defendant’s

burden in overcoming the presumption of reasonableness of a within-Guidelines

sentence. Just because a defendant can point to a factor recognized under §

3553(a) and not explicitly referenced in the Guidelines does not automatically

render a sentence within the Guidelines range unreasonable; “[i]ndeed, a range of

possible sentences might be upheld as reasonable on appeal. . . . To affirm, we

must simply be satisfied that the chosen sentence, standing alone, is reasonable.”

United States v. Jarillo-Luna, 478 F.3d 1226, 1230 (10th Cir. 2007). As we have

repeatedly held, a defendant must do more to rebut the presumption of

      4
        M r. Sosa-Acosta argues on appeal that the sentencing discrepancy would
be based on his medical condition and thus would not be “unwarranted,”
preventing the application of § 3553(a)(6). This does not appear to us to be a
foregone conclusion; given that the district court recommended that M r. Sosa-
Acosta be placed in a facility that was capable of accommodating his medical
needs, it is unclear why prison life would exacerbate his difficulties any more
than it exacerbates the difficulties of all prisoners. In any case, we cannot say
that the district court was unreasonable in finding that these factors
counterbalanced one another.

                                        - 10 -
reasonableness that a within-Guidelines sentence carries than simply point to a

mitigating factor recognized by § 3553(a): he must actually “demonstrat[e] that

the sentence is unreasonable when viewed against” this factor. Torres-Duenas,

461 F.3d at 1183; Kristl, 437 F.3d at 1054. Rather than satisfying this burden

with authority or argument that his medical condition renders a 78-month

sentence unreasonable, M r. Sosa-Acosta instead seeks to create a burden-shifting

framework whereby the presumption of reasonableness evaporates as soon as a

relevant § 3553(a) factor outside of the Guideline calculation is identified, and

the district court thereafter bears the burden to demonstrate that a within-

Guidelines sentence is reasonable.

      Such a shifting of the burdens would be entirely inconsistent with our

recognition of the persuasive value of the Guidelines and approval of district

courts’ giving “a high degree of weight to the Guidelines in sentencing

decisions.” U nited States v. Terrell, 445 F.3d 1261, 1265 (10th Cir. 2006).

      The G uidelines, rather than being at odds with the § 3553(a) factors, are
      instead the expert attempt of an experienced body to w eigh those factors
      in a variety of situations. The continuing importance of the Guidelines
      in fashioning reasonable sentences, and the presumption of
      reasonableness of a G uidelines sentence, simply reflect that the
      Guidelines are generally an accurate application of the factors listed in
      § 3553(a).

Id. A defendant can certainly overcome the presumptive reasonableness of the

Guidelines, but to do so he must demonstrate not only that a § 3553(a) factor

exists which the G uidelines do not take into account, but that this factor is so

                                         - 11 -
important and persuasive as to overcome the “eighteen years’ worth of careful

consideration of the proper sentence for federal offenses” that the Guidelines

represent. Id. (quoting United States v. M ykytiuk, 415 F.3d 606, 607 (7th Cir.

2005)).

      Thus, having rejected M r. Sosa-Acosta’s proposed burden-shifting

framew ork, we proceed to consider his attempt to rebut the presumption of

reasonableness in this case. He argues that his medical condition “gives context

to his crime and invites compassion for his prognosis,” and that “the court can

receive the same deterrence benefit and ‘just punishment’ through a shorter prison

term.” Even assuming these statements to be true, they do not demonstrate that

M r. Sosa-Acosta’s 78-month sentence was unreasonable; at most, they show that a

(slightly) shorter sentence would have been a reasonable alternative. But “the

district court is not required to convince us that all other sentences are

unreasonable or even that the sentence chosen is the best of the reasonable

sentences. To affirm, we must simply be satisfied that the chosen sentence,

standing alone, is reasonable.” Jarillo-Luna, 478 F.3d at 1230. M r. Sosa-Acosta

provides no analysis as to why a 78-month sentence is unreasonable in his case;

therefore, we are satisfied that this within-G uidelines sentence is reasonable.

                                  C ON CLU SIO N

      W e conclude that the district court adequately addressed M r. Sosa-A costa’s

request for a below-G uidelines sentence, and therefore did not procedurally err.

                                        - 12 -
Similarly, we conclude that M r. Sosa-Acosta has failed to rebut the presumption

of substantive reasonableness attached to his within-G uidelines sentence.

Accordingly, we AFFIRM the district court’s imposition of a 78-month sentence.




                                      ENTERED FOR THE COURT



                                      David M . Ebel
                                      Circuit Judge




                                       - 13 -
