                                                                           FILED
                                                               United States Court of Appeals
                                                                       Tenth Circuit

                                                                    February 20, 2008
                    UNITED STATES COURT OF APPEALS Elisabeth A. Shumaker
                                                                       Clerk of Court
                                 TENTH CIRCUIT



 UNITED STATES OF AMERICA,

               Plaintiff-Appellee,                       No. 06-2255
          v.                                           (D. New Mexico)
 EVERARDO LUIS MATUL-                             (D.C. No. CR-06-733-JC)
 ALVARADO,

               Defendant-Appellant.


                           ORDER AND JUDGMENT *


Before KELLY, MURPHY, 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(f); 10th Cir. R. 34.1(G). The case is,

therefore, ordered submitted without oral argument.

      Everardo Matul-Alvarado pleaded guilty to illegally reentering the United

States after previously being deported following an aggravated felony conviction.



      *
        This order and judgment is not binding precedent except under the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.
8 U.S.C. § 1326(a), (b)(2). The district court sentenced him to fifty-seven

months’ imprisonment, a term at the bottom of the advisory guidelines range.

Matul-Alvarado appeals, asserting the district court’s sentence is both

procedurally and substantively unreasonable. Exercising jurisdiction pursuant to

18 U.S.C. § 3742(a) and 28 U.S.C. § 1291, this court affirms.

      Matul-Alvarado is a citizen of Guatemala. On April 12, 1999, he was

arrested on charges of felony Assault and Battery—Domestic (Second Offense).

During a domestic dispute, Matul-Alvarado hit his wife on the cheek, leaving a

visible black eye. Matul-Alvarado pleaded guilty to the charge, but failed to

appear at sentencing. When he was later arrested on drunk-driving charges, he

was sentenced to two years’ imprisonment on the felony assault and battery

conviction. At the completion of his term of incarceration, Matul-Alvarado was

turned over to immigration authorities and deported to Guatemala.

      In February of 2006, Matul-Alvarado was found by police officers near

Santa Clara, New Mexico. Shortly thereafter, Matul-Alvarado waived the right to

a grand jury indictment and pleaded guilty to a one-count information charging

him with being an alien who had illegally returned to the United States after being

previously deported subsequent to an aggravated-felony conviction. 8 U.S.C.

§ 1326(a), (b)(2). In advance of sentencing, the probation office prepared a

presentence report (“PSR”). The PSR determined Matul-Alvarado’s base offense

level was eight. U.S.S.G. § 2L1.2(a) (providing a base offense level of eight for

                                         -2-
unlawfully entering or remaining in the United States). The PSR increased

Matul-Alvarado’s offense level by sixteen because he had reentered the United

States after being previously deported following a conviction for a crime of

violence. Id. § 2L1.2(b)(1)(A)(ii). The PSR then deducted three levels for

acceptance of responsibility, id. § 3E1.1, leaving a total offense level of twenty-

one. When that total offense level of twenty-one was combined with Matul-

Alvarado’s criminal history category of IV, the resulting advisory sentencing

range was fifty-seven to seventy-one months.

      In response to the PSR, Matul-Alvarado filed a document titled “Objections

and Comments to PRS and/or Request for a Downward Variance from the

Indicated Guideline Range Pursuant to Booker” (the “Objection”). The terse

Objection simply argued that Matul-Alvarado’s domestic battery conviction did

not fit within the guidelines definition of a crime of violence and noted that his

wife, to whom he was still married, did not want him prosecuted. 1

      1
          The Objection, in its entirety reads as follows:

                                         I.
             Mr. Matul objects to the 16 level enhancement for the
      following reasons. Mr. Matul stipulates that an 8 level enhancement
      for an aggravated felony[, pursuant to U.S.S.G. § 2L1.2(b)(1)(C),] is
      appropriate.
                    1) One can be convicted under the Oklahoma
             statute for non-consensual touching. United States v.
             Rowland, 357 F.3d 1193 (10th Cir. 2004). Therefore,
             the Oklahoma statute includes actions that lack intent
             and are not crimes of violence under the definition of
                                                                    (continued...)

                                           -3-
      At the sentencing hearing, the district court began by asking defense

counsel whether he had reviewed the PSR with Matul-Alvarado. When defense

counsel answered in the affirmative, the district court inquired whether there was

anything in the PSR Matul-Alvarado wished to bring to the court’s attention.

Counsel merely reiterated the purely legal claim set out in the Objection that

Matul-Alvarado’s previous conviction for felony assault and battery did not

qualify as a crime of violence for purposes of § 2L1.2(b)(1)(A)(ii). Other than


      1
       (...continued)
             the sentencing guidelines.
                     The Tenth Circuit has held that if a state statute
             criminalizes actions that include actions that would not
             be a crime of violence under the guidelines then the 16
             level enhancement does not apply. United States v.
             Perez-Vargas, 414 F.3d 1282 (10th Cir. 2005).
             In further support of the above, the Fifth Circuit has held that
      the Georgia and Illinois assault and battery statutes, especially for
      domestic violence, are too broad and therefore are not crimes of
      violence subject to the 16 level enhancement. United States v.
      Gomez-Vargas, 111 Fed. App’x 741 (5th Cir. 2004); United States v.
      Aguilar-Delgado, 120 Fed. App’x 522 (5th Cir. 2004); and United
      States v. Lopez-Hernandez, 112 Fed. App’x 984 (5th Cir. 2004).
                     2) The Oklahoma conviction arose from a loud
             verbal argument with his wife wherein his wife did not
             want to prosecute which, in some jurisdictions, would
             have meant that he would not have been prosecuted. He
             is still married to the same woman who is the mother of
             his children.

                                          II.
             For the above reasons, Mr. Matul believes that an 8 level
      enhancement for an aggravated felony will result in a sentence
      sufficient to but not greater than necessary to achieve the goals of the
      sentencing statute.

                                         -4-
the short statement regarding the applicability of § 2L1.2(b)(1)(A)(ii), defense

counsel simply stated as follows: “And I would note that [Matul-Alvarado] is still

married to the same woman[, the victim of the domestic battery,] and she intends

to move with him and the children to [Guatemala] when this—when he gets

released from whatever sentence he has to serve.”

      After listening to counsel’s argument, the district court rejected the

contention that Matul-Alvarado’s felony assault and battery on his wife was not a

crime of violence for purposes of § 2L1.2(b)(1)(A)(ii). Accordingly, the district

court adopted the advisory sentencing range of fifty-seven to seventy-one months’

imprisonment set out in the PSR. The district court then noted it had reviewed

the factual findings set out in the PSR, the advisory guidelines range, and the

factors set out in 18 U.S.C. § 3553(a). Based on that review, the district court

imposed a sentence of fifty-seven months’ imprisonment. Matul-Alvarado did not

ask the district court for a more detailed explanation of its sentencing decision.

      On appeal to this court, Matul-Alvarado asserts the district court’s sentence

is both procedurally and substantively unreasonable. As to procedural

reasonableness, Matul-Alvarado claims the district court erred in failing to

sufficiently explain its reasons for declining his request for a downward variance. 2


      2
       Matul-Alvarado has specifically abandoned his argument, made only
before the district court, that his felony assault and battery conviction is not a
crime of violence for purposes of the sentencing guidelines. Appellant’s Opening
Brief at 4 n.1.

                                          -5-
As to substantive reasonableness, Matul-Alvarado asserts that his sentence is too

long. In particular, Matul-Alvarado argues that by classifying his felony assault

and battery on his wife as a crime of violence deserving of a sixteen-level

enhancement to his offense level, the Sentencing Guidelines unreasonably failed

to differentiate between violent crimes, treating murderers the same as domestic

batterers.

      The standard this court applies in analyzing Matul-Alvarado’s claims is set

out in this court’s recent opinion in United States v. Cereceres-Zavala, 499 F.3d

1211 (10th Cir. 2007).

             After United States v. Booker, 543 U.S. 220 (2005), in which
      the Supreme Court struck down the mandatory application of the
      United States Sentencing Guidelines as a violation of the Sixth
      Amendment, “we review sentences imposed by the district court for
      reasonableness.” United States v. Jarrillo-Luna, 478 F.3d 1226,
      1228 (10th Cir. 2007). Reasonableness review inquires “whether the
      district court correctly applied the Guidelines and whether the
      ultimate sentence is reasonable in light of the factors set forth in 18
      U.S.C. § 3553(a).” United States v. Sanchez-Juarez, 446 F.3d 1109,
      1114 (10th Cir. 2006). This review “necessarily encompasses both
      the reasonableness of the length of the sentence, as well as the
      method by which the sentence was calculated.” United States v.
      Kristl, 437 F.3d 1050, 1055 (10th Cir. 2006) (per curiam).
             A sentencing court is required, under 18 U.S.C. § 3553(c), to
      “state in open court the reasons for its imposition of the particular
      sentence,” and this requirement is a component of procedural
      reasonableness under Kristl. See United States v. Romero, 491 F.3d
      1173, 1175 (10th Cir. 2007). But where a defendant raises no
      contemporaneous objection to the court’s explanation of the
      procedure by which his sentence was determined, “we may reverse
      the district court’s judgment only in the presence of plain error.”
      United States v. Ruiz-Terrazas, 477 F.3d 1196, 1199 (10th Cir.
      2007), petition for cert. filed (U.S. May 24, 2007) (No. 06-11540).

                                         -6-
      “We find plain error only when there is (1) error, (2) that is plain, (3)
      which affects substantial rights, and (4) which seriously affects the
      fairness, integrity, or public reputation of judicial proceedings.”
      Romero, 491 F.3d at 1178.

499 F.3d at 1216-17 (footnote omitted).

      Cereceres-Zavala forecloses Matul-Alvarado’s assertion that the district

court committed procedural sentencing error when it failed to offer a detailed

explanation of its denial of Matul-Alvarado’s request for a downward variance.

The facts and procedural history in Cereceres-Zavala are, in all important

respects, identical to the facts in this case. Relying on this court’s decision in

Ruiz-Terrazas and the Supreme Court’s recent decision in Rita v. United States,

127 S. Ct. 2456, 2468 (2007), Cereceres-Zavala held that in a run-of-the-mill

case involving a sentence within the advisory guidelines range, it was

unnecessary for the district court to specifically address on the record, by

reference to the factors set out in 18 U.S.C. §3553(a), a request for a downward

variance. 499 F.3d at 1216-18. Instead, it was sufficient for the district court to

state how it had arrived at the advisory guidelines range and generally note it had

considered in gross the factors set out in § 3553(a). Id. at 1217-18; see also Rita,

127 S. Ct. at 2468 (“Circumstances may well make clear that the judge rests his

decision upon the Commission’s own reasoning that the Guidelines sentence is a

proper sentence (in terms of § 3553(a) and other congressional mandates) in the

typical case and that the judge has found that the case before him is typical.”).


                                          -7-
      The rule set out in Cereceres-Zavala has particular force where the

defendant’s request for a downward variance is cursory and/or not tied with

specificity to the factors set out in § 3553(a), as is the case here. Cf. Rita, 127 S.

Ct. at 2468 (indicating that when a party fully develops an argument for a

variance by reference to the § 3553(a) factors, a district court might need to say

more); see also United States v. Perez, No. 06-2289, 2007 WL 3011046, at *2

(Oct. 16, 2007) (unpublished disposition cited solely for its persuasive value)

(concluding a district court’s decision to not specifically address the defendant’s

request for a downward variance was reasonable “[c]onsidering the weakness of

[those] arguments”). Any other approach would amount to imposing upon the

district courts, on the defendant’s behalf, an obligation to both build up and knock

down a sentencing strawman. The sentence imposed by the district court in this

case, which was based on a correctly calculated guidelines range, a stated

consideration of the § 3553(a) factors, and an understanding that the guidelines

are advisory, is procedurally reasonable.

      Because Matul-Alvarado’s sentence falls within a properly calculated

guidelines range, it is entitled to a rebuttable presumption of substantive

reasonableness. United States v. Kristl, 437 F.3d 1050, 1053-55 (10th Cir. 2006);

see also Rita, 127 S. Ct. at 2462-63. Having reviewed the record and considered

Matul-Alvarado’s arguments, this court concludes he has failed to rebut that

presumption. Accordingly, his sentence is substantively reasonable.

                                           -8-
     For those reasons set out above, the sentence imposed by the district court

is hereby AFFIRMED.

                                             ENTERED FOR THE COURT


                                             Michael R. Murphy
                                             Circuit Judge




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