                                                                       F I L E D
                                                                United States Court of Appeals
                                                                        Tenth Circuit
                      UNITED STATES CO URT O F APPEALS
                                                                      August 9, 2007
                                   TENTH CIRCUIT                   Elisabeth A. Shumaker
                                                                       Clerk of Court

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

          Plaintiff-Appellee,
                                                          No. 06-3422
 v.                                               (D.Ct. No. 06-CR-20091-CM )
                                                            (D . Kan.)
 M AR IO A LBERTO BU ENO -M AR TINEZ,

          Defendant-Appellant.



                                OR D ER AND JUDGM ENT *


Before TA CH A, Chief Circuit Judge, and BARRETT and BROR BY, Senior
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.



      Appellant M ario Bueno-M artinez pled guilty to one count of illegal reentry


      *
         This order and judgment is not binding precedent except under the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.
of a deported alien previously convicted of an aggravated felony in violation of 8

U.S.C. § 1326(a)(1) and (2) and (b)(2). 1 He now appeals his sentence, arguing it

is unreasonable under the 18 U.S.C. § 3553(a) sentencing factors. In support of

his appeal, he claims the district court’s application of the sixteen-level

enhancement under United States Sentencing Guidelines (“Guidelines” or

“U.S.S.G.”) § 2L1.2(b)(1)(A)(vii), for his prior felony smuggling offense, was

unduly harsh based on his minimal participation or conduct during that offense.

W e exercise jurisdiction pursuant to 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291

and affirm M r. Bueno-M artinez’s sentence.



                       I. Factual and Procedural Background

      M r. Bueno-M artinez is a citizen of M exico whom government authorities

previously arrested on November 8, 1997, for transporting illegal aliens in

violation of 18 U.S.C. § 1324. During that incident, authorities stopped M r.

Bueno-M artinez, who was driving a 1984 Oldsmobile Delta 88, for a defective

tail light and discovered that his ten passengers, three of whom were in the trunk,

were illegal aliens. M r. Bueno-M artinez claimed he drove the vehicle for a

reduction in his own transportation fee. M r. Bueno-M artinez was convicted and

      1
         The crime of smuggling aliens under 8 U.S.C. § 1324, which is the
statute under which M r. Bueno-M artinez was previously convicted, is an
aggravated felony. See United States v. M artinez-Candejas, 347 F.3d 853, 857
(10th Cir. 2003); United States v. Heredia-Cruz, 328 F.3d 1283, 1290 (10th Cir.
2003); United States v. Salas-Mendoza, 237 F.3d 1246, 1248 (10th Cir. 2001).

                                         -2-
sentenced to seven months imprisonment and two years supervised release. On

June 19, 1998, approximately ten days after he was released from prison, the

government deported M r. Bueno-M artinez to M exico.



      Eight years later, on June 12, 2006, government authorities arrested M r.

Bueno-M artinez in the United States for illegal reentry of a deported alien

previously convicted of an aggravated felony in violation of 8 U.S.C. § 1326(a)

and (b)(2), which is a Class C felony. Following M r. Bueno-M artinez’s guilty

plea, a probation officer prepared a presentence report calculating his sentence

under the applicable Guidelines. The probation officer set M r. Bueno-M artinez’s

base offense level at eight pursuant to U .S.S.G. § 2L1.2(a) and increased his base

level sixteen levels pursuant to § 2L1.2(b)(1)(A) because he possessed a prior

felony conviction for the 1998 alien smuggling offense, resulting in a total

offense level of twenty-two. The presentence report also set M r. Bueno-

M artinez’s criminal history category at III, which, together with an offense level

of twenty-two, resulted in a recommended Guidelines sentencing range of fifty-

one to sixty-three months imprisonment.



      M r. Bueno-M artinez objected to the use of the sixteen-level enhancement,

arguing it was unduly harsh and exceeded the purposes underlying the sentencing

factors in 18 U.S.C. § 3553(a) because it penalized him for his minimal

                                          -3-
participation in the crime of alien smuggling, during which he was one of the

individuals being smuggled into the country. He renewed his claim he drove the

car transporting the other illegal immigrants to avoid paying a transportation fee.

He suggested the United States Sentencing Commission’s statement in

Amendment 658, explaining the amendment to U.S.S.G. § 2L1.2 was intended to

apply to only the most serious of alien smuggling offenses, invited the court to

adjust his sentence to avoid an unduly harsh result. 2 He also contended

application of the sixteen-level enhancement would unfairly give him the same

sentence enhancement as other individuals convicted of illegal reentry who had

more serious prior convictions for murder, rape, forcible sex offenses, robbery,

arson, child pornography, or sexual abuse of a minor.



      At the sentencing hearing, M r. Bueno-M artinez renewed his contention



      2
         Specifically, the amendment removes reference to smuggling comm itted
for profit. In the Sentencing Commission’s reasons for amending, it states the
removal of “for profit” allows the definition of “alien smuggling offense” to
exclude:

      “a first offense for which the alien has affirmatively shown that the
      alien committed the offense for the purpose of assisting, abetting, or
      aiding only the alien’s spouse, child, or parent (and no other
      person)”. This definition generally is consistent with the guideline’s
      previous terminology of “alien smuggling offense committed for
      profit,” and results in a 16 level increase only for the most serious of
      such offenses.

U.S.S.G. App. C, Vol. II, Amend. 658.

                                         -4-
concerning the harshness of the application of a sixteen-level enhancement. He

argued the mitigating circumstances of his participation in transporting himself

and other illegal immigrants warranted a “variance,” resulting in an eighteen-

month sentence. During his argument, M r. Bueno-M artinez also requested a

“departure downward” based, in part, on the circumstances of his prior smuggling

offense and family circumstance, given his wife and children are all United States

citizens and he was in this country because of his family.



      In opposing a lower sentence, the government pointed out M r. Bueno-

M artinez moved to the United States in 1995 and married his wife, a United

States citizen, in 1996, yet claimed he was being smuggled into the country in

1997 when he was arrested. It also noted the main issue in opposing a variance

was deterrence given M r. Bueno-M artinez illegally reentered the United States

only three months after his 1998 deportation, concealed himself for the purpose of

remaining in the United States, and failed to pay taxes on his income. In

response, M r. Bueno-M artinez’s counsel explained any prior violation of the law

for illegal reentry was for family and economic reasons, which should not place

M r. Bueno-M artinez in the same category for sentencing as one who comm itted a

violent crime.



      In sentencing M r. Bueno-M artinez, the district court noted it had

                                         -5-
considered the advisory Guidelines, which help provide uniformity in sentencing,

together with the sentencing factors in 18 U.S.C. § 3553(a), for the purpose of

providing a sentence sufficient but not greater than necessary to comply with its

sentencing purposes. It explicitly noted it considered the nature and

circumstances of M r. Bueno-M artinez’s illegal reentry offense as w ell as his

history and characteristics. In so doing, it explained it “[s]pecifically ...

considered the nature of [M r. Bueno-M artinez’s] prior transportation of illegal

aliens offense.” R., Vol. 3 at 22. It also stated it had considered the facts he had

no other convictions and illegally reentered the country only three months after

his deportation and noted it reviewed letters written on M r. Bueno-M artinez’s

behalf and his reasons for living in the United States to provide economic and

educational benefits for his children. The district court further explained it

balanced M r. Bueno-M artinez’s lack of a violent background with the issue of

deterrence and his illegal reentry into the United States shortly after his

deportation. It also noted his family circumstance did not take him outside the

heartland of other cases as no exceptional reasons existed to change his sentence.

It did, however, state it believed a variance of one offense level was warranted

given M r. Bueno-M artinez timely entered a guilty plea. Based on these reasons,

it found a term of forty-six months 3 was “a harsh sentence,” but one under the law

      3
         The one-level offense variance resulted in an advisory Guidelines range
of forty-six to fifty-seven months imprisonment. See U.S.S.G. Ch. 5, Pt. A
                                                                     (continued...)

                                           -6-
that was “just and reasonable,” “appropriate,” “adequate” to deter him from

criminal conduct, and “sufficient but not greater than necessary to reflect the

seriousness of the offense, promote respect for the law, [and] provide just

punishment for the offense.” R., Vol. 3 at 26-27.



                                    II. Discussion

      M r. Bueno-M artinez now appeals his sentence, arguing his sentence is

unreasonable because the district court improperly viewed his request for a

reduced sentence solely as a departure based on his family circumstances instead

of a variance based on the nature of his prior alien smuggling offense in which he

m erely drove the vehicle transporting illegal aliens to cover his own

transportation fee. He suggests the district court did not consider his variance

argument because it merely stated, “[s]pecifically, the court has considered the

nature of [M r. Bueno-M artinez’s] prior transportation of illegal aliens offense.”

Apt. Br. at 10-11. As a result, he claims the district court failed to “address the

incongruity between [his] actual conduct in the prior alien smuggling case and the

16 level increase mandated by the guidelines.” Id. at 13. In making this

argument, he relies extensively on our decision in United States v. Sanchez-

Juarez, in w hich w e remanded the case with instructions to vacate the defendant’s



      3
       (...continued)
(Sentencing Table).

                                          -7-
sentence and resentence him because the district court failed to consider his

request for a below-Guidelines-range sentence under § 3553(a) based on an

alleged incongruity between the actual conduct involved in his prior alien

smuggling conviction and the sixteen-level enhancement. See 446 F.3d 1109,

1117-18 (10th Cir. 2006) (Sanchez-Juarez I), aff’d after remand, 2007 W L

1874235 (10th Cir. June 29, 2007) (unpublished op.) (Sanchez-Juarez II). He also

continues to suggest his prior smuggling offense is not a serious smuggling

offense because the commentary to Amendment 658 to U.S.S.G.

§ 2L1.2(b)(1)(A)(vii) explains a sixteen-level increase is “only for the most

serious” alien smuggling offenses.



      W e begin our discussion by clarifying that a sentence above or below the

recommended Guidelines range based on an application of Chapters Four or Five

of the Guidelines is referred to as a “departure,” while a sentence above or below

the recommended Guidelines range through application of the sentencing factors

in 18 U.S.C. § 3553(a) 4 is called a “variance.” United States v. Atencio, 476 F.3d

      4
          18 U.S.C. § 3553(a) provides, in part, the court shall consider:

      (1) the nature and circumstances of the offense and the history and
      characteristics of the defendant;
      (2) the need for the sentence imposed--
             (A) to reflect the seriousness of the offense, to promote respect
             for the law, and to provide just punishment for the offense;
             (B) to afford adequate deterrence to criminal conduct;
                                                                       (continued...)

                                          -8-
1099, 1101 n.1 (10th Cir. 2007). M r. Bueno-M artinez previously requested a

downward departure based both on his family circumstance and the conduct

underlying his prior smuggling offense and also requested a variance under the

§ 3553(a) sentencing factors based on his claim his participation in the prior

smuggling offense did not warrant a sixteen-level enhancement. It is the variance

issue he now appeals.



      W e review for reasonableness the sentence’s length, as guided by the

factors in 18 U.S.C. § 3553(a). See United States v. Kristl, 437 F.3d 1050, 1053

(10th Cir. 2006) (per curiam). These 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, to protect the public,

and to provide the defendant with needed training or treatment ....” Id. W e

require reasonableness in two respects: “the length of the sentence, as well as the



      4
       (...continued)
             (C) to protect the public from further crimes of the defendant;
             and
             (D) to provide the defendant with needed educational or
             vocational training, medical care, or other correctional
             treatment in the most effective manner;
      (3) the kinds of sentences available;
             ....
      (6) the need to avoid unwarranted sentence disparities among
      defendants with similar records who have been found guilty of
      similar conduct; and
      (7) the need to provide restitution to any victims of the offense.

                                         -9-
method by which the sentence was calculated.” Id. at 1055 (emphasis omitted).

In order to be reasonable, a sentence must be both procedurally and substantively

sound. See United States v. Cage, 451 F.3d 585, 591 (10th Cir. 2006). A

procedurally reasonable sentence is one that is “calculated utilizing a legitimate

method.” Id. “Even if a sentence is calculated properly, i.e. the G uidelines were

properly applied and the district court clearly considered the § 3553(a) factors and

explained its reasoning, a sentence can yet be unreasonable.” Id. A sentence is

substantively reasonable so long as the district court did not abuse its discretion.

See Rita v. United States, ___ U.S. ___, 127 S. Ct. 2456, 2465 (2007).



      On appellate review a presumption of reasonableness attaches to a sentence

which is within the correctly-calculated Guidelines range. See id.; Kristl, 437

F.3d at 1053-54. If the district court “properly considers the relevant Guidelines

range and sentences the defendant within that range, the sentence is

presumptively reasonable,” but “[t]he defendant may rebut this presumption by

demonstrating that the sentence is unreasonable in light of the other sentencing

factors laid out in § 3553(a).” Kristl, 437 F.3d at 1055. W e have also held that a

decision to impose a sentence at the low end of the Guidelines range may be read

as a functional rejection of the defendant’s arguments based on any of the

§ 3553(a) factors. See Sanchez-Juarez I, 446 F.3d at 1115.




                                         -10-
      In addition, “[w]hen the defendant has not raised any substantial

contentions concerning non-Guidelines § 3553(a) factors and the district court

imposes a sentence within the Guideline range, our post-Booker precedents do not

require the court to explain on the record how the § 3553(a) factors justify the

sentence.” United States v. Lopez-Flores, 444 F.3d 1218, 1222 (10th Cir. 2006),

cert. denied, 127 S. Ct. 3043 (2007). In contrast, in certain circumstances, we

have held that:

      [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.

Sanchez-Juarez I, 446 F.3d at 1117 (quotation marks, alterations, and citation

omitted). “[A]lthough the district court is not obligated to expressly weigh on the

record each of the factors set out in § 3553(a), it must state its reasons for

imposing a given sentence.” Id. at 1116 (quotation marks and citations omitted).

W hile “we will not demand that the district court recite any magic w ords” to

support its conclusions, neither will we “presume the district court weighed a

party’s arguments in light of the § 3553(a) factors where the record provides no

indication that it did so and no clear explanation of the sentence imposed.” Id. at

1115-16 (quotation marks and citations omitted). In determining whether the

district court properly considered the applicable Guidelines, we review its legal



                                          -11-
conclusions de novo and its factual findings for clear error. Kristl, 437 F.3d at

1054.



        On appeal, M r. Bueno-M artinez appears to be arguing his sentence is both

procedurally and substantively unreasonable because the district court applied the

sixteen-level enhancement under § 2L1.2(b)(1)(A)(vii) for his alien smuggling

offense without addressing the conduct underlying that offense (procedural claim)

and failing to consider his request for a reduction of his sentence based on his

allegedly less serious conduct during that offense (substantive claim). See

Sanchez-Juarez II, 2007 W L 1874235, at *2 (indicating the defendant, who raised

similar claims, challenged both the procedural and substantive unreasonableness

of his sentence). 5 In either case, he is essentially asking the court to consider the

underlying facts of his smuggling offense to determine the reasonableness of his

sentence. He contends the district court failed to do this, as evidenced by its

failure to explicitly address his argument.



        In addressing M r. Bueno-M artinez’s contentions, it is helpful to understand

        5
         As previously noted, M r. Bueno-M artinez relies extensively on Sanchez-
Juarez I in support of his appeal. However, equally instructive to our review is
Sanchez-Juarez II, which involves the same case on appeal following remand.
Such unpublished precedent has persuasive value with respect to the same
material issue raised here and assists with our disposition of this appeal. See
United States v. Austin, 426 F.3d 1266, 1274 (10th Cir. 2005), cert. denied, 546
U.S. 1194 (2006).

                                         -12-
that when considering whether to apply an enhancement for a prior offense, courts

generally employ a categorical approach, looking only to the fact of conviction

and the statutory definition or elements of the prior offense, and not to the

particular facts of the crime. 6 See Martinez-Candejas, 347 F.3d at 858-59

(relying on Taylor v. United States, 495 U.S. 575, 601 (1990)). However, with

regard to the sixteen-level enhancement under § 2L1.2(b)(1)(A)(vii) for alien

smuggling offenses, which is at issue here, we have held the categorical approach

of considering only the fact of conviction and the statutory definition of the prior

offense does not apply. See Martinez-Candejas, 347 F.3d at 859-60. In other

words, a district court may look at the facts of the prior sm uggling offense to

determine whether, in certain circumstances, the sixteen-level enhancement is

applicable. See id. This is because the alien smuggling offense is not defined in

terms of specific elements or offenses, and certain exceptions may apply,

including when a defendant affirmatively shows he committed the offense for the

purpose of smuggling family members. See id. at 859.



      Thus, the district court in this case could look to the underlying facts or

nature of M r. Bueno-M artinez’s smuggling conviction to determine if the sixteen-



      6
        As previously noted, the crime of smuggling aliens under 8 U.S.C.
§ 1324, which is the statute under w hich M r. Bueno-M artinez was previously
convicted, is an aggravated felony. See Martinez-Candejas, 347 F.3d at 857;
Heredia-Cruz, 328 F.3d at 1290; Salas-M endoza, 237 F.3d at 1248.

                                         -13-
level enhancement applied or if a sentence below the advisory Guidelines range

was otherwise warranted. In addition, in Sanchez-Juarez I, we determined the

defendant, like here, raised a nonfrivolous argument in claiming an incongruity

existed between his prior alien smuggling offense (for which he only served 194

days) and other illegal reentry defendants who had convictions for crimes of

violence or repeated serious drug offenses and received the same contested

sixteen-level enhancement. 446 F.3d at 1112, 1117-18. Because M r. Bueno-

M artinez raises the same argument, we will treat it as nonfrivolous for the

purpose of this appeal and consider it in conjunction with our decisions in

Sanchez-Juarez I and II and other applicable precedent.



      In Sanchez-Juarez I, like here, the district court allowed the parties to argue

whether certain sentencing factors, in conjunction with the defendant’s prior alien

smuggling offense, warranted a below-Guidelines-range sentence. 446 F.3d at

1115. However, unlike here, the district court in that case imposed the advisory

Guidelines sentence without citing its reasons for imposing such a sentence or

referring to the sentencing factors in 18 U.S.C. § 3553(a). See id. at 1112, 1115.

Instead, it only noted it reviewed the presentence report’s factual findings and

considered the Guidelines applications. See id. at 1115. As a result, this court

remanded for resentencing in conjunction with consideration of the § 3553(a)

factors. See id. at 1117-18. On appeal following remand, we again addressed the

                                         -14-
same issue concerning whether the district court adequately stated on the record,

with reference to the § 3553(a) factors, its reasons for rejecting the request for a

sentence below the advisory Guidelines range. Sanchez-Juarez II, 2007 W L

1874235, at *2. W e determined such a procedural reasonableness claim was

resolved in United States v. Ruiz-Terrazas, 477 F.3d 1196, 1199-1200, 1202 (10th

Cir. 2007), petition for cert. filed (M ay 24, 2007) (No. 06-11540), in which we

held that where a district court imposes a sentence within the advisory Guidelines

range, like here, only a general statement of reasons is required, and not a specific

discussion of the § 3553(a) factors. See Sanchez-Juarez II, 2007 W L 1874235, at

*2.



      In this case, the district court imposed a sentence within the applicable

Guidelines range. In addition, it not only listened to the parties’ arguments

regarding M r. Bueno-M artinez’s alleged minimal conduct in the prior smuggling

offense, but it explicitly noted it considered the § 3553(a) factors in rendering his

sentence and stated it “[s]pecifically ... considered the nature of [M r. Bueno-

M artinez’s] prior transportation of illegal aliens offense.” R., Vol. 3 at 22. Thus,

unlike the court in Sanchez-Juarez I, it is evident the district court considered the

nature and underlying facts of M r. Bueno-M artinez’s conduct in the prior

smuggling offense, in conjunction with both its application of the sixteen-level

enhancement and the requisite § 3353(a) factors, and concluded his conduct during

                                          -15-
that offense did not warrant a lesser sentence. M oreover, in considering the

§ 3553(a) factors and providing its reasons for a forty-six-month sentence, the

district court stated it had considered the nature and circumstances of M r. Bueno-

M artinez’s illegal reentry offense and the fact he reentered the country only three

months after his deportation and had balanced M r. Bueno-M artinez’s lack of a

violent background with the issue of deterrence regarding his illegal reentry into

the United States shortly after his deportation. Thus, the district court indicated

its reasons for the sentence and noted that while a forty-six-month sentence was

“harsh,” it was “sufficient but not greater than necessary” under § 3553(a) “to

reflect the seriousness of the offense, promote respect for the law, [and] provide

just punishment for the offense.” R., Vol. 3 at 26-27.



      For these reasons, as in the case of Ruiz-Terrazas, it is evident the district

court entertained extensive arguments relating to the § 3553(a) factors, specifically

noted it considered M r. Bueno-M artinez’s smuggling offense argument for a

below-Guidelines sentence, indicated on the record it considered the § 3553(a)

factors, explained its reliance on the advisory Guidelines, and ultimately imposed

a sentence within the advisory and properly-calculated Guidelines range. See 477

F.3d at 1202-03. See also Sanchez-Juarez II , 2007 W L 1874235, at *2

(addressing same issue on appeal after remand). Like Ruiz-Terrazas, we conclude

the process employed in imposing M r. Bueno-M artinez’s sentence was reasonable,

                                         -16-
resulting in a procedurally reasonable sentence. See Sanchez-Juarez II, 2007 W L

1874235, at *2.



      M r. Bueno-M artinez also mis-characterizes what occurred at the sentencing

hearing when he claims the district court improperly viewed his request for a

reduced sentence solely as a departure based on his family circumstances instead

of a variance based on the nature of his prior alien smuggling offense. A review

of the hearing transcript discloses M r. Bueno-M artinez requested a downward

departure based both on the circumstances of his prior alien smuggling offense and

his family circumstances and also requested a variance based solely on his prior

alien smuggling offense. A fair reading of the hearing transcript shows the district

court addressed both requests and did not improperly view M r. Bueno-M artinez’s

request for a reduced sentence solely as a departure request based on his family

circumstances.



      Finally, for primarily the same reasons asserted in his claim his sentence is

procedurally unreasonable, M r. Bueno-M artinez suggests his sentence is also

substantively unreasonable. In so doing, he claims the underlying conduct of his

smuggling offense was not as serious as other smuggling offenses or prior violent

crimes committed by other illegal reentry defendants. However, because the

district court imposed a sentence w ithin the properly-calculated advisory

                                         -17-
Guidelines range, the sentence is entitled to a presumption of reasonableness,

which M r. Bueno-M artinez has not rebutted. M ost notably, M r. Bueno-M artinez

has not shown the sixteen-level increase to his offense level under

§ 2L1.2(b)(1)(A)(vii) for his prior alien smuggling offense overstates the

seriousness of his prior crime, given the record discloses he actively participated

in transporting a total of ten illegal aliens into this country – all of w hom were

transported in an automobile he agreed to drive, regardless of whether he avoided

paying his ow n transportation fee. Unlike the exception for smuggling one’s ow n

family members, M r. Bueno-M artinez has not shown the circumstances involved in

his situation warrant a lesser sentence. W hile M r. Bueno-M artinez points to the

United States Sentencing Commission’s statement in Amendment 658, explaining

U.S.S.G. § 2L1.2 was intended to apply to only the most serious of alien

smuggling offenses, we note the Guidelines and commentary are advisory and, as

he correctly stated, merely invite the court to adjust a sentence to avoid an unduly

harsh result. He has not shown the district court abused its discretion in

determining his conduct in the transportation of ten illegal aliens did not warrant a

reduction of his Guidelines sentence. For these reasons, we cannot say his forty-

six-month sentence is substantively unreasonable.




                                          -18-
                          III. Conclusion

For the these reasons, we AFFIRM M r. Bueno-M artinez’s sentence.



                              Entered by the C ourt:

                              W ADE BRO RBY
                              United States Circuit Judge




                                -19-
