                                                                                FILED
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                         UNITED STATES COURT OF APPEALS
                                                                          January 18, 2008
                                    TENTH CIRCUIT
                                                                        Elisabeth A. Shumaker
                                                                            Clerk of Court

 UNITED STATES OF AMERICA,

           Plaintiff-Appellee,
 v.                                                           No. 06-2350
 TOMAS SACRAMENTO-SANTOS,                             (D.C. No. CR-06-261-WPJ)
                                                          (D. New Mexico)
           Defendant-Appellant.



                                 ORDER AND JUDGMENT*


Before BRISCOE, McKAY, and McCONNELL, Circuit Judges.


       After examining the briefs and appellate record, this panel has determined

unanimously to honor the parties’ request for a decision on the briefs without oral

argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is, therefore,

submitted without oral argument.

       Defendant Tomas Sacramento-Santos was convicted of illegal reentry by a

deported alien previously convicted of an aggravated felony, in violation of 8 U.S.C. §§

1326(a) and (b), and sentenced to a term of imprisonment of forty-one months.


       *
        This order and judgment is not binding precedent, except under the doctrines of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.
Defendant now appeals his conviction and sentence. We exercise jurisdiction pursuant to

28 U.S.C. § 1291 and affirm.

                                              I.

       On November 7, 2005, United States Border Patrol agents encountered a group of

individuals attempting to conceal themselves behind heavy mesquite bush in an area near

Columbus, New Mexico. Upon questioning, all of the individuals admitted they were

citizens of Mexico and were illegally in the United States. Subsequent investigation

revealed that one member of the group, the Defendant, had previously been deported on

three occasions: in September 1994, following a conviction in Arizona state court for

aggravated assault; in June 2000, following a conviction in federal court for illegal

reentry; and lastly, in September 2004. It was undisputed that Defendant had not received

the consent of the Attorney General of the United States to reapply for admission into the

United States.

       On November 9, 2005, a criminal complaint was filed against Defendant charging

him with illegal reentry by a deported alien previously convicted of an aggravated felony,

in violation of 8 U.S.C. §§ 1326(a) and (b). A federal grand jury subsequently indicted

Defendant on the same charge. Defendant pleaded guilty to the charge and the United

States Probation Office prepared a presentence investigation report (PSR). The PSR

calculated the base offense level at eight and then increased it sixteen levels pursuant to

U.S.S.G. § 2L1.2(b)(1)(A) due to the prior Arizona conviction for aggravated assault.

The PSR also applied a three-level reduction for acceptance of responsibility pursuant to

                                              2
U.S.S.G. § 3E1.1, resulting in a total offense level of twenty-one. Combined with

Defendant’s criminal history category of II1, this offense level resulted in an advisory

guidelines sentencing range of forty-one to fifty-one months’ imprisonment.

       Defendant filed a sentencing memorandum “agree[ing] that the [PSR’s]

calculations ha[d] been correctly made,” ROA, Supp. Vol. I, Doc. 28 at 1, but arguing

that “a downward departure [wa]s warranted in [his] case” pursuant to U.S.S.G. § 5K2.0

because “the ‘aggravated assault’ for which he was convicted in Arizona [wa]s

denominated in the very judgment of [that prior] case as a ‘non-dangerous’ crime,” id. at

2, and he received only “a term of probation of three years” in connection with that

conviction. Id. at 3. At the sentencing hearing, Defendant asked the district court to

“make a recognition that the prior [Arizona state] conviction” for aggravated assault

“overrepresent[ed] the seriousness of” the crime and was “not really worthy of a 16-level

increase.” Id., Supp. Vol. III at 15. Defendant further argued that a “two-level departure

downward [wa]s warranted.” Id. at 16. The district court, after expressly stating that it

had “considered the sentencing guidelines and . . . the factors of 18 U.S.C. § 3553(a)(1)

through (7),” id. at 19, sentenced Defendant to forty-one months’ imprisonment, a

sentence at the bottom of the guideline range. Id. at 22-23. In doing so, the district court

offered four rationales for rejecting Defendant’s request for a downward departure. First,


       1
        In addition to his Arizona conviction for aggravated assault and his prior federal
conviction for illegal reentry, Defendant had a prior Arizona state felony conviction for
conspiracy to possess narcotic drugs for sale, for which he received a twelve-month
sentence.

                                             3
the district court noted that the Arizona state conviction for aggravated assault that gave

rise to the sixteen-level enhancement was both technically and factually “a crime of

violence.” Id. at 20. More specifically, the district court noted that this conviction was

based on Defendant, in response to Phoenix police officers investigating a violent family

disturbance, approaching the officers with a handgun raised at waist level and twice

refusing the officers’ orders to drop the handgun. Id. Second, the district court noted that

Defendant had been afforded leniency in connection with his previous illegal reentry

conviction, in the form of a two-level downward departure at the time of sentencing, yet

had chosen to illegally reenter the United States again. Id. at 21. Third, the district court

expressed concern for “treat[ing] similarly situated defendants the same.” Id. Lastly, the

district court noted that Defendant had a relatively extensive history of criminal activity,

including convictions for aggravated assault, drug conspiracy, and illegal reentry, arrests

for criminal trespass, burglary, and driving under the influence, and pending criminal

charges in state court for assault, failure to provide identification, and driving with a

suspended license. Id. at 21-22.

                                              II.

       On appeal, Defendant asserts that “a below-Guidelines sentence [wa]s warranted”

in his case, “and the district court abused its discretion in imposing a 41-month sentence.”

Aplt. Reply Br. at 7. In support of this assertion, Defendant argues that “it is apparent”

from the record “that the district court rested on the guidelines alone,” id. at 8, and “did

not address his arguments” for a below-Guidelines sentence. Id. at 4. In addition,

                                               4
Defendant characterizes his prior aggravated assault conviction as “a relatively minor

offense,” and asserts that his most recent illegal reentry “was motivated by his family’s

circumstances rather than by sinister criminal intentions.” Id. at 7.

       To the extent Defendant is seeking to challenge the district court’s refusal to grant

his requested downward departure pursuant to U.S.S.G. § 5K2.0, we have no jurisdiction

to do so. United States v. Sierra-Castillo, 405 F.3d 932, 936 (10th Cir. 2005) (“This court

has no jurisdiction . . . to review a district court’s discretionary decision to deny a motion

for downward departure on the ground that a defendant’s circumstances do not warrant

the departure.”). We therefore review Defendant’s sentence only for substantive

reasonableness, “tak[ing] into account [his] asserted grounds for departure” when

conducting that review. United States v. Chavez-Diaz, 444 F.3d 1223, 1229 (10th Cir.

2006); see United States v. Gall, 128 S.Ct. 586, 594 (2007) (“appellate review of

sentencing decisions is limited to determining whether they are ‘reasonable.’”).

Because Defendant’s sentence falls within a properly calculated guidelines range, it is

entitled to a rebuttable presumption of substantive reasonableness. See Rita v. United

States, 127 S.Ct. 2456, 2462-63 (2007).

       After carefully examining the record on appeal, we are satisfied that the district

court properly considered the § 3553 factors, as well as the arguments urged by

Defendant, and imposed a reasonable sentence. More specifically, the district court

expressly noted on the record at the time of sentencing that it had considered the § 3553

factors, and the record likewise indicates that the district court considered and rejected


                                              5
Defendant’s assertion that the sixteen-level enhancement pursuant to U.S.S.G. §

2L1.2(b)(1)(A) overrepresented the seriousness of his prior aggravated assault conviction.

Further, the district court offered additional and compelling reasons why a below-

Guidelines sentence was unwarranted. We therefore conclude there was no abuse of

discretion on the part of the district court.

       The judgment of the district court is AFFIRMED.


                                                    Entered for the Court


                                                    Mary Beck Briscoe
                                                    Circuit Judge




                                                6
