                                                                      FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                    UNITED STATES CO URT O F APPEALS
                                                                 October 24, 2007
                                                   Elisabeth A. Shumaker
                             TENTH CIRCUIT             Clerk of Court



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

               Plaintiff-Appellee,                       No. 07-2097
          v.                                             (D. of N.M .)
 VICEN TE BARRA ZA-SANCH EZ,                      (D.C. No. CR -06-2614 JP)

               Defendant-Appellant.



                            OR D ER AND JUDGM ENT *


Before H E N RY, T YM KOV IC H, and HO LM ES, Circuit Judges. **


      Vicente Barraza-Sanchez pleaded guilty to illegal reentry after deportation

subsequent to an aggravated felony conviction in violation of 8 U.S.C.

§§ 1326(a)(1), (a)(2), and (b)(2). Based on an offense level of 21 and a criminal

history of V, Barraza-Sanchez fell within a sentence range of 70–87 months

pursuant to the United States Sentencing Guidelines (USSG ). Barraza-Sanchez




      *
         This order and judgment is not binding precedent except under the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.
      **
         After examining the briefs and the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1(G). The cause is therefore ordered submitted without oral argument.
requested a downward variance to a term of 30 months, arguing that the

application of U SSG §2L1.2(b)(1)(A)(I) (unlawfully reentering the U nited States)

increased his offense level and resulted in an unreasonably long sentence range.

The district court granted the request for a lesser sentence, but sentenced Barraza-

Sanchez to a term of 60 months. Barraza-Sanchez timely appealed the

reasonableness of his sentence. W e AFFIRM .

                                  I. Background

      A grand jury indicted Barraza-Sanchez for illegal reentry after deportation

subsequent to an aggravated felony conviction in violation of 8 U.S.C.

§§ 1326(a)(1), (a)(2), and (b)(2). He pleaded guilty. A Presentence Report (PSR)

related the following: On November 30, 2004, a N ew M exico state court

convicted Barraza-Sanchez of distribution of marijuana and sentenced him to 30

months. On February 7, 2006, after serving his sentence, Barraza-Sanchez was

deported to M exico. Nearly four months later, on June 29, 2006, after illegal

reentry, he was again arrested in the United States.

      The PSR calculated a base offense level of eight and a 16-level

enhancement for prior deportation subsequent to a conviction for a drug

trafficking offense for which the sentence imposed exceeded 13 months. After a

downward adjustment for acceptance of responsibility, the PSR arrived at a total

offense level of 21.




                                         -2-
      Based on adult convictions for reentry of a deported alien, distribution of

marijuana, and battery of a household member, the PSR calculated a criminal

history score of eight. The PSR then increased that score to 11 because Barraza-

Sanchez committed the illegal reentry offense while under a criminal justice

sentence and within two years of his release from imprisonment. In addition, the

PSR noted several other arrests and convictions that did not factor into Barraza-

Sanchez’s criminal history score. Based on a criminal history score of 11

(category V) and a total offense level of 21, the PSR arrived at a guidelines range

of imprisonment of 70–87 months. Under the applicable statute, 8 U.S.C.

§ 1326(b)(2), the maximum term of imprisonment for Barraza-Sanchez’s offense

is 20 years.

      Before sentencing, Barraza-Sanchez filed a sentencing memorandum

requesting a downward variance to a term “in the area of 30 months.” R., Vol. I,

Doc. 19 at 3. He reasoned that the guidelines range would punish his “nonviolent

and victimless” offense as harshly as the Guidelines seek to punish “some of the

most depraved and heinous criminal behavior,” thus making his sentence

unnecessarily long. Id. at 2. At sentencing, Barraza-Sanchez further argued the

guidelines range was “unduly harsh because it double count[ed] criminal history.”

R., Vol. III at 8. Both in its response to Barraza-Sanchez’s sentencing

memorandum and at sentencing, the government objected to a downward

variance, arguing the guidelines range was not unreasonable under the factors set

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forth in 18 U.S.C. § 3553(a). After carefully considering and explaining the §

3553(a) factors, the district court granted Barraza-Sanchez’s request in part,

reducing the sentence to 60 months incarceration, ten months below the lower end

of the guidelines range.

                                     II. Analysis

         Barraza-Sanchez challenges the substantive reasonableness of his sentence.

W e review the district court's sentence for reasonableness in light of the

sentencing factors set forth in 18 U.S.C. § 3553(a). United States v. Kristl, 437

F.3d 1050, 1053 (10th Cir. 2006). The district court has significant discretion in

sentencing, and our review for reasonableness, regardless of whether the sentence

falls inside or outside of the advisory guidelines, is a review for abuse of

discretion. Rita v. United States, 127 S. Ct. 2456, 2465 (2007); see also United

States v. Garcia-Lara, No. 06-3054, 2007 W L 2380991, at *2 (10th Cir. Aug. 22,

2007).

         The sentencing court may conclude that a sentence outside the guidelines

range best promotes the sentencing factors enumerated in § 3553(a). But the

court must justify a variance by relying on “the remaining § 3553(a) factors.”

Garcia-Lara, 2007 W L 2380991, at *4. “A court’s conclusion that the Guidelines

are simply ‘wrong’ or an inadequate reflection of the statutory sentencing

purposes is an unreasonable application of the § 3553(a) factors unless the court




                                          -4-
can justify the sentence imposed in light of the facts of the particular case

considered under § 3553(a).” Id.

      In this case, Barraza-Sanchez does not challenge the district court’s careful

application of the § 3553(a) factors in sentencing him. Rather, he disputes the

reasonableness of USSG § 2L1.2 itself 1 because “1) the 16-level enhancement

establishes an offense level for a nonviolent offense that is equal to or greater

than that of many violent offenses; 2) it double-counts prior convictions by

including them in both criminal history category and offense level; and 3) the

definitions are over-broad.” A plt. Br. at 7. Instead of explaining why his

sentence is unreasonable under the § 3553(a) factors, Barraza-Sanchez mounts a

wholesale offense against a section of the Guidelines. Contrary to our warning

against such a sweeping argument in Garcia-Lara, Barraza-Sanchez asks us to

conclude that “the Guidelines are simply ‘wrong.’” Garcia-Lara, 2007 W L

2380991, at *4. Accordingly, his arguments challenging the G uidelines,

unmoored from “the facts of [his] case considered under § 3553(a),” are

unpersuasive. Id.

      Barraza-Sanchez first disputes the reasonableness of USSG § 2L1.2

because a 16-level increase in an offense level punishes his offense on par w ith



      1
        Section 2L1.2 allow s for a 16-level increase when, among other things,
“the defendant previously was deported, or unlawfully remained in the United
States, after . . . (A) a conviction for a felony that is (i) a drug trafficking offense
for which the sentence imposed exceeded 13 months.” USSG § 2L1.2(b)(1).

                                           -5-
various “more violent and heinous” crimes. Aplt. Br. at 11–12. W e have recently

reaffirmed that “‘a sentence is not rendered unreasonable merely because of a

district court’s refusal to deviate from the advisory guideline range’ based on

disagreements with the policies underlying a particular Guideline provision.”

United States v. W ilken, No. 06-4042, 2007 W L 2372381, at *9 (10th Cir. Aug.

21, 2007) (quoting United States v. M cCullough, 457 F.3d 1150, 1171 (10th Cir.

2006)). Barraza-Sanchez disagrees with Congress’s policy of harshly punishing

illegal reentry by a convicted felon. But this argument is properly directed at

Congress and not at the federal courts. W e cannot hold Barraza-Sanchez’s

sentence unreasonable based on a broad policy disagreement.

      Second, Barraza-Sanchez challenges the “operation of Section 2L1.2 . . .

because it counts criminal history twice”— to increase both his offense level and

criminal history category. Aplt. Br. at 12. W e rejected this exact argument in

United States v. Ruiz-Terrazas, noting that “we have routinely upheld as

reasonable the use of prior convictions to calculate both the criminal history

category and a sentence enhancement where, as here, the Guidelines authorize it.”

477 F.3d 1196, 1204 (10th Cir. 2007). Barraza-Sanchez does not explain how the

double-counting in his case differs from numerous previous cases where we

upheld it. Accordingly, his argument is unavailing.

      Finally, Barraza-Sanchez argues USSG § 2L1.2 is too broad, and hence

unreasonable, in that it fails to differentiate between the length of a prior

                                          -6-
sentence, calling for “the same 16-level increase whether the sentence imposed

was 13 months and one day, or 20 years.” Aplt. Br. at 18. Because Barraza-

Sanchez did not present this argument in the district court, we review only for

plain error. “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.” Ruiz-Terrazas,

477 F.3d at 1199.

      W e previously recognized that a district court may, in its discretion, reduce

the sentence w hen USSG § 2L1.2 severely punishes the defendant for a

“comparatively innocuous . . . prior conviction.” United States v. Trujillo-

Terrazas, 405 F.3d 814, 817 (10th Cir. 2005) (“[Defendant] was upset that an ex-

girlfriend had begun seeing someone new, and he acted on his frustration by

throwing a lighted match into a 1980 Oldsmobile belonging to his ex-girlfriend’s

new love interest[, causing damages in] the paltry sum of $35.00.”). But Barraza-

Sanchez presents no argument to suggest his prior conviction for distribution of

marijuana is somehow innocuous. Instead, he merely points out that his “actual

sentence [of 30 months for distribution of marijuana] was at the lower end of

possible sentences for drug-trafficking crimes eligible for the 16-level

enhancement.” A plt. Br. at 18. W ithout any explanation why his case warrants

special treatment, Barraza-Sanchez’s argument amounts to nothing more than a

generalized attack on the Guidelines. Thus, in applying USSG § 2L1.2 to

                                           -7-
calculate the guidelines range and then sentencing Barraza-Sanchez ten months

below the range, the district court committed no error, plain or otherwise.

                                  III. Conclusion

      For the foregoing reasons, the district court’s sentence is AFFIRMED.



                                                    Entered for the Court

                                                    Timothy M . Tymkovich
                                                    Circuit Judge




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