                                                                         F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                    UNITED STATES COURT OF APPEALS
                                                                        March 28, 2006
                                 TENTH CIRCUIT                        Elisabeth A. Shumaker
                                                                           Clerk of Court

 UNITED STATES OF AMERICA,

               Plaintiff- Appellee,                     No. 05-2107
          v.                                          (D. New Mexico)
 JOSE MARQUEZ-OLIVAS,                            (D.C. No. CR-04-2338-LH)

               Defendant-Appellant.




                            ORDER AND JUDGMENT *


Before EBEL, McKAY, and HENRY, Circuit Judges. **



      Jose Marquez-Olivas was convicted after a guilty plea of illegally

reentering the United States after deportation and conviction of an aggravated

felony, a violation of 8 U.S.C. § 1326(a)(1), (2) and (b)(2). Prior to sentencing,




      *
        This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10 TH C IR . R. 36.3
      **
         After examining the briefs and appellate record, this panel has
determined unanimously that oral argument would not materially assist in 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.
he filed a motion for downward departure based upon cultural assimilation,

exceptional family circumstances, and his status as a deportable alien.

      The district court declined to depart from the Guideline range. The court

adopted the factual findings and Guideline applications of the presentence report

and sentenced Mr. Marquez-Olivas to 57 months’ imprisonment, the low end of

the Guideline range. Mr. Marquez-Olivas now appeals, arguing that his sentence

was unreasonable under the advisory sentencing scheme established by United

States v. Booker, 543 U.S. 220 (2005), which was issued prior to the district

court’s sentencing proceedings.

      “[A] sentence that is properly calculated under the Guidelines is entitled to

a rebuttable presumption of reasonableness.” United States v. Kristl, 437 F3d

1050, 1054 (10th Cir. 2006). Either the government or the defendant may rebut

the presumption “by demonstrating that the sentence is unreasonable when viewed

against the other factors delineated in [18 U.S.C.] § 3553(a).” Id.

      Here, Mr. Marquez-Olivas argues that his 57 month sentence is

unreasonable because he is “culturally an American.” Aplt’s Br. at 4. That

contention merely repeats the arguments he made in support of his motion for

downward departure and is insufficient to overcome the presumption of

reasonableness that we must apply to a properly calculated sentence within the

Guideline range.


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      As the government observes, several courts have concluded that only in

extraordinary circumstances may a defendant’s cultural assimilation warrant a

sentence outside the Guideline range. See, e.g., United States v. Rivas-Gonzalez      ,

365 F.3d 806, 812 (9th Cir. 2004) (stating that “[a downward] departure for

cultural assimilation, like a departure for family ties [may be] granted only in

extraordinary circumstances) (internal quotation marks omitted);    United States v.

Bautista , 258 F.3d 602, 607 (7th Cir. 2001) (concluding that a downward

departure on the grounds of cultural assimilation “would be akin to one based on

‘family ties’--a discouraged factor that is grounds for departure only in

extraordinary circumstances).” Mr. Marquez-Olivas has failed to establish that

such extraordinary circumstances are present here.     Moreover, the record indicates

that the presentence report considered the relevant sentencing factors set forth in

18 U.S.C. § 3553(a) and that the district court reviewed the report before

sentencing Mr. Marquez-Olivas at the bottom of the Guideline range.

      We therefore conclude that Mr. Marquez-Olivas’s sentence was reasonable

and we AFFIRM the district court’s decision.



                                  Entered for the Court,



                                  Robert H. Henry
                                  Circuit Judge

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