                                                                       F I L E D
                                                                United States Court of Appeals
                                                                        Tenth Circuit
                      UNITED STATES CO URT O F APPEALS
                                                                     December 5, 2006
                                   TENTH CIRCUIT                    Elisabeth A. Shumaker
                                                                        Clerk of Court



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

          Plaintiff-Appellee,
                                                         No. 05-2194
 v.                                               (District of New M exico)
                                                 (D.C. No. CR-05-390-WPJ)
 H ER IBER TO O RTEG A -ESTR ADA,

          Defendant-Appellant.




                                OR D ER AND JUDGM ENT *


Before TA CH A, Chief Circuit Judge, KELLY, and M U RPH Y, Circuit Judges.


I.    Introduction

      Appellant Heriberto Ortega-Estrada pleaded guilty to a charge of illegally

reentering the United States. The Presentence Investigation Report (“PSR”)

recommended the application of the sixteen-level enhancement set forth in §

2L1.2(b)(1)(A) of the United States Sentencing Guidelines (“USSG ”), based on

Ortega-Estrada’s prior W ashington state conviction for second-degree assault. In




      *
       This order and judgment is not binding precedent, except under the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 w ith Fed. R. App. P. 32.1 (eff.
Dec. 1, 2006) and 10th Cir. R. 32.1 (eff. Jan. 1, 2007).
his sentencing memorandum, Ortega-Estrada challenged the application of the

sixteen-level enhancement and argued a sentence between fifteen and twenty-tw o

months would be a reasonable sentence in his case. The district court overruled

Ortega-Estrada’s objections to the PSR and sentenced him to forty-one months’

imprisonment, the low end of the guidelines range. Ortega-Estrada then filed this

appeal, arguing both that the district court erred when it applied the §

2L1.2(b)(1)(A) enhancement and that his sentence is unreasonable. Exercising

jurisdiction pursuant to 28 U.S.C. § 1291, we affirm Ortega-Estrada’s sentence.

II.   Background

      Ortega-Estrada was arrested by New M exico police and charged with

Driving W hile Intoxicated. United States Border Patrol agents questioned

Ortega-Estrada during his incarceration at the Roosevelt County Detention Center

in Portales, New M exico and then transported him to the border patrol station in

Carlsbad, New M exico. The agents determined Ortega-Estrada had been deported

on January 28, 2000, but were unable to establish he had permission to reenter the

United States. Further investigation revealed Ortega-Estrada had previously been

convicted in W ashington of second-degree assault, in violation of W ashington

Revised Code § 9A.36.021(c).

      Ortega-Estrada was charged in an Information with illegally reentering the

United States following deportation subsequent to being convicted of an

aggravated felony, in violation of 8 U.S.C. § 1326(b)(2). Ortega-Estrada pleaded

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guilty and a PSR was prepared. The PSR calculated Ortega-Estrada’s criminal

history category as II and his base offense level as eight. The PSR, however,

recommended a sixteen-level increase to Ortega-Estrada’s offense level pursuant

to USSG § 2L1.2(b)(1)(A), based on the conclusion Ortega-Estrada’s W ashington

second-degree assault conviction qualified as a felony crime of violence. After

applying a downward adjustment for acceptance of responsibility, the PSR arrived

at a final offense level of twenty-one which, when coupled with the criminal

history category of II, resulted in an advisory guideline range of forty-one to

fifty-one months.

      Ortega-Estrada filed a sentencing memorandum, challenging the calculation

of his total offense level. Specifically, Ortega-Estrada asserted the application of

the sixteen-level enhancement set out in § 2L1.2(b)(1)(A) was unwarranted

because the facts supporting the application of the enhancement were neither

alleged in the Information nor admitted by him. Ortega-Estrada also argued the

district court should depart downward from the advisory guideline range based on

his “cultural assimilation, his status as a deportable alien, his prompt and

extraordinary acceptance of responsibility, and the economic and personal

difficulties which led him to commit [the] offense.” 1 At the sentencing hearing,

Ortega-Estrada further argued application of the advisory guidelines range would

result in an unreasonable sentence because his W ashington felony conviction was

      1
          Ortega-Estrada does not raise these arguments on appeal.

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used three times to enhance his sentence “three different ways.” According to

Ortega-Estrada, the W ashington felony conviction was used to: (1) raise his

offense from illegal reentry under 8 U.S.C. § 1326(a) to illegal reentry after

deportation for an aggravated felony under 8 U.S.C. § 1326(b)(1); (2) determine

his criminal history category; and (3) justify the application of the §

2L1.2(b)(1)(A) enhancement. The district court overruled all of O rtega-Estrada’s

objections and sentenced him to forty-one months’ imprisonment, the low end of

the advisory guidelines range.

III.   Discussion

       This court reviews the interpretation and application of the Sentencing

Guidelines de novo. United States v. Perez-Vargas, 414 F.3d 1282, 1284 (10th

Cir. 2005). Pursuant to § 2L1.2(b)(1)(A)(ii), the offense level of a defendant

convicted of illegally reentering the United States is increased by sixteen levels if

the defendant was deported after a previous conviction for a felony “crime of

violence.” The term “crime of violence” is defined in the Guidelines to include

certain specific offenses, as well as “any offense under federal, state, or local law

that has as an element the use, attempted use, or threatened use of physical force

against the person of another.” USSG § 2L1.2, Application Note 1(B)(iii).        In

United States v. Perez-Vargas, we held Colorado third-degree assault convictions

do not categorically qualify as crimes of violence under § 2L1.2(b)(1)(A) because

the statutory language “does not necessarily include the use or threatened use of

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‘physical force’ as required by the Guidelines.” 414 F.3d at 1287. W e further

stated it was proper for a review ing court to look beyond an ambiguous assault

statute to charging documents, the terms of the plea agreement, or some

comparable judicial record to determine on a case-by-case basis whether an

assault conviction qualifies as a crime of violence under § 2L1.2(b)(1)(A). Id. at

1284 (citing Shepard v. United States, 544 U.S. 13, 24-26 (2005)). Relying on

this court’s holding in Perez-Vargas, Ortega-Estrada asserts the district court

erred by applying the § 2L1.2(b)(1)(A) enhancement because the W ashington

assault statute pursuant to which he w as convicted does not necessarily require

the actual use, attempted use, or threatened use of physical force. 2 W hile the

Government makes a strong argument that a W ashington conviction for second-

degree assault with a deadly weapon is categorically a crime of violence, we do

not address the issue because our review of the record demonstrates Ortega-

Estrada made a factual concession conclusively demonstrating his conviction

qualifies as a crime of violence. United States v. Hernandez-Garduno, 460 F.3d

1287, 1294 (10th Cir. 2006) (“If the charging documents, plea agreement,

transcript of a plea colloquy, or sentencing court findings of the prior state court

conviction demonstrate that the [ ] assault did, in fact, involve the use, attempted

      2
        Although the G overnment does not argue w aiver, our review of the record
reveals that Ortega-Estrada never made this specific argument before the district
court. W e address the argument, however, because it presents only a non-
jurisdictional question of law and “its proper resolution is certain.” Ross v.
United States M arshal, 168 F.3d 1190, 1195 n.5 (10th Cir. 1999).

                                          -5-
use, or threatened use of physical force, then the particular defendant’s prior

assault conviction qualifies as a crime of violence under § 2L1.2(b)(1)(A)(ii).”)

      W hen Ortega-Estrada filed his sentencing memorandum with the district

court, he attached a copy of a document captioned, Statement of Defendant on

Plea of Guilty. This document memorializes O rtega-Estrada’s plea of guilty to

the W ashington second-degree assault charge and bears a stamp indicating it was

filed on November 24, 1999, in the County Clerk’s Office in Okanogan County,

W ashington. The statement is signed by Ortega-Estrada and contains a paragraph

stating, “The judge has asked me to state briefly in my own words what I did that

makes me guilty of this crime. This is my statement: I assaulted Sandra M oomaw

by threatening her with a knife and cutting her. I don’t remember what happened

because I was intoxicated.” (emphasis added). This unambiguous factual

concession is directly contrary to the bold assertion contained in O rtega-Estrada’s

appellate brief that the application of the § 2L1.2(b)(1)(A) enhancement was

erroneous because the Government failed to meet its evidentiary burden of

demonstrating that he “actually used force in causing an injury in the prior felony

offense.” It is beyond argument that the act of cutting an individual with a knife

is a crime of violence pursuant to USSG § 2L1.2(b)(1)(A) because it involves the

actual use of physical force. Thus, evidence sufficient to support the conclusion

Ortega-Estrada actually used force in the commission of the W ashington assault

was submitted to the district court by Ortega-Estrada himself. In light of Ortega-

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Estrada’s admission of the facts supporting the application of the §

2L1.2(b)(1)(A) enhancement, we conclude he cannot establish the district court’s

application of the enhancement was error.

      Ortega-Estrada also argues his Fifth and Sixth A mendment rights were

violated because the district court engaged in judicial fact-finding prohibited by

Booker when it found he had previously been convicted of second-degree assault.

He asserts the fact of his prior conviction must be pled in an indictment or proven

beyond a reasonable doubt to a jury. The Government, however, was not required

to allege Ortega-Estrada’s prior felony conviction in an indictment.

Almendarez-Torres v. United States, 523 U.S. 224, 247 (1998), (holding the

existence of a prior conviction is merely a sentencing factor, not a separate

elem ent of the offense that must be pled in an indictment). This court has held

that Almendarez-Torres remains good law after Booker. United States v. M oore,

401 F.3d 1220, 1224 (10th Cir. 2005) (“[W ]e are bound by existing precedent to

hold that the Almendarez-Torres exception to the rule announced in Apprendi [ v.

New Jersey, 530 U.S. 466 (2000)] and extended to the Guidelines in Booker

remains good law.”). Although the concurring opinion in Shepard v. United

States casts some doubt on the continuing validity of Almendarez-Torres, it has

not been overruled. See Shepard v. United States, 544 U.S. 13, 27 (2005)

(Thomas, J., concurring) (stating Almendarez-Torres “has been eroded by this




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Court’s subsequent Sixth Amendment jurisprudence, and a majority of the Court

now recognizes that Almendarez-Torres was w rongly decided”).

      Finally, Ortega-Estrada argues the sentence imposed by the district court is

unreasonable. Because O rtega-Estrada w as sentenced after Booker, this court

reviews his sentence for reasonableness. United States v. Booker, 543 U.S. 220,

260-61 (2005). Under this standard, a sentence w ill not be reversed if the record

demonstrates the sentence was “reasoned and reasonable.” United States v.

Contreras-M artinez, 409 F.3d 1236, 1241 (10th Cir. 2005) (quotation omitted).

Because we have concluded Ortega-Estrada’s sentence fell within a properly

calculated guidelines range, it is presumptively reasonable. United States v.

Kristl, 437 F.3d 1050, 1055 (10th Cir. 2006). It is Ortega-Estrada’s burden to

“rebut this presumption by demonstrating that the sentence is unreasonable in

light of the other sentencing factors laid out in [18 U.S.C.] § 3553(a).” Id.

      Ortega-Estrada first argues, as he did before the district court, that the

forty-one-month sentence is unreasonable because it was arrived at by triple-

counting his W ashington assault conviction. He also asserts application of the §

2L1.2(b)(1)(A) enhancement results in an inherently unreasonable sentence

because the sixteen-level increase he received for the assault conviction is the

same as that received by individuals with prior felony convictions for more

serious felony offenses such as murder, rape, and robbery. Notwithstanding

Ortega-Estrada’s characterization of these arguments, they are not challenges to

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the district court’s application of the § 3553(a) factors but, instead, are challenges

to policy decisions made by the Sentencing Commission. This court has clearly

stated that disagreement with policy decisions incorporated into the Sentencing

Guidelines is not a valid reason for imposing a sentence outside a properly

calculated advisory guidelines range. United States v. M cCullough, 457 F.3d

1150, 1171-72 (10th Cir. 2006) (involving a disparity in the treatment of crack

and powder cocaine embodied in the Sentencing Guidelines).

      W e also reject Ortega-Estrada’s final argument that his sentence was

unreasonable because the conduct underlying his W ashington assault conviction

was “relatively trivial.” See United States v. Trujillo-Terrazas, 405 F.3d 814, 819

(10th Cir. 2005) (holding a defendant’s criminal history is relevant to a

consideration of his “history and characteristics” pursuant to 18 U.S.C. §

3553(a)). The record demonstrates Ortega-Estrada’s prior felony conviction

involved conduct that was far from trivial. The W ashington assault conviction

involved a domestic dispute between Ortega-Estrada and his girlfriend. Ortega-

Estrada readily admits he brandished a knife w hile he w as drunk and the record

demonstrates he admitted cutting the victim of the assault with the knife. Further,

the district court found that after illegally reentering the United States, Ortega-

Estrada was incarcerated on a DW I charge for three months, demonstrating he had

“little, if any, respect for the laws of the United States or the State of New




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M exico.” W e agree with the district court’s analysis and conclude Ortega-Estrada

has failed to rebut the presumption that his sentence was reasonable.

IV .   C ON CLU SIO N

       For the reasons stated above, the sentence imposed by the United States

District Court for the D istrict of N ew M exico is affirmed.

                                       ENTERED FOR THE COURT



                                       M ichael R. M urphy
                                       Circuit Judge




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