                                                                             F I L E D
                                                                     United States Court of Appeals
                                                                             Tenth Circuit
                        UNITED STATES COURT OF APPEALS
                                                                           February 14, 2006
                                      TENTH CIRCUIT                        Elisabeth A. Shumaker
                                                                              Clerk of Court

 UNITED STATES OF AMERICA,

                  Plaintiff - Appellee,                    No. 05-1267
           v.                                              (D. Colorado)
 MARIO HERNANDEZ-RODRIGUEZ,                          (D.C. No. 03-CR-572-B)

                  Defendant - Appellant.


                                ORDER AND JUDGMENT         *




Before TACHA , Chief Circuit Judge,        ANDERSON and BALDOCK , Circuit
Judges.




       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.




       This order and judgment is not binding precedent, except under the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 10th Cir. R. 36.3.
       Defendant/appellant Mario Hernandez-Rodriguez pled guilty, pursuant to a

plea agreement, to one count of unlawful reentry by a previously deported alien,

in violation of 8 U.S.C. § 1326(a) and (b)(2). He was sentenced to seventy

months’ imprisonment. He appealed his sentence, and we remanded his case for

resentencing in light of   United States v. Booker , 125 S. Ct. 738 (2005). On

remand, he was again sentenced to seventy months’ imprisonment. Hernandez-

Rodriguez appeals, and we affirm.

       Hernandez-Rodriguez’s plea agreement stated that: he “is a citizen of

Mexico;” “[o]n November 1, 1999, [he] was convicted of Corporal Injury to

Spouse,” in violation of Cal. Penal Code § 273.5; “[h]e was deported from the

United States on July 10, 2000;” and he “returned to the United States and was

found in Colorado on or about October 29, 2003. He did not have permission

from the United States government to reenter the United States.” Plea Agreement

at 3, R. Vol. I, tab 16.

       The agreement also included a tentative and preliminary calculation of his

sentencing range under the United States Sentencing Commission,      Guidelines

Manual (“USSG”). The agreement stated that Hernandez-Rodriguez’s base

offense level was 8, that the offense level was increased by 16 levels because

Hernandez-Rodriguez had been convicted of a felony that is a crime of violence,

that he was entitled to a downward adjustment for acceptance of responsibility,


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and that his total adjusted offense level was therefore 21. The plea agreement’s

tentative criminal history computation placed Hernandez-Rodriguez at a criminal

history category III, based upon an additional conviction for committing “corporal

injury to spouse” and a misdemeanor conviction for disobeying a court order. The

agreement stipulated that “if no other information were discovered,” Hernandez-

Rodriguez’s criminal history category would remain a III.     Id. at 4. With a total

offense level of 21 and a criminal history category of III, Hernandez-Rodriguez’s

Guideline range was 46-57 months. The agreement specifically noted, however,

that:

        in order to be as accurate as possible, with the criminal history
        category undetermined at this time, the estimated offense level of 21
        above could conceivably result in a range from 37 months (bottom of
        Category I), to 96 months (top of Category VI). The sentence would
        be limited, in any case, by the statutory maximum [of twenty years].

Id. at 5.

        When the probation office prepared Hernandez-Rodriguez’s presentence

report (“PSR”), it was discovered that Hernandez-Rodriguez’s criminal history

was much more extensive. The PSR identified five prior convictions for violating

a court order, resisting a peace officer, violating a restraining order, giving false

information to a police officer, and driving under the influence, along with the

two convictions already identified for corporal injury to a spouse. It did not

assess criminal history points for four other prior convictions (twice for battery,


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once for driving under the influence and once for petty theft) because of the age

of those convictions. These additional criminal history points placed Hernandez-

Rodriguez in a criminal history category of V which, with his adjusted total

offense level of 21, resulted in a Guideline range of 70-87 months.

      The probation office recommended a sentence of 76 months, stating that

Hernandez-Rodriguez’s “history of domestic violence and excessive drinking

reflects that he poses a risk to the community,” and that “[a] sentence within the

middle of the guideline range is recommended to achieve the sentencing purposes

of punishment, deterrence and protection of the public.” PSR at R-1 to R-2, R.

Vol. V.

      Hernandez-Rodriguez filed objections to the PSR and filed a motion for

downward departure from criminal history category V, on the ground that that

criminal history category “significantly over-represent[ed] the seriousness of his

criminal history.” Def.’s Mot. to Depart Downward at 2, R. Vol. I, tab 25. The

government opposed both those arguments.

      Hernandez-Rodriguez’s sentencing hearing was continued twice. In the

interim, the Supreme Court issued its decision in   Blakely v. Washington , 542 U.S.

296 (2004).   1
                  Hernandez-Rodriguez filed a motion to have the Guidelines declared



      In Blakely, the Court considered the state of Washington’s sentencing
      1

scheme and held that the Sixth Amendment prohibited the imposition of a
                                                                   (continued...)

                                           -4-
unconstitutional in light of   Blakely , which the district court denied. After

denying his motion for a downward departure, and after concluding that

Hernandez-Rodriguez’s prior convictions for corporal injury to a spouse were

crimes of violence, the district court sentenced him to seventy months.

       On remand from our court following         Booker , in which the Supreme Court

applied Blakely ’s rationale to the federal Sentencing Guidelines, the probation

office prepared an addendum to the PSR analyzing the sentencing factors

contained in 18 U.S.C. § 3553(a) in the context of this case. The addendum noted

that, while Hernandez-Rodriguez was not engaged in any illegal activity at the

time of his arrest, other than his illegal presence in the country, his “criminal

history is characterized by domestic violence and excessive drinking.” Addendum

on Remand at A-1, R. Vol. V.

       At his second sentencing hearing, the district court observed:

       If acknowledging the logic and common sense and the reason
       expressed in the Sentencing Guidelines is inappropriate deferral to
       the Sentencing Guidelines, I’m sorry, but I think some deference is
       not only necessary, but it’s required by the very terms of the statute
       and by Booker . . . . This is not to say that they are definitive and it
       is obviously not to say that they are mandatory.




       (...continued)
       1

sentence based on facts unless those facts were “reflected in the jury verdict or
admitted by the defendant.” Blakely, 542 U.S. at 303.

                                            -5-
Tr. of Sentencing at 14, R. Vol. IV. The court went on to state that “looking at

the criminal history in this case, whether the Guidelines are consulted or not, it

defies reason to say that the criminal history in this case even over-represents its

seriousness or propensity for recidivism, much less significantly over-represents

it.” Id. The court accordingly once again refused to depart downward from the

Guideline range.

       The court then again calculated Hernandez-Rodriguez’s sentence under the

Guidelines, analyzing carefully the statutory sentencing factors contained in

§ 3553(a). Hernandez-Rodriguez argues that the court erred when it stated that

the Guidelines are entitled to “some deference” and that the sentence imposed is

unreasonable.   2
                    We disagree.

       Booker requires that any sentence imposed be reasonable. In reaching such

a sentence, district courts are to “consult[] . . . the advisory Guidelines and the

factors listed in 18 U.S.C. § 3553(a).”   United States v. Corchado , 427 F.3d 815,

821 (10th Cir. 2005). Furthermore, we have recently rejected the argument that




       The government argues that, while the degree of deference to which the
       2

Guidelines are entitled post-Booker could be viewed as a question of law
reviewable de novo, we should review this issue for plain error only in this case
because Hernandez-Rodriguez failed to object to the district court’s statement
about deference or, more generally, its methodology in calculating his sentence.
We conclude that Hernandez-Rodriguez’s argument would fail under any standard
of review.

                                          -6-
the Guidelines are not entitled to deference when defendants are sentenced after

Booker :

      Booker instructs that trial courts, “while not bound to apply the
      Guidelines, must consult those Guidelines and take them into account
      when sentencing.” Further, the opinion indicates that trial courts
      must accord deference to the Guidelines: “These features of the
      remaining system, while not the system Congress enacted,
      nonetheless continue to move sentencing in Congress’ preferred
      direction, helping to avoid excessive sentencing disparities while
      maintaining flexibility sufficient to individualize sentences where
      necessary.” Thus, we decline Defendant’s invitation to dilute the
      influence of the Guidelines upon . . . his sentence.

United States v. Crockett , No. 04-4204, 2006 WL 226021, at *10 (10th Cir., Jan.

31, 2006) (quoting Booker , 125 S. Ct. at 767). It is evident from the record that

the district court was very familiar with the case and with Hernandez-Rodriguez’s

arguments. The court carefully examined the Guidelines, the PSR and the

statutory factors in reaching the sentence imposed. Hernandez-Rodriguez’s

quarrel with the district court’s exercise of its discretion to calculate his sentence

does not convince us that the sentence is unreasonable.

      We conclude that the sentence is reasoned and reasonable and must be

AFFIRMED.

                                                ENTERED FOR THE COURT


                                                Stephen H. Anderson
                                                Circuit Judge



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