                           UNPUBLISHED ORDER
                        Not to be cited per Circuit Rule 53


           United States Court of Appeals
                            For the Seventh Circuit
                            Chicago, Illinois 60604

                                September 5, 2006

                                      Before

                         Hon. RICHARD A. POSNER, Circuit Judge

                         Hon. DIANE P. WOOD, Circuit Judge

                         Hon. TERENCE T. EVANS, Circuit Judge

No. 04-1858

UNITED STATES OF AMERICA,                      Appeal from the United States
              Plaintiff-Appellee,              District Court for the Northern
                                               District of Illinois, Eastern Division
      v.
                                               No. 03 CR 557
OSCAR MURILLO-GUERRERO, also
known as ANTHONY HENRY                         James B. Zagel,
PEREZ,                                         Judge.
           Defendant-Appellant.


                                    ORDER

       Pursuant to United States v. Paladino, 401 F.3d 471 (7th Cir. 2005), we
remanded this case for a determination as to whether the sentence imposed on
defendant Murillo-Guerrero would have been the same had the district judge known
at the time of sentencing that the sentencing guidelines were advisory. The judge,
having reconsidered the matter, informs us that the sentence would have been the
same. Guerrero claims that the sentence is unreasonable and the failure to impose
a lesser sentence is an abuse of discretion.

      Guerrero entered a guilty plea to a charge of attempting to enter the United
States after having been convicted of an aggravated felony and then being deported,
pursuant to 8 U.S.C. § 1326(a) and (b)(2). He was sentenced to 46 months in
prison. He claims that following our remand, the judge gave inadequate
No. 04-1858                                                                             2



consideration to the factors in 18 U.S.C. § 3553(a) and that mitigating factors
present in his case justify a reduced sentence.



       It is true that the district judge did not mention § 3553(a) in his order
following our remand. However, what he did very clearly and with no nod to
legalese was to tell us why the sentence would be the same:

              The answer is yes, I would impose the same sentence. I
              thought the original sentence was reasonable (even
              without the binding effect of the guideline) because I
              thought the defendant’s history showed a pattern of
              conduct heedless of the dictates of law. His illegal
              conduct is impulsive and he seems not to learn from
              experience. All three of his prior convictions show this
              and he returned illegally once before and, instead of being
              prosecuted, was simply redeported. I believe that specific
              deterrence required a sentence of the length I imposed.
              The sentence is not disproportionate to the seriousness of
              the offense. I know of no other way to instruct this
              defendant that he cannot enter this country illegally.

Given the clarity of this statement, there is no need to add the statutory reference,
which, in any case, is obvious to the parties.

       Guerrero also claims that certain facts in his case rebut the presumption of
reasonableness that a guidelines sentence enjoys, at least in this circuit. See
United States v. Mykytiuk, 415 F.3d 606 (7th Cir. 2005); cf. United States v.
Fernandez, 443 F.3d 19 (2nd Cir. 2006). He says he returned to the United States
because his wife, who lived in Iowa, had just had a miscarriage. He also argues
that his previous conviction that qualified as a crime of violence was not for a
serious crime. The conviction was for domestic abuse assault, which he says was a
misdemeanor under Iowa law but is a felony under federal law. On the basis that
the conviction was for a felony, defendant received a 16-level enhancement, which
he says is unreasonable.

       We do not agree. The charging documents in the domestic abuse case show
that Guerrero inflicted bodily injury on his wife as he tried to stab her with two
knives. We cannot say that it is unreasonable to rely on a conviction for such an
offense to enhance a sentence. Furthermore, we cannot say that the district judge
abused his discretion in failing to cut Guerrero a break because he came here to be
No. 04-1858                                                                         3



with his wife, who suffered a miscarriage. As the judge noted, this was not the first
time the defendant had illegally entered the country. Furthermore, the guideline
range, which was properly calculated, was 46 to 57 months. Defendant’s sentence
was at the low end--46 months. The presumption of reasonableness has not been
rebutted.

     Accordingly, the sentence of 46 months imposed on Oscar Murillo-Guerrero is
AFFIRMED.
