                                                                         F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                    UNITED STATES CO URT O F APPEALS
                                                                         April 27, 2007
                                 TENTH CIRCUIT                      Elisabeth A. Shumaker
                                                                        Clerk of Court


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

               Plaintiff-Appellee,                        No. 06-1100
          v.                                             (D. Colorado)
 LIO V A RD O G A LV A N V ALG ARA,                (D.C. No. 05-CR-358-N)

               Defendant-Appellant.



                            OR D ER AND JUDGM ENT *


Before M U RPH Y, Circuit Judge, M cW ILLIAM S, Senior Judge, and HA RTZ,
Circuit Judge.




I.    Introduction

      Appellant Liovardo Galvan Valgara pleaded guilty to a charge of being a

felon in possession of a firearm. Pursuant to the terms of a plea agreement, the

Government agreed to recommend a sentence consistent with the application of a

base offense level of fourteen. The Presentence Investigation Report (“PSR”)

calculated Valgara’s criminal history at V I and his base offense level at tw enty.



      *
        This order and judgment is not binding precedent except under the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.
The base offense level was affected by Valgara’s prior Colorado conviction for

third-degree assault. Valgara filed a response to the PSR, seeking both a

downward departure and a variance from the advisory guidelines range under 18

U.S.C. § 3553(a). The district court low ered Valgara’s Criminal History

Category to V but rejected his request for a variance. The court sentenced

Valgara to forty-six months’ imprisonment, the low end of the advisory guidelines

range. Valgara then filed this appeal, arguing his sentence is unreasonable

because it is greater than necessary to satisfy the goals set forth in 18 U.S.C.

§ 3553(a). Exercising jurisdiction pursuant to 28 U.S.C. § 1291, we affirm

Valgara’s sentence.

II.   Background

      On July 3, 2005, a police officer in G reeley, Colorado, observed Valgara

w alking through the parking lot of the Greeley M all toward a broken-down

vehicle. The officer suspected Valgara was associated with the vehicle and

decided to contact him. During the subsequent encounter between the officer and

Valgara, the officer observed the butt end of a handgun protruding from Valgara’s

waistband. Valgara was arrested at the scene and the unloaded weapon was

seized. W hen Valgara was interviewed, he admitted to possessing the weapon but

told officers he took it from a man w ho had used it to threaten his friend during

an argument. Valgara further stated he w as apprehended only a short time later,

as he walked from the friend’s apartment to his vehicle.

                                          -2-
      A federal grand jury indicted Valgara for possession of a firearm by a felon

in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). Valgara entered into a

written plea agreement wherein he agreed to plead guilty to the charge and the

Government agreed to recommend a three-level reduction in his offense level for

acceptance of responsibility if his offense level exceeded sixteen. Valgara and

the Government also acknowledged that Valgara’s prior Colorado conviction for

third-degree assault would likely be treated as a crime of violence for purpose of

the calculation of his base offense level, resulting in a base offense level of

tw enty. See USSG § 2K2.1(a)(4); United States v. Paxton, 422 F.3d 1203, 1207

(10th Cir. 2005). The G overnment and V algara agreed that “applying a base

offense level of twenty results in a sentence greater than necessary to satisfy the

goals set forth in 18 U.S.C. § 3553(a).” Accordingly, the Government further

agreed to recommend that the district court impose a sentence calculated by

applying a total offense level of twelve.

      A PSR was prepared and it calculated Valgara’s criminal history at

Category VI based on seventeen criminal history points. The PSR calculated

Valgara’s base offense level at twenty, with a three-level reduction for acceptance

of responsibility, resulting in a total offense level of seventeen. Neither V algara

nor the Government filed an objection to the PSR. Valgara, however, filed a

response to the PSR, moving for a downward departure and requesting a sentence

below the advisory guidelines range. In support of his request for a downward

                                            -3-
departure, Valgara argued (1) Criminal History Category VI overrepresented his

criminal history and (2) his family ties and responsibilities were present to an

exceptional degree. In support of his request for a variance based on the

application of 18 U.S.C. § 3553(a), Valgara asked the district court to consider

the nature of the offense and his history and characteristics. See 18 U.S.C.

§ 3553(a)(1). Specifically, Valgara referenced the unusual circumstances

surrounding the crime of conviction, his exemplary behavior while on pretrial

release, his excellent employment history, and his success in overcoming a

drinking problem. He also argued the imposition of a six-level increase in his

base offense level resulted in an unfair sentencing disparity between him and

other defendants sentenced for similar conduct because his Colorado third-degree

assault conviction was not as serious as many other crimes of violence which

trigger the six-level increase. 1 Valgara expressly asked the district court to

sentence him “as if the six-level enhancement did not apply.”

      After considering Valgara’s response, the probation officer who authored

the PSR filed a Sentencing Recommendation adopting the position that Criminal

History Category V better represented Valgara’s criminal history. The

      1
       Although Valgara characterizes his offense level as including a six-level
“increase” or “enhancement” because of his prior assault conviction, his
characterization is incorrect. Pursuant to USSG § 2K2.1(a)(6), a prohibited
person w ithout a prior crime-of-violence conviction is assigned a base offense
level of fourteen. A prohibited person with a prior crime-of-violence conviction,
like Valgara, is assigned a base offense level of twenty pursuant to USSG
§ 2K2.1(a)(4)(A).

                                          -4-
Sentencing Recommendation further recommended the imposition of a forty-six-

month sentence, reasoning that Valgara’s prior sentences of probation and

incarceration had not deterred him from continued criminal behavior. At the

sentencing hearing, the district court adjusted Valgara’s criminal history from

Category VI to Category V, concluding Valgara’s criminal history was

overrepresented. The court, however, determined Valgara’s family ties and

responsibilities were not extraordinary and, accordingly, the court refused to

depart downward based on those grounds. See United States v. M cClatchey, 316

F.3d 1122, 1131 (10th Cir. 2003) (“The fact that a defendant cares for a family

member with a mental or physical disability is not by itself sufficient to make the

circumstances ‘exceptional.’”). The district court also refused to impose a

sentence below the low end of the advisory guidelines range, stating, “The Court

believes that the guideline sentence adequately reflects the balancing of all the

factors specified in Title 18 United States Code Section 3553(a).” The court

sentenced Valgara to forty-six months’ imprisonment, the low end of the advisory

guidelines range based on Criminal History Category V and an offense level of

seventeen. Valgara then brought this appeal, challenging the sentence imposed by

the district court.

III.   Discussion

       This court reviews Valgara’s sentence for reasonableness. United States v.

Booker, 543 U.S. 220, 260-61 (2005). Because “[r]easonableness has both

                                         -5-
procedural and substantive components,” our review “encompasses both the

reasonableness of the length of the sentence, as well as the method by which the

sentence was calculated.” United States v. Cage, 451 F.3d 585, 591 (10th Cir.

2006); United States v. Kristl, 437 F.3d 1050, 1055 (10th Cir. 2006). Valgara

argues his sentence is both procedurally and substantively unreasonable.

A.    Procedural Reasonableness

      Valgara bases his first challenge to the procedural reasonableness of his

sentence on his assertion the district court misapprehended the nature of its

sentencing discretion. After Booker, a sentencing court must consider both the

properly calculated guidelines range and the sentencing factors articulated in 18

U.S.C. § 3553(a). See United States v. Lynch, 397 F.3d 1270, 1272 (10th Cir.

2005). At sentencing, Valgara did not challenge the calculation of his base

offense level pursuant to USSG § 2K2.1(a)(4)(A). See Paxton, 422 F.3d at 1207

(holding Colorado’s third degree assault statute is a crime of violence under

USSG § 4B1.2(a)(2)); USSG § 2K2.1 cmt. n.1 (stating the term “crime of

violence” for purposes of the base offense level of twenty set out in § 2K1.2(a)(4)

“has the meaning given that term in § 4B1.2(a) and Application Note 1 of the

Commentary to § 4B1.2”). Valgara, however, argued he should be sentenced

below the advisory guidelines range based on a consideration of the § 3553(a)

factors.




                                         -6-
      Section 3553(a)(6) requires district courts to consider “the need to avoid

unwarranted sentencing disparities among defendants with similar records who

have been found guilty of similar conduct.” 18 U.S.C. § 3553(a)(6). Valgara

argued his prior conviction for third-degree assault was a relatively minor offense

and contrasted sharply with the more serious nature of other crimes triggering the

application of the base offense level of twenty under U SSG § 2K2.1(4)(A). See

United States v. Trujillo-Terrazas, 405 F.3d 814, 819-20 (10th Cir. 2005)

(concluding that an analysis of the factors set out in § 3553(a) properly includes

consideration of the factual nature of prior convictions). V algara asserted his

situation is more analogous to that of a prohibited person 2 without a prior crime-

of-violence conviction subsequently convicted of violating 18 U.S.C. § 922(g)(1).

Accordingly, he urged the district court to sentence him as though a base offense

level of fourteen applied, arguing such a sentence would achieve the objective of

imposing uniform sentences on defendants convicted of similar conduct. See

USSG § 2K2.1(a)(6) (assigning a base offense level of fourteen to prohibited

persons convicted of unlawful possession of a firearm).

      The district court denied Valgara’s request, stating:

      The Base Offense Level is 20. There is simply no way to avoid that.
      To do as the parties are suggesting here would be just a flagrant
      misapplication of the guidelines. The Tenth Circuit is very clear,
      this is a crime of violence, and we might as well toss the guidelines

      2
       For purposes of §2K2.1(a)(4) and (a)(6), a prohibited person is “any
person described in 18 U.S.C. § 922(g) or § 922(n).” USSG § 2K2.1, cmt. n.3.

                                         -7-
      out the w indow if w e don’t apply them in an intellectually honest
      manner. A nd I just don’t think that’s intellectually honest.

Valgara argues the district court’s statement “evidences a complete

misapprehension of the discretion that Booker explicitly restored to sentencing

judges.” W e disagree. A review of the complete transcript of the sentencing

hearing demonstrates the district court was fully aware of its sentencing

discretion and its obligation to consider the factors set forth in 18 U.S.C.

§ 3553(a). Valgara, quite simply, was asking the district court to use that

discretion as an end-run around the application of USSG § 2K2.1(a)(4)(A) by

applying a guidelines range identical to one calculated without regard to his prior

third-degree assault conviction. The court’s comment at sentencing reflects the

court’s view that such an approach would be tantamount to wholly ignoring the

effect of Valgara’s prior conviction on the calculation of his base offense level

and, hence, his advisory guidelines range. The district court was unwilling to

take this approach, concluding it would be a “flagrant misapplication of the

guidelines” and a disregard of circuit precedent. The court’s refusal to exercise

its discretion in the manner sought by Valgara was not procedurally unreasonable.

      Valgara also argues the district court failed to adequately explain its

reasoning for denying him a variance from the advisory guidelines range. After

entertaining all Valgara’s arguments, the court stated,

      The defendant has moved for an imposition below the guideline
      range recommended by the Sentencing Commission on the grounds

                                          -8-
      that the statutory factors do not justify following the guidelines here.
      The Court disagrees with the exception of the guideline departure for
      overrepresentation of his criminal history. The Court believes that
      the guideline sentence adequately reflects the balancing of all the
      factors specified in Title 18 United States Code Section 3553(a).

Because Valgara did not raise this procedural challenge during the sentencing

hearing, the issue is reviewed for plain error. See United States v. Ruiz-Terrazas,

477 F.3d 1196, 1199 (10th Cir. 2007). Thus, Valgara must demonstrate “(i) error,

(ii) that is plain, which (iii) affects [his] substantial rights, and which (iv)

seriously affects the fairness, integrity, or public reputation of judicial

proceedings.” Id. It is unnecessary for this court to analyze all four plain error

factors because it is clear the district court did not commit error when it sentenced

Valgara.

      W e have recently held that “a specific discussion of Section 3553(a) factors

is not required for sentences falling within the ranges suggested by the

Guidelines.” Id. at 1202. Because Valgara does not dispute his sentence falls

within a properly calculated guideline range, the district court was not required to

specifically explain why it rejected each argument he made in support of his

request for a below-guidelines sentence. See United States v. Jarrillo-Luna, 478

F.3d 1226, 1230 (10th Cir. 2007) (“[A] district court’s duty to explain why it

chose the given sentence does not also require it to explain w hy it decided against

a different sentence.”). It is clear from the record, including the district court’s

statement, that the court considered Valgara’s arguments, the Guidelines, and the

                                            -9-
factors set forth in 18 U.S.C. § 3553(a). Thus, the court satisfied its procedural

obligation to indicate it did not “rest on the guidelines alone, but considered

whether the guideline sentence actually conforms, in the circumstances to the

statutory factors.” Id. (quotation omitted). Accordingly, Valgara has not show n

the sentence imposed by the district court was procedurally unreasonable.

B.    Substantive Reasonableness

      Valgara concedes his sentence falls within a properly calculated guidelines

range but nevertheless argues it is substantively unreasonable. W hen a district

court “correctly applies the Guidelines and imposes a sentence within the

applicable Guidelines range, that sentence is entitled to a rebuttable presumption

of reasonableness.” United States v. Townley, 472 F.3d 1267, 1276 (10th Cir.

2007) (quotation omitted). Consistent with Booker, our “[r]easonableness review

is guided by the factors set forth in 18 U.S.C. § 3553(a).” Kristl, 437 F.3d at

1053. Those factors “include the nature of the offense and characteristics of the

defendant, as well as the need for the sentence to reflect the seriousness of the

crime, to provide adequate deterrence, to protect the public, and to provide the

defendant with needed training or treatment.” Id. Valgara presents several

arguments that his sentence is unreasonable in light of the § 3553(a) factors,

including (1) his criminal history overstates the seriousness of his criminal past

and is not predictive of future recidivism, (2) his Social Security records indicate

he has an excellent employment history, (3) he is the sole source of support for

                                         -10-
his wife and four children, (4) the crime of conviction was atypical because the

gun was not loaded and it was not used in the commission of another offense, and

(5) his criminal activity ceased three years ago when he addressed his alcohol

abuse problem. H aving review ed and considered Valgara’s arguments, we

conclude they are insufficient, both individually and in the aggregate, to rebut the

presumption of reasonableness regarding his sentence. 3

IV.   Conclusion

      The sentence imposed by the district court is both procedurally and

substantively reasonable. A ccordingly, the judgment of the district court is

affirmed.

                                       ENTERED FOR THE COURT



                                       M ichael R. M urphy
                                       Circuit Judge




      3
      Even in the absence of the Kristl presumption, we would conclude
Valgara’s sentence is substantively reasonable.

                                         -11-
