                                                                       F I L E D
                                                                United States Court of Appeals
                                                                        Tenth Circuit
                    UNITED STATES CO URT O F APPEALS
                                                                        May 3, 2007
                                TENTH CIRCUIT                       Elisabeth A. Shumaker
                                                                        Clerk of Court

 UNITED STATES OF AM ERICA,
               Plaintiff–Appellee,                       No. 06-4127
          v.                                      (Case No. 1:05-CR -88-TS)
 NARCESO M ORA-PEREZ, a.k.a.                               (D. Utah)
 Inocente Santos-Benitez,
               Defendant–Appellant.



                           OR D ER AND JUDGM ENT *


Before BR ISC OE, M cKA Y, and M cCO NNELL, Circuit Judges.


      Defendant pled guilty to illegal re-entry of a deported alien in violation of

8 U.S.C. § 1326. Defendant did not object to the presentence report’s calculation

of a Guidelines range of 46 to 57 months, but he requested either a downward

departure under the Guidelines or a reduced sentence under 18 U.S.C. § 3553(a)

based on his mental illness. The district court rejected this argument and imposed

a sentence at the bottom of the Guidelines range. On appeal, Defendant


      *
        This order and judgment is not binding precedent, except under the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.
      After examining the briefs and the appellate record, this panel has
determined unanimously to honor the parties’ request for a decision on the briefs
without oral argument. See Fed. R. App. P. 34(f). The case is therefore ordered
submitted without oral argument.
challenges the procedural and substantive reasonableness of his sentence.

      Defendant argues that his sentence is procedurally unreasonable because

the court provided an “unreasoned and unsupported” explanation for its

conclusion that the § 3553(a) factors did not justify a lower sentence in this case.

(Def’s Br. at 3, 6.) Defendant failed to object below to the “procedure by which

his sentence was determined and explained,” so we review the court’s judgment

for plain error. United States v. Ruiz-Terrazas, 477 F.3d 1196, 1199 (10th Cir.

2007). “Plain error occurs w hen there is (i) error, (ii) that is plain, which (iii)

affects substantial rights, and which (iv) seriously affects the fairness, integrity,

or public reputation of judicial proceedings.” Id.

      After reviewing the record, we conclude that the district court did not

plainly err in the method by which it determined and explained Defendant’s

sentence. In response to Defendant’s argument that he should receive a lower

sentence because prisons are ill-equipped to deal with mentally ill inmates, the

court concluded that a lesser sentence w as not justified in this case, based in part

on the court’s opinion that “this defendant would be better served, at least for

purposes of treating his mental illness, while he is incarcerated than he would be

if he w as sent back to M exico under the conditions that he fled from.” (R. Vol. II

at 9.) Defendant contends that there is no support in the record for the court’s

conclusion that he w ould receive better treatment in prison than in M exico. In

considering this argument, it is important to remember the context of the court’s

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statement. The court did not conclude that a higher sentence than usual was

justified because Defendant would receive better medical treatment in prison than

he w ould if released; rather, the court concluded that Defendant’s mental illness

did not justify imposing a sentence below the Guidelines range. Thus, we will not

find plain error unless we are convinced that the court should have sentenced

Defendant to a below-Guidelines sentence.

      W hile it may be true that Defendant will not receive better treatment in

prison than in M exico, the record supports a conclusion that the treatment

Defendant will receive in prison will be no worse than what he would receive in

M exico. The psychologist who evaluated D efendant stated that Defendant’s

medical condition was being appropriately treated, and he did not suggest that any

alternative or additional treatment would be appropriate. W hen asked by the

judge about the likelihood of Defendant receiving appropriate medical treatment

in M exico, counsel simply indicated that Defendant “could get” in M exico the

same medication that he was already receiving in custody. Defendant submitted

evidence regarding the general inadequacy of prisons to deal with mentally ill

prisoners, but the record supports a conclusion that Defendant himself was

receiving adequate treatment. We thus conclude that Defendant’s condition did

not justify a lower sentence than would normally be appropriate and, accordingly,

that any error in the district court’s statement did not affect Defendant’s

substantial rights. Furthermore, we note that the district court carefully

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considered Defendant’s psychiatric history, the possibility that his mental

disorder might have been caused by drug abuse, and the § 3553(a) factors before

imposing a sentence. W e therefore conclude that Defendant’s sentence is

procedurally reasonable.

      Defendant argues that his sentence is substantively unreasonable because it

is excessive under the circumstances of the case. W hen a sentence, as here, is

within the Guidelines, it is presumed reasonable and is reviewed for

unreasonableness under the factors set forth in 18 U.S.C. § 3553(a). United

States v. Kristl, 437 F.3d 1050, 1054-55 (10th Cir. 2006). For the reasons

discussed above, we conclude that Defendant has not rebutted his Guidelines

sentence’s presumption of reasonableness. Defendant’s mental disorder is being

appropriately treated, and he does not argue that his sentence is unreasonable for

any other reason. Even without the Kristl presumption, we would still conclude

that D efendant’s sentence is reasonable in light of all of the § 3553(a) factors.

Accord United States v. Ruiz-Terrazas, 477 F.3d 1196 (10th Cir. 2007).

      AFFIRM ED.



                                                Entered for the Court



                                                M onroe G. M cKay
                                                Circuit Judge



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