                                                                       F I L E D
                                                                United States Court of Appeals
                                                                        Tenth Circuit

                                                                     October 13, 2006
                      UNITED STATES CO URT O F APPEALS              Elisabeth A. Shumaker
                                                                        Clerk of Court
                                   TENTH CIRCUIT



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

          Plaintiff-Appellee,
                                                         No. 05-2160
 v.                                               (D.C. No. CR -04-2388 JP)
                                                          (D . N.M .)
 JU A N LU IS G U TIER REZ-PA LM A,

          Defendant-Appellant.



                                OR DER AND JUDGM ENT *


Before HA RTZ, M CCO NNELL, and GORSUCH, Circuit Judges.


      Appellant Juan Luis Gutierrez-Palma seeks reversal of his sentence for

illegally reentering the United States after a previous deportation and a prior

aggravated felony conviction. For the reasons outlined below, we affirm.

                                          I.

      M r. Gutierrez-Palma has had regular contact with law enforcement since

1993 when he turned 18. M ost pertinently for our purposes, M r. Gutierrez-Palma




      *
       This Order and Judgment is not binding precedent, except under the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, but they may be cited
under the terms and conditions of 10th Cir. R. 36.3.
was convicted of possession with intent to distribute cocaine in Colorado in 1994,

found to be in the United States illegally, and subsequently deported to his home

country of M exico. He returned to this country, again illegally, and continued to

encounter law enforcement, with convictions for driving under the influence of

alcohol and assaulting his wife with a handgun. Eventually, authorities charged

M r. Gutierrez-Palma for his second illegal entry into the United States and, on

February 3, 2005, he pled guilty to this charge. See 8 U.S.C. §§ 1326(a)(1),

(a)(2), and (b)(2).

      At sentencing, the District Court calculated that M r. Gutierrez-Palma

qualified for a criminal history category VI and a total offense level of 21 under

the Sentencing G uidelines, including a 16-level enhancement pursuant to U.S.S.G .

§ 2L1.2(b)(1)(A)(i) for a prior drug trafficking felony. The resulting sentence

suggested by the G uidelines: between 57 and 71 months. The D istrict Court

opted to impose a sentence at the bottom end of this range, 57 months, despite

M r. Gutierrez-Palma’s request for a low er sentence still. The D istrict Court

declined M r. Gutierrez-Palma’s request for additional leniency explaining that it

was troubled by, among other things, M r. Gutierrez-Palma’s recent third-degree

assault conviction for threatening his wife with a gun and his repeated contact

with law enforcement.




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                                         II.

      M r. Gutierrez-Palma does not dispute the accuracy of the D istrict Court’s

Guidelines calculations but advances three other arguments meriting mention

here: (1) sentences calculated by reference to the Guidelines should not be

presumed to qualify as “reasonable” under the terms of U nited States v. Booker,

543 U.S. 220 (2005); (2) the United States Sentencing Commission’s decision to

recommend a 16-level enhancement for certain prior felony drug trafficking

convictions was arbitrary and too punitive and therefore per se unreasonable

under Booker; and (3) other courts have imposed sub-Guidelines sentences for

similarly situated defendants. W e consider each point in turn.

                                        A.

      Following the Supreme Court’s directive in Booker, we assess sentences for

their “reasonableness.” See 543 U.S. at 261, 264. But this enterprise, we have

explained, ought not be entirely rudderless; instead, our review is guided by the

factors set forth in 18 U.S.C. § 3553(a), which include, among other things, 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. United States v. Kristl, 437 F.3d 1050, 1053 (10th Cir.

2006). M r. Gutierrez-Palma suggests that our review under Section 3553(a)

should be conducted without any deference afforded to those sentences falling

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within the Guidelines’s recommended ranges. But, in the months since Booker,

we have already had occasion to consider, and reject, precisely this invitation.

Instead, recognizing that the Guidelines embody the policy guidance of the

Congress and also serve as a bulwark against vastly divergent sentences for

similarly situated defendants, we have held that sentences falling within

applicable Guidelines ranges are to be treated as presumptively reasonable.

Kristl, 437 F.3d at 1054-55.

                                        B.

      M r. Gutierrez-Palma next contends that the Sentencing Commission’s

decision in U.S.S.G. § 2L1.2(b)(1)(A)(i) to endorse a 16-level enhancement for

prior certain felony drug-trafficking convictions w as arbitrarily reached and is

unduly harsh; accordingly, M r. Gutierrez-Palma argues, the D istrict Court’s

application of such an enhancement was per se “unreasonable” under Booker.

Again, however, this argument is foreclosed by our post-Booker case law. W e

have explained that the moving party -- here, M r. Gutierrez-Palma -- bears the

burden of rebutting the presumption of reasonableness attaching to a G uidelines-

based sentence. See Kristl, 437 F. 3d at 1054-55. W e have further explained that

the moving party must demonstrate the unreasonableness of a Guidelines-based

sentence with specific reference to the factors delineated in Section 3553(a) and

the facts of the case at hand. See United States v. Cage, 451 F.3d 585, 591, 594-

95 (10th Cir. 2006). In his argument that the 16-level enhancement prescribed by

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the G uidelines is per se unreasonable, however, M r. Gutierrez-Palma has

expressed a simple (if strong) policy disagreement with the Sentencing

Commission’s penal choices, seeking to overturn not a single sentence but all

sentences rendered pursuant to U.S.S.G. § 2L1.2(b)(1)(A)(i). Such complaints are

better directed at those entities -- Congress and the Commission -- charged with

making the necessarily difficult decisions about the proper intersection between

penal policy and immigration enforcement, decisions that often involve the

weighing of competing and incommensurable social objectives such as deterring

unlawful immigration by repeat criminal offenders and husbanding the limited

resources of the criminal justice system, to name just two. It is not our role to

substitute our policy views about such matters for those of elected officials or

their designees. Instead, we will look behind a sentence that conforms with the

Guidelines only in cases where the moving party demonstrates that the sentence,

under the particularized facts and circumstances of the case at hand, fails fairly to

account for the nature and circumstances of the defendant’s particular offense, his

or her criminal history, and the other case-specific Section 3553(a) factors

Congress has charged us with applying. 1




      1
       “W e reject the concept that we, as judges, should determine
‘reasonableness’ under § 3553(a) without reference to the fact that the Guidelines
represent a critical advisory aspect of the § 3553(a) factors . . . . Booker should
not be interpreted to exempt appellate courts from the influence of Congress's
sentiments about reasonableness in sentencing.” Cage, 451 F.3d at 594.

                                         -5-
                                        C.

      Finally, M r. Gutierrez-Palma argues that other courts have imposed much

lower, sub-Guidelines sentences for similarly situated defendants and that this

fact should inform the Court’s evaluation of his sentence. W hile this may be an

appropriate case-specific argument for our evaluation under Section 3553(a), M r.

Gutierrez-Palma fails to point us to a truly comparable case suggesting an

inequity in his.

      M r. Gutierrez-Palma relies primarily on United States v. Perez-Nunez, 368

F. Supp. 2d 1265 (D. N.M . 2005), where the defendant received a 24-month

sentence for an illegal reentry, rather than, as here, 57 months. W hile there is no

gainsaying that similarities exist between Perez-Nunez and this case, the District

Court’s careful analysis of this case reveals dispositive differences. For example,

M r. Gutierrez-Palma was previously convicted of the felony of possession with

intent to distribute cocaine; before his first deportation, M r. Perez-Nunez was

convicted merely of a misdemeanor -- one involving throwing a rock through the

rear window of a sports-utility vehicle after the driver attempted to run him over

four times. Id. at 1266. Indeed, it was precisely the “relatively benign” nature of

the misdemeanor Perez-Nunez committed that convinced the District Court in his

case to adopt a sub-Guidelines sentence. Id. at 1269. M r. Gutierrez-Palma also

has a recent conviction for assaulting his wife with a gun; we have been pointed

to no similar blemish in M r. Perez-Nunez’s record. The D istrict Court in our case

                                        -6-
noted (and appellant does not dispute) that M r. Gutierrez-Palma has had

continuous contact with law enforcement since the age of 18; again, appellant has

cited no such comparable evidence in Perez-N unez.

                                         ***

      M r. Gutierrez-Palma complains that “the nature and circumstances of the

offense” -- involving the illegal entry into this country for a second time after the

comm ission of an aggravated felony here -- “are unremarkable in all respects.”

Aplt. Br. at 13. However that may be, M r. Gutierrez-Palma has supplied us w ith

no reason to conclude that the sentence he received was itself anything other than

unremarkable -- consistent with the low-end of the Guidelines and imposed by the

District Court only after a careful review of the pertinent Section 3553(a) factors,

including his individualized criminal history. Accordingly, the judgment of the

District Court is AFFIRM ED.


                                        ENTERED FOR THE COURT


                                        Neil M . Gorsuch
                                        Circuit Judge




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