                                                                         FILED
                                                             United States Court of Appeals
                                                                     Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                 September 25, 2008
                                 TENTH CIRCUIT
                            __________________________           Elisabeth A. Shumaker
                                                                     Clerk of Court

 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,
                                                        No. 08-2003
 v.                                            (D.Ct. No. 1:07-cr-00059-BB-1)
                                                          (D. N.M.)
 JOEL PEREIRA-RICO,

          Defendant-Appellant.
                       ______________________________

                                ORDER AND JUDGMENT *


Before BARRETT, ANDERSON, and BRORBY, 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.



      Appellant Joel Pereira-Rico pled guilty to one count of illegal reentry of a

deported alien in violation of 8 U.S.C. § 1326(a) and (b)(2). He now appeals his

      *
         This order and judgment is not binding precedent except under the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.
fifty-seven-month sentence, arguing it is unreasonable under the 18 U.S.C.

§ 3553(a) sentencing factors due to the over-representation of his criminal history

and the district court’s failure to consider his personal history and characteristics,

such as his military service to this country; his addiction to crack cocaine while

serving in the military; and his family circumstances, including his mother’s

illness, which compelled him to illegally reenter the United States in order to see

her. We exercise jurisdiction pursuant to 18 U.S.C. § 3742(a) and 28 U.S.C.

§ 1291 and affirm Mr. Pereira-Rico’s sentence.



                              I. Procedural Background

      On October 24, 2006, during a traffic stop conducted by a United States

border patrol agent, Mr. Pereira-Rico admitted he was a citizen of Mexico

illegally present in this country. On July 5, 2007, Mr. Pereira-Rico pled guilty to

one count of illegal reentry of a deported alien in violation of 8 U.S.C. § 1326(a)

and (b)(2). Following his guilty plea, a probation officer prepared a presentence

report calculating his sentence under the applicable United States Sentencing

Guidelines (“Guidelines” or “U.S.S.G.”). The probation officer set Mr. Pereira-

Rico’s base offense level at eight, pursuant to U.S.S.G. § 2L1.2(a), and increased

his offense level sixteen levels, pursuant to § 2L1.2(b)(1)(A)(ii), because he had

previously been deported following a conviction for a crime of violence – a 1992

second-degree robbery offense for which he received a two-year sentence and was

                                          -2-
subsequently deported on July 30, 2001. In an addendum to the presentence

report, the probation officer noted Mr. Pereira-Rico had been deported twice: on

or about July 30, 2001, and on or about October 20, 2006.



      In calculating Mr. Pereira-Rico’s sentence, the probation officer

recommended a three-level offense reduction for acceptance of responsibility, for

a total offense level of twenty-one, which, together with his criminal history

category of IV, resulted in a recommended Guidelines range of fifty-seven to

seventy-one months imprisonment. Finally, the probation officer stated that after

assessing Mr. Pereira-Rico’s criminal and social history, and the factors in 18

U.S.C. § 3553, no circumstances, either individually or collectively, took him out

of the heartland of cases of similarly-situated defendants, and therefore no

departure or variance issues existed.



      Mr. Pereira-Rico filed a sentencing memorandum and motion for a

downward departure, arguing a sixteen-level enhancement was inappropriate

under the sentencing factors in 18 U.S.C. § 3553(a) based on both his criminal

history and other personal history and characteristics. As to his criminal history,

Mr. Pereira-Rico argued his prior 1992 California conviction for second degree

robbery was not a “crime of violence” because he was only nineteen years old at

the time, merely brandished a BB-gun during the robbery, and the robbery

                                         -3-
occurred when he and an acquaintance argued about drugs and Mr. Pereira-Rico

told him to give him everything he had, which was only seven dollars. He also

explained his second robbery conviction, in 1994, occurred when his female

companion, with whom he had been smoking crack for three days, attempted to

steal his crack and he took her money, which only amounted to three dollars. He

next explained his 1996 California conviction for possession of a controlled

substance was based on his possession of only three dollars’ worth of crack

cocaine, and that he entered a plea offer for a six-year sentence because of

California’s third-strike rule. Finally, Mr. Pereira-Rico asserted he was not

deported for his robbery convictions, but for his controlled substance conviction,

so that the sixteen-level increase should not be applied, and his criminal history

was over-represented because his first robbery conviction was fifteen years old

and the other convictions were at least ten years old.



      With regard to his personal history and characteristics, Mr. Pereira-Rico

explained he was three years old when he came to the United States, his extended

family lives in the United States, he was educated in the United States, and he

served in the United States Army from 1991 until his 1992 dishonorable discharge

following his armed robbery conviction. He also claimed he became addicted to

crack cocaine while serving in the military, he lived and worked in Mexico

following his removal from this country in 2001, he has been drug free since his

                                         -4-
release from prison in 2001, and he only returned to the United States because he

received word his mother was ill and dying, but he was arrested prior to seeing

her.



       The probation officer prepared a response to Mr. Pereira-Rico’s request for

a downward departure, pointing out both of his robberies constituted “crimes of

violence” under U.S.S.G. § 2L1.2, which explicitly lists “robbery” as a “crime of

violence,” and that regardless of whether his prior deportations occurred as a

result of, or in response to, his controlled substance conviction, his deportations

nevertheless occurred subsequent to his robbery convictions, which, under the

application note to § 2L1.2, qualified them as countable offenses in applying the

sixteen-level enhancement. The probation officer also disagreed with Mr.

Pereira-Rico’s assertion that his criminal history was over-represented, noting

that regardless of whether his offenses involved the robbery of crack addicts for

small amounts of money or possession of three dollars’ worth of crack cocaine,

they were still serious offenses which resulted in terms of incarceration of at least

two years and, when taken together with his other criminal offenses, showed a

continuous and lengthy pattern of criminal activity.



       Mr. Pereira-Rico raised the same criminal and personal history and

characteristics arguments at his sentencing hearing and asserted his entering this

                                         -5-
country to see his ill mother should take his case out of the heartland of most

illegal reentry after deportation cases. The district court responded, stating:

      Well sadly, I see this type of factual situation all too frequently. It’s
      not uncommon that people come back into this country to see
      relatives, particularly when they were raised here. This has divided a
      lot of families. This situation is not all that abnormal. I am
      sympathetic, although the fact that [Mr. Pereira-Rico] has robbed
      other crack users on various occasions is really not a plus on his
      resume, nor is his dishonorable discharge.

R., Vol. 3 at 8. Mr. Pereira-Rico also contested that he was deported in October

2006. The district court responded that it did not make any difference to it

whether Mr. Pereira-Rico was deported once or twice, or the dates of the

deportations, given their timing and dates would not impact the properly-

calculated Guidelines range of fifty-seven to seventy-one months imprisonment

and its intent to sentence him at the low end of the Guidelines range.



      After hearing and considering both parties’ arguments, the district court

stated:

      As I said, this is – I’m afraid, is really not that far from the
      heartland. The guidelines are no longer mandatory, but there is a
      pretty typical pattern. I’m afraid the consequences are severe
      because of his category [IV] criminal history. I can’t remain
      consistent within the Sentencing Guidelines and depart on this case.
      I have reviewed the presentence report factual findings and
      considered the Sentencing Guidelines. I’ve also considered 18
      [U.S.C.] § 3553. And if you had a better criminal history category,
      Mr. Pereira-Rico, I’d like to find a way in that statute to give you a
      lesser sentence. But I haven’t been able to do it, given your
      background.

                                          -6-
Id. at 9. The district court then sentenced Mr. Pereira-Rico at the low end of the

Guidelines range to fifty-seven months imprisonment.



                                    II. Discussion

      On appeal, Mr. Pereira-Rico argues the district court’s imposition of a

sixteen-level increase in his offense level, pursuant to U.S.S.G. § 2L1.2(b)(1)(A),

is unreasonably harsh under the 18 U.S.C. § 3553(a) sentencing factors when

viewed together with the circumstances surrounding the over-representation of his

criminal history and other personal history and characteristics he previously

raised, including his illegal reentry for the purpose of seeing his ill mother. He

argues the district court “should have considered the facts and circumstances

behind [his] decision to enter the United States along with his history in and

assimilation to the United States and his service in the military ....” Apt. Br. at 8.

He now clarifies his oldest release date occurred fourteen years ago, not fifteen

years ago, as stated in his motion, and that all of his convictions were at least

nine, not ten, years old at the time of his arrest on the current charge. 1 He also

relies on U.S.S.G. § 4A1.3 to argue the district court is authorized to grant

      1
         Under § 4A1.2, any prior sentence of imprisonment exceeding one year
and one month imposed within fifteen years of the defendant’s commencement of
the instant offense may be counted in calculating the sentence. In this case, Mr.
Pereira-Rico received a two-year sentence for his 1992 robbery conviction, was
paroled on April 23, 1993, and committed the instant offense of illegal reentry on
October 24, 2006. Thus, it appears his prior 1992 conviction falls within the
fifteen-year limit, as does, alternatively, his 1994 robbery conviction.

                                          -7-
downward departures when a defendant’s criminal history is significantly less

serious than most other defendants, which he implies is applicable to him. He

concludes by stating “[t]he circumstances of the instant offense is [sic] such that a

downward departure was warranted and the Court erred in not granting the

downward departure.” Id. at 19.



      We begin our discussion by clarifying that a sentence above or below the

recommended Guidelines range based on application of Chapters Four or Five of

the Guidelines is referred to as a “departure,” while a sentence above or below the

recommended Guidelines range through application of the sentencing factors in

18 U.S.C. § 3553(a) is called a “variance.” United States v. Atencio, 476 F.3d

1099, 1101 n.1 (10th Cir. 2007). In filing his sentencing memorandum and

motion for a downward departure, Mr. Pereira-Rico did not argue for a downward

departure by explicit reference or application of Chapters Four or Five of the

Guidelines, such as U.S.S.G. § 4A1.3, as referenced in his appeal, or U.S.S.G.

§ 5H1.6, relating to family ties and responsibilities, but, instead, appears to have

relied primarily on the 18 U.S.C. § 3553(a) factors, which are applied for a

variance, in arguing the circumstances of his criminal history and other history

and characteristics warranted a downward departure. To the extent Mr. Pereira-

Rico argued for a downward departure, which the district court denied when it

stated it could not “remain consistent within the Sentencing Guidelines and depart

                                          -8-
on [his] case,” we lack “jurisdiction ... to review a district court’s discretionary

decision to deny a motion for downward departure on the ground that a

defendant’s circumstances do not warrant the departure ... unless the court

unambiguously states that it lacks such discretion.” United States v. Sierra-

Castillo, 405 F.3d 932, 936 (10th Cir. 2005). However, even if we lack

jurisdiction to review the denial of a downward departure, we retain jurisdiction

to review a sentence for reasonableness under the § 3553(a) factors, taking into

account the defendant’s asserted grounds for departure when conducting a

reasonableness review. See United States v. Chavez-Diaz, 444 F.3d 1223, 1229

(10th Cir. 2006). After a review of the record and the pleadings contained therein

which raise grounds linked to the reasonableness of Mr. Pereira-Rico’s sentence

under § 3553(a), we give Mr. Pereira-Rico the benefit of a review of his sentence

for reasonableness.



      We review a sentence for reasonableness, giving deference to the district

court under an abuse of discretion standard. See United States v. Smart, 518 F.3d

800, 802, 805-06 (10th Cir. 2008). “Our appellate review for reasonableness

includes both a procedural component, encompassing the method by which a

sentence was calculated, as well as a substantive component, which relates to the

length of the resulting sentence.” Id. at 803. In determining whether the district

court properly applied the Guidelines in calculating the sentence, we review its

                                          -9-
legal conclusions de novo and its factual findings for clear error. See United

States v. Kristl, 437 F.3d 1050, 1054 (10th Cir. 2006) (per curiam). In addition,

“[i]n Gall, the Supreme Court identified ‘failing to consider the § 3553(a) factors’

and ‘failing to adequately explain the chosen sentence’ as forms of procedural

error.” Smart, 518 F.3d at 803 (quoting Gall v. United States, __ U.S. __, 128 S.

Ct. 586, 597 (2007)). On the other hand, “[a] challenge to the sufficiency of the

§ 3553(a) justifications relied on by the district court implicates the substantive

reasonableness of the resulting sentence.” Id. at 804.



      If the sentence is within the correctly-calculated Guidelines range we may

apply a presumption of reasonableness. See Kristl, 437 F.3d at 1054. The

defendant or the government may rebut this presumption by demonstrating the

sentence is unreasonable when viewed under the § 3553(a) factors. See id. at

1054-55. The § 3553(a) factors include not only “the nature of the offense,” but

the history 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. at 1053; see also 18 U.S.C. § 3553(a).



      With these principles in mind, we turn to Mr. Pereira-Rico’s appeal and the

procedural reasonableness of his sentence. While Mr. Pereira-Rico complains the

                                         -10-
district court should not have applied a sixteen-level offense increase under

§ 2L1.2(b)(1)(A)(ii), it is clear he was previously deported after conviction of a

crime of violence when he was convicted of the felony offense of robbery. Under

the Guidelines application note, “robbery” is explicitly included in the list of

offenses constituting a “crime of violence” for the purpose of applying the

sixteen-level increase. See U.S.S.G. § 2L1.2, cmt. n.1. The fact Mr. Pereira-Rico

used a weapon in the course of one of his robberies only further supports a

determination the conviction was for a crime of violence. Under § 2L1.2, it is

also immaterial whether Mr. Pereira-Rico was deported in conjunction with his

cocaine possession conviction, instead of his robbery conviction, because under

the Guidelines, “[a] defendant shall be considered to be deported after a

conviction if the deportation was subsequent to the conviction, regardless of

whether the deportation was in response to the conviction.” U.S.S.G. § 2L1.2,

cmt. n.1. For these reasons, the district court properly applied

§ 2L1.2(b)(1)(A)(ii) in calculating Mr. Pereira-Rico’s sentence.



      As to the other procedural reasonableness considerations, the district court

explicitly stated it considered the 18 U.S.C. § 3553(a) factors, and, despite Mr.

Pereira-Rico’s contrary claims, it clearly considered the facts and circumstances

behind his decision to enter the United States, along with his history, including

his assimilation into the United States and his military service, when it explained

                                         -11-
his sentence. Specifically, it stated that while it was sympathetic to his family

circumstances, it is not uncommon for defendants, like him, to “come back into

this country to see relatives” and that a lesser sentence was not warranted when

his family circumstances were viewed in conjunction with his “background,”

including the fact he “robbed other crack users on various occasions,” was

dishonorably discharged from the military, and had an extensive criminal history,

resulting in a criminal history category of IV. Because the district court properly

applied U.S.S.G. § 2L1.2(b)(1)(A), considered the § 3553(a) factors in addressing

Mr. Pereira-Rico’s arguments, and addressed those arguments when it explained

the chosen sentence, we cannot discern any form of procedural error or that his

sentence was otherwise improperly calculated. Thus, Mr. Pereira-Rico’s sentence

is within the correctly-calculated Guidelines range, to which we may apply a

presumption of reasonableness.



      Mr. Pereira-Rico must rebut this presumption by demonstrating his

sentence is unreasonable in light of the sentencing factors in § 3553(a). However,

Mr. Pereira-Rico has not demonstrated his history and characteristics, including

his criminal history and family circumstances, are sufficiently compelling for the

purpose of making his fifty-seven-month sentence unreasonable. As the district

court suggested, neither the social standing of his victims nor the monetary

amounts obtained when he robbed them mitigates the fact he committed those

                                         -12-
robberies, which are considered serious offenses. Neither will we second-guess

the district court’s discretion by rehashing the underlying facts surrounding Mr.

Pereira-Rico’s prior felony convictions for robbery or possession of cocaine,

especially where he pled guilty to both the 1992 robbery and the cocaine

possession charges; received sentences of at least two years in each instance; and

presented arguments regarding the over-representation of his criminal history,

which the district court considered and rejected, pointing to his extensive criminal

background, mentioning the existence of a “pretty typical pattern,” and indicating

it would have given him a lesser sentence if he had a better criminal history. Mr.

Pereira-Rico has also not demonstrated, as claimed on appeal, that his criminal

history is significantly less serious than most other defendants charged with the

same offense.



      As the district court pointed out, Mr. Pereira-Rico’s dishonorable discharge

from the military only one year after his enlistment is not a particularly

persuasive factor. In addition, Mr. Pereira-Rico’s family circumstance is but one

of the factors the district court considered, and it is clear it determined his

criminal history and the other § 3553(a) factors outweighed such family

circumstance. Finally, the reentry of an ex-felon into this country is considered a

serious offense for which Congress has imposed a statutory maximum sentence of

twenty years. See 8 U.S.C. § 1326(b)(2). Under these circumstances, we cannot

                                          -13-
say Mr. Pereira-Rico has sufficiently rebutted the presumption his sentence is

reasonable or that the district court otherwise abused its discretion in imposing a

sentence at the bottom of the applicable Guidelines range, resulting in a sentence

of fifty-seven months imprisonment.



                                  III. Conclusion

      For these reasons, we AFFIRM Mr. Pereira-Rico’s sentence.

                                       Entered by the Court:


                                       WADE BRORBY
                                       United States Circuit Judge




                                         -14-
