                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                    UNITED STATES COURT OF APPEALS
                                                                          May 3, 2006
                                 TENTH CIRCUIT                        Elisabeth A. Shumaker
                                                                         Clerk of Court

 UNITED STATES OF AMERICA,

               Plaintiff - Appellee,                    No. 05-3434
          v.                                            (D. Kansas)
 GERARDO RUBEN SALGADO-                        (D.C. No. 04-CR-20103-JWL)
 HERNANDEZ,

               Defendant - Appellant.


                            ORDER AND JUDGMENT *


Before TACHA, Chief Circuit Judge, ANDERSON and BALDOCK, 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.




      *
       This order and judgment is not binding precedent, except under the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; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
      Defendant-Appellant Gerardo Ruben Salgado-Hernandez, a native and

citizen of Honduras, pled guilty to one count of illegal reentry by an alien who

had been previously deported subsequent to a conviction for an aggravated felony,

in violation of 8 U.S.C. § 1326(a) and (b)(2). He was sentenced to forty-six

months’ imprisonment, followed by a three-year term of supervised release.

Salgado-Hernandez appealed that sentence to this court, and we remanded for

resentencing in accordance with the Supreme Court’s recently-issued decision in

United States v. Booker, 543 U.S. 220 (2005). On October 31, 2005, the district

court held a resentencing hearing and imposed the same sentence of forty-six

months’ imprisonment, followed by three years of supervised release. Salgado-

Hernandez appeals again, and we affirm.



                                 BACKGROUND

      Salgado-Hernandez initially illegally entered the United States in 1992. He

pled guilty in Texas in early 2000 to aggravated sexual assault on a child. He was

deported on May 31, 2001. On July 26, 2004, Bureau of Immigration and

Customs Enforcement (“BICE”) agents took Salgado-Hernandez into custody in

Kansas City, Kansas, and determined he lacked authorization to reenter and

remain in the United States after his prior deportation. He was accordingly

indicted for illegal reentry following deportation for conviction of an aggravated


                                         -2-
felony, in violation of 8 U.S.C. § 1326(a) and (b)(2). Salgado-Hernandez

thereafter pled guilty.

      In preparation for sentencing, the probation office prepared a presentence

report (“PSR”). The PSR calculated a base offense level of eight, as required in

the United States Sentencing Commission, Guidelines Manual (“USSG”),

§2L1.2(a) (Nov. 2004), for a violation of 8 U.S.C. § 1326(a) and (b)(2). It then

increased that level by sixteen, pursuant to USSG §2L1.2(b)(1)(A)(ii), because

Salgado-Hernandez’s prior felony conviction for aggravated sexual assault on a

child was a conviction for a crime of violence. After a three-level reduction for

acceptance of responsibility, Salgado-Hernandez’s total adjusted offense level

was twenty-one. With a criminal history category of III, the PSR recommended a

Guideline sentencing range of forty-six to fifty-seven months’ imprisonment.

      At his initial sentencing hearing, Salgado-Hernandez objected to the

Guideline range calculated in the PSR, particularly the sixteen-level enhancement

based upon the characterization of his aggravated sexual assault on a child as a

crime of violence. The district court nonetheless sentenced Salgado-Hernandez to

the low end of that Guideline range.

      On resentencing following our remand, Salgado-Hernandez argued that the

application of the sixteen-level enhancement was per se unreasonable. He also




                                         -3-
argued that his sentence was unreasonable compared to the lesser sentences

available to other illegal aliens sentenced in districts with “fast-track” programs.

      The court on resentencing acknowledged that there had been no addenda to

the initial PSR, which the court then incorporated into the record. The court then

addressed the arguments raised by Salgado-Hernandez and rejected his argument

that the disparities caused by the existence of “fast-track” districts warranted a

lower sentence in this case. Regarding the reasonableness of the forty-six month

sentence originally imposed, the court stated:

      I do believe the original sentence I gave in this case of 46 months is
      a reasonable sentence. I think it’s so for these reasons, not simply
      because the guideline application would suggest that it’s a reasonable
      sentence, but rather because of the aspects of the sentencing statute
      when analyzed in connection with the facts of this case.

Tr. of Resentencing at 19, R. Vol. IV. The court then carefully and thoroughly

examined each of the sentencing factors contained in 18 U.S.C. § 3553(a). While

noting that the crime of illegal reentry “is in and of itself not as serious as some

other crimes that [the court] find[s] people in front of [it] for,” nonetheless the

court found Salgado-Hernandez’s conduct more serious because he reentered the

United States shortly after being deported. 1 Id. at 20. The court also stated that,



      According to the PSR, to which Salgado-Hernandez does not object,
      1

Salgado-Hernandez initially entered the United States illegally in December 1992.
He was deported on May 31, 2001. He was apprehended by the Border patrol on
March 27, 2002, and was granted voluntary departure. “On July 30, 2004,
                                                                     (continued...)

                                          -4-
given Salgado-Hernandez’s repeated illegal reentries, a more severe sentence was

more likely to serve the sentencing goal of promoting respect for the law. The

court further noted the “very, very, very serious crime” which Salgado-Hernandez

committed while in the United States, and concluded that a severe sentence was

warranted to provide adequate deterrence and to protect the public. Id. at 21-22.

The court accordingly concluded that a forty-six month sentence was appropriate

and reasonable, stating:

             So while I said before that I thought 46 months was a rather
       severe sentence and therefore it need not be any higher, nor did I
       mean it should be any lower because I think a severe sentence in the
       case of this defendant under all of the facts and circumstances is
       reasonable when one applies the sentencing factors that are set out in
       3553(a)(2).

              So considering the totality of the circumstances, including
       what the guidelines recommend, but tying my analysis particularly to
       the sentencing factors, I find 46 months to be a reasonable sentence.

Id. at 23.

       Salgado-Hernandez appeals his sentence, arguing that the sixteen-level

enhancement in his advisory Guideline sentence for his prior felony conviction is

“inherently unreasonable so that his sentence, derived from an advisory Guideline

range applying that enhancement, is likewise unreasonable.” Appellant’s Br. at 6.



       (...continued)
       1

[Salgado-Hernandez] claimed in his sworn statement that he had entered the
United States illegally [in June 2002,] three months . . . after his return to
Mexico.” PSR ¶ 15, R. Vol. V.

                                         -5-
                                  DISCUSSION

      Following the United States Supreme Court’s decision in Booker, the

Guidelines are advisory rather than mandatory. However, “the now-advisory

Guidelines are . . . a factor to be considered in imposing a sentence, which means

that district courts ‘must consult those Guidelines and take them into account

when sentencing.’” United States v. Kristl, 437 F.3d 1050, 1053 (10th Cir. 2006)

(per curiam) (quoting Booker, 543 U.S. at 264). Accordingly, we continue to

review the sentencing court’s factual findings under the Guidelines for clear error

and its legal determinations de novo. United States v. Serrata, 425 F.3d 886, 906

(10th Cir. 2005). We review for reasonableness the ultimate sentence imposed,

Booker, 543 U.S. at 261-62 (Breyer, J.), “guided by the factors set forth in 18

U.S.C. § 3553(a).” Kristl, 437 F.3d at 1053. In conducting such a review, we

bear in mind that “a sentence that is properly calculated under the Guidelines is

entitled to a rebuttable presumption of reasonableness.” Id. at 1054. If the court

sentenced the defendant within the properly calculated Guideline range, the

defendant may rebut that presumptively reasonable sentence “by demonstrating

that the sentence is unreasonable in light of the other sentencing factors laid out

in § 3553(a).” Id. at 1055. Our review is necessarily “deferential.” Id. at 1054.

      Salgado-Hernandez argues that the sixteen-level enhancement contained in

USSG §2L1.2 for a prior felony conviction which already is used to calculate a


                                         -6-
defendant’s criminal history is “unreasonably excessive and overinclusive.”

Appellant’s Br. at 9. This amounts to a simple facial challenge to the validity of

the sixteen-level enhancement of §2L1.2(b)(1)(A). We have upheld and applied

this enhancement on numerous occasions. We decline to declare it categorically

invalid or unreasonable in this case.

      Moreover, we find the particular sentence imposed on Salgado-Hernandez a

reasonable one under Booker. Salgado-Hernandez cites United States v. Trujillo-

Terrazas, 405 F.3d 814 (10th Cir. 2005), in support of his argument that the

sixteen-level enhancement under §2L1.2(b)(1)(A) is unreasonable as applied to

him. Trujillo-Terrazas does not help Salgado-Hernandez. In Trujillo-Terrazas,

we remanded for resentencing where the district court, acting pre-Booker and

therefore applying the Guidelines in a mandatory way, reluctantly imposed a

sixteen-level enhancement under §2L1.2(b)(1)(A) to an illegal reentrant whose

prior felony conviction was “comparatively innocuous.” 2 Id. at 817. We found

that the “relatively trivial nature of [the defendant]’s criminal history is at odds

with the substantial 16-level enhancement recommended by the Guidelines for

this conduct.” Id. at 819. There is nothing trivial or innocuous about Salgado-


      2
       In Trujillo-Terrazas, the prior felony conviction was for third degree arson,
based upon the defendant’s being “upset that an ex-girlfriend had begun seeing
someone new, and he acted on his frustration by throwing a lighted match into a
1980 Oldsmobile belonging to his ex-girlfriend’s new love interest[,] . . .
[causing] fire damage [costing] the paltry sum of $35.00.” 405 F.3d at 817.

                                          -7-
Hernandez’s prior conviction for aggravated sexual assault on a child. Further,

the district court’s statements on resentencing make it very clear that the court

carefully considered Salgado-Hernandez’s criminal history as well as all the facts

and circumstances concerning him and his crime to fashion an appropriate

sentence, knowing full well that the Guideline sentence was only advisory. The

court fully explained why the sentence it imposed was reasonable. Salgado-

Hernandez has not rebutted that presumptively reasonable sentence by pointing to

other sentencing factors in 18 U.S.C. § 3553(a). We therefore conclude that the

forty-six month sentence is reasonable. 3



                                  CONCLUSION

      For the foregoing reasons, we AFFIRM the sentence imposed on Salgado-

Hernandez.

                                                  ENTERED FOR THE COURT


                                                  Stephen H. Anderson
                                                  Circuit Judge




      3
       Salgado-Hernandez makes no argument on appeal about the existence of
sentencing disparities caused by “fast-track” programs in certain districts.

                                            -8-
