                                                                      FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                                                               December 19, 2008
                   UNITED STATES COURT OF APPEALS
                                                Elisabeth A. Shumaker
                                                                   Clerk of Court
                                TENTH CIRCUIT



 UNITED STATES OF AMERICA,

              Plaintiff-Appellee,                       No. 08-2079
 v.                                                District of New Mexico
 HERIBERTO AVALOS-GONZALES,                      (D.C. No. 07-CR-2089 JH)

              Defendant-Appellant.


                          ORDER AND JUDGMENT *


Before TACHA, KELLY and McCONNELL, Circuit Judges.


      Heriberto Avalos-Gonzales was sentenced to 41 months imprisonment by

the United States District Court for the District of New Mexico, for reentry of a

deported alien in violation of 8 U.S.C. §§1326(a) and 1326(b). He timely

appealed his sentence, claiming that the district court relied on impermissible

factors in sentencing and abused its discretion in imposing an unreasonable


      *
        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). This case is
therefore 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 This order and judgment is not
binding precedent, except under the doctrines of law of the case, res judicata, and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. It may be cited, however, for its persuasive value consistent
with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
sentence. We find that the district court did not rely on impermissible factors and

that the imposed sentence was reasonable. We therefore affirm Mr. Avalos-

Gonzales’ sentence.

                                 BACKGROUND

      On June 28, 2007, the United States Border Patrol arrested Mr. Avalos-

Gonzales for re-entering the country less than a month after being deported for a

second time on June 6, 2007. Mr. Avalos-Gonzales was first deported on January

23, 2001. Prior to his 2001 deportation, he and two other individuals were

arrested in a Barstow, California hotel room with three and a half pounds of

methamphetamine, $1,331.00, a 9 mm handgun, and more than 150 rounds of

ammunition. Mr.Avalos-Gonzales was subsequently convicted of possession of a

controlled substance for sale and sentenced to two years’ imprisonment.

      Mr. Avalos-Gonzales pled guilty to the June 28 offense, and rejected the

government’s fast-track offer in order to submit a sentencing memorandum to the

district court and request a lower sentence. The Presentence Report (“PSR”)

calculated Mr. Avalos-Gonzales’ offense level as 21. This reflected a base

offense level of 8 and a 16-level enhancement for a prior crime of violence

pursuant to U.S.S.G. 2L1.2(b)(1)(A), because the defendant was previously

deported after a conviction for a drug trafficking felony for which the sentence

imposed exceeded 13 months. After reducing the level by 3 for acceptance of

responsibility, the PSR calculated a total offense level of 21. His criminal history

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score was calculated at 3 and his criminal history category at II, rendering a

guideline range of 41-51 months. Mr. Avalos-Gonzales did not challenge the PSR

calculation, but argued at sentencing that §3553 factors other than the guideline

range warranted a sentence of 18 to 24 months. The government responded that

Mr. Avalos-Gonzales’ circumstances did not distinguish his case from other

defendants in similar situations and therefore did not warrant a variance from the

guideline range. The government further asked that any reduction not be the

same as what the fast-track offer would have given Mr. Avalos-Gonzales, as such

a reduction would create a disincentive for other defendants to accept fast-track

offers.

      The district court sentenced Mr. Avalos-Gonzales to 41 months

imprisonment, based on the fact that his 1999 arrest involved a firearm and three

and a half pounds of methamphetamine.

                                    ANALYSIS

      Mr. Avalos-Gonzales argues first that the district court improperly relied on

the prosecution’s argument that it should sentence him at a level above what he

would have received if he had accepted a fast-track offer, claiming that this was

an impermissible sentencing factor. We need not consider the legal merits of this

argument, however, because the record reflects that the district court relied

entirely on the § 3553(a) factors. The district court explained the reasons for the

sentence as follows:

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       I guess what distinguishes this case in my mind is the defendant’s
       history. . . .

               The thing that bothers me about the defendant’s history is, [] this
       prior conviction for possession of controlled substance. And I do note that
       it did involve a fairly large amount of drugs, three and half pounds of
       methamphetamine. And I do acknowledge that while the firearm charge
       was dismissed, I, it does concern me greatly that there was a firearm, well a
       firearm that was in the general area of the defendant; I’m not quite sure
       where the duffel bag was. But I don’t know, these are things that, that
       provide great concern to me. And while, yes, the arrest was in 1999, the
       sentence was imposed in 1999. I do note that the defendant was released
       from jail in 2001. So while the conviction was about nine years ago, eight
       and a half years ago, the defendant really had only been out of jail about
       six years when this particular offense occurred. So, so those are some of
       the things that enter into my thinking in assessing the sentence that should
       be imposed in this case.

Tr. of Sentencing at 11-13. The district court made no mention of Mr. Avalos-

Gonzales’ rejection of the fast-track offer as a relevant consideration.

       Mr. Avalos-Gonzales next argues that the guidelines provision for his

offense is not based on empirical evidence. He cites various research and other

courts’ findings to support his criticism of the Sentencing Guidelines on this

point. Because he did not raise this argument before the district court, however,

our review is for plain error. Whatever might be the abstract merit of his

criticisms, the decision of a district court to impose a within-Guidelines sentence

is not plain error.

       Next, Mr. Avalos-Gonzales challenges the substantive reasonableness of

the sentence, claiming that the district court failed to give proper weight to all the

§ 3553(a) factors. Mr. Avalos-Gonzales’ sentence was at the low end of the

                                          -4-
recommended Guidelines range. This court has held that “any sentence that is

properly calculated under the Guidelines is entitled to a rebuttable presumption of

reasonableness.” See United States v. Kristl, 437 F.3d 1050, 1054 (10th Cir.

2006). The district court properly considered not only the recommended range,

but also the statutory sentencing factors. As the sentencing judge stated: “the

Court has reviewed the presentence report factual findings and has considered the

advisory sentencing guideline applications, as well as all of the factors set forth

in 18 U.S.C. 3553 A1 through 7.” Id. at 13 (emphasis added). We see no basis

for overturning the sentencing court’s exercise of sentencing discretion.

      Finally, Mr. Avalos-Gonzales argues that the district court’s rationale for

not granting him a variance was based on two disputed, judge-found facts: that

there was a firearm associated with him at the time of his arrest for the prior

crime and the amount of methamphetamine recovered at the scene of his crime.

According to Mr. Avalos-Gonzales, judicial fact-finding is subject to the

reasonable doubt standard and cannot be based on “probably accurate”

information such as hearsay.

      This argument flies in the face of well-established precedent. See, e.g.,

United States v. Magallanez, 408 F.3d 672 (10th Cir. 2005) (holding that district

courts are required to determine facts relevant to sentencing through application

of the preponderance standard). Whatever might be the logic of the matter, the

Supreme Court has held that the Sixth Amendment does not preclude reliance on

                                         -5-
facts found by a judge pursuant to a discretionary sentencing system. United

States v. Booker, 543 U.S. 220, 273 (2005). The facts relied on by the district

court were contained in the PSR and were not disputed by the defendant. The

district court was therefore entitled to treat those facts as established. Fed. R.

Crim. P. 32(i)(3)(A).

                                   CONCLUSION

      The judgment of the United States District Court for the District of New

Mexico is AFFIRMED.

                                                      Entered for the Court,

                                                      Michael W. McConnell
                                                      Circuit Judge




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