                                                                       FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                                                                    May 5, 2010
                     UNITED STATES COURT OF APPEALS
                                                  Elisabeth A. Shumaker
                                                                   Clerk of Court
                                 TENTH CIRCUIT
                            __________________________

 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,
                                                          No. 09-2188
 v.                                             (D.Ct. No. 1:08-CR-01847-JB-1)
                                                           (D. N.M.)
 VICTOR DELGADILLO-GALLEGOS,

          Defendant-Appellant.
                       ______________________________

                                ORDER AND JUDGMENT *


Before BARRETT, ANDERSON, and BRORBY, Senior 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.



      Defendant-Appellant Victor Delgadillo-Gallegos pled guilty to one count of

illegal reentry of a deported alien in violation of 8 U.S.C. § 1326(a)(1) and (2)

      *
         This order and judgment is not binding precedent except under the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.
and (b)(2). He now appeals his sentence of fifty-one months, arguing it is

substantively unreasonable under the 18 U.S.C. § 3553(a) sentencing factors

because: (1) it is “greater than necessary to advance the sentencing goals

articulated in 18 U.S.C. § 3553(a),” including “retribution, deterrence,

incapacitation, and rehabilitation”; (2) he merely reentered this country for the

purpose of being with his children and to challenge a prior California conviction;

and (3) he previously received a sentence for his offense of sexual battery,

making a sixteen-level enhancement in the instant case unnecessary. We exercise

jurisdiction pursuant to 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291 and affirm Mr.

Delgadillo-Gallegos’s sentence.



                             I. Procedural Background

      On March 3, 2009, Mr. Delgadillo-Gallegos pled guilty, without entering

into a plea agreement, to one count of illegal reentry of a deported alien in

violation of 8 U.S.C. § 1326(a)(1) and (2) and (b)(2). Following his guilty plea, a

probation officer prepared a presentence report calculating his sentence under the

applicable 2008 United States Sentencing Guidelines (“Guidelines” or

“U.S.S.G.”). The probation officer set Mr. Delgadillo-Gallegos’s base offense

level at eight, pursuant to U.S.S.G. § 2L1.2(a), and increased his base 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 2000 California

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sexual battery offense against his now-former wife for which he received a four-

year sentence on October 13, 2000, and was subsequently deported on July 16,

2003. 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 V, resulted in a recommended

Guidelines range of seventy to eighty-seven months imprisonment. Because six

of Mr. Delgadillo-Gallegos’s eleven criminal history points were generated from

two misdemeanor convictions, including one for reckless driving resulting in

thirty-six months probation and another for an alcohol-related offense for which

he was in custody for eighty-six days, the probation officer noted Mr. Delgadillo-

Gallegos’s criminal history category may be over-represented, warranting a

criminal history category of IV and a downward departure to a sentencing range

of fifty-seven to seventy-one months imprisonment.



      Mr. Delgadillo-Gallegos filed sentencing memoranda objecting to the

presentence report on grounds his California conviction for sexual battery was not

a crime of violence warranting the sixteen-level offense increase and, instead, the

final offense level should be thirteen, which, together with a criminal history

category of IV, would result in a Guidelines range of twenty-four to thirty months

imprisonment. The government noted it agreed with the probation officer’s

recommended lower criminal history category of IV and a Guidelines range of

                                         -3-
fifty-seven to seventy-one months imprisonment, but disagreed with Mr.

Delgadillo-Gallegos’s request for an even lower sentence.



      At the sentencing hearing, Mr. Delgadillo-Gallegos’s counsel

acknowledged that after filing his objections to the presentence report this court

issued a decision, United States v. Gonzalez-Jaquez, 566 F.3d 1250 (10 th Cir.

2009), holding a conviction under the same California sexual battery statute at

issue in the instant case, California Penal Code § 243.4(a), constituted a crime of

violence, and counsel would be “hard-pressed to say that it’s not a crime of

violence.” However, his counsel requested the district court “deviate” below the

criminal history category of IV because: (1) Mr. Delgadillo-Gallegos did not get

into trouble until he was thirty-one years old for a reckless driving offense; (2)

the felony convictions he received for domestic abuse and sexual battery involved

his former wife, and the other convictions consisted of misdemeanors; and (3) he

only returned to the United States to see his children and contest his prior

California conviction which resulted in the rescinding of his green card. Mr.

Delgadillo-Gallegos also addressed the court and explained he did not use force

during his sexual battery offense against his wife.



      The district court deviated downward from the advisory Guidelines range of

seventy to eighty-seven months imprisonment to fifty-seven to seventy-one

                                         -4-
months imprisonment due to over-representation of his criminal history. It next

considered the request for a variance and explained it did not believe the

punishment set forth in the newly-reduced Guidelines range was “appropriate for

this sort of offense” regarding sexual battery against his then-wife, but it also

reasoned that it did “not believe it should vary greatly from the guideline sentence

because Congress has expressed great concern about sexual offenses.” Instead, it

determined “a sentence of 51 months better reflects, than 57 months, the

seriousness of this offense” and that it was “adequate to promote respect for the

law, ... provide[ ] a more just punishment, and ... afford adequate deterrence and

protect the public” and reflected each of the § 3553 factors. It also stated that it

was “concerned that if it ... varie[d] more than that it [would] begin[ ] to deeply

undercut what Congress is trying to express with these serious sentences for

sexual crimes and crimes of violence.” As a result, it determined a fifty-one-

month sentence was “sufficient, without being greater than is necessary, to

comply with the purposes of punishment set forth in the Sentencing Reform Act.”

The district court also explained its reasoning for the fifty-one-month sentence in

a formal memorandum, noting the sexual offense involved Mr. Delgadillo-

Gallegos’s wife at that time and that while sexual crimes must be taken seriously,

as instructed by Congress, it must also look at the circumstances presented.

Accordingly, the district court sentenced Mr. Delgadillo-Gallegos to a below-

Guidelines-range sentence of fifty-one months imprisonment.

                                          -5-
                                   II. Discussion

      On appeal, Mr. Delgadillo-Gallegos argues the district court’s imposition of

a fifty-one-month sentence is “substantively unreasonable because it was greater

than necessary to advance the sentencing goals articulated in 18 U.S.C.

§ 3553(a)” of “retribution, deterrence, incapacitation, and rehabilitation.” He

further argues such a sentence is unreasonable for merely “illegally crossing a

political boundary seeking to be with his children and to challenge a California

conviction.” He asserts “[v]irtually all of the sentence is based, not on the

offense of illegal re-entry, but on a prior offense for touching his wife sexually,

an offense for which he was adequately punished previously.”



      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 (10 th 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. Mr. Delgadillo-Gallegos contests

only the latter. “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


                                          -6-
Guidelines range, we may apply a presumption of reasonableness. See United

States v. Kristl, 437 F.3d 1050, 1053-55 (10 th Cir. 2006). The same presumption

is applicable here, where the sentence is below the correctly-calculated

Guidelines range. 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; 18 U.S.C. § 3553(a).



      With these principles in mind, we turn to Mr. Delgadillo-Gallegos’s appeal

and the substantive reasonableness of his sentence, given he does not contest the

calculation of his sentence. Because his sentence is below the correctly-

calculated Guidelines range, we apply a presumption of reasonableness. While

Mr. Delgadillo-Gallegos has the burden of rebutting such a presumption by

demonstrating his sentence is unreasonable in light of the sentencing factors in

§ 3553(a), he has failed to do so.



      As the district court suggested, neither the fact he sexually battered his

then-wife nor that he served a sentence for such battery significantly mitigates the

                                         -7-
fact he committed a sexual battery offense, which Congress has deemed very

serious. Nevertheless, the district court took those circumstances into

consideration when it imposed a variant sentence of fifty-one months – well

below the Guidelines range of fifty-seven to seventy-one months imprisonment

and the initial seventy- to eighty-seven-month range reduced for over-

representation of his criminal history. We will also not second-guess the district

court by rehashing the underlying facts surrounding Mr. Delgadillo-Gallegos’s

prior sexual battery, especially where he pled guilty to that charge and presented

argument which the district court considered and accepted in reducing his

sentence. Mr. Delgadillo-Gallegos’s family circumstance and desire to return to

the United States to allegedly challenge his conviction are but two circumstances

the district court considered, and it is clear it determined his criminal history and

other § 3553(a) factors, including retribution, deterrence, incapacitation, and

rehabilitation, outweighed such circumstances. Finally, not only are sexual

offenses deemed serious, but so are crimes of reentry by ex-felons into this

country, for which Congress has imposed a statutory maximum sentence of twenty

years. See 8 U.S.C. § 1326(b)(2). Mr. Delgadillo-Gallegos’s crime of illegal

reentry following his conviction for a felony is no exception. Under the

circumstances, we cannot say Mr. Delgadillo-Gallegos sufficiently rebutted the

presumption his sentence is reasonable or that the district court otherwise abused

its discretion in imposing a sentence below the applicable Guidelines range

                                          -8-
resulting in a sentence of fifty-one-months imprisonment.



                                 III. Conclusion

      For these reasons, we AFFIRM Mr. Delgadillo-Gallegos’s sentence.

                                      Entered by the Court:

                                      WADE BRORBY
                                      United States Circuit Judge




                                       -9-
