                                                                       FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                                                                   April 14, 2008
                     UNITED STATES COURT OF APPEALS
                                                               Elisabeth A. Shumaker
                                   TENTH CIRCUIT                   Clerk of Court



 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,
                                                        No. 07-2174
 v.                                              (D.C. No. CR-06-1688-JB)
                                                         (D. N.M.)
 FERNANDO TRUJILLO,

          Defendant-Appellant.


                                ORDER AND JUDGMENT *


Before TACHA, Circuit Judge, and BARRETT 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.



      Appellant Fernando Trujillo pled guilty to one count of illegal reentry of a


      *
         This order and judgment is not binding precedent except under the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.
deported alien in violation of 8 U.S.C. § 1326(a) and (b). He now appeals his

seventy-seven-month sentence, arguing it is unreasonable under the 18 U.S.C.

§ 3553(a) sentencing factors due to family circumstances involving his terminally

ill brother which compelled Mr. Trujillo to illegally reenter the United States to

obtain money to pay for his brother’s chemotherapy treatment. We exercise

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

Trujillo’s sentence.



                             I. Procedural Background

      Mr. Trujillo was arrested on July 4, 2006, after entering the United States

by walking across the border from Mexico. After Mr. Trujillo pled guilty to one

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

(b), 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. Trujillo’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) because he had previously been deported following

a conviction for a crime of violence, stemming from his 1993 convictions for two

felony counts for robbery. The probation officer also recommended a three-level

offense reduction for acceptance of responsibility, resulting in a total offense

level of twenty-one. The presentence report also set Mr. Trujillo’s criminal

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history category at VI, which, together with an offense level of twenty-one,

resulted in a recommended Guidelines sentencing range of seventy-seven to

ninety-six months imprisonment.



      Mr. Trujillo filed three sentencing memoranda moving for a downward

departure under U.S.S.G. §§ 5K2.0 and 5K2.11 and a below-Guidelines-range

sentence under the 18 U.S.C. § 3553(a) sentencing factors, 1 which he renewed at

the sentencing hearing. In requesting a downward departure under U.S.S.G.

§§ 5K2.0 and 5K2.11, Mr. Trujillo argued family circumstances and lesser harm

reasons, relating to his terminally ill brother’s need for chemotherapy treatment,

caused him to illegally reenter the country to earn money to render financial

assistance to his family. In requesting a below-Guidelines sentence under the

§ 3553(a) sentencing factors, Mr. Trujillo argued his reason for illegally

reentering the country to help his family should be considered, as well as the

nature and circumstances of his offense, which were unremarkable in all respects

and merely involved being apprehended near the border after illegally reentering

the country.



      On receipt of Mr. Trujillo’s motion for downward departure, the probation


      1
         Mr. Trujillo made other objections relating, in part, to his criminal
history category, none of which he raises on appeal.

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officer contacted Mr. Trujillo’s mother, who stated Mr. Trujillo entered the

United States to help her economically. She also provided information: 1) her

son, Pedro, had contracted lung cancer; 2) he received his first chemotherapy

treatment in January 2006 (over five months before Mr. Trujillo entered the

country illegally); 3) government benefits covered all of Pedro’s chemotherapy

sessions and medication; and 4) Pedro died on December 23, 2006, leaving her to

pay the outstanding hospital bill which was in an amount unknown to her. Based

on this information, the probation officer concluded that, while Mr. Trujillo’s

mother would undertake some financial hardship as a result of Mr. Trujillo’s

incarceration, it did not appear to constitute an extraordinary family circumstance

or a lesser harm situation warranting a downward departure.



      After hearing and considering the parties’ arguments at the sentencing

hearing, the district court denied Mr. Trujillo’s request for a downward departure.

In so doing, it noted Mr. Trujillo’s illegal reentry into the country occurred after

his brother’s medical bills were being paid by the government, so it appeared his

reentry was for economic reasons to help his mother. It concluded that while Mr.

Trujillo’s mother would suffer some financial hardship as a result of his

incarceration, many illegal aliens enter the country on the basis of sick family

members so the circumstance presented was a very common situation which did

not constitute an extraordinary family circumstance or lesser harm situation

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warranting a downward departure.



      In sentencing Mr. Trujillo, the district court explicitly stated it had

reviewed the presentence report and adopted the unopposed factual findings,

considered the advisory Guidelines applications and the 18 U.S.C. § 3553(a)

sentencing factors, and reviewed applicable cases concerning family medical

conditions and circumstances, which it cited and discussed, noting family

circumstances involving an ill family member did not ordinarily warrant a lesser

sentence. It also discussed the § 3553(a) factors in detail and concluded a

sentence of seventy-seven months imprisonment, which was at the low end of the

advisory sentencing range, was reasonable and sufficient, without being greater

than necessary, to comply with the Sentencing Reform Act and therefore it would

not depart or vary from the advisory Guidelines sentence. It then imposed a

seventy-seven-month sentence.


                                   II. Discussion

      On appeal, Mr. Trujillo 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 due to his

special family circumstances involving his brother’s illness and resulting financial

problems which prompted his illegal reentry into the United States. We begin our


                                          -5-
discussion by clarifying that a sentence above or below the recommended

Guidelines range based on an 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 an 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). Thus, on appeal, it is evident Mr. Trujillo is

no longer requesting a downward departure under Chapter Five, but continuing to

claim his sentence is unreasonable under the § 3553(a) factors, warranting a

variance for a below-Guidelines sentence based on his family circumstances.



      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, 806 (10th Cir. 2008) (relying on Gall v. United States, ___U.S. ___, 128 S.

Ct. 586, 591 (2007)). “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 802. In evaluating the substantive reasonableness of a

sentence, we inquire whether the sentence length is reasonable pursuant to the

statutory factors delineated in § 3553(a). United States v. Hamilton, 510 F.3d

1209, 1217-18 (10th Cir. 2007), petition for cert. filed (U.S. Mar. 14, 2008) (No.

07-9943). The § 3553(a) factors “include the nature of the offense and

                                         -6-
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) (per curiam). If the sentence is

within the correctly-calculated Guidelines range, we may apply a presumption of

reasonableness. Id. at 1053-54; see also Gall, 128 S. Ct. at 597; Rita v. United

States, ___ U.S. ___, 127 S. Ct. 2456, 2462, 2465 (2007). The defendant or the

government may rebut this presumption by demonstrating the sentence is

unreasonable when viewed under the § 3553(a) factors. Kristl, 437 F.3d at 1054.



      In this case, nothing indicates Mr. Trujillo’s sentence was improperly

calculated or that its length is substantively unreasonable. While Mr. Trujillo

complains that due to § 3553(a) considerations involving his family circumstances

the district court should not have applied a sixteen-level offense increase, he does

not contest the fact he was previously deported after conviction of a crime of

violence, which was used for the purpose of applying the sixteen-level increase

under § 2L1.2(b)(1)(A), nor that his sentence was otherwise improperly

calculated. Because the record establishes the district court applied the relevant

Guidelines range and sentenced Mr. Trujillo within that range, his sentence is

presumptively reasonable.




                                          -7-
      Mr. Trujillo must rebut this presumption by demonstrating his sentence is

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

same reasons cited by the district court, Mr. Trujillo has not demonstrated his

family circumstances are sufficiently compelling for the purpose of making his

seventy-seven-month sentence unreasonable. Thus, we conclude the district court

did not abuse its discretion in imposing a sentence at the bottom of the applicable

Guidelines range, and Mr. Trujillo has not demonstrated, as required, that his

sentence is unreasonable under the § 3553(a) factors.



                                  III. Conclusion

      For these reasons, we AFFIRM Mr. Trujillo’s sentence.

                                       Entered by the Court:

                                       WADE BRORBY
                                       United States Circuit Judge




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