                                                                           FILED
                                                               United States Court of Appeals
                                                                       Tenth Circuit
                   UNITED STATES COURT OF APPEALS
                                                                    November 4, 2010
                                TENTH CIRCUIT
                                                                   Elisabeth A. Shumaker
                                                                       Clerk of Court

 UNITED STATES OF AMERICA,

              Plaintiff - Appellee,                      No. 09-3300
 v.                                                       (D. Kansas)
 RODOLFO ESCOBAR-AGUIRRE,                     (D.C. No. 2:09-CR-20032-KHV-1)

              Defendant - Appellant.


                           ORDER AND JUDGMENT *


Before HARTZ, ANDERSON, and TYMKOVICH, Circuit Judges.


      Rodolfo Escobar-Aguirre pleaded guilty to illegal reentry by a deported

alien who had been previously convicted of an aggravated felony. The district

court sentenced him to 41 months’ imprisonment, the bottom of the sentencing

guidelines range. On appeal he argues that (1) the district court failed to

recognize its authority to vary downward from the sentencing guidelines based

upon policy disagreement with those guidelines, and (2) his specific

circumstances warranted a below-guidelines sentence when analyzed under the



      *
        This order and judgment is not binding precedent except under the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.
factors listed in 18 U.S.C. § 3553(a). We have jurisdiction under 28 U.S.C.

§ 1291 and affirm his sentence because (1) the district court did recognize its

authority to vary downward on policy grounds but chose not to exercise that

authority and (2) Mr. Escobar-Aguirre failed to rebut the presumption of

reasonableness of a within-guidelines sentence.

I.    BACKGROUND

      Mr. Escobar-Aguirre was convicted of conspiracy to commit sexual assault

in a Colorado court in 1992. He was sentenced to an eight-year term of

imprisonment but was deported to Mexico on September 29, 1994. He illegally

returned to the United States in April of 2002 to be with his future wife, Laura

Vega, who was pregnant with their son. He married Ms. Vega on April 5, 2003,

and they lived together in Kansas with their son and Ms. Vega’s two daughters.

On October 22, 2003, he received a traffic citation in Lawrence, Kansas, but he

escaped the detection of the Immigration and Customs Enforcement Agency (ICE)

by using an alias. On January 21, 2009, he was arrested in Junction City, Kansas,

for driving under the influence, obstruction of justice, and driving without a

driver’s license. After his arrest he was interviewed by agents from ICE, who

determined that he was present in the United States illegally. He was indicted by

a federal grand jury in the United States District Court for the District of Kansas

on one count of illegal reentry after deportation for an aggravated felony. He

pleaded guilty on June 1, 2009.

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      Under the United States Sentencing Guidelines (USSG), Mr. Escobar-

Aguirre’s base offense level of 8, see USSG § 2L1.2(a), was increased by a

16-level enhancement because of his prior conviction for a violent felony, see id.

§ 2L1.2(b)(1)(A)(ii), and reduced by 3 levels for his acceptance of responsibility,

see id. § 3E1. His prior conviction placed him in criminal-history category II,

which set his advisory guidelines range at 41 to 51 months’ imprisonment. He

agreed with this guidelines range calculation but requested a sentence of 12

months and a day, arguing that such a downward variance was appropriate under

the factors listed in 18 U.S.C. § 3553(a). He also challenged the policy behind

the guidelines’ 16-level increase for a prior violent-felony conviction.

      The district court denied the variance request and sentenced Mr. Escobar-

Aguirre to 41 months’ imprisonment followed by two years’ supervised release.

It stated that it did not believe that it was its “role to categorically find that the

guidelines just should not be followed,” even if it believed “as a matter of policy”

that the guidelines resulted in excessive sentences. R., Vol. 2 at 72. Instead, it

viewed the question to be “whether in this particular case the defendant should

receive a sentence which is different from the guidelines on account of the factors

which are identified in section 3553(a).” Id. It found that Mr. Escobar-Aguirre’s

situation was “not unique” and “very typical of the cases that we see where

defendants commit this kind of offense,” id. at 73, and it imposed a within-

guidelines sentence. Mr. Escobar-Aguirre’s counsel objected to the procedural

                                           -3-
and substantive reasonableness of the sentence. At counsel’s request the district

court clarified its position and stated that it did not believe that it should “second-

guess the reasonableness of the sentencing policies which are articulated in the

sentencing guidelines.” Id. at 78. Although the court recognized that it did not

“have to follow” the guidelines, it would not “refuse to follow them just because

[it] would have made a different policy decision . . . in this situation.” Id. at 79.

The court added that it did not “disagree with the guidelines” in this case. Id.

II.   DISCUSSION

      Section 3553(a) instructs a sentencing judge to “impose a sentence

sufficient, but not greater than necessary,” to comply with the purposes of

sentencing set forth in the statute. 18 U.S.C. § 3553(a); see Rita v. United States,

551 U.S. 338, 348 (2007). Although a district court is to begin its consideration

of a sentence by properly calculating the defendant’s advisory sentencing range

under the sentencing guidelines, see Gall v. United States, 552 U.S. 38, 49

(2007), a district court may not treat the guidelines as mandatory, see id. at 51, or

assume that a within-guidelines sentence is presumptively reasonable, see id. at

50. Instead, it must make an individualized assessment based on the facts

presented, see id., by considering the following factors:

      (1) offense and offender characteristics; (2) the need for a sentence
      to reflect the basic aims of sentencing, namely (a) just punishment
      (retribution), (b) deterrence, (c) incapacitation, (d) rehabilitation; (3)
      the sentences legally available; (4) the Sentencing Guidelines; (5)
      Sentencing Commission policy statements; (6) the need to avoid

                                          -4-
      unwarranted disparities [between defendants]; and (7) the need for
      restitution.

Rita, 551 U.S. at 347–48 (internal quotation marks omitted) (discussing 18 U.S.C.

§ 3553(a)(1)–(7)). If the court determines in a particular case that, after applying

the § 3553(a) factors, a within-guidelines sentence is greater than necessary to

serve the objectives of sentencing, it may vary downward the individual

defendant’s sentence. See Kimbrough v. United States, 552 U.S. 85, 91 (2007).

It is also “entitled to reject and vary categorically” from the guidelines “based on

a policy disagreement with those Guidelines.” Spears v. United States, 129 S. Ct.

840, 843–44 (2009) (per curiam).

      We review a sentence for reasonableness and apply an “abuse-of-discretion

standard of review.” Gall, 552 U.S. at 46. This reasonableness review has both

procedural and substantive elements. United States v. Martinez, 610 F.3d 1216,

1223 (10th Cir. 2010). Procedural errors include “failing to calculate (or

improperly calculating) the Guidelines range, treating the Guidelines as

mandatory, failing to consider the § 3553(a) factors, selecting a sentence based on

clearly erroneous facts, or failing to adequately explain the chosen

sentence—including an explanation for any deviation from the Guidelines range.”

Gall, 552 U.S. at 51. A district court abuses its discretion under the substantive

element “when it renders a judgment that is arbitrary, capricious, whimsical, or

manifestly unreasonable.” United States v. Lewis, 594 F.3d 1270, 1277 (10th Cir.


                                         -5-
2010) (internal quotation marks omitted). A sentence that falls within the

properly calculated guidelines range is entitled to a rebuttable presumption of

reasonableness. See id. The defendant may rebut the presumption “by

demonstrating that the sentence is unreasonable when viewed against the other

factors delineated in § 3553(a).” Id. (internal quotation marks omitted).

      A.     Recognition of Authority to Vary Downward

      Mr. Escobar-Aguirre argues that the district court’s comments at his

sentencing hearing demonstrated its failure to recognize its authority to vary

downward from the guidelines based on policy grounds. He contends that the

court therefore did not consider his arguments that the 16-level increase under

USSG § 2L1.2(b)(1)(A)(ii) leads to unreasonable sentences because (1) the

resulting sentences are unusually severe when compared to preguidelines

sentences in immigration cases or to the guidelines ranges for offenses such as

sex trafficking of children and armed robbery causing serious bodily injury; and

(2) the Sentencing Commission has not articulated any considered rationale for

the increase. He argues that the court’s imposition of the sentence was an abuse

of discretion because the resulting sentence did not “adequately compensate for

the groundless severity of the 16-level increase” under USSG

§ 2L1.2(b)(1)(A)(ii). Aplt. Br. at 9. 1

      1
        Although Mr. Escobar-Aguirre characterizes this argument as a challenge
to the substantive reasonableness of his sentence, a district court’s failure to
                                                                        (continued...)

                                          -6-
      We reject the argument. The district court’s statements at sentencing do

not support Mr. Escobar-Aguirre’s claim that it was under a mistaken belief that it

lacked the authority to vary downward on grounds of policy. The court clearly

stated at the hearing that it understood that it did not have to follow the

guidelines. See R., Vol. 2 at 79 (“I realize I don’t have to follow [the guidelines]

. . . .”). Mr. Espinoza-Aguilar’s argument mistakes the court’s choice not to

exercise its authority for a failure to recognize that it has such authority.

Although a district court is “entitled” to vary downward from the guidelines based

on policy disagreement with the guidelines, Spears, 129 S. Ct. at 843–44, it is

also entitled to defer to the policy judgment of the guidelines, see United States v.

Lewis, No. 09-3329, 2010 WL 4262020 (10th Cir. Oct. 29, 2010), particularly

when, as in this case, the court agrees with that policy, see R., Vol. 2 at 79 (“And

I will add that I don’t disagree with the guidelines . . . .”). Indeed, two of the

§ 3553(a) factors support deference to guidelines’ policy. First, § 3553(a)(4)

requires the district court to consider the guidelines themselves. See United

States v. Sells, 541 F.3d 1227, 1239 (10th Cir. 2008) (“the Guidelines are a factor

the district court must consider under § 3553(a),”(internal quotation marks

omitted)). Second, § 3553(a)(6) requires the district court to consider “the need


      1
        (...continued)
recognize its authority to vary a sentence on policy grounds also could be viewed
as a procedural error. The characterization of the argument, however, does not
affect our disposition of this appeal.

                                          -7-
to avoid unwarranted sentence disparities among defendants with similar records

who have been found guilty of similar conduct.” 18 U.S.C. § 3553(a)(6).

Deviation from the guidelines based on a categorical disagreement with

guidelines policy obviously creates the risk of sentencing disparities based only

on such differing policy views.

      B.     The § 3553(a) Factors

      Mr. Escobar-Aguirre also argues that, aside from his challenge to the policy

behind the guidelines, his within-guidelines sentence is substantively

unreasonable under the § 3553(a) factors. He relies on the age of his previous

conviction (over 18 years earlier), his nonviolent behavior since then, and his

characteristics as a good father and provider to his family (supported by letters

from his in-laws, a letter from his stepdaughter’s health-care provider, letters

from his son and stepdaughters, and testimony from his wife, who said, among

other things, that he provided financial aid to his mother in Mexico while she

underwent treatment for breast cancer). The district court, however, saw nothing

“that really makes this any different than so many of the other sad cases . . which

bring people here for the crime of illegal reentry after deportation for an

aggravated felony.” R., Vol. 2 at 73. We are particularly deferential to findings

of this nature by the district court because of its far greater familiarity with the

mine run of sentencing cases. See Koon v. United States, 518 U.S. 81, 98 (1996)

(noting that in 1994, 93.9% of guidelines cases were not appealed). Although

                                          -8-
Mr. Escobar-Aguirre finds some support in the Ninth Circuit decision in United

States v. Amezcua-Vasquez, 567 F.3d 1050, 1052 (9th Cir. 2009), we are not

persuaded. Mr. Escobar-Aguirre has not rebutted the presumption of

reasonableness of his guidelines sentence.

III.   CONCLUSION

       We AFFIRM the district court’s judgment.

                                      ENTERED FOR THE COURT


                                      Harris L Hartz
                                      Circuit Judge




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