                                                                       F I L E D
                                                                United States Court of Appeals
                                                                        Tenth Circuit
                    UNITED STATES CO URT O F APPEALS
                                                                        June 29, 2007
                                 TENTH CIRCUIT                      Elisabeth A. Shumaker
                                                                        Clerk of Court


 U N ITED STA TES O F A M ER ICA,

               Plaintiff - Appellee,                     No. 06-2261
          v.                                           (D. New M exico)
 LORENZO SANCH EZ-JUA REZ,                        (D.C. No. CR-05-1034-JC)

               Defendant - Appellant.



                            OR D ER AND JUDGM ENT *


Before KELLY, M U RPH Y, and O’BRIEN, 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.

      Lorenzo Sanchez-Juarez pleaded guilty to illegal reentry by an alien

previously deported after an aggravated felony conviction, in violation of

8 U.S.C.§ 1326, and aggravated identify theft, in violation of 18 U.S.C. § 1028A.


      *
        This order and judgment is not binding precedent except under the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.
The district court sentenced him to a term of forty-one months’ imprisonment on

the illegal reentry conviction, to be followed by a mandatory consecutive term of

twenty-four months’ imprisonment on the identify theft conviction. On direct

appeal, this court vacated Sanchez-Juarez’s sentence and remanded the case to the

district court for resentencing. United States v. Sanchez-Juarez, 446 F.3d 1109

(10th Cir. 2006). This court ruled, in relevant part, that it was unclear from the

record whether the district court had considered Sanchez-Juarez’s sentencing

arguments in light of the 18 U.S.C. § 3553(a) factors or had, instead, simply

applied the Guidelines in a mechanical fashion. Id. at 1115-16. On remand, the

district court noted it had reviewed the presentence report; considered the

§ 3553(a) factors, including the advisory sentencing Guidelines; and weighed the

arguments advanced by Sanchez-Juarez for a sentence below the range set out in

the advisory Guidelines. Upon such review, the district court reimposed a term of

forty-one months’ imprisonment on the illegal reentry conviction, to be followed

by a mandatory consecutive term of twenty-four months’ imprisonment on the

identify theft conviction. Sanchez-Juarez appeals, asserting his sentence is both

procedurally and substantively unreasonable. Exercising jurisdiction pursuant to

28 U.S.C. § 1291 and 18 U.S.C. § 3742, this court affirm s.

      The factual and procedural background of this case is set out at length in

this court’s previous opinion on direct appeal, see Sanchez-Juarez, 446 F.3d at

1110-12, 1114-18, and will not be repeated here. Upon remand from this court

                                         -2-
for resentencing, Sanchez-Juarez raised the same arguments for a below-

guidelines sentence as he had raised at the first sentencing hearing. After

entertaining Sanchez-Juarez’s request for a sentencing variance, the district court

rejected the request and stated as follow s:

        This matter coming before the Court for a resentencing pursuant to
        the mandate of the Tenth Circuit Court of A ppeals and the C ourt
        having given due consideration to the Appellate Court’s instructions,
        hereby vacates and sets aside the sentence heretofore imposed in the
        Information, Criminal 05-1034, on September 7, 2005, and will
        resentence the defendant based on the Appellate Court’s remand.
               The Court has reviewed the presentence report factual findings
        and has considered the guideline applications and the factors set forth
        in 18 United States Code 3553(a)(1) through (7).
               I have considered M r. Sanchez-Juarez’s arguments in full,
        including the nonviolent nature of his prior felony, which is already
        taken into account by the presumptively reasonable guidelines; his
        family situation, which I find not unusual; and the restrictions that
        are placed on deportable aliens in prison.
               I find that the sentence I will impose adequately reflects the
        nature and circumstances of the offense and is necessary to deter
        future criminal conduct, provide just punishment for the offense, and
        promote respect for the law.
               ....
               The Court notes the defendant reentered the United States
        subsequent to an aggravated felony conviction. It is also noted that
        the defendant knowingly possessed, without lawful authority, five
        Social Security cards in the name of five other persons.
               As to Count I of the Information, Criminal 05-1034, the
        defendant, Lorenzo Sanchez-Juarez, is committed to the custody of
        the Bureau of Prisons for a term of 41 months. As to Count II, the
        defendant is committed to the custody of the Bureau of Prisons for a
        term of 24 months.
               Said terms shall run consecutively, for a total term of 65
        months.

[Id.]



                                          -3-
      Sanchez-Juarez argues on appeal that his sentence is both procedurally and

substantively unreasonable. “U nder Booker, we are required to review district

court sentencing decisions for ‘reasonableness.’” United States v. Cage, 451 F.3d

585, 591 (10th Cir. 2006). This court applies a two-step approach to review the

procedural and substantive components of sentences. United States v. Kristl, 437

F.3d 1050, 1055 (10th Cir. 2006). First, if raised on appeal, this court determines

whether the district court properly calculated the defendant’s guidelines sentence

and considered the factors set forth in § 3553(a). See United States v.

Chavez-Diaz, 444 F.3d 1223, 1229-30 (10th Cir. 2006). If the district court did

not com mit any procedural errors in arriving at a sentence, this court reviews

whether the sentence imposed is reasonable in light of the factors set forth in

§ 3553(a). Kristl, 437 F.3d at 1054-55.

      In this case, Sanchez-Juarez does not challenge the district court’s

application of the Guidelines. Instead, he argues his sentence is procedurally

unreasonable because the district court failed to adequately state on the record,

with specific reference to the § 3553(a) factors, its reasons for rejecting his

request for a sentence below the advisory Guidelines range. Sanchez-Juarez’s

procedural reasonableness claim is resolved by this court’s recent decision in

United States v. Ruiz-Terrazas, 477 F.3d 1196 (10th Cir. 2007). Ruiz-Terrazas

held that “a specific discussion of Section 3553(a) factors is not required for

sentences falling within the ranges suggested by the Guidelines.” Id. at 1202. In

                                          -4-
so doing, the Ruiz-Terrazas court specifically rejected the broad reading of

Sanchez-Juarez defendant now advocates on appeal. See id. As w as the case in

Ruiz-Terrazas, the district court in this case entertained extensive arguments

relating to the § 3553(a) factors, specifically noted it had considered Sanchez-

Juarez’s arguments for a below-guidelines sentence, indicated on the record it had

considered the § 3553(a) factors, and ultimately imposed a sentence within the

properly calculated Guidelines range. See id. 1202-03. Thus, the process

employed by the district court in imposing Sanchez-Juarez’s sentence was

reasonable. See id.

      For many of the same reasons he advanced before the district court in

requesting a sentence below the range set out in the advisory Guidelines,

Sanchez-Juarez asserts the sentence ultimately imposed by the district court is

substantively unreasonable. Because the district court imposed a sentence within

the properly calculated advisory guidelines range, the district court’s sentence is

“entitled to a rebuttable presumption of reasonableness.” Kristl, 437 F.3d at

1054. 1 Sanchez-Juarez has failed to rebut that presumption.

      Two arguments advanced by Sanchez-Juarez to overcome the presumption

of reasonable are facially meritless. Sanchez-Juarez’s “fast-track disparity”



      1
       The Supreme Court recently rejected Sanchez-Juarez’s argument that
affording a presumption of reasonableness to a within-guidelines sentence is
inconsistent with Booker. Rita v. United States, No. 06-5754, 2007 W L 1772146
(June 21, 2007).

                                         -5-
argument is foreclosed by this court’s recent decision in United States v.

M artinez-Trujillo, 468 F.3d 1266, 1268-69 (10th Cir. 2006) (holding disparities

created by fast-track program are not unwarranted under § 3553(a)(6) because

they are authorized by Congress). 2 Sanchez-Juarez’s argument that the district

court should have granted a downward variance to his illegal reentry conviction to

ameliorate the asserted harshness of his mandatory, consecutive twenty-four

month term for aggravated identity theft is flatly contrary to the aggravated

identity theft statute. 18 U.S.C. § 1028A(b)(3) (“[I]n determining any term of

imprisonment to be imposed for the felony during which the means of

identification was . . . possessed . . . , a court shall not in any way reduce the term

to be imposed for such crime so as to compensate for, or otherwise take into

account, any separate term of imprisonment imposed or to be imposed for a

violation of this section.”).

      Nor do Sanchez-Juarez’s remaining arguments overcome the presumption

of reasonableness that attaches to his bottom-of-the-guidelines sentence. Kristl,

437 F.3d at 1054. Sanchez-Juarez’s main contention is that the sixteen-level



      2
       In any event, Sanchez-Juarez was prosecuted in the United States District
court for the District of New M exico, a jurisdiction that has a fast-track program
in place. At its base, Sanchez-Juarez’s argument seems to be that a district court
can step in and overrule a prosecutor’s discretionary decision not to offer a fast-
track bargain to a particular defendant, even when the record contains absolutely
no indication that the decision not to offer a fast-track plea was based on an
impermissible purpose. Sanchez-Juarez’s argument, which is not supported by a
single citation to authority supporting such a proposition, is unconvincing.

                                          -6-
increase to his offense level, pursuant to U.S.S.G. § 2L1.2(b)(1)(A )(vii), for his

previous alien smuggling offense overstates the seriousness of his criminal

history. In support of this assertion, Sanchez-Juarez relies on this court’s

decision in United States v. Trujillo-Terrazas, 405 F.3d 814 (10th Cir. 2005). A s

is the case here, Trujillo-Terrazas involved a sixteen-level increase to the

defendant’s base offense level. Id. at 817. In Trujillo-Terrazas, however, the

increase was based on a prior arson conviction, a “crime of violence” subject to a

sixteen-level increase pursuant to U.S.S.G. § 2L1.2(b)(1)(A)(ii). Id. The arson

conviction involved flicking a lighted match into a car, resulting in $35.00 in

damages. Id. Trujillo-Terrazas concluded the sixteen-level increase to the base

offense level set out in the Guidelines for this “quite minor offense,” created a

disconnect between the guidelines sentence and the § 3553(a) factors.

      W e perceive no such disconnect in this case. Unlike the “quite minor” or

“relatively trivial” offense at issue in Trujillo-Terrazas, 405 F.3d at 819-20,

Sanchez-Juarez’s prior felony was an alien smuggling offense. That Sanchez-

Juarez received a sentence of only 194 days’ imprisonment for that offense does

not in any way diminish its seriousness. Furthermore, unlike the amorphous

“crime of violence” enhancement at issue in Trujillo-Terrazas, the sixteen-point

increase at issue in this case is narrowly targeted to certain prior violations of

8 U.S.C. § 1324(a). Com pare U.S.S.G. § 2L1.2(b)(1)(A)(ii) and id. cmt.

n.1.(B )(iii), with U.S.S.G. § 2L1.2(b)(1)(A)(vii), id. cmt. n.1.(B)(i) and 8 U.S.C.

                                          -7-
§ 1101(a)(43)(N ). This means it is unlikely the disconnect that occurred in

Trujillo-Terrazas will happen in the context of a sixteen-point increase for a prior

alien smuggling conviction. Finally, nothing about the facts of Sanchez-Juarez’s

prior smuggling offense set out in the PSR indicate it was less serious than alien

smuggling offenses generally or was a particularly non-serious felony.

      Having review ed and considered Sanchez-Juarez’s other arguments, 3 this

court concludes they are insufficient, even when all such arguments are

considered in the aggregate, to rebut the Kristl presumption of reasonableness.

The district court adopted the uncontested factual findings in the PSR and fully

considered the arguments Sanchez-Juarez presented in support of his request for a

below-guidelines sentence. At the conclusion of the sentencing hearing, the

district court imposed a sentence at the bottom of the correctly calculated

advisory guidelines range. The district court’s sentence is undoubtedly




      3
        Sanchez-Juarez also argues his incarceration will work a significant
economic hardship on his family in M exico and a below-guidelines sentence is
warranted by his non-eligibility for certain prison programs because of his status
as a deportable alien. As to the first, we note the district court, the court in the
best position to know such things, specifically determined there was nothing
special or unusual about Sanchez-Juarez’s family situation. As to the second, the
United States convincingly argues Sanchez-Juarez’s non-eligibility for certain
prison programs does not alter the basic nature of his sentence, it merely excludes
him from programs designed to reintegrate prisoners into American society. This
is entirely consistent with his deportable status.

                                         -8-
reasonable. The judgment of the United States District Court for the District of

New M exico is hereby AFFIRM ED. 4



                                              ENTERED FOR THE COURT


                                              M ichael R. M urphy
                                              Circuit Judge




      4
       Sanchez-Juarez also asserts Almendarez-Torres v. United States, 523 U.S.
224 (1998), is no longer good law and the district court violated the Sixth
Amendment when it increased his offense level on the basis of his prior alien
smuggling offense. He recognizes, however, this argument is foreclosed by our
decision in United States v. M oore, 401 F.3d 1220 (10th Cir. 2005), and simply
wishes to preserve the issue for en banc review or a future certiorari petition.

                                        -9-
