F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
March 28, 2006
TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff- Appellee, No. 05-2107
v. (D. New Mexico)
JOSE MARQUEZ-OLIVAS, (D.C. No. CR-04-2338-LH)
Defendant-Appellant.
ORDER AND JUDGMENT *
Before EBEL, McKAY, and HENRY, Circuit Judges. **
Jose Marquez-Olivas was convicted after a guilty plea of illegally
reentering the United States after deportation and conviction of an aggravated
felony, a violation of 8 U.S.C. § 1326(a)(1), (2) and (b)(2). Prior to sentencing,
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10 TH C IR . R. 36.3
**
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.
he filed a motion for downward departure based upon cultural assimilation,
exceptional family circumstances, and his status as a deportable alien.
The district court declined to depart from the Guideline range. The court
adopted the factual findings and Guideline applications of the presentence report
and sentenced Mr. Marquez-Olivas to 57 months’ imprisonment, the low end of
the Guideline range. Mr. Marquez-Olivas now appeals, arguing that his sentence
was unreasonable under the advisory sentencing scheme established by United
States v. Booker, 543 U.S. 220 (2005), which was issued prior to the district
court’s sentencing proceedings.
“[A] sentence that is properly calculated under the Guidelines is entitled to
a rebuttable presumption of reasonableness.” United States v. Kristl, 437 F3d
1050, 1054 (10th Cir. 2006). Either the government or the defendant may rebut
the presumption “by demonstrating that the sentence is unreasonable when viewed
against the other factors delineated in [18 U.S.C.] § 3553(a).” Id.
Here, Mr. Marquez-Olivas argues that his 57 month sentence is
unreasonable because he is “culturally an American.” Aplt’s Br. at 4. That
contention merely repeats the arguments he made in support of his motion for
downward departure and is insufficient to overcome the presumption of
reasonableness that we must apply to a properly calculated sentence within the
Guideline range.
-2-
As the government observes, several courts have concluded that only in
extraordinary circumstances may a defendant’s cultural assimilation warrant a
sentence outside the Guideline range. See, e.g., United States v. Rivas-Gonzalez ,
365 F.3d 806, 812 (9th Cir. 2004) (stating that “[a downward] departure for
cultural assimilation, like a departure for family ties [may be] granted only in
extraordinary circumstances) (internal quotation marks omitted); United States v.
Bautista , 258 F.3d 602, 607 (7th Cir. 2001) (concluding that a downward
departure on the grounds of cultural assimilation “would be akin to one based on
‘family ties’--a discouraged factor that is grounds for departure only in
extraordinary circumstances).” Mr. Marquez-Olivas has failed to establish that
such extraordinary circumstances are present here. Moreover, the record indicates
that the presentence report considered the relevant sentencing factors set forth in
18 U.S.C. § 3553(a) and that the district court reviewed the report before
sentencing Mr. Marquez-Olivas at the bottom of the Guideline range.
We therefore conclude that Mr. Marquez-Olivas’s sentence was reasonable
and we AFFIRM the district court’s decision.
Entered for the Court,
Robert H. Henry
Circuit Judge
-3-