F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
May 4, 2006
TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee, No. 05-1462
v. (D. Colorado)
ANTONIO HERNANDEZ-ARANGO, (D.C. No. 05-CR-112-REB)
Defendant - Appellant.
ORDER AND JUDGMENT *
Before TACHA, Chief Circuit Judge, ANDERSON and BALDOCK, Circuit
Judges.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34 (a)(2); 10th Cir. R. 34.1(G). This cause is
therefore ordered submitted without oral argument.
Antonio Hernandez-Arango pled guilty to one count of unlawful reentry by
an alien previously deported following an aggravated felony conviction, in
*
This order and judgment is not binding precedent, except under the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 10th Cir. R. 36.3.
violation of 8 U.S.C. § 1326(a) and (b)(2). He was sentenced to thirty-three
months’ imprisonment followed by three years of supervised release. He appeals
his sentence. For the reasons set forth below, we affirm.
BACKGROUND
Hernandez-Arango was indicted in March 2005 for a violation of 8 U.S.C.
§ 1326(a) and (b)(2). He entered a plea agreement with the government,
stipulating to the factual basis for the plea, including his prior convictions in
Colorado state court for two controlled substance offenses, one involving drug
trafficking. The district court accepted Hernandez-Arango’s plea, and the United
States Probation Office prepared a presentence report (“PSR”), calculating the
advisory sentencing range under the United States Sentencing Commission,
Guidelines Manual (Nov. 2004) (“USSG”).
The PSR began with a base offense level of 8, pursuant to USSG §2L1.2(a).
It added a 12-level enhancement based on Hernandez-Arango’s prior drug
trafficking offense pursuant to USSG §2L1.2(b)(1)(B). It then reduced the
offense level by three levels based on Hernandez-Arango’s acceptance of
responsibility. The total offense level was thus 17, which, together with a
criminal history category of III, yielded an advisory Guidelines range of 30 to 37
months.
-2-
The PSR then described certain characteristics of Hernandez-Arango,
including his personal history, family ties, and educational and employment
records. It also provided a recommendation on the sentencing factors that should
be considered pursuant to 18 U.S.C. § 3553(a). It stated that Hernandez-Arango
had illegally reentered the United States twice in 2003 but was voluntarily
removed rather than prosecuted. It further advised that “[t]he instant offense
occurred 17 months after [Hernandez-Arango]’s last removal from the United
States,” and that “[Hernandez-Arango] continues to illegally enter and reside in
the United States after three prior removals.” PSR ¶¶ 82-83, R. Vol. III. It noted
that Hernandez-Arango had two prior felony convictions and stated that “[a]ny
imposed sentence should promote respect for the law, provide just punishment
and protect the public from [Hernandez-Arango]’s future crimes.” Id. ¶ 82. The
PSR then recommended a sentence of 33 months, near the middle of the advisory
Guidelines range, stating that “[c]onsidering [Hernandez-Arango] is facing his
third felony conviction and has been removed from the United States on three
separate occasions, the Probation Department believes that a sentence in the
middle of the advisory guideline range adequately meets the statutorily mandated
sentencing purpose[s] of deterrence, just punishment, and the protection of the
public.” Id. at R-2.
-3-
At the sentencing hearing, Hernandez-Arango argued that he should be
sentenced to 30 months, at the low end of the Guidelines range, rather than 33
months, based on his “modest criminal record” and the fact that his two prior
felony convictions had occurred five years earlier, when he was twenty-two years
old. Tr. of Sentencing at 5, R. Vol. II. He stated that “30 [months] is as good as
33 [months] here” in order to meet the purposes of sentencing set forth in 18
U.S.C. § 3553(a)(2). Tr. of Sentencing at 6, R. Vol. II. The government
responded that, “while, granted the difference between 30 and 33 may not seem
necessarily significant[,] . . . there should be some price, however small it may be,
for this particular history.” Id. at 7.
The district court accepted the PSR, noting it was “well done and well
written.” Id. The court then stated that it had “consider[ed] the application,
especially of the advisory sentencing guidelines, and then independently and
alternatively consider[ed] the sentencing factors at 18 U.S.C. [§] 3553(a)(1)
through (7),” and concluded that a term of imprisonment of 33 months was
appropriate to meet the sentencing goals set forth in § 3553(a). Id. at 10. The
court then advised Hernandez-Arango as follows:
Now, I can tell you that it seems as if you lost because I have
imposed a 33-month sentence instead of a 30-month sentence. You
have not, and here’s why. Because in my initial analysis, I had
selected a sentence that was higher than or greater than 33 months.
But I am convinced, after the probation department’s recommendation, coupled
with your counsel’s statements to the court, that 33 months will be sufficient.
-4-
Id. at 14.
Hernandez-Arango appeals his sentence, arguing that it is unreasonable.
DISCUSSION
We review sentences imposed after the Supreme Court’s decision in United
States v. Booker, 543 U.S. 220 (2005), for reasonableness. United States v.
Galarza-Payan, 441 F.3d 885, 887 (10th Cir. 2006). Where, as here, there is no
dispute over the district court’s application of the advisory Guidelines, a district
court’s imposition of a sentence within the Guidelines sentencing range is
“‘entitled to a rebuttable presumption of reasonableness.’” Id. at 889 (quoting
United States v. Kristl, 437 F.3d 1050, 1054 (10th Cir. 2006) (per curiam)).
Here, Hernandez-Arango first argues that the district court improperly
failed to explain why it chose to impose a sentence at the middle, rather than the
low end, of the Guidelines range, or “why the sentence it chose furthered any of
the goals of sentencing.” Appellant’s Op. Br. at 10. We disagree. In our view,
the record as described above clearly indicates that the court weighed the parties’
arguments at the sentencing hearing in light of the factors set forth in 18 U.S.C.
§ 3553(a), and also referred to the probation office’s analysis in the PSR of how
these factors should operate in the circumstances of this case. “[W]e will ‘not
demand that the district court recite any magic words to show us that it fulfilled
-5-
its responsibility to be mindful of the factors that Congress has instructed it to
consider.’” Galarza-Payan, 441 F.3d at 889 (quoting United States v. Contreras-
Martinez, 409 F.3d 1236, 1242 (10th Cir. 2005) (internal quotation and citation
omitted)). Moreover, we can infer that the district court’s reasons for imposing
the sentence it did were those argued at the hearing and in the PSR. Indeed, the
court indicated that it had been swayed, based on those arguments, to impose a
sentence lower than it otherwise would have.
Hernandez-Arango also argues that his sentence is unreasonable because
his criminal history “barely placed him in criminal history category III,” and
because, “unlike many other illegal reentry defendants who appear in federal
court, he was not discovered as the result of new criminal activity.” Appellant’s
Op. Br. at 13. In addition, Hernandez-Arango points to the fact that, of the eleven
cases reviewed and reported in the Tenth Circuit in 2005 where the defendant had
been convicted of illegal reentry and the opinion indicated the applicable
Guidelines range, the defendant had been sentenced to the low end of the range in
each case. He asserts that “[t]hese opinions demonstrate the collective reasoning
of district court judges in this circuit that, barring unusual circumstances, a
sentence at the bottom of the range in an illegal reentry case is sufficient to meet
the goals of sentencing enumerated in 18 U.S.C. § 3553(a).” Id. at 14.
-6-
These arguments fail to successfully rebut the presumption that Hernandez-
Arango’s sentence is reasonable. Even if we considered his sample of eleven
cases significant, Hernandez-Arango has failed to compare the actual conduct
involved in these cases to his own conduct. We note that, in absolute terms,
Hernandez-Arango’s sentence of 33 months is equal to the lowest sentence
imposed in these eleven cases. We are unpersuaded that the calculated Guidelines
range overstates the seriousness of his prior criminal history, as described in the
PSR. Moreover, Hernandez-Arango’s assertion regarding the “collective
reasoning” of district courts is inconsistent with his acknowledgment at the
sentencing hearing that “a 30-month sentence, or even a 33-month sentence, is
[not] so far out of the realm of what other people get, even in fast-track districts.”
Tr. of Sentencing at 5, R. Vol. II. We therefore affirm Hernandez-Arango’s
sentence.
CONCLUSION
For the foregoing reasons, the sentence imposed by the district court is
AFFIRMED.
ENTERED FOR THE COURT
Stephen H. Anderson
Circuit Judge
-7-