F I L E D
United States Court of Appeals
Tenth Circuit
August 4, 2006
UNITED STATES CO URT O F APPEALS
Elisabeth A. Shumaker
TENTH CIRCUIT Clerk of Court
U N ITED STA TES O F A M ER ICA,
Plaintiff-Appellee,
No. 05-2256
v. (D. N.M )
(D.C. No. CR-05-659-LH)
ED U A RD O SO TO -SO TO ,
Defendant-Appellant.
OR D ER AND JUDGM ENT *
Before L UC ER O, HA RTZ, and M cCO NNELL, Circuit Judges.
Eduardo Soto-Soto appeals his sentence of 57 months’ imprisonment for
illegal reentry by a felon following deportation. He argues that this sentence is
unreasonably long because the district court failed to consider the mitigating
evidence he presented during a sentencing hearing. The district court clearly
understood his argument that his sentence should be outside the advisory range
*
This order and judgment is not binding precedent, except under the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.
provided by the United States Sentencing Guidelines, but decided to impose a
sentence w ithin the advisory range. Because sentences inside the advisory
guidelines range are presumptively reasonable and Soto-Soto does not rebut that
presumption, we A FFIR M the district court’s sentencing order.
On February 26, 2005, Soto-Soto was arrested in Columbus, New M exico
by Border Patrol agents. The agents discovered he was a citizen of M exico who
had been deported from the United States in 1998 after serving a 24-month
sentence for felony assault in W ashington State.
Soto-Soto entered into a plea agreement and pled guilty to illegal reentry
after deportation by an aggravated felon, 8 U.S.C. §§ 1326(1-2), (b)(2), and the
Pre-Sentence Report (“PSR”) stated that his adjusted offense level was 21, after a
three level deduction for acceptance of responsibility. As a result of previous
convictions for possession with intent to deliver cocaine, misdemeanor assault,
shoplifting, and his felony assault conviction, Soto-Soto’s criminal history
category was IV. The PSR also noted his prior convictions for criminal trespass,
driving with a suspended license, vehicle prowling, and loitering for drug activity,
but stated that these did not enhance his criminal history category. Based on an
offense level of 21 and a criminal history category of IV, the advisory guideline
range is 57 to 71 months’ imprisonment.
Although he did not object to the PSR’s determination of the proper
guideline range, Soto-Soto filed a motion arguing that the district court had the
2
discretion to sentence him below the guidelines range following the Supreme
Court’s decision in United States v. Booker, 543 U.S. 220 (2005), and that
consideration of the sentencing factors in 18 U.S.C. § 3553(a) should lead the
court to do so. Specifically, Soto-Soto argued that a sentence within the
guidelines range would be improper because: (1) he only came to the United
States to see his daughter on the occasion of her quinceñera, a celebration of her
fifteenth birthday, and, as such, his illegal reentry was less serious than most
efforts to sneak into the country; (2) his deprived childhood, which included
sexual and physical abuse, mitigated his criminal behavior; (3) his prior offenses,
which included drug dealing and assault, were the result of his addiction to drugs,
for which he has since received treatment; and (4) he had previously been in the
United States illegally for a long period of time and, thus, he is “an American in
every sense of the word, except the narrow legal definition.” Counsel described
Soto-Soto’s story as a “real sad one . . . perhaps the saddest I’ve come across”.
The district court was unimpressed with Soto-Soto’s arguments. During the
sentencing hearing, the court noted that Soto-Soto had not received any criminal
history points for several convictions, including one that was drug related, and
that Soto-Soto’s guilty plea resulted in a substantially lower sentencing range
than he would have received otherwise. Further, it stated that his prior
convictions revealed that he had worked as a drug dealer and that this made him
less sympathetic than someone who worked in other forms of labor. Finally, it
3
dismissed the importance of Soto-Soto’s “sad story,” noting that “all of these are
sad stories” and that it was “not impressed by the fact that he has had such a bad
life. He’s had a bad life in part because he was a drug dealer.” Despite its lack
of sympathy for Soto-Soto, the court sentenced Soto-Soto to 57 months’
imprisonment, the bottom of the applicable range.
Soto-Soto now appeals, arguing that the district court’s sentence was
unreasonable. H e argues that the statement by the district court that Soto-Soto
has “had a bad life in part because he was a drug dealer” meant that the district
court failed to understand his argument as to why a lower sentence should be
imposed. Sentences inside the advisory guidelines range are entitled to a
presumption of reasonableness. United States v. Kristl, 437 F.3d 1050, 1054
(10th Cir. 2006). “This is a deferential standard that either the defendant or the
government may rebut by demonstrating that the sentence is unreasonable when
viewed against the other factors delineated in § 3553(a).” Id.
The claim on appeal is nothing short of absurd. The district court directly
addressed the mitigating factors raised by Soto-Soto, but simply found that his
story was not particularly out of the ordinary. It then went on to note that “part”
of the reason for the set-backs Soto-Soto has faced was his decision to sell drugs.
This is undeniably true, as he was convicted for possession with intent to deliver
cocaine and admitted to a past history of drug-related activities. The district
court did not explicitly mention the § 3553(a) factors, but it is clear from the
4
record that, before imposing the sentence, the district court considered the
substance of relevant factors, including the history and characteristics of the
defendant and the need for the sentence to reflect the seriousness of the offense.
As we have stated before, “we will not demand that the district court recite any
magic words to show us that it fulfilled its responsibility to be mindful of the
factors that Congress has instructed it to consider.” United States v. M ares, 441
F.3d 1152, 1161 (10th Cir. 2006) (citations and quotation marks omitted).
Sentences within the advisory guideline range are presumptively reasonable and
Soto-Soto has not presented any argument sufficient to overcome that
presumption.
For the reasons stated above, we AFFIRM the district court’s sentencing
order.
ENTERED FOR THE COURT
Carlos F. Lucero
Circuit Judge
5