F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
November 14, 2006
TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
U N ITED STA TES O F A M ER ICA,
Plaintiff-Appellee,
No. 05-3435
v.
(D.C. No. 05-CR-20049-CM )
(Kansas)
JU A N ER NESTO M U RR IEG A -
SANTO S,
Defendant-Appellant.
ORDER AND JUDGMENT *
Before M U RPH Y, SE YM OU R, and M cCO NNELL, Circuit Judges.
Juan Ernesto M urriega-Santos appeals his sentence of 30 months
imprisonment pursuant to his plea of guilty to illegal reentry by a deported alien
previously convicted of an aggravated felony in violation of 8 U.S.C. §§ 1326(a)
and (b)(2). W e affirm.
In 1996, M r. M urriega-Santos was convicted of burglary in Arizona. He
*
After examining appellant’s brief and the 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) and 10th Cir. R.
34.1(G). The case is therefore submitted without oral argument. This order and
judgment is not binding precedent, except under the doctrines of law of the case,
res judicata, or 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.
was deported to his native country, El Salvador, after completing his sentence for
that crime. In 1998, he was apprehended in the United States and charged with
illegal reentry after deportation for an aggravated felony. He was convicted and
sentenced to 64 months imprisonment. In 2003, following his imprisonment, he
was again deported to El Salvador. On April 6, 2005, M r. M urriega-Santos was
apprehended in Kansas City, Kansas, and indicted for the instant offense. He pled
guilty without the benefit of a plea agreement. His pre-sentence report (PSR)
calculated his total offense level as 14 and his criminal history category at V,
resulting in a guideline range of 33 to 41 months.
At sentencing, M r. M urriega-Santos made the following arguments for
reducing his offense level and thereby his overall sentence: 1) entitlement to a
sentence in parity with other defendants sentenced in fast track districts; 2) the
8-level increase in offense level is unreasonable; 3) entitlement to an additional
1-level decrease for acceptance of responsibility; and 4) reduction in offense level
because he re-entered the United States for safety rather than for economic
reasons.
At the sentencing hearing, the district court heard argument from the
parties and stated it had reviewed and considered all the evidence presented by
both sides. The court accepted M r. M urriega-Santos’ second argument, finding
that had the government moved for an additional level for acceptance of
responsibility under U.S.S.G. § 3E1.1(b), M r. M urriega-Santos’ offense level
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would have been a 13. 1 An offense level of 13 combined with a criminal history
category of V , resulted in a sentencing range of 30 to 37 months. The court
reasoned that but for the local United States Attorney’s office policy that without
a plea agreement a defendant is only entitled to a 2-level reduction for acceptance
of responsibility, M r. M urriega-Santos would have been entitled to a 3-level
reduction. The court rejected M r. M urriega-Santos’ other contentions and
sentenced him to 30 months, finding the sentence was “sufficient but not greater
than necessary to comply with the provisions of 18 U.S.C. [§] 3553(A )(2).” Rec.,
vol. III at 4.
On appeal, M r. M urriega-Santos asks us to reconsider only the district
court’s rejection of his argument that the 8-level increase was unreasonable.
Specifically, he characterizes the issue as, “whether the eight level enhancement
automatically applied to M r. M urriega-Santos’ offense level for his prior felony
under U.S.S.G. § 2L1.2(b)(1)(C) is inherently unreasonable where that prior
felony has already been counted to increase his sentence in four separate ways.”
Aplt. Br. at 2.
A sentence properly calculated within the advisory sentencing guidelines is
entitled to a presumption of reasonableness. United States v. Kristl, 437 F.3d
1
The government did not appeal the district court’s decision granting an
additional one-level downward departure for acceptance of responsibility pursuant to
U.S.S.G. § 3E1.1(b). We therefore do not consider whether the district court acted
properly in the absence of a § 3E1.1(b) motion.
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1050, 1054 (10th Cir. 2006). The defendant is required to show that the sentence
is unreasonable when viewed against the factors in § 3553(a). Id. On appeal, to
determine whether the sentence is reasonable we first examine whether the
guidelines were properly applied. United States v. Hernandez-C astillo, 449 F.3d
1127, 1129 (10th Cir. 2006). The district court's sentence is reviewed de novo
and the factual findings for clear error. Id. If the district court's application of
the guidelines was correct or any errors harmless, then we decide whether the
sentence was reasonable. Id. at 1129-30. “The defendant or the government may
rebut the presumption [of reasonableness] by show ing the sentence is nonetheless
unreasonable in light of the factors contained in 18 U.S.C. § 3553(a).” United
States v. Galarza-Payan, 441 F.3d 885, 889 (10th Cir. 2006).
W e disagree with M r. M urriega-Santos’ contention that the increase levels
in § 2L1.2(b)(1)(C) are arbitrary and therefore unreasonable. Section
2L1.2(b)(1)(C) provides for a range of increases— from 4 to 16— for different
types of convictions. M r. M urriega-Santos received an 8-level increase for
previous aggravated felonies, including a prior conviction for illegal reentry after
deportation for an aggravated felony, burglary, and possession of narcotic drugs.
It is not our province to second guess the Sentencing Commission’s determination
that these levels are appropriate for purposes of setting sentencing guideline
ranges.
The district court acknowledged the Sentencing Commission’s
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contemplation of the various types of convictions in determining corresponding
offense levels and chose not to depart downward based on its knowledge that M r.
M urriega-Santos had previously been convicted not only of burglary and
possession of narcotic drugs, but also of the exact same crime for which he was
being sentenced. The district court considered the seriousness of M r. M urriega-
Santos’ underlying offenses when determining that the 8-level increase was
appropriate, while also giving consideration to the guidelines as it must. See
Kristl, 437 F.3d at 1053.
Next we address M r. M urriega-Santos’ argument regarding what he
considers a substantial overlap in the counting of his prior convictions. He
contends the guidelines unreasonably allow for both his criminal history category
and his offense level to be influenced by the same aggravated felony convictions.
However, the application note to § 2L1.2 expressly states, “[a] conviction taken
into account under subsection (b)(1) [which includes an aggravated felony] is not
excluded from consideration of w hether that conviction receives criminal history
points . . . .” U.S.S. G. § 2L1.2 cmt. n. 6. This circuit has upheld the use of prior
convictions to calculate both criminal history categories and sentence
enhancements where, like here, the guidelines permit such application. See
United States v. Alessandroni, 982 F.2d 419, 421 (10th Cir. 1992); United States
v. Florentino, 922 F.2d 1443, 1446 (10th Cir. 1990). See also United States v.
Torres-Echavarria, 129 F.3d 692, 698-99 (2d Cir. 1997) (rejecting double-
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counting argument as to § 2L1.2 because guidelines expressly permit such
calculation). It was not unreasonable for the district court to defer to the
guidelines.
In sentencing M r. M urriega-Santos at the bottom of an already-reduced
guideline range, the district court took into account not only the guidelines but
also the factors set forth in § 3553. The district court also remarked that “[t]he
defendant has refused to comply with the law, the court’s directives set forth.
[The] court hopes the sentence w ill hopefully serve as a deterrent to future
criminal behavior.” R ec. vol. III, tab 33 at 32. M r. M urriega-Santos has failed to
show the district court’s sentence of 30 months was unreasonable.
For the foregoing reasons, we AFFIRM .
ENTERED FOR THE COURT
Stephanie K. Seymour
Circuit Judge
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