F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES CO URT O F APPEALS
March 28, 2007
TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
U N ITED STA TES O F A M ER ICA,
Plaintiff-Appellee, No. 06-2116
v. (D. of N.M .)
B EN JA M IN CA M PO S-D A V ILA, (D.C. No. CR-05-1611-JH)
Defendant-Appellant.
OR D ER AND JUDGM ENT *
Before H E N RY, T YM KOV IC H, and HO LM ES, Circuit Judges. **
Benjamin Campos-Davila pleaded guilty to illegal re-entry after deportation
subsequent to an aggravated felony conviction in violation of 8 U.S.C.
§§ 1326(a)(1), (a)(2), and (b)(2). He was sentenced to forty-six months
imprisonment. Counsel has filed an Anders 1 brief and moves to withdraw. In his
*
This order and judgment is not binding precedent except under the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.
**
After examining the briefs and the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1(G). The cause is therefore ordered submitted without oral argument.
1
Anders v. California, 386 U.S. 738 (1967).
brief, counsel states he could find no arguably meritorious claim to raise on
Campos-Davila’s behalf. Counsel does, however, note that Campos-Davila’s
sentence was arguably unreasonable under 18 U.S.C. § 3553(a) and United States
v. Booker, 543 U.S. 220 (2005). Campos-Davila has not filed any materials on
his own behalf.
W e review sentences imposed post-Booker for reasonableness. United
States v. Kristl, 437 F.3d 1050, 1053 (10th Cir. 2006). “[A] sentence that is
properly calculated under the [United States Sentencing] Guidelines [USSG] is
entitled to a rebuttable presumption of reasonableness.” Id. at 1054. “The
defendant may rebut this presumption by demonstrating that the sentence is
unreasonable in light of the other sentencing factors laid out in [18 U.S.C.]
§ 3553(a).” Id. at 1055.
Campos-Davila’s sentence was properly calculated under the USSG . The
guideline applicable for a conviction under 8 U.S.C. § 1326 is USSG § 2L1.2.
Under this guideline, the base offense level is eight. USSG § 2L1.2(a). But this
guideline calls for a sixteen-level enhancement if the defendant was previously
deported or remained in the United States after a felony conviction for a “crime of
violence.” USSG § 2L1.2(b)(1)(A)(ii). The commentary to USSG § 2L1.2
defines “crime of violence” as including burglary of a dwelling.
Campos-Davila was deported on August 15, 2003 and again on December
30, 2003. Prior to being deported, he was convicted as a juvenile of Burglary of a
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Dwelling in 2001. He was also later convicted as an adult, though still only
seventeen, of Conspiracy to Commit Aggravated Burglary of a Residence and
Accessory Before the Fact to Larceny, both in 2002. 2 Therefore, the sixteen-level
enhancement was warranted, resulting in an adjusted offense level of tw enty-four.
Following a three-level downward adjustment for acceptance of responsibility
under U SSG § 3E1.1, Campos-D avila’s total offense level w as tw enty-one.
Pursuant to USSG §§ 4A1.1 and 4A1.2, and USSG Ch.5, Pt.A, his criminal
history category was III, resulting in a guideline range of forty-six to fifty-seven
months imprisonment. Thus, Campos-D avila’s forty-six month sentence is
presumptively reasonable.
Campos-Davila presents no argument to rebut the presumption of
reasonableness. The district court review ed the pre-sentence report, listened to
counsel’s request for a downward departure based on a withdrawn plea
agreement 3 and the absence of ties to M exico, considered the factors set forth in
2
Offenses committed prior to the age of eighteen factor in to Campos-
Davila’s criminal history under USSG § 4A1.2(d)(2) as crimes committed within
five years of the instant offense.
3
Campos-Davila originally signed a plea agreement with the government
stipulating to a final adjusted sentencing guidelines offense level of twelve. The
agreement, however, was contingent upon Campos-Davila having no felony
conviction warranting an upward adjustment under USSG § 2L1.2(b)(1)(A) or
(B). W hen the government learned from the pre-sentence investigation that
Campos-Davila’s criminal history contained a conviction which could be
classified under these provisions, it withdrew the plea agreement under a
provision of the agreement permitting it to do so. Campos-D avila pleaded guilty
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§ 3553(a), and found a forty-six month sentence reflected the seriousness of the
offense and the defendant’s criminal history. Even in the absence of the
presumption, we would find the sentence reasonable.
After a careful review of the record, we GRANT counsel’s request to
withdraw and AFFIRM the sentence.
Entered for the Court
Timothy M . Tymkovich
Circuit Judge
3
(...continued)
to the original indictment without the benefit of the plea agreement.
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