F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES CO URT O F APPEALS
May 17, 2007
TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
U N ITED STA TES O F A M ER ICA,
Plaintiff - Appellee, No. 06-2166
v. (D. New M exico)
ENRIQU E ENRIQU EZ-BO JOR QU EZ, (D.C. No. CR-05-1306-BB)
Defendant - Appellant.
OR D ER AND JUDGM ENT *
Before KELLY, A ND ER SO N, and HENRY, Circuit Judges.
Defendant/appellant Enrique Enriquez-Bojorquez, a citizen of M exico, pled
guilty to one count of illegal reentry by an alien previously convicted of an
aggravated felony, in violation of 8 U.S.C. § 1326(a)(1), (a)(2) and (b)(2). He
was sentenced to forty-one months’ imprisonment, followed by two years of
supervised release. Enriquez-Bojorquez appeals that sentence, which we affirm.
*
This order and judgment is not binding precedent except under the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.
BACKGROUND
On January 21, 1991, Enriquez-Bojorquez was convicted of aggravated
assault on a peace officer and driving under the influence. Aggravated assault is
an aggravated felony for federal immigration purposes. 8 U.S.C.
§ 1101(a)(43)(F). He received a three-year sentence, which was suspended on the
condition that he successfully complete eighteen months of probation. Enriquez-
Bojorquez was deported to M exico in February 1991.
He was found again in the United States in August 1991, was convicted of
illegal reentry, and was again deported in August 1992. Enriquez-Bojorquez was
found once again in the United States in September 1997, was convicted of illegal
reentry and was deported for a third time in January 2001. The instant offense
occurred when, on April 3, 2005, Enriquez-Bojorquez illegally reentered the
United States and was arrested by agents at the border. As indicated, he pled
guilty to illegal reentry by an alien with a previous conviction for an aggravated
felony, i.e., the aggravated assault in 1991.
In preparation for sentencing, the United States Probation Office prepared a
presentence report (“PSR”), which calculated an advisory sentencing range under
the United States Sentencing Commission Guidelines M anual (“USSG”) (2004).
The PSR determined that Enriquez-Bojorquez’s base offense level was eight. It
recommended a sixteen-level enhancement because Enriquez-Bojorquez had been
previously convicted of an aggravated felony, see USSG §2L1.2(b)(1)(A), and a
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three-level reduction for acceptance of responsibility. See USSG §3E1.1. W ith a
total adjusted offense level of twenty-one and a criminal history category of II,
the advisory Guideline sentencing range w as forty-one to fifty-one months.
Enriquez-Bojorquez filed a Sentencing M emorandum in which he sought a
sentence of from eighteen to twenty-four months. He argued that the nature and
circumstances of his reentry, which “was to locate his [missing] son, to
reestablish their relationship and to eventually find work [in the United States] to
support his son and [his] mother w ho lives in M exico and is in failing health,”
Sentencing M em. at 7, R. Vol. I, doc. 26, justified a below-G uidelines sentence.
Enriquez-Bojorquez further discussed his personal history and characteristics and
argued that the circumstances of the offense underlying his aggravated felony
conviction did not warrant a sixteen-level enhancement because the case was
quickly resolved, resulted in a suspended sentence, and caused injury only to him.
He also argued that the advisory Guideline sentence was unreasonable because a
lesser sentence would still reflect the seriousness of the offense, promote respect
for the law, provide just punishment, deter future criminal conduct, protect the
public, and reflect his lack of access to programs otherwise available to
incarcerated U nited States citizens.
The government opposed Enriquez-Bojorquez’s request for a sentence
below the advisory Guideline range because the advisory Guideline sentence was
comparable to other sentences of those convicted of the same offense, and thus
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the Guideline sentence avoided the creation of disparities among defendants w ith
similar profiles.
At the sentencing hearing, Enriquez-Bojorquez did not object to the factual
findings of the PSR. Rather, he argued that most of his prior convictions
occurred when he was younger, that the convictions w ere too old to be the basis
for criminal history points, and that he reentered the United States for economic
and family reasons, like many other aliens.
The district court noted that it was “sympathetic” to Enriquez-Bojorquez’s
arguments, but that his case w as “a fairly typical heartland case” that the court
sees “routinely” and there was accordingly no basis for a departure from the
advisory Guideline range. Tr. of Sentencing Hr’g at 12, R. Vol. III. The court
therefore sentenced Enriquez-Bojorquez to forty-one months’ imprisonment, at
the bottom of the Guideline range.
Enriquez-Bojorquez appeals, repeating his arguments that his 1991
conviction is so old that it should be ignored in computing his sentence, and that
his sentence “in light of Section 3553 leads to the conclusion that the sentence in
this case was greater than necessary to advance the sentencing goals articulated in
Section 3553, is unreasonable, and should therefore be vacated.” A ppellant’s
Reply Br. at 1.
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D ISC USSIO N
Since the Supreme Court’s decision in United States v. Booker, 543 U.S.
220 (2005), the formerly mandatory federal sentencing Guidelines are now
advisory. “Post-Booker, we review sentencing decisions for reasonableness,
which has both procedural and substantive components.” United States v.
Atencio, 476 F.3d 1099, 1102 (10th Cir. 2007). “In setting a procedurally
reasonable sentence, a district court must calculate the proper advisory Guidelines
range and apply the factors set forth in § 3553(a).” Id. “A substantively
reasonable sentence ultimately reflects the gravity of the crime and the § 3553(a)
factors as applied to the case.” Id.
Because district courts continue to calculate a Guidelines sentence as part
of their determination of a reasonable sentence, “we continue to review the
district court’s application of the Guidelines de novo, and we review any factual
findings for clear error.” U nited States v. Townley, 472 F.3d 1267, 1275-76 (10th
Cir. 2007), petition for cert. filed (M ar. 12, 2007) (No. 06-10032). W here a
district court “correctly applies the Guidelines and imposes a sentence within the
applicable Guideline range, that sentence ‘is entitled to a rebuttable presumption
of reasonableness.’” Id. at 1276 (quoting United States v. Kristl, 437 F.3d 1050,
1054 (10th Cir. 2006) (per curiam)). 1
1
W e note that the Supreme Court has heard oral argument in two cases
which may impact the way we review sentences after Booker, in particular, the
(continued...)
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W hile Enriquez-Bojorquez appears for the most part to challenge the
substantive reasonableness of his sentence, he does argue that the district court
“adhered strictly to the advisory guideline enhancement” and failed to consider
Enriquez’s circumstances and/or apply the sentencing factors contained in 18
U.S.C. § 3553(a). Appellant’s Br. at 22. Accordingly, we address the
reasonableness of his sentence both procedurally and substantively.
Because Enriquez-Bojorquez did not object to the procedure by which his
sentence was determined and explained, we may reverse it only in the presence of
plain error. United States v. Ruiz-Terrazas, 477 F.3d 1196, 1199 (10th Cir.
2007). “Plain error occurs w hen there is (i) error, (ii) that is plain, which (iii)
affects the defendant’s substantial rights, and which (iv) seriously affects the
fairness, integrity, or public reputation of judicial proceedings.” Id.
W ith respect to procedural reasonableness, “[i]t is well-established that w e
do not ‘demand that the district court recite any magic w ords to show us that it
fulfilled its responsibility to be mindful of the factors [in § 3553(a)] that Congress
has instructed it to consider.” United States v. Jarrillo-Luna, 478 F.3d 1226, 1229
(10th Cir. 2007) (quoting United States v. Contreras-M artinez, 409 F.3d 1236,
1
(...continued)
validity or not of the presumption of reasonableness we have accorded to within-
Guidelines sentences. See United States v. Rita, 177 Fed. Appx. 357 (4th Cir.),
cert. granted, 127 S. Ct. 551 (2006) (No. 06-5754); United States v. Claiborne,
439 F.3d 479 (8th Cir.), cert. granted, 127 S. Ct. 551 (2006) (No. 06-5618).
Accordingly, we consider the reasonableness of Enriquez-Bojorquez’s sentence
both with and without a presumption of reasonableness.
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1242 (10th Cir. 2005)). “However, it is equally clear that, ‘although the district
court is not obligated to expressly weigh on the record each of the factors set out
in § 3553(a), it must state its reasons for imposing a given sentence.’” Id.
(quoting United States v. Sanchez-Juarez, 446 F.3d 1109, 1116 (10th Cir. 2006)
(quotation marks omitted)).
In this case, the district court stated at sentencing that it had reviewed
Enriquez-Bojorquez’s Sentencing M emorandum, listened to his oral arguments
and considered an additional letter w ritten on Enriquez’s behalf. The court
further stated that it was sympathetic to Enriquez-Bojorquez’s circumstances, but
noted that his situation was not substantially different from many other aliens
who illegally reenter the United States. The court also addressed Enriquez-
Bojorquez’s argument that the sentence for his current offense of reentry, which
he characterizes as a victimless crime, is longer than his sentence for his prior
aggravated assault offense, and noted that the criminal justice system is designed
to be cumulative in order to deter future criminal conduct. The court discussed
Enriquez-Bojorquez’s “cumulative” criminal history, and then addressed
Enriquez-Bojorquez’s argument that his reentry was motivated by family and
economic factors:
This is a fairly typical heartland case, frankly, under the guidelines.
I see this routinely. Unfortunately, families are divided by the
border, and a lot of times they are divided in very emotional and gut-
wrenching situations where someone is sick or dying and folks are
emotionally compelled to cross the border. But the law does not
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provide any solace for that. And the economic circumstances are
certainly the primary motivating factor for the vast majority of
people that are coming across the border. So neither of those
[arguments] or the combination would justify downward departure.
Tr. of Sentencing Hr’g at 12, R. Vol. III.
W e are confident that the district court properly discharged its duty to give
reasons for imposing the forty-one-month sentence it did. It is clear that the court
did not simply apply the Guideline sentence; rather, it considered the
circumstances of Enriquez-Bojorquez’s offense, and explained why it was not
convinced by his arguments to sentence him differently. Nothing more is
required. See Jarrillo-Luna, 478 F.3d at 1230 (“W e have never held . . . that the
district court must list the reasons why it could have chosen a different sentence
and then explain why it rejected them.”).
W ith respect to the substantive reasonableness of Enriquez-Bojorquez’s
sentence, we hold that, with or without the presumption of reasonableness
accorded a within-Guidelines sentence, the sentence imposed here was
reasonable. As the district court noted, Enriquez-Bojorquez’s situation was not
substantially different from many other illegal reentrants. W hile Enriquez-
Bojorquez’s prior aggravated assault conviction was some fourteen to fifteen
years before, that alone does not justify ignoring it as a part of his criminal
history. Furthermore, the district court noted the “cumulative” nature of his
criminal history, and further noted that the reasons Enriquez-Bojorquez gave for
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reentering the United States w ere, essentially, run-of-the-mill. W e accordingly
hold that the sentence imposed is reasonable, in light of the § 3553(a) sentencing
factors.
C ON CLU SIO N
For the foregoing reasons, we AFFIRM the sentence in this case.
ENTERED FOR THE COURT
Stephen H. Anderson
Circuit Judge
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