F I L E D
United States Court of Appeals
Tenth Circuit
e raaUNITED STATES CO URT O F APPEALS
August 20, 2007
TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
U N ITED STA TES O F A M ER ICA,
Plaintiff - Appellee, No. 07-4035
v. (D. Utah)
V IN CEN TE H ER NA N D EZ-G ARCIA, (D.C. No. 2:06-CR-00459-DB)
A/K /A PEDRO PEREZ-ELIN EZ,
Defendant - Appellant.
OR D ER AND JUDGM ENT *
Before H E N RY, T YM KOV IC H, and HO LM ES, Circuit Judges. **
Vincente H ernandez-Garcia pleaded guilty to conspiring to distribute fifty
grams or more of methamphetamine, in violation of 21 U.S.C. § 846(b)(1)(A),
and illegally re-entering the United States after deportation, in violation of 8
U.S.C. § 1326. The district court sentenced him to 97 months’ imprisonment
*
This order and judgment is not binding precedent except under the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 appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See F ED . R. A PP . P. 34(a)(2); 10 TH C IR . R. 34.1(G). The case is
therefore ordered submitted without oral argument.
followed by 3 years’ supervised release. M r. Hernandez-Garcia now challenges
the reasonableness of his sentence. Our jurisdiction arises under 18 U.S.C. §
3742(a) and 28 U.S.C. § 1291, and we affirm.
I. BACKGROUND
A federal grand jury indicted M r. Hernandez-Garcia on multiple counts of
distributing methamphetamine, one count of conspiracy to distribute fifty grams
or more of methamphetamine, and one count of illegal re-entry of a previously
deported alien. Pursuant to a plea agreement, M r. Hernandez-Garcia pleaded
guilty to the conspiracy count and the illegal re-entry count.
At sentencing, the district court calculated the sentencing range
recommended by the United States Sentencing Guidelines (“Guidelines”) to be 97
to 121 months. M r. Hernandez-Garcia agreed that the court’s calculation was
correct, but requested a below-Guidelines sentence. He argued the sentences
within the recommended range were “too long” and “not necessary . . . to provide
the amount of time that justice requires.” Rec. vol. II, at 5. He also reminded the
court that it “has a lot of discretion to fashion a reasonable sentence.” Id. The
government, in accordance with the plea agreement, recommended a low-end
Guidelines sentence.
The district court agreed with the government and sentenced M r.
Hernandez-Garcia to 97 months’ imprisonment followed by 3 years’ supervised
release. In responding to M r. H ernandez-Garcia’s argument for a below-
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Guidelines sentence, the district court stated that “[t]here is a lot of merit to [the]
argument about these sentences being too high.” Id. at 6. However, it ultimately
concluded that M r. Hernandez-Garcia’s arguments “are probably better directed to
the Sentencing Commission and to Congress than to individual judges at this
stage of our ongoing sentencing efforts in this country, which is fair, to provide
overall deterrents. Your remarks are not rejected out of hand, but I think in this
particular instance the guidelines need to be followed.” Id. at 8. M r. Hernandez-
Garcia timely appealed.
II. DISCUSSION
Under United States v. Booker, 543 U.S. 220 (2005), we review sentences
for reasonableness. United States v. Kristl, 437 F.3d 1050, 1054 (10th Cir. 2006)
(per curiam). Reasonableness has procedural and substantive components which
encompass, respectively, “the method by which the sentence was calculated” and
“the length of the sentence.” Kristl, 437 F.3d at 1055 (emphasis omitted).
In setting a procedurally reasonable sentence, the district court must
appreciate the advisory nature of the Guidelines, correctly calculate the applicable
Guidelines range, and consider the factors contained in 18 U.S.C. § 3553(a). See
United States v. Sanchez-Juarez, 446 F.3d 1109, 1114-15 (10th Cir. 2006). “A
substantively reasonable sentence ultimately reflects the gravity of the crime and
the § 3553(a) factors as applied to the case.” United States v. Atencio, 476 F.3d
1099, 1102 (10th Cir. 2007). If the district court did not comm it any procedural
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errors in arriving at a sentence and imposed a sentence within the recommended
Guidelines range, we presume that sentence is substantively reasonable. K ristl,
437 F.3d at 1054; see Rita v. United States, 127 S. Ct. 2456, 2462 (2007) (holding
that “a court of appeals may apply a presumption of reasonableness” to
within-G uidelines sentences).
On appeal, M r. Hernandez-Garcia does not attempt to rebut the
presumption of reasonableness afforded to his low-end Guidelines sentence by
pointing to any § 3553(a) factor. Instead, he tersely argues that his sentence is
procedurally unreasonable because “the district court used the Guidelines as a
starting place and w hile agreeing that the sentence may be too long, nevertheless
felt constrained to impose it.” Aplt’s Br. at 2-3; see id. at 5 (“[T]here is no
presumptive starting point using the Guidelines.”). M r. Hernandez-Garcia failed
to object on this basis, but we need not move past the first prong of plain error
review because the district court committed no error. See United States v.
Lopez-Flores, 444 F.3d 1218, 1222 (10th Cir. 2006).
To begin, contrary to M r. Hernandez-Garcia’s argument, there was nothing
wrong with the district court using the advisory Guidelines range as a “starting
place” in crafting his sentence. United States v. Terrell, 445 F.3d 1261, 1264
(10th Cir. 2006) (stating that “[t]he Guidelines continue to be the starting point
for district courts” when imposing terms of imprisonment) (internal quotation
marks omitted); see Rita, 127 S. Ct. at 2464 (“[S]entencing judge[s], as a matter
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of process, will normally begin by considering the presentence report and its
interpretation of the Guidelines.”). M oreover, the record shows that the district
court did not place undue weight on the recommended Guidelines range because it
expressly recognized the Guidelines were advisory and properly considered the
circumstances underlying M r. Hernandez-Garcia’s case when crafting his
sentence. See Rec. vol. III, at 7-8 (noting that “the guidelines are not mandatory”
and stating that in “this particular instance the guidelines need to be followed”
(emphasis added)). Accordingly, we conclude the district court did not err. See
Rita, 127 S. Ct. at 2468 (“[W]hen a judge decides simply to apply the Guidelines
to a particular case, doing so will not necessarily require lengthy explanation.
Circumstances may well make clear that the judge rests his decision upon the
[Sentencing] Commission’s ow n reasoning that the G uidelines sentence is a
proper sentence (in terms of § 3353(a) and other congressional mandates) in the
typical case, and that the judge has found that the case before him is typical.”).
III. CONCLUSION
For the foregoing reasons, M r. Hernandez-Garcia’s sentence is hereby
AFFIR M ED.
Entered for the Court,
Robert H. Henry
Circuit Judge
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