FILED
United States Court of Appeals
Tenth Circuit
January 4, 2008
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee, No. 07-2021
v. (D. New Mexico)
FRANCISCO TRINIDAD-TOLEDO, (D.C. No. CR-06-1646-JB)
Defendant - Appellant.
ORDER AND JUDGMENT *
Before KELLY, MURPHY, and O’BRIEN, Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination
of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument.
*
This order and judgment is not binding precedent except under the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.
I. Introduction
Appellant Francisco Trinidad-Toledo pleaded guilty to one count of illegal
reentry of a deported alien, in violation of 8 U.S.C. §§ 1326(a) and (b). The
district court sentenced him to forty-one months’ imprisonment, the low end of
the advisory guidelines range. Trinidad-Toledo now appeals the sentence
imposed by the district court, arguing the court erred when it refused to depart
downward and that the sentence is substantively unreasonable based on
consideration of the factors set forth in 18 U.S.C. § 3553(a). See United States v.
Booker, 543 U.S. 220, 261 (2005). Exercising jurisdiction pursuant to 28 U.S.C.
§ 1291 and 18 U.S.C. § 3742(a), we affirm Trinidad-Toledo’s sentence.
II. Background
Trinidad-Toledo, a citizen of Mexico, was deported in 2004 subsequent to a
Texas state conviction for aggravated assault with a deadly weapon. On May 18,
2006, United States Border Patrol agents took Trinidad-Toledo into custody near
Columbus, New Mexico. A subsequent record check revealed both the Texas
conviction and the previous deportation. Trinidad-Toledo was then charged with
illegal reentry by a deported alien previously convicted of an aggravated felony, a
violation of 8 U.S.C. §§ 1326(a) and (b). Trinidad-Toledo pleaded guilty to the
charge and the United States Probation Office prepared a Presentence
Investigation Report (“PSR”). The PSR calculated the base offense level at eight
and then increased it sixteen levels pursuant to USSG § 2L1.2(b)(1)(A)(ii)
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because of the prior Texas felony conviction. The PSR also applied a three-level
reduction for acceptance of responsibility pursuant to USSG § 3E1.1, resulting in
a total offense level of twenty-one. Combined with Trinidad-Toledo’s criminal
history category of II, this offense level resulted in an advisory guidelines
sentencing range of forty-one to fifty-one months’ imprisonment.
Trinidad-Toledo did not submit any objections to the PSR but filed a
sentencing memorandum requesting a downward departure under USSG § 5H1.6
or a variance from the advisory guidelines range based on a consideration of the
factors set forth in 18 U.S.C. § 3553(a). At the sentencing hearing, the district
court denied Trinidad-Toledo’s request for a downward departure, concluding his
family circumstances did not justify the departure. The court specifically stated it
was not exercising its discretion to depart downward. After considering the
§ 3553(a) factors, the court sentenced Trinidad-Toledo to forty-one months’
imprisonment, the low end of the advisory guidelines range.
III. Discussion
Trinidad-Toledo first seeks to directly appeal the district court’s refusal to
grant him a § 5H1.6 downward departure. This court has no jurisdiction to
review the district court’s discretionary decision to deny the departure. United
States v. Sierra-Castillo, 405 F.3d 932, 936-37 (10th Cir. 2005). Accordingly,
this court reviews Trinidad-Toledo’s sentence only for substantive
reasonableness, “tak[ing] into account [his] asserted grounds for departure” when
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conducting that review. United States v. Chavez-Diaz, 444 U.S. 1223, 1229 (10th
Cir. 2006).
Because Trinidad-Toledo’s sentence falls within a properly calculated
guidelines range, 1 it is entitled to a rebuttable presumption of substantive
reasonableness. United States v. Kristl, 437 F.3d 1050, 1053 (10th Cir. 2006); see
also Rita v. United States, 127 S. Ct. 2456, 2462-63 (2007). Having reviewed the
record and considered Trinidad-Toledo’s arguments, we conclude he has failed to
rebut that presumption. His sentence is substantively reasonable.
IV. Conclusion
The sentence imposed by the district court is affirmed.
ENTERED FOR THE COURT
Michael R. Murphy
Circuit Judge
1
Trinidad-Toledo’s only challenge to the accuracy of the guidelines
calculation is based on the district court’s refusal to grant the downward
departure, a decision we cannot review because we lack jurisdiction. United
States v. Chavez-Diaz, 444 F.3d 1223, 1229 (10th Cir. 2006).
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