FILED
United States Court of Appeals
Tenth Circuit
March 6, 2008
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
TENTH CIRCUIT Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee, No. 07-2104
v. (D. New Mexico)
VENTURA JAVIER ESTRADA- (D.C. No. CR-06-1620 JB)
RODRIGUEZ,
Defendant - Appellant.
ORDER AND JUDGMENT *
Before LUCERO, HARTZ, and GORSUCH, Circuit Judges.
Ventura Javier Estrada-Rodriguez entered a plea of guilty in the United
States District Court for the District of New Mexico to the offense of unlawful
reentry following deportation for committing an aggravated felony. See 8 U.S.C.
§ 1326(a), (b). The district court sentenced him to 46 months’ imprisonment. On
*
After examining the briefs and appellate record, this panel has determined
unanimously to honor the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 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 This order and judgment is not binding
precedent except under the doctrines of law of the case, res judicata, and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.
appeal Mr. Estrada-Rodriguez contends that his sentence is substantively
unreasonable. We have jurisdiction under 28 U.S.C. § 1291 and affirm.
Under the United States Sentencing Guidelines Mr. Estrada-Rodriguez was
assigned a base offense level of 8 for unlawfully entering the United States. See
USSG § 2L1.2(a). He received a 16-level enhancement because he had been
previously deported after being convicted of a crime of violence (false
imprisonment by violence) in California. See id. § 2L1.2(b)(1)(A). After a
3-level reduction for accepting responsibility, see id. § 3E1.1, his total offense
level became 21.
Mr. Estrada-Rodriguez’s criminal-history category under the Guidelines
was IV because he had seven criminal-history points. A conviction for
misdemeanor driving under the influence was assigned one point. See id.
§ 4A1.1(c). A conviction for felony false imprisonment was assigned three
points. See id. § 4A1.1(a). And he received two additional points because he
committed the instant offense while on probation, see USSG § 4A1.1(d), and
received a seventh point because he committed the instant offense within two
years of being released from custody on the felony sentence, see USSG
§ 4A1.1(e). The district court, however, departed downward to criminal-history
category III because Mr. Estrada-Rodriguez was “barely” in criminal-history
category IV and the “timing” of his offense had resulted in “pil[ing] these points
on.” R. Vol. III at 16. The Guidelines sentencing range was therefore 46 to 57
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months’ imprisonment, and the court imposed a 46-month sentence. On appeal
Mr. Estrada-Rodriguez argues that this sentence is substantively unreasonable in
light of the factors listed in 18 U.S.C. § 3553.
Under United States v. Booker, 543 U.S. 220, 261 (2005), we review a
sentence for reasonableness. See Gall v. United States, 128 S. Ct. 586, 597
(2007); United States v. Smart, No. 06-6120, slip op. at 11 (10th Cir. Mar. 4,
2008). But a sentence within the Guidelines range is “presumptively reasonable.”
United States v. Kristl, 437 F.3d 1050, 1054 (10th Cir. 2006); see Rita v. United
States, 127 S. Ct. 2456, 2462 (2007). Mr. Estrada-Rodriguez has not presented
sufficient grounds for overcoming the presumption.
Among Mr. Estrada-Rodriguez’s arguments are: (1) that unlawful reentry
is a victimless crime akin to a regulatory offense; (2) that the offense level is
based primarily on the defendant’s prior record rather than his relevant conduct;
(3) that he is being sentenced as harshly as a United States citizen who committed
a far more serious crime; and (4) that a below-Guidelines sentence can adequately
protect the public, particularly because he will be deported after serving his
sentence. These arguments are unpersuasive because they would apply to almost
anyone convicted of the same offense who had the same criminal history. They
thus amount to an attack on the Guidelines themselves, and we are unwilling to
state that the conclusions of the Sentencing Commission with regard to the mine-
run of cases are unreasonable.
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Mr. Estrada-Rodriguez’s remaining arguments relate to his specific
situation. He states that there were extenuating circumstances surrounding his
conviction for felony false imprisonment—namely, that he had confronted the
victim because his sister had told him that the victim had repeatedly sexually
assaulted her. He also asserts that he had resided in the United States for 20 years
before being convicted of a crime and that he has always been gainfully
employed. Again we are not persuaded. Reasonable people can differ on whether
vigilante action is a proper ground for reducing a sentence; his not engaging in
criminal activity when younger is already taken into account in his criminal-
history category and the district court’s downward departure; and his long-term
gainful employment is not particularly atypical or meritorious.
Mr. Estrada-Rodriguez’s sentence is therefore AFFIRMED.
ENTERED FOR THE COURT
Harris L Hartz
Circuit Judge
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