United States v. Aguilera-Vega

FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES CO URT O F APPEALS
October 23, 2007
Elisabeth A. Shumaker
TENTH CIRCUIT Clerk of Court
UNITED STATES OF AM ERICA,
Plaintiff-Appellee, No. 06-2361
v. (D.C. No. CR-06-1253 JH)
JOSE AGUILERA–VEGA, (D .N.M .)
Defendant-Appellant.
OR D ER AND JUDGM ENT *
Before BR ISC OE, M cKA Y, and M cCO NNELL, Circuit Judges.
Defendant Jose Aguilera-Vega pled guilty to illegal reentry of a deported
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 a seventy-seven-month term of
imprisonment, at the bottom of the applicable Sentencing Guidelines
(“Guidelines”) range. On appeal, Defendant argues that this sentence is excessive
because he only reentered the country to visit his ailing father and because 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This order and judgment is not binding precedent, except under the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 panel has
determined unanimously to honor the parties’ request for a decision on the briefs
without argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument.
1992 conviction for first-degree burglary did not warrant imposition of a sixteen-
level enhancement for crimes of violence under the Guidelines. See U.S.
Sentencing Guidelines M anual § 2L1.2(b)(1)(A) (2004).
“[W ]e 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. A lthough w e review the ultimate sentence for reasonableness, “w e
continue to review the district court’s application of the Guidelines de novo, and
we review any factual findings for clear error.” United States v. Townley, 472
F.3d 1267, 1275–76 (10th Cir. 2007), cert. denied, 127 S.Ct. 3069 (2007).
“W here the district court correctly applies the Guidelines and imposes a sentence
within the applicable G uidelines range, that sentence is entitled to a rebuttable
presumption of reasonableness.” Id. at 1276 (internal quotation marks omitted).
Defendant appears to contest the procedural reasonableness of his sentence
by arguing that the sixteen-level “crime of violence” enhancement was not
warranted in his case. Because Defendant did not object to the calculation of the
Guidelines’ range before the district court, we review only for plain error. United
States v. Rom ero, 491 F.3d 1173, 1178 (10th Cir. 2007). “W e find plain error
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only where there is (1) error, (2) that is plain, (3) which affects substantial rights,
and (4) which seriously affects the fairness, integrity, or public reputation of
judicial proceedings.” Id. Here, we find no error in the court’s application of the
sixteen-level enhancement pursuant to Section 2L1.2(b)(1)(A) of the Guidelines.
As the Guidelines’ commentary makes clear, burglary of a dwelling is considered
a violent felony for purposes of this section. U.S.S.G. § 2L1.2 cmt. n.1(B)(ii)(II);
see also United States v. M cNack, No. 07-5034, 2007 U.S. App. LEXIS 16747, at
*4–5 (10th Cir. July 12, 2007) (“Burglary is specifically mentioned in the
Guidelines as a crime of violence.”). M oreover, the court appropriately
considered D efendant’s request for a downw ard departure, the G uidelines’
applications, and the § 3553 (a) factors, then issued a sentence it concluded was
reasonable in light of Defendant’s criminal history. W e therefore hold
Defendant’s sentence is procedurally reasonable.
Defendant also contends that his sentence is not substantively reasonable
because his “crime of violence” enhancement was based on burglary rather than a
crime such as murder and because his reason for reentering the United States was
his father’s ill health. However, we conclude Defendant has not rebutted the
presumption of reasonableness attached to his sentence which was within the
Guidelines’ range. Given the circumstances of the case, including Defendant’s
extensive criminal history and prior conviction for illegal reentry, we are not
persuaded that a sentence at the bottom of the applicable Guidelines range was
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substantially unreasonable. Therefore, we AFFIRM Defendant’s conviction and
sentence.
Entered for the Court
M onroe G. M cKay
Circuit Judge
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