United States v. Reyez

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES CO URT O F APPEALS
March 22, 2007
TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
U N ITED STA TES O F A M ER ICA,
Plaintiff-Appellee, No. 06-2037
v. (D. New M exico)
DO NR AD O A NTO NIO R EYEZ, (D.C. No. CR-05-2097-W PJ)
Defendant-Appellant.
OR D ER AND JUDGM ENT *
Before M U RPH Y, SE YM OU R, and M cCO NNELL, Circuit Judges.
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). The case is therefore submitted without
oral argument.
Defendant-Appellant Donrado Antonio Reyez pleaded guilty to reentry by a
deported alien previously convicted of an aggravated felony, in violation of 8
U.S.C. § 1326(a)(1), (a)(2), and (b)(2). On appeal, Reyez asks this court to
*
This order and judgment is not binding precedent except under the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.
review only the substantive reasonableness of his sentence. W e have jurisdiction
pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a) and affirm.
United States Border Patrol agents apprehended Reyez, a citizen of M exico,
about thirty-five miles west of Columbus, New M exico, on July 14, 2005. Further
investigation revealed Reyez had been deported to M exico in April 2004 after
receiving a sixty-nine month sentence in Florida in August 2001 for a state felony
manslaughter conviction. Reyez admitted to the agents who apprehended him that
he did not have permission to enter the United States.
At sentencing, Reyez did not contest the probation officer’s calculation of
his base offense level as eight or the imposition of a sixteen-level enhancement
under U .S.S.G. § 2L1.2(a) and (b)(1)(A)(ii), respectively. Reyez did, however,
move for downward Guidelines departures based on the circumstances of his case.
He explained he reentered the United States because he had two children in the
country who needed his assistance. 1 Based on his benevolent reasons for
returning to the United States, he asked the court to consider a departure under
§ 5K2.11. He also asked the court to depart under § 4A1.3, claiming the
calculation of his criminal history as category III overrepresented the seriousness
1
Reyez claimed he reentered the United States to help relieve the child-
rearing burdens imposed on his children’s maternal grandparents after the
children’s mother abandoned them. The circumstances alleged by Reyez could
not be verified by the probation officer or Reyez’s defense counsel.
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of his prior criminal conduct. Finally, Reyez argued generally that his case was
outside the heartland of cases and warranted a departure under § 5K2.0.
Providing detailed reasons for its decision, the sentencing court rejected
Reyez’s proffered grounds for departure and disagreed with Reyez’s
characterization of his case as outside the heartland. After providing a three-
point departure for acceptance of responsibility, the court calculated Reyez’s total
offense level as twenty-one, which, combined w ith his criminal history points,
yielded an advisory sentencing range of forty-six to fifty-seven months. The
court then went on to reference the factors set out at 18 U.S.C. § 3553(a), paying
particular attention to(a)(1) and (a)(2), and concluded a sentence within the
Guidelines range was appropriate. The court sentenced Reyez to forty-eight
months’ imprisonment and recommended the government begin removal
proceedings while Reyez served his prison term.
On appeal, Reyez challenges only the substantive reasonableness of his
sentence under United States v. Booker, 543 U.S. 220 (2005), essentially asking
this court to consider whether the length of the sentence imposed was fair and
just. Nowhere does Reyez challenge the district court’s calculation of the
applicable Guidelines range or its rejection of his requested grounds for
departure, nor does he argue the district court failed to consider the § 3553(a)
factors. Cf. United States v. Ruiz-Terrazas, __ F.3d __, No. 06-2138, 2007 W L
576034, at *1 (10th Cir. Feb. 26, 2007). It is well-established in this circuit that,
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when a district court sentences a defendant within a properly calculated advisory
Guidelines range, the sentence is “entitled to a rebuttable presumption of
reasonableness on appeal.” United States v. Kristl, 437 F.3d 1050, 1054 (10th
Cir. 2006). In this case, Reyez has not provided any argument or pointed to any
evidence in the record to rebut the presumption of reasonableness. Even without
the Kristl presumption of reasonableness, however, this court concludes Reyez’s
sentence was based on a reasoned and reasonable application of the sentencing
court’s discretion under 18 U.S.C. § 3553(a). 2 Accord United States v. Traxler,
__ F.3d __, Nos. 05-2370, 06-2179, 2007 W L 614266, at *6 (10th Cir. M ar. 1,
2007). Accordingly, Reyez’s sentence is AFFIRM ED.
ENTERED FOR THE COURT
M ichael R. M urphy
Circuit Judge
2
The Supreme Court recently heard oral argument in two cases which may
impact the w ay federal appellate courts review sentences after Booker. See
United States v. Rita, 177 Fed. App’x 357, cert. granted, 127 S. Ct. 551 (2006)
(N o. 06-5754); United States v. Claiborne, 439 F.3d 479 (8th Cir.), cert. granted,
127 S. Ct. 551 (2006) (No. 06-5168). Because this court determines Reyez’s
sentence is reasonable in light of the § 3553(a) factors, there would be no need
for rehearing in the event that Rita or Claiborne modifies appellate review of
district court sentences within the Guidelines range.
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