United States v. Dominguez-Barraza

FILED
United States Court of Appeals
Tenth Circuit
February 25, 2008
Elisabeth A. Shumaker
Clerk of Court
UNITED STATES COURT OF APPEALS
TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
No. 07-1378
v.
(D.C. No. 05-cr-00494-REB)
(D. Colo.)
ARNOLDO DOMINGUEZ-
BARRAZA,
Defendant-Appellant.
ORDER AND JUDGMENT *
Before LUCERO, TYMKOVICH, and HOLMES, Circuit Judges.
Arnoldo Dominguez-Barraza, a citizen of Mexico, appeals his sentence of
77 months’ imprisonment following his conviction for illegal reentry into the
United States by a previously deported felon in violation of 8 U.S.C. § 1326(a) &
(b)(2). He raises only one argument on appeal, contending that the sentence
*
The case is unanimously ordered submitted without oral argument
pursuant to Fed. R. App. P. 34(a)(2) and 10th Cir. R. 34.1(G). This order and
judgment is not binding precedent, except under the doctrines of law of the case,
res judicata, and collateral estoppel. The court generally disfavors the citation of
orders and judgments; nevertheless, an order and judgment may be cited under the
terms and conditions of 10th Cir. R. 32.1.
imposed by the district court is substantively unreasonable. Discerning no abuse
of discretion on the record before us, we AFFIRM his sentence.
I
On November 14, 2005, a grand jury indicted Dominguez-Barraza on one
count of illegal reentry of a deported alien subsequent to conviction for an
aggravated felony in violation of 8 U.S.C. § 1326(a) & (b)(2). Dominguez-
Barraza thereafter pleaded guilty to the indictment in exchange for the
government’s agreement to recommend a sentence at the bottom of the applicable
United States Sentencing Guidelines (“Guidelines”) range.
Dominguez-Barraza’s Presentence Report (“PSR”) calculated an initial base
offense level of 8 for illegal reentry by a deported felon. See U.S.S.G.
§ 2L1.2(a). It then added 16 levels because Dominguez-Barraza had been
previously deported following a conviction for a drug trafficking offense, see
§ 2L1.2(b)(1)(A)(i), and subtracted 3 points for acceptance of responsibility, see §
3E1.1, to arrive at a total adjusted offense level of 21. As to criminal history, the
PSR placed Dominguez-Barraza in category VI. Based on this adjusted offense
level and criminal history category, the PSR calculated an advisory Guidelines
range of 77 to 96 months’ imprisonment.
At his sentencing hearing, Dominguez-Barraza argued for a term of
incarceration below the advisory Guidelines range, urging that the district court
should grant a downward variance under the factors set forth in 18 U.S.C.
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§ 3553(a). Specifically, he contended that he merited a sentence below the
advisory range because: (1) He comes from an impoverished family in Mexico;
(2) He was physically abused by his father during his youth; (3) Because of this
abuse, he left home at the age of fourteen to start working and to support himself
and his family; (4) He has been and currently is the sole source of financial
support for his mother, who continues to reside in Mexico; (5) He has shown his
ability to hold a good job and to support his family; (6) He has a new family in
the United States with a wife and a two-year-old child, and ten-year-old and
fifteen-year-old stepchildren; (7) He returned to the country illegally to support
and be with his family; (8) Previously, he had problems with drugs and alcohol
but has been sober for the past two years; (9) He has developed a plan to live in
Mexico but still be close to his family without returning to the United States; and
(10) He is now 39 years old and, as such, is much more responsible than before.
After entertaining these arguments at sentencing, the district court
proceeded to address each of the § 3553(a) factors in substantial detail. In light
of the relevant considerations, the district court ultimately concluded that a
downward variance was not warranted under the statute and that Dominguez-
Barraza should be sentenced to a term of 77 months’ imprisonment, the bottom of
the applicable advisory range. This timely appeal followed.
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II
Dominguez-Barraza argues on appeal that his sentence is substantively
unreasonable because the district court did not give adequate consideration of, or
sufficient emphasis to, the factual arguments that he raised at his sentencing
hearing. 1 According to his view of the matter, the justifications he offered to the
district court were sufficient to warrant a downward variance from the advisory
Guidelines range under the § 3553(a) factors.
We review a district court’s sentencing determinations for an abuse of
discretion, asking whether the sentence is reasonable in light of the factors set
forth in § 3553(a). Gall v. United States, 128 S. Ct. 586, 597 (2007); United
States v. Kristl, 437 F.3d 1050, 1053 (10th Cir. 2006) (“Reasonableness review is
guided by the factors set forth in 18 U.S.C. § 3553(a) . . . .”). Where the sentence
imposed is selected from within a properly calculated Guidelines range, as in this
case, we apply a presumption of reasonableness. Kristl, 437 F.3d at 1053; see
also Rita, 127 S. Ct. at 2462 (upholding use of an appellate presumption of
reasonableness for those sentences falling within a properly calculated Guidelines
range).
1
To the extent Dominguez-Barraza’s brief can be read to raise a challenge
to the procedural reasonableness of his sentence, we reject that argument. The
district court’s statement at sentencing was more than adequate to satisfy us that
it carefully considered the relevant sentencing factors. See Rita v. United States,
127 S. Ct. 2456, 2468 (2007).
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Having reviewed the record before us, we cannot say that the district court
abused its discretion in selecting a sentence of 77 months’ imprisonment. From
the transcript of the sentencing hearing, it is apparent that the district court
entertained each of the arguments asserted by Dominguez-Barraza, carefully
examined the potential justifications for a below-Guidelines sentence, and
thoroughly considered the applicability of each of the § 3553(a) factors. Thus,
although Dominguez-Barraza raises several plausible arguments for a lesser
sentence, his arguments fail, on whole, to establish that a 77-month sentence is
unreasonable. See Gall, 128 S. Ct. at 597 (“The fact that the appellate court
might reasonably have concluded that a different sentence was appropriate is
insufficient to justify reversal of the district court.”).
III
For the foregoing reasons, we AFFIRM Dominguez-Barraza’s sentence.
ENTERED FOR THE COURT
Carlos F. Lucero
Circuit Judge
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