F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                 UNITED STATES COURT OF APPEALS                          May 11, 2006

                                 TENTH CIRCUIT                        Elisabeth A. Shumaker
                                                                         Clerk of Court



 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,
                                                        No. 05-2203
 v.                                               (D.C. No. CR-05-391-JC)
                                                         (D.N.M.)
 RAUL VACA-PEREZ,

          Defendant-Appellant.




                          ORDER AND JUDGMENT *


Before TACHA, Chief Judge, SEYMOUR and BRISCOE, Circuit Judges.



      Raul Vaca-Perez appeals the district court’s imposition of a sentence of 30

months for illegally reentering the United States after his deportation following a

conviction for an aggravated felony. We vacate his sentence and remand.

      On December 29, 2004, Mr. Vaca-Perez, a citizen of Mexico, was arrested

by a United States Border Patrol agent near Columbus, New Mexico. Upon his


      *
       This order and judgment is not binding precedent, except under the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. 36.3.
arrest, Mr. Vaca-Perez admitted he was present illegally in the United States

following two previous deportations in February and July of 2004. Mr. Vaca-

Perez’s February 2004 deportation was the result of convictions for attempted

second degree burglary and attempted escape from a work release program.

      Mr. Vaca-Perez pled guilty to one count of illegally reentering the United

States in violation of 8 U.S.C. § 1326(b)(2). In the presentence report (PSR), the

probation officer started with a base offense level of eight for illegal reentry and

recommended an eight-level upward adjustment under U.S.S.G. § 2L1.2(b)(1)(C)

based on Mr. Vaca-Perez’s prior conviction for an aggravated felony, namely,

attempted escape from a work release program. The PSR further recommended a

three-level downward adjustment for acceptance of responsibility. The resulting

offense level was 13, which when combined with a criminal history category of

V, resulted in a guidelines sentencing range of 30 to 37 months. Rec. vol. II.

      In response to the PSR, Mr. Vaca-Perez filed a sentencing memorandum

arguing that “a Guideline sentence of 30 to 37 months is more severe than

necessary to achieve the sentencing objectives established by the United States

Congress” in 18 U.S.C. § 3353(a). Rec., vol. I, tab 16 at 2. He requested a

sentence of 24 months, arguing that it would satisfy these objectives. In support

of this contention, Mr. Vaca-Perez pointed to his cultural assimilation, the

likelihood of adverse penal consequences attending his status as a deportable


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alien, his extraordinary acceptance of responsibility, and that he reentered the

United States solely to assist his children who, he believed, had been abandoned

by their mother. 

He further asserted in his objection to the PSR that

the criminal history points he received for what constituted the aggravated

offense, walking away from a work-release program, over-represented the

seriousness of his conduct. Rec., vol. II, PSR add. at 1.

      At the sentencing hearing, the district court denied Mr. Vaca-Perez’s

request for a lesser sentence, stating only that it had

      reviewed the presentence report factual findings and . . . the
      sentencing guideline applications. The offense level is 13, and the
      criminal history category is V. The guideline imprisonment range is
      30 to 37 months. The Court notes the defendant reentered the United
      States illegally subsequent to a prior conviction for [an] aggravated
      felony, that being attempted escape.

sentenced Mr. Vaca-Perez to 30 months incarceration. 

Mr. Vaca-Perez contends that (1) contrary to the Supreme

Court’s decision in Booker, the district court applied the guidelines in a

mandatory fashion; (2) the court erred by failing to state its reasons for imposing

a sentence of 30 months; and (3) his 30-month sentence is unreasonable. Because

the district court failed to state its reasons for rejecting Mr. Vaca-Perez’s

nonfrivolous arguments for a below-guidelines sentence, we remand on that

ground and do not reach Mr. Vaca-Perez’s third claim.

      We first consider Mr. Vaca-Perez’s claim that the district court applied the

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guidelines to his case in a mandatory fashion in violation of Booker.

      In United States v. Booker, the Supreme Court held that the
      mandatory application of the Guidelines to judge-found facts (other
      than a prior conviction) violates the Sixth Amendment. Rather than
      declare the Guidelines unconstitutional, however, the Court excised
      the provision of the federal sentencing statute that made the
      Guidelines mandatory, 18 U.S.C. § 3553(b)(1), effectively making
      the Guidelines advisory.

United States v. Kristl, 

, 1053 (10th Cir. 2006) (internal citation

omitted). Thus, it is error post-Booker for a district court to apply the guidelines

in a mandatory fashion. See United States v. Gonzalez-Huerta, 

,

731-32 (10th Cir. 2005). In support of his claim that the district court treated the

guidelines as mandatory, Mr. Vaca-Perez points to the absence in the record of

any statement by the court that it viewed the guidelines as advisory. The Supreme

Court’s decision in Booker was issued on January 12, 2005. Mr. Vaca-Perez’s

sentencing took place more than five months later on June 22. We find it highly

implausible that by June a district court could have been unaware of the holding

in Booker regarding the advisory nature of the guidelines. This is especially true

where both Mr. Vaca-Perez and the government referenced Booker in their

memoranda to the court. Under these circumstances, we decline to find that the

court treated the guidelines as mandatory absent a clear indication in the record to

the contrary.

      We now turn to Mr. Vaca-Perez’s claim that the district court committed


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reversible error by failing to explain its reasons for imposing a sentence of 30

months as required by § 3553(c) or, in the alternative, that remand is required

because we are unable to assess the reasonableness of the sentence as required by

Booker because the district court failed to state its reasons for imposing the

sentence.

      In United States v. Sanchez-Juarez, No. 05-2295, 

, at *4,

__ F.3d __, __ (10th Cir. May 3, 2006), we recently reiterated that a district court

must consider the sentencing factors set forth in 18 U.S.C. § 3553(a) when

imposing any sentence, even a guideline sentence. As described above, Mr. Vaca-

Perez argued in his sentencing memorandum that a number of factors warranted a

sentence below the guidelines range. As we recognized in Sanchez-Juarez, the

district court’s “decision to impose a sentence at the low end of the Guidelines

range may fairly be read as a functional rejection of [defendant’s] arguments and

a denial of his request for a below-Guidelines sentence.” 

Here, as

there, the district court offered no reasons for the sentence it imposed other than

its reference to the PSR’s factual findings and the guidelines, and its citation to

Mr. Vaca-Perez’s offense conduct. The court did not refer to the § 3553(a)

factors.

      We determined in Sanchez-Juarez that the record created by the district

court was insufficient to permit us proper review. 

Under facts nearly


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identical to those here, we held that a district court, when presented with a

defendant’s nonfrivolous argument that the § 3553(a) factors warrant a below-

guidelines sentence must state reasons for denying the requested sentence. 

This is true even where the sentence imposed is at the bottom of the guideline

sentence range recommended by the PSR. 

We require the district court

to state its reasons because our post-Booker review of sentences is for

reasonableness, United States v. Galarza-Payan, 

, 887 (10th Cir.

2006), and this determination is guided by the § 3553(a) factors, 

. For proper review, therefore, the record must demonstrate that the

district court considered those factors. Explaining why, in light of the factors, the

court rejected a defendant’s arguments for a below-guidelines sentence is one way

of accomplishing this.

      Mr. Vaca-Perez presented at least one nonfrivolous argument for a below

guidelines sentence. In objecting to the PSR’s findings, he claimed that his

“foolish decision to walk away from a work release program” and the

circumstances of his attempted second degree burglary conviction support a

sentence below the guidelines. Rec. vol. II, PSR add. at 1. In challenging the

reasonableness of his sentence, Mr. Vaca-Perez further argued that, given the

non-violent nature of his offenses, a strict application of the guidelines to his case

over-represents his criminal history and likelihood to reoffend. In Sanchez-


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Juarez, we held that a similar argument “concerning the incongruity between the

actual conduct involved in [the defendant’s] prior alien smuggling conviction and

the 16-level increase suggested by the Guidelines is not clearly meritless.” 

, at *7. See also United States v. Trujillo-Terrazas, 

,

819-20 (10th Cir. 2005). Mr. Vaca-Perez’s argument that his prior convictions

were not sufficiently serious to justify a 30-month sentence is not wholly

frivolous.

      Accordingly, we VACATE Mr. Vaca-Perez’s sentence and REMAND to

the district court for resentencing in accordance with Sanchez-Juarez and this

opinion.


                                       ENTERED FOR THE COURT


                                       Stephanie K. Seymour
                                       Circuit Judge




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