F I L E D
                                                                United States Court of Appeals
                                                                        Tenth Circuit
                      UNITED STATES CO URT O F APPEALS
                                                                       March 6, 2007
                                 TENTH CIRCUIT                     Elisabeth A. Shumaker
                            __________________________                 Clerk of Court

 U N ITED STA TES O F A M ER ICA,

          Plaintiff-Appellee,

 v.                                                     No. 06-5173
                                                        (N.D. Okla.)
 M AURICO KEJUAN SM ITH , also                 (D.Ct. No. 06-CR -043-001-JHP)
 known as M aurico Kijuan Smith,

          Defendant-Appellant.
                        ____________________________

                                OR D ER AND JUDGM ENT *


Before TA CH A, Chief Circuit Judge, and BARRETT and BROR BY, Senior
Circuit Judges.




      After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1.9(G). The case is

therefore ordered submitted without oral argument.



      Appellant M aurico K ejuan Smith pled guilty to five criminal counts,

      *
         This order and judgment is not binding precedent except under the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.
including one count of possession with intent to distribute cocaine base in

violation of 21 U.S.C. § 841(a)(1) and (b)(1)(A )(iii); one count of possession with

intent to distribute heroin in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(C); one

count of possession with intent to distribute marijuana in violation of 21 U.S.C.

§ 841(a)(1) and (b)(1)(D); one count of possession of a firearm in furtherance of

drug trafficking crimes in violation of 18 U.S.C. § 924(c)(1)(A); and one count of

possession of a firearm after former conviction of a felony in violation of 18

U.S.C. §§ 922(g)(1) and 924(a)(2). He now appeals his sentence, contending the

district court erred in sentencing him to 322 months imprisonment, which he

claims is an unreasonable sentence under 18 U .S.C. § 3553(a). W e exercise

jurisdiction pursuant to 18 U.S.C. § 3742 and 28 U.S.C. § 1291 and affirm M r.

Smith’s conviction and sentence.



                               I. Factual Background

      After M r. Smith’s arrest and indictment, he pled guilty to all five counts in

the indictment. Following his guilty plea, a probation officer prepared a

presentence report calculating his total offense level at thirty-four under the

United States Sentencing Guidelines (“Guidelines” or “U.S.S.G.”), which

included a career offender enhancement based on the fact he had at least two prior

controlled drug offenses. His total base offense level, together with his criminal

history category of VI, resulted in a Guidelines range of 322 to 387 months

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imprisonment.



                             II. Procedural Background

      M r. Smith did not file formal written objections to the presentence report,

and at the sentencing hearing his counsel again stated he had no objections.

However, after M r. Smith made a statement to the court, his counsel asked the

district court to consider the 18 U.S.C. § 3553 factors in conjunction with: (1) his

poverty; (2) his upbringing, including the fact he was raised by his grandparents

due to his mother’s and stepfather’s incarceration; (3) the grouping of his three

prior convictions, including their relative proximity in time; (4) the amount of

time since his last prior conviction; (5) his maturity level during those prior

convictions; (6) his relationship w ith his children; (7) his remorse for his actions;

(8) the fact he pled guilty rather than go to trial; (9) the “horrendous” or

excessive sentence based on his career offender enhancement; (10) his need for

rehabilitation; (11) his argument that an overly excessive sentence might not

protect the public or cause a defendant to respect the laws; (12) the fact he never

“made it beyond the eleventh grade”; 1 and (13) his request for a sixteen-year

sentence. In response, the government argued it received no notice of M r.

Smith’s “downward departure” request and that a decrease in his sentence was not



      1
        The record indicates M r. Smith obtained a GED and plumbing and
carpentry training.

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warranted given M r. Smith did not learn from his prior three drug convictions and

incarcerations and, instead, continued to deal drugs, including marijuana, cocaine,

and heroin, while possessing a gun.



      In addressing M r. Smith’s argument, the district court judge stated he

reviewed and considered the nature and circumstances of the offenses, together

with M r. Smith’s characteristics and criminal history and the advisory Guidelines

calculations. He then sentenced M r. Smith at the low end of the Guidelines range

of 322 to 387 months, to 322 months imprisonment. In so doing, he explicitly

stated that several § 3553(a) factors warranted the specific sentence imposed,

including the fact the sentence w as consistent with the applicable Guidelines; M r.

Smith is a Guidelines career offender; he had at least two prior drug trafficking

convictions, neither of which deterred him from selling drugs again; he carried a

loaded firearm during his criminal activity; he showed no plans to change the

course of his life; the sentence reflected the seriousness of the offense, promoted

respect for the law , and provided just punishment for the offense committed; a

lengthy sentence was necessary to punish him, protect the public, provide a

deterrence to others, and to incapacitate M r. Smith; and the sentence promoted

uniformity in sentencing for similarly situated defendants.




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                                    III. Discussion

      On appeal, M r. Smith argues the district court erred in sentencing him “to a

term of incarceration that was plainly unreasonable” and in violation of United

States v. Booker, 

(2005), and Blakely v. Washington, 

(2004). In support, he contends the district court failed to conduct the required 18

U.S.C. § 3553(a) analysis of sentencing factors and instead sentenced him by

inappropriately relying solely on the G uidelines advisory sentencing range. In so

doing, he argues, the district court considered only the gun and the prior

convictions and not the additional factors he raised at sentencing. He also

contends the district court applied the Guidelines in a mandatory manner because

it stated, “[t]he findings of fact that are pertinent to the sentencing for the record

are a total offense level of 34; criminal history category of 6; possible sentence

from 322 months to 387 months for all ... counts,” and later, in response to the

government’s objection over a lack of notice on a “downward departure,” it

further stated: “I think [defendant’s counsel] was speaking based on what’s in the

presentence report. His argument was directed to the presentence report. I don’t

think he brought up anything new except ... that there was a plea for a ... major

departure.” In conjunction with this argument, M r. Smith generally claims his

322-month sentence is cruel and unusual under the Eighth A mendment because

the proper § 3553 analysis was not conducted by the district court in providing

him a reasonable sentence.

                                           -5-
      In addition, M r. Smith suggests certain factors required to be considered

under 18 U.S.C. § 3553(a) are in conflict with the Guidelines. Specifically, he

claims that even though § 3553(a) requires the courts to evaluate the defendant’s

history and characteristics, the G uidelines forbid consideration of the defendant’s

age under U.S.S.G. § 5H1.1; education and vocational skills under § 5H1.2;

mental and emotional condition under § 5H1.3; physical condition, including drug

or alcohol dependence, under § 5H1.4; employment record under § 5H1.5; family

ties and responsibilities under § 5H1.6; socio-economic status under § 5H1.10;

civic and military contributions under § 5H1.11; and lack of guidance as a youth

under § 5H1.12. He also argues that while § 3553(a)(2)(D) requires a sentencing

court to evaluate the need to provide the defendant with education, training,

treatment, or medical care, U.S.S.G. § 5C1.1 contradicts those factors by limiting

the circumstances in which a court can impose a sentence other than

imprisonment.



      W e review for reasonableness the sentence imposed and have determined a

presumption of reasonableness attaches to a sentence, like here, which is w ithin

the correctly calculated Guidelines range. See United States v. Kristl, 

, 1053-54 (10th Cir. 2006) (per curiam). W e require reasonableness in tw o

respects: “the length of the sentence, as well as the method by which the sentence

was calculated.” 

(emphasis omitted). If the district court “properly

                                         -6-
considers the relevant Guidelines range and sentences the defendant within that

range, the sentence is presumptively reasonable,” but “[t]he defendant may rebut

this presumption by demonstrating that the sentence is unreasonable in light of

the other sentencing factors laid out in § 3553(a).” 

whether

the district court properly considered the applicable G uidelines, we review its

legal conclusions de novo and its factual findings for clear error. 

      W e have held “[t]here is no question that, in addition to guiding our

reasonableness review on appeal, the sentencing factors set forth in 18 U.S.C.

§ 3553(a) must be considered by the district court itself when imposing a

sentence.” United States v. Sanchez-Juarez, 

, 1115 (10th Cir.

2006). W hen the district court allows a defendant to make an argument that any

of these factors warrant a below -Guidelines-range sentence and then imposes a

sentence at the low end of the Guidelines range, we have said this “may fairly be

read as a functional rejection of [his] arguments and a denial of his request for a

below-Guidelines sentence.” 

addressing a district court’s consideration

of the § 3553(a) factors, “[w ]e do not require a ritualistic incantation to establish

consideration of a legal issue, nor do we demand that the district court recite any

magic words to show us that it fulfilled its responsibility to be mindful of the

factors that Congress has instructed it to consider.” United States v. Lopez-

Flores, 

, 1222 (10th Cir. 2006) (quotation marks and citation

                                           -7-
omitted), petition for cert. filed (U.S. Jul. 7, 2006) (No. 06-5217). W hile “we

will not demand that a district court recite any magic w ords” to support its

conclusions, neither w ill we “presume the district court weighed a party’s

arguments in light of the § 3553(a) factors where the record provides no

indication that it did so and no clear explanation of the sentence imposed.”

(quotation marks and citations omitted).

      [W ]here a defendant has raised a nonfrivolous argument that the
      § 3553(a) factors warrant a below-Guidelines sentence and has
      expressly requested such a sentence, we must be able to discern from
      the record that the sentencing judge did not rest on the guidelines
      alone, but considered whether the guidelines sentence actually
      conforms, in the circumstances, to the statutory factors.

(quotation marks, alterations, and citation omitted). However,

“[w]hen the defendant has not raised any substantial contentions concerning non-

Guidelines § 3553(a) factors and the district court imposes a sentence within the

Guidelines range, our post-Booker precedents do not require the court to explain

on the record how the § 3553(a) factors justify the sentence.” 

.



      W ith these principles in mind, we note the district court in this case

explicitly considered the factors in § 3553(a), 2 including the nature and

      2
          18 U.S.C. § 3553(a) provides, in part, that the court shall consider:

      (1) the nature and circumstances of the offense and the history and
                                                                     (continued...)

                                          -8-
circumstances of M r. Smith’s offenses, together with his characteristics and

criminal history. Thus, the record provides a clear “indication” it considered

these requisite factors, together with M r. Smith’s argument for a below-

Guidelines-range sentence based on his poverty, upbringing, incarceration of his

mother and stepfather, education, remorse, children, guilty plea, need for

rehabilitation, maturity during that time, and request for a sixteen-year sentence,

as well as the amount of time since his last prior conviction and the effect of the

career offender enhancement on his sentence. See 

. W hen the district court imposed a sentence at the low end of the

Guidelines range, it was “a functional rejection of [his] argument[] and a denial

of his request for a below-Guidelines sentence.” 

Because the district

court properly considered the relevant Guidelines range and sentenced M r. Smith

within that range, his sentence is presumptively reasonable and he has clearly not

      2
       (...continued)
      characteristics of the defendant;
      (2) the need for the sentence imposed--
      (A) to reflect the seriousness of the offense, to promote respect for
      the law, and to provide just punishment for the offense;
      (B) to afford adequate deterrence to criminal conduct;
      (C) to protect the public from further crimes of the defendant; and
      (D) to provide the defendant with needed educational or vocational
      training, medical care, or other correctional treatment in the most
      effective manner;
      (3) the kinds of sentences available; ...
      (6) the need to avoid unwarranted sentence disparities among
      defendants with similar records who have been found guilty of
      similar conduct; and
      (7) the need to provide restitution to any victims of the offense.

                                         -9-
rebutted this presumption by demonstrating the sentence is unreasonable in light

of the sentencing factors in § 3553(a). See 

. Based on

this conclusion and due to judicial economy, we decline to address M r. Smith’s

cursory argument the district court failed to consider the § 3553 factors, resulting

in an unreasonable sentence in violation of the Eighth Amendment prohibition

against cruel and unusual punishment.



      In addition, contrary to M r. Smith’s contention, it is clear the district court

applied the Guidelines in an advisory manner, as evidenced by its explicit

statement the G uidelines are now advisory. Therefore, we reject M r. Smith’s

misguided contentions the district court somehow impermissibly applied the

Guidelines in a mandatory manner because of an innocuous statement and use of

certain nomenclature at sentencing. For instance, when the district court stated,

“the findings of fact that are pertinent to the sentencing,” it did so only after both

parties indicated they did not have any objections to the presentence report and

prior to M r. Smith’s counsel’s argument of factors supporting a below-

Guidelines-range sentence. Nor do we believe the district court’s reference to a

“major departure” supports M r. Smith’s argument it applied the Guidelines

mandatorily. The district court simply used the government’s nomenclature in

referring to M r. Smith’s request for a below-Guidelines-range sentence under




                                          -10-
§ 3553 as a “departure,” rather than a “variance.” 3 The district court’s

inadvertent reference to a “departure” does not change the fact it applied the

Guidelines in an advisory manner.



      Finally, with regard to M r. Smith’s argument that the § 3553(a) factors are

in conflict with various listed U.S.S.G. Chapter 5 policy statements, the record

does not establish he raised the issue before the district court for its

consideration. W e have long declined to rule on issues not raised in the district

court when the defendant cannot show an impediment precluded his raising the

issue or that the ground not raised constituted plain error resulting in manifest

injustice. See U nited States v. Orr, 

, 1508 (10th Cir. 1988).




      3
          As we recently clarified:

      [W ]hen a court reaches a sentence above or below the recommended
      Guidelines range through application of Chapters Four or Five of the
      Sentencing Guidelines, the resulting increase or decrease is referred
      to as a “departure.” When a court enhances or detracts from the
      recommended range through application of § 3553(a) factors,
      however, the increase or decrease is called a “variance.”

United States v. Atencio, ___ F.3d ___, 2007 W L 102977, at *6 n.1 (10th Cir.
Jan. 17, 2007) (No. 05-2279) (slip op.) (en banc request denied).

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                          IV. Conclusion

For these reasons, we A FFIRM M r. Smith’s conviction and sentence.



                              Entered by the C ourt:

                              W ADE BRO RBY
                              United States Circuit Judge




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