FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                    UNITED STATES CO URT O F APPEALS
                                                                 October 25, 2007
                                                   Elisabeth A. Shumaker
                             TENTH CIRCUIT             Clerk of Court



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

               Plaintiff-Appellee,                       No. 07-2074
          v.                                             (D. of N.M .)
 OM AR GU AD ALU PE RAM IREZ-                    (D.C. No. CR-06-1838-BB)
 VA ZQU EZ,

               Defendant-Appellant.



                            OR D ER AND JUDGM ENT *


Before H E N RY, T YM KOV IC H, and HO LM ES, Circuit Judges. **


      Omar Guadalupe Ramirez-Vazquez pleaded guilty to illegal reentry after

deportation subsequent to an aggravated felony conviction in violation of 8

U.S.C. §§ 1326(a)(1), (a)(2), and (b)(2). Based on an offense level of 21 and a

criminal history of III, Ramirez-Vazquez fell within a sentence range of 46–57

months pursuant to the United States Sentencing Guidelines. Ramirez-Vazquez


      *
         This order and judgment is not binding precedent except under the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 three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1(G). The cause is therefore ordered submitted without oral argument.
requested a downward variance, arguing the circumstances of his prior conviction

did not warrant as high a sentence as the Guidelines suggested. The district court

denied the request and sentenced Ramirez-Vazquez to a guidelines term of 46

months. Ramirez-Vazquez timely appealed the procedural and substantive

reasonableness of his sentence. W e AFFIRM .

                                  I. Background

      A grand jury indicted Ramirez-Vazquez for illegal reentry after deportation

subsequent to an aggravated felony conviction in violation of 8 U.S.C.

§§ 1326(a)(1), (a)(2), and (b)(2). He pleaded guilty, and prior to sentencing, the

government’s Presentence Report (PSR ) related the following: On August 9,

2004, an Oklahoma state court convicted Ramirez-Vazquez of assault and battery

with a dangerous weapon and sentenced him to two years. On July 28, 2005, after

serving his sentence, Ramirez-Vazquez was deported to M exico. A year later, on

July 10, 2006, after illegal reentry, he was again arrested in the United States.

      The PSR calculated a base offense level of eight and a 16-level

enhancement for prior deportation subsequent to a conviction for a crime of

violence. After a downward adjustment for acceptance of responsibility, the PSR

arrived at a total offense level of 21. Based on Ramirez-Vazquez’s assault and

battery conviction, and because illegal reentry occurred within two years after his

release from custody, the PSR calculated a criminal history score of five. A

criminal history score of five (category III) and a total offense level of 21 yielded

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a guidelines imprisonment range of 46–57 months. Under the applicable statute,

8 U.S.C. § 1326(b)(2), the maximum term of imprisonment for Ramirez-

Vazquez’s offense is 20 years.

      Before sentencing, Ramirez-Vazquez filed a sentencing memorandum

requesting a downward variance. Ramirez-Vazquez reasoned a downward

variance would be proper because his earlier assault and battery— where he had

threatened another person w ith a machete— occurred strictly in self-defense. A t

sentencing, Ramirez-Vazquez repeated the argument that, in the totality of the 18

U.S.C. § 3553(a) factors, he deserved a downward variance because of “the

circumstances of the prior offense, that he was not an instigator, [that] this was

self-defense. And . . . it’s the retaliator w ho tends to get caught.” Aplt. Br.,

Attach. B at 7. Both in its response to Ramirez-Vazquez’s sentencing

memorandum and at sentencing, the government objected to a downward

variance, arguing the guidelines range was not unreasonable under the § 3553(a)

factors. The district court denied Ramirez-Vazquez’s request for a variance and

sentenced him to 46 months incarceration, within the suggested guidelines range.

                                     II. Analysis

      Ramirez-Vazquez mounts a procedural and a substantive challenge to his

guidelines sentence. Neither is persuasive.




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         A.    Procedural Reasonableness

         Ramirez-Vazquez argues the district court failed to adequately explain the

imposed sentence. Because Ramirez-Vazquez did not raise this argument at

sentencing, we review only for plain error. See United States v. Traxler, 

, 1250 (10th Cir. 2007). “Plain error occurs when there is (i) error, (ii) that

is plain, which (iii) affects the defendant’s substantial rights, and which (iv)

seriously affects the fairness, integrity, or public reputation of judicial

proceedings.” United States v. Ruiz-Terrazas, 

, 1199 (10th Cir.

2007).

         Recently, the Supreme Court has emphasized the district court’s duty to

show it has considered the sentencing factors set forth in 18 U.S.C. § 3553(a) in

reaching the sentence imposed. Rita v. United States, 

, 2468

(2007) (“The sentencing judge should set forth enough to satisfy the appellate

court that he has considered the parties’ arguments and has a reasoned basis for

exercising his own legal decisionmaking authority.”). But the Court also made

clear that a district judge is not required to give an exhaustive list of reasons. 

leaves much, in this respect, to the judge’s own professional

judgment.”).

         The district court here did more than enough to establish Ramirez-

Vazquez’s sentence as procedurally reasonable. The court specifically stated, “I

don’t think there is anything in [§] 3553 that persuades me the lower end of the

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guidelines is not appropriate.” Aplt. Br., Attach. B. at 14. M oreover, the district

court squarely addressed Ramirez-Vazquez’s key argument for a variance by

saying, “I’m not really persuaded this is an offense that would be outside of the

normal violent offense. He obviously did not hurt anyone, although that potential

was certainly there with a machete.” 

(emphasis added). The district

court’s explanation is a far cry from a case where a judge has completely ignored

the defendant’s non-frivolous arguments. Cf. United States v. Sanchez-Juarez,

, 1117–18 (10th Cir. 2006) (remanding for resentencing and

instructing the district court to address the defendant’s “not clearly meritless”

argument). The district court judge met Ramirez-Vazquez’s argument head on,

thus committing no error, plain or otherwise.

      B.     Substantive Reasonableness

      Ramirez-Vazquez also challenges the substantive reasonableness of his

sentence. W e review the district court’s sentence for reasonableness in light of

the § 3553(a) sentencing factors. United States v. Kristl, 

, 1053

(10th Cir. 2006). The district court has significant discretion in sentencing, and

our review for reasonableness, regardless of whether the sentence falls inside or

outside the advisory Guidelines, is a review for abuse of discretion. Rita, 127 S.

Ct. at 2456; see also United States v. Garcia-Lara, No. 06-3054, 2007 W L

2380991, at *2 (10th Cir. Aug. 22, 2007).




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      In this case, the district court sentenced Ramirez-Vazquez within the

guidelines range and Ramirez-Vazquez does not claim the range itself was

improperly calculated. The binding precedent in our court is that “a sentence that

is properly calculated under the Guidelines is entitled to a rebuttable presumption

of reasonableness.” 

; see also 

(holding that the presumption is permissible but not required). Nevertheless, the

presumption of reasonableness “is a deferential standard that either the defendant

or the government may rebut by demonstrating that the sentence is unreasonable

when viewed against the other factors delineated in § 3553(a).” 

.

      W e cannot find an abuse of discretion in the district court’s sentencing of

Ramirez-Vazquez within the guidelines range. The district court considered all

the same arguments Ramirez-Vazquez presents on appeal and rejected them,

noticeably troubled that a 25-year old defendant already “has that relatively

serious offense in Oklahoma, and has reentered this country.” Aplt. Br., Attach.

B at 14. M oreover, the mere fact that a lower sentence also may have been

reasonable does not prove the unreasonableness of Ramirez-V azquez’s sentence.

See United States v. Begay, 

, 975 (10th Cir. 2006) (“In any given

case there could be a range of reasonable sentences that includes sentences both

within and outside the Guidelines range.”), cert. granted in part, No. 06-11543,

2007 W L 1579420 (Sept. 25, 2007). Ramirez-Vazquez failed to rebut the

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reasonableness of his within-guidelines sentence. W e cannot, therefore, say that

the district court abused its discretion in sentencing Ramirez-Vazquez.

                                 III. Conclusion

      For the foregoing reasons, the district court’s sentence is AFFIRMED.

                                                   Entered for the Court

                                                   Timothy M . Tymkovich
                                                   Circuit Judge




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