United States v. Melendez-Dones , 274 F. App'x 726 ( 2008 )

FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS April 22, 2008
TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
No. 07-2198
v. (D.C. No. CR-06-2269-JCH)
(D.N.M.)
JOSE VALENTIN MELENDEZ-
DONES,
Defendant - Appellant.
ORDER AND JUDGMENT *
Before KELLY, ANDERSON, and McCONNELL, Circuit Judges. **
Defendant-Appellant Jose Valentin Melendez-Dones appeals from the
sentence imposed following his guilty plea to one count of reentry of a removed
alien in violation of 8 U.S.C. § 1326(a), (b)(2). He was sentenced to 70 months’
imprisonment—a term at the low end of the applicable Guidelines
range—followed by two years’ unsupervised release. On appeal, Mr. Melendez
*
This order and judgment is not binding precedent, except under the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.
argues that his sentence is substantively unreasonable. Our jurisdiction arises
under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a), and we affirm.
A sentence within the correctly determined Guidelines range is entitled to a
presumption of reasonableness. See United States v. Kristl, 437 F.3d 1050, 1054
(10th Cir. 2006). Mr. Melendez argues that this presumption is no longer valid
after Gall v. United States, 128 S. Ct. 586 (2007), and Kimbrough v. United
States, 128 S. Ct. 558 (2007). See Aplt. Reply Br. at 2, 7. However, Gall clearly
states that “[i]f the sentence is within the Guidelines range, the appellate court
may, but is not required to, apply a presumption of reasonableness.” 128 S. Ct. at
597. We review a sentencing decision for reasonableness under an abuse of
discretion standard. United States v. Sutton, — F.3d —, No. 07-1223, 2008 WL
879429, *3 (10th Cir. Apr. 3, 2008).
The reasonableness of a sentence “includes a procedural component, which
includes how the sentence was calculated, and substantive component concerning
the length of the sentence actually imposed.” Id. Mr. Melendez concedes that the
district court correctly calculated the Guidelines range, Aplt. Br. at 10, and only
argues that his sentence was substantively unreasonable. First, he argues that his
criminal history double counts his prior convictions. See U.S.S.G. § 2L1.2(b)(1).
We have routinely upheld this practice as reasonable where the Guidelines
authorize it. See U.S.S.G. § 2L1.2(b)(1), cmt. n. 6; United States v. Ruiz-
Terrazas, 477 F.3d 1196, 1204 (10th Cir. 2007). The district court did not abuse
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its discretion in rejecting arguments that Mr. Melendez’s two prior violent felony
convictions—attempted armed robbery and aggravated burglary—over-
represented the seriousness of his criminal history, particularly given Mr.
Melendez’s lengthy criminal history and recidivism. Second, Mr. Melendez
argues that his cultural assimilation and his reason for illegally reentering the
United States, to visit his terminally ill sister, also cause his sentence to be
substantively unreasonable. We have not previously determined whether cultural
assimilation is an appropriate ground for departure, and we decline to address the
question here. See United States v. Galarza-Payan, 441 F.3d 885, 889–90 (10th
Cir. 2006). Mr. Melendez has failed to demonstrate that these facts cause the
sentence to be unreasonable based on the sentencing factors in 18 U.S.C. §
3553(a), particularly given that having been removed to Mexico in July 2005 after
serving a federal sentence for reentry, he returned to the United States and was
convicted of a controlled substance offense. See Kristl, 437 F.3d at 1055; II R.
(PSR) 9, ¶ 24.
AFFIRMED.
Entered for the Court
Paul J. Kelly, Jr.
Circuit Judge
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