United States v. Segovia-Torres , 195 F. App'x 809 ( 2006 )


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  •                                                                      F I L E D
    United States Court of Appeals
    Tenth Circuit
    UNITED STATES CO URT O F APPEALS
    November 8, 2006
    TENTH CIRCUIT                    Elisabeth A. Shumaker
    Clerk of Court
    U N ITED STA TES O F A M ER ICA,
    Plaintiff - Appellee,             Nos. 05-2211 and 05-2358
    v.                                          (D. New M exico)
    RICA RD O SEG OVIA-TO RR ES,                  (D.C. No. CR-04-1646 M CA)
    Defendant - Appellant.
    OR D ER AND JUDGM ENT *
    Before HA RTZ, EBEL, and T YM KOVICH, Circuit Judges.
    Ricardo Segovia-Torres was indicted in the United States District Court for
    the District of New M exico on a charge of illegal reentry of a previously deported
    alien, see 
    8 U.S.C. §§ 1326
    (a)(1), (2) and (b)(2). He was tried by a jury and
    found guilty. On November 1, 2005, the district court sentenced him to 63
    *
    After examining the briefs and appellate record, this panel has determined
    unanimously to honor the parties’ request for a decision on the briefs without oral
    argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
    ordered submitted without oral argument. This order and judgment is not binding
    precedent, except under the doctrines of law of the case, res judicata, and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.
    months’ imprisonment. He appeals only the length of his sentence. W e have
    jurisdiction under 
    28 U.S.C. § 1291
     and affirm.
    I.    B ACKGR OU N D
    On October 13, 2004, a Border Patrol agent arrested M r. Segovia-Torres, a
    citizen of M exico, near Lordsburg, New M exico. He had been previously
    deported from the United States on July 21, 2000. Before that deportation he had
    been convicted of a drug-trafficking crime in California for which he had served
    more than 13 months in prison.
    Section 2L1.2 of the United States Sentencing Guidelines (USSG ) provides
    a base offense level of eight for the crime of illegal reentry after deportation, and
    a 16-level enhancement if “the defendant previously was deported . . . after . . . a
    conviction for a felony that is . . . a drug trafficking offense for which the
    sentence imposed exceeded 13 months.” USSG § 2L1.2(b)(1)(A). Because
    M r. Segovia-Torres had a criminal-history category of III, the Guidelines
    sentencing range was 63-78 months. The district court, treating the Guidelines as
    advisory, sentenced M r. Segovia-Torres to 63 months in prison.
    II.   D ISC USSIO N
    A.     Standard of Review
    M r. Segovia-Torres first challenges the reasonableness of his sentence. See
    United States v. Booker, 
    543 U.S. 220
    , 261 (2005) (requiring review of sentences
    for unreasonableness). “[A] sentence that is properly calculated under the
    -2-
    Guidelines is entitled to a rebuttable presumption of reasonableness. This is a
    deferential standard that the defendant or the government may rebut by
    demonstrating that the sentence is unreasonable when viewed against the other
    factors delineated in § 3553(a).” See United States v. Kristl, 
    437 F.3d 1050
    , 1054
    (10th Cir. 2006). W e review the district court's “factual findings for clear error
    and legal determinations de novo.” 
    Id.
    M r. Segovia-Torres also argues that the district court violated his Fifth
    Amendment due-process rights when it relied on findings made under the
    preponderance-of-the-evidence standard. W e review such claims de novo. See
    United States v. Walters, 
    269 F.3d 1207
    , 1215 (10th Cir. 2001).
    B.     Reasonableness of Sentence
    M r. Segovia-Torres contends that his sentence was unreasonably harsh for
    several reasons: (1) the district court failed to perform the individualized analysis
    required by 
    18 U.S.C. § 3553
    ; (2) his crime was victimless and was merely a
    regulatory offense; (3) the sentence was unnecessarily long as a means of
    deterring future criminal behavior; (4) the government presented no evidence that
    he had engaged in any illegal activity in the six years between his drug offense
    and his most recent reentry into the country; (5) a long sentence does nothing to
    protect the public from his future crimes, because he will be deported upon the
    completion of his sentence; and (6) he needs significantly less than 63 months for
    rehabilitation.
    -3-
    As for M r. Segovia-Torres’s first argument, the district court explicitly
    stated that it had “considered each of the sentencing factors set forth in
    Section 3553(a).” R. Vol. VIII at 8. And his other arguments do not distinguish
    him from the typical person convicted of his offense. In light of the presumption
    of reasonableness afforded sentences within the Guidelines range, we affirm the
    district court’s sentence.
    C.     Due Process
    M r. Segovia-Torres argues that the district court violated his Fifth
    Amendment due-process rights by “rel[ying] on facts under a preponderance of
    the evidence standard.” Aplt. Br. at 8. Further, although he acknowledges that
    the district court stated that it was considering the Guidelines to be advisory, he
    contends that there must be some “meaningful difference” between the resulting
    sentence as it was imposed and how it would have been determined before
    Booker. 
    Id. at 24
    .
    W e reject these arguments. As M r. Segovia-Torres concedes, under the
    post-Booker regime of advisory Guidelines, courts may make fact determinations
    for sentencing under the preponderance-of-the-evidence standard. And our
    holding in Kristl, 
    437 F.3d at 1054
    , that Guidelines sentences are presumptively
    reasonable is inconsistent with his contention that a post-Booker sentence must
    vary somewhat from the Guidelines range.
    -4-
    III.     C ON CLU SIO N
    W e AFFIRM the judgment of the district court. W e DENY M r. Segovia-
    Torres’s motion to appoint new counsel or permit filing of a supplemental pro-se
    brief.
    ENTERED FOR THE COURT
    Harris L Hartz
    Circuit Judge
    -5-
    

Document Info

Docket Number: 05-2211, 05-2358

Citation Numbers: 195 F. App'x 809

Judges: Ebel, Hartz, Tymkoyich

Filed Date: 11/8/2006

Precedential Status: Non-Precedential

Modified Date: 8/3/2023