UNITED STATES COURT OF APPEALS 

TENTH CIRCUIT 

UNITED STATES OF AMERICA 

Plaintiff – Appellee, 

v. 

FERNANDO MEDINA-RODRIGUEZ 

Defendant – Appellant, 

No. 09-2065 

(D. Ct. N.M.) 

(D. Ct. No. 1:07-CR-02540-LH-1) 

ORDER AND JUDGMENT*

Before HARTZ, EBEL, and O’BRIEN, Circuit Judges. 

The parties have waived oral argument. See Fed. R. App. P. 34(f); 10th Cir. R. 

34.1(G). We accept this case for submission on the briefs. 

Fernando Medina-Rodriguez pled guilty to one count of illegal reentry by a 

removed alien. At sentencing, the district court departed downward one criminal history 

category and imposed a sentence of 57 months imprisonment, the bottom end of the 

advisory guideline range after the departure. Medina-Rodriguez claims multiple 

 

*

 This order and judgment is not binding precedent. 10th Cir. R. 32.1(A). Citation 

to orders and judgments is not prohibited. Fed. R. App. 32.1. But it is discouraged, 

except when related to law of the case, issue preclusion or claim preclusion. Any citation 

to an order and judgment must be accompanied by an appropriate parenthetical notation – 

(unpublished). 10th Cir. R. 32.1(A). 

FILED 

United States Court of Appeals 

Tenth Circuit 

October 8, 2009

Elisabeth A. Shumaker 

Clerk of Court
2 

sentencing errors. We affirm. 

I. BACKGROUND 

Medina-Rodriguez pled guilty to one count of reentry of a removed alien in 

violation of 8 U.S.C. §§ 1326(a)(1) and (b)(2). Following his guilty plea, the United 

States Probation Office prepared a Presentence Investigation Report (PSR).1

 The PSR 

determined Medina-Rodriguez’s total offense level was 21, representing a base offense 

level of 8, a 16-level enhancement pursuant to USSG §2L1.2(b)(1)(A)(i),2

 and a 3-level 

reduction for acceptance of responsibility. The PSR determined Medina-Rodriguez’s 

criminal history placed him in Criminal History Category V, resulting in an advisory 

guideline range of 70 to 87 months imprisonment. The PSR noted, however, that 

Medina-Rodriguez’s criminal history was more representative of a defendant in Criminal 

History Category IV than Category V. 

Medina-Rodriguez moved for a variance. He claimed he should be in Criminal 

History Category IV, not Criminal History Category V. He also argued his prior 

conviction for arson did not support the 16-level enhancement under USSG 

 

1

 The PSR was prepared using the 2007 edition of the United States Sentencing 

Guidelines manual.

2

 Pursuant to USSG §2L1.2(b)(1)(A)(i), the offense level for a defendant convicted 

of unlawfully entering or remaining in the United States should be increased by 16 levels 

“[i]f the defendant previously was deported . . . after [ ] a conviction for a felony that is . . 

. a crime of violence[.]” On November 7, 1994, Medina-Rodriguez pled guilty to three 

felonies: arson, aggravated assault with a deadly weapon (tire iron), and aggravated 

assault with a deadly weapon (motor vehicle). He was deported after serving his 

sentence. 
3 

§2L1.2(b)(1)(A)(i) because it was “too old” and “not necessarily that serious.” (R. Vol. 

III at 7.) And he sought a variance under USSG §5H1.6 on the basis of “cultural 

assimilation.”3

 (Id. at 8.) He explained he was “very unfamiliar with the country of 

Mexico” and all of his family lived in the United States. (Id. at 10.) The government did 

not object to sentencing the defendant under Criminal History Category IV but opposed 

any other relief from the guidelines’ recommendations. 

The court departed downward one criminal history category pursuant to USSG 

§4A1.3 because it found Category V substantially over-represented Medina-Rodriguez’s 

criminal history. This downward departure resulted in an advisory guideline range of 57 

to 71 months imprisonment. The court imposed a sentence of 57 months imprisonment 

stating it had “reviewed the presentence report factual findings, and [ ] considered the 

Sentencing Guideline applications and the factors set forth in 18 U.S.C. [§] 3553(a)(1) 

through (7).” (Id. at 11.) Medina-Rodriguez argued the sentence did not address the § 

3553(a) factors. The court explained the sentence was “an implementation” of those 

factors. (Id. at 14.) 

 

3

 USSG §5H1.6 is a policy statement which states: “In sentencing a defendant 

convicted of an offense [other than certain listed offenses], family ties and 

responsibilities are not ordinarily relevant in determining whether a departure may be 

warranted.” By requesting the court impose a lower sentence based on §5H1.6, MedinaRodriguez was requesting a downward departure, not a variance. A departure is a 

sentence imposed above or below the advisory guideline range based on an application of 

Chapters Four or Five of the guidelines; a variance is a sentence imposed above or below 

the guideline range through application of the sentencing factors in 18 U.S.C. § 3553(a). 

See United States v. Atencio, 476 F.3d 1099, 1101 n.1 (10th Cir. 2007). 
4 

II. DISCUSSION 

Medina-Rodriguez claims the district court erred by: (1) failing to consider the 

minor nature of the underlying felony (arson) in denying his motion for a downward 

departure; (2) failing to consider cultural assimilation, which could have warranted a 

below-guidelines sentence; and (3) treating a prior conviction as a sentencing factor 

rather than an element of the offense. 

A. Nature of the Underlying Felony

Medina-Rodriguez claims the court erred in denying his motion for a downward 

departure based on the minor nature of his arson conviction and its remoteness. The 

court departed downward after finding the guidelines substantially over-represented 

Medina-Rodriguez’s criminal history. To the extent Medina-Rodriguez is challenging 

the court’s refusal to depart even further, we lack jurisdiction. See United States v. 

Chavez-Diaz, 444 F.3d 1223, 1229 (10th Cir. 2006). “This court may review a denial of 

a downward departure only if the denial is based on the sentencing court’s interpretation 

of the Guidelines as depriving it of the legal authority to grant the departure.” United 

States v. Fonseca, 473 F.3d 1109, 1112 (10th Cir. 2007). There is nothing in the record 

to suggest the court thought it lacked authority to grant a further departure. We 

nonetheless have jurisdiction to review the sentence imposed for reasonableness. See 

Chavez-Diaz, 444 F.3d at 1228 (reviewing a sentence for reasonableness after concluding 

it lacked jurisdiction to review the court’s discretionary decision to deny a downward 

departure). 

“Our appellate review for reasonableness includes both a procedural component, 
5 

encompassing the method by which a sentence was calculated, as well as a substantive 

component, which relates to the length of the resulting sentence.” United States v. Smart, 

518 F.3d 800, 803 (10th Cir. 2008). “A sentence is procedurally reasonable when the 

district court computes the applicable Guidelines range, properly considers the § 3553(a) 

factors, and affords the defendant his rights under the Federal Rules of Criminal 

Procedure. A sentence is substantively reasonable when the length of the sentence 

reflects the gravity of the crime and the § 3553(a) factors as applied to the case.” United 

States v. Martinez-Barragan, 545 F.3d 894, 898 (10th Cir. 2008) (quotations and citation 

omitted). 

Medina-Rodriguez objected to the procedural reasonableness of the sentence 

before the district court, arguing “the court’s sentence does not address the factors in 18 

U.S.C. [§] 3553 . . . .” (R. Vol. III at 14.) In considering whether the court properly 

considered the § 3553(a) factors, we review the court’s legal conclusions de novo and its 

factual findings for clear error. See United States v. Kristl, 437 F.3d 1050, 1055 (10th 

Cir. 2006). 

In arriving at a sentence, the court must consider “the history and characteristics of 

the defendant.” 18 U.S.C. § 3553(a)(1). And, “at the time of sentencing,” the court must 

“state in open court the reason for its imposition of the particular sentence.” Id., § 553(c). 

We have held that in a run-of-the-mill case involving a sentence within the advisory 

guideline range, the district court need not specifically address a request for a sentence 

outside the guideline range. See United States v. Cereceres-Zavala, 499 F.3d 1211, 

1217-18 (10th Cir. 2007). Instead, it is sufficient for the court to state how it arrived at 
6 

the guideline range and generally note it considered in gross the factors set forth in § (a). 

See id. Here, the court determined Medina-Rodriguez’s criminal history, including his 

arson conviction, warranted a departure from Criminal History Category V to IV. The 

court then imposed a sentence at the bottom end of the guideline range after “review[ing] 

the presentence report factual findings, and [ ] consider[ing] the Sentencing Guideline 

applications and the factors set forth in 18 U.S.C. [§] 3553(a)(1) through (7).” (R. Vol. 

III at 11.) Medina-Rodriguez’s sentence is procedurally reasonable. 

Medina-Rodriguez’s sentence is also substantively reasonable. “When reviewing 

a sentence for substantive reasonableness, this court employs the abuse-of-discretion 

standard.” United States v. Sells, 541 F.3d 1227, 1237 (10th Cir. 2008), cert. denied, 129 

S. Ct. 1391 (2009). “A district court abuses its discretion when it renders a judgment that 

is arbitrary, capricious, whimsical, or manifestly unreasonable.” Id. (quotations omitted). 

On appeal, a sentence within a properly calculated guideline range is entitled to a 

rebuttable presumption of reasonableness. See id. A defendant “may rebut [that 

presumption] by demonstrating that the sentence is unreasonable when viewed against 

the other factors delineated in § (a).” Id. (quotations omitted). 

Medina-Rodriguez makes no effort to rebut the presumption of reasonableness but 

argues United States v. Trujillo-Terrazas, 405 F.3d 814 (10th Cir. 2005), supports his 

position. It does not. In Trujillo-Terrazas, the defendant received a 16-level 

enhancement pursuant to USSG §2L1.2(b)(1)(A)(ii) because he had a prior felony 

conviction for a crime of violence. Id. at 817. At sentencing, the district court judge 

“expressed reservations about imposing the sentence” based on the “comparatively 
7 

innocuous nature of [the defendant’s] prior [felony] conviction.” Id. However, at the 

time the defendant was sentenced, the sentencing guidelines were mandatory and the 

court imposed a sentence at the low-end of the guideline range, explaining “he was bound 

by the Guidelines.” Id. We vacated the sentence and remanded for resentencing in 

accordance with United States v. Booker, 543 U.S. 220 (2005), because the court treated 

the guidelines as mandatory. See id. Here, the court did not treat the guidelines as 

mandatory and expressed no reservation about applying the 16-level enhancement based 

on Medina-Rodriguez’s arson conviction. The sentence imposed was, in no way, 

“arbitrary, capricious, whimsical, or manifestly unreasonable.” Sells, 541 F.3d at 1237 

(quotations omitted). 

B. Cultural Assimilation

Medina-Rodriguez also claims the court erred by “refus[ing] to consider cultural 

assimilation which, if taken into account, could have warranted a sentence below the 

guideline range.” (Appellant’s Br. at 9.) This appears to be a challenge to the procedural 

reasonableness of the sentence and we will treat it as such. We review the court’s legal 

conclusions de novo and its factual findings for plain error. See Kristl, 437 F.3d at 1055. 

Cultural assimilation can be considered by the court in determining whether to 

vary from the advisory guideline range under 18 U.S.C. § 3553(a)(1). See United States 

v. Galarza-Payan, 441 F.3d 885, 889 (10th Cir. 2006). However, “[t]hat . . . a ground for 

a variance is available certainly does not . . . mean it is compelled.” Sells, 541 F.3d at 

1238. “[A] particular defendant’s cultural ties must [still] be weighed against [the other § 

3553(a)] factors . . . .” Galarza-Payan, 441 F.3d at 889. 
8 

Medina-Rodriguez claims he “is more familiar with the customs and culture of the 

United States than he is with those in Mexico. Because of that, he should not be 

punished in the same way as a person in similar circumstances who treats the United 

States only as a target or a quick opportunity, not as his homeland.” (Appellant’s Br. at 

11.) The district court considered this argument but found it did not warrant a downward 

variance. We perceive no error. “We have consistently observed that reentry of an exfelon is a serious offense.” See Martinez-Barragan, 545 F.3d at 905. The sentence 

imposed is entitled to a presumption of reasonableness and the district court specifically 

referred to the § 3553(a) factors at sentencing. “We may not examine the weight a 

district court assigns to various § 3553(a) factors, and its ultimate assessment of the 

balance between them, as a legal conclusion to be reviewed de novo. Instead, we must 

give due deference to the district court’s decision that the § 3553(a) factors, on a whole, 

justify the extent of the variance [or lack thereof].” Smart, 518 F.3d at 808 (quotations 

omitted). 

C. Treatment of Prior Convictions

Medina-Rodriguez claims the district court violated his Sixth Amendment rights 

by treating his prior conviction for arson as a sentencing factor rather than an element of 

the offense. He did not raise this constitutional challenge before the district court and 

thus, our review is for plain error. See Trujillo-Terrazas, 405 F.3d at 817. The district 

court did not err because Medina-Rodriguez’s argument is foreclosed by United States 

Supreme Court and Tenth Circuit precedent.

In Almendarez-Torres v. United States, the Supreme Court considered whether 8 
9 

U.S.C. § 1326(b)(2), which increases the maximum penalty for unlawful reentry upon a 

finding that the alien had previously been convicted of an aggravated felony, constitutes a 

separate crime that had to be charged in the indictment. 523 U.S. 224 (1998). The Court 

held “neither the statute nor the Constitution require the Government to charge . . . an 

earlier conviction in the indictment.” Id. at 226-27. The Court reaffirmed this holding in 

Jones v. United States, stating Almendarez-Torres “stands for the proposition that not 

every fact expanding a penalty range must be stated in a felony indictment, the precise 

holding being that recidivism increasing the maximum penalty need not be so charged.” 

526 U.S. 227, 248 (1999). 

Medina-Rodriguez argues subsequent Supreme Court cases “have cast some doubt 

on the continued validity of Almendarez-Torres.” (Appellant’s Br. at 13.) He is correct. 

See, e.g., Shepard v. United States, 544 U.S. 13, 27 (2005) (Thomas, J., concurring) 

(“Almendarez-Torres . . . has been eroded by this Court’s subsequent Sixth Amendment 

jurisprudence, and a majority of the Court now recognizes that Almendarez-Torres was 

wrongly decided.”). But that does not compel a decision in his favor. As we explained in 

United States v. Moore: “Although the Court may overrule Almendarez-Torrres at some 

point in the future, it has not done so, we will not presume to do so for the Court, and we 

are bound by existing precedent to hold that the Almendarez-Torres exception . . . 

remains good law.” 401 F.3d 1220, 1224 (10th Cir. 2005). 

AFFIRMED. 

Entered by the Court: 

Terrence L. O’Brien 

United States Circuit Judge