## F I L E D United States Court of Appeals Tenth Circuit 

### March 20, 2006
Elisabeth A. Shumaker Clerk of Court PUBLISH UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 05-2108 EDUARDO GALARZA-PAYAN,

Defendant-Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW MEXICO (D.C. NO. CR-04-966-RB)

Submitted on the briefs: Richard C. Cauble, Las Cruces, New Mexico, for Defe ndant-Appellant. David C. Iglesias, United States Attorney, and Norm an Cairns, Assistant United States Attorney, Office of the United States Attorn ey, Albuquerque, New Mexico, for Plaintiff-Appellee.

Before KELLY , O’BRIEN , and TYMKOVICH , Circuit Judges.

TYMKOVICH , Circuit Judge.

After examining the briefs and the appellate record , this three-judge panel has determined unanimously that oral argument wouldnot be of material-2-

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 su bmitted without oral argument. Eduardo Galarza-Payan, a Mexican citizen, pleaded g uilty to reentry after deportation in violation of 8 U.S.C. § 1326(a)(1), (2) and (b)(2). Galarza asked the district court to consider sentencing him below the applicable range in the United States Sentencing Guidelines on the basis of his “cultural assimilation”—i.e., close familial and cultural tie s to the United States. The district court denied his request and sentenced him within the range called for by the Guidelines. He now appeals his sentence, conte nding that the court acted unreasonably in refusing to adjust his sentence dow nward. We take jurisdiction pursuant to 28 U.S.C. § 1291 a nd AFFIRM. I. Background Galarza was apprehended in Sunland Park, New Mexico , where he admitted to entering the United States illegally. Galarza h ad previously been deported to Mexico based upon a felony conviction (robbery) com mitted in El Paso, Texas. He pleaded guilty to illegal reentry as charged in the present indictment. At sentencing, the government’s presentence report calculated that Galarza’s presumptive sentence under the Guidelines fell in the range of 57 to 71 months. Galarza initially moved for a downward dep arture from the applicable range on the grounds of cultural assimilation. Spe cifically, he argued that his1 At the sentencing hearing, defense counsel told th e district court, “I don’t know

that downward departures exist much anymore, so that’s why I put what I put in the form of a sentencing memorandum. . . .” Sent. Tr. at 3. -3- culpability should be mitigated because his reentry was motivated by his “family and community ties” to this country. Aplt. Br. at 5. During Galarza’s sentencing proceedings, the Supreme Court issued United States v. Booker , 543 U.S. 220, 258–59 (2005), which made the application of the Gu idelines advisory, rather than mandatory. Responding to the changed legal la ndscape, Galarza filed a postBooker sentencing memorandum in which he reiterated his c ultural assimilation grounds for a sentence adjustment but urged the cou rt to consider these factors as a matter of discretion, given the advisory nature of the Guidelines. 1 In particular, Galarza offered the following mitigating circumstances: (1) he had lived in the United States since he was 12 years old (he was deported following his arrest at age 24, and he was 28 at th e time of sentencing in this case); (2) he had attended middle school and high s chool in New Mexico; (3) he had lived and worked in Texas, Colorado, and New Me xico; (4) he possessed only a limited command of the Spanish language; (5) his parents and all three brothers were living in El Paso, Texas; and (6) his mother w as presently ill and scheduled to undergo surgery. Therefore, his counsel conclud ed in oral argument, “all of those circumstances . . . militate for finding thathe came [to the United States] for familial rather than economic [or other] reason s.” Sent. Tr. at 3.2The judge determined Galarza’s sentence should fal l between 57 and 71 months

and sentenced him to 57 months. -4- The district court, after reviewing the facts of th e case and hearing arguments of counsel, announced that, while he ackn owledged cultural assimilation as a valid consideration for a sentenc e adjustment, he did not believe an adjustment was warranted in Galarza’s case. The district judge denied Galarza’s request and sentenced him to the bottom of the applicable range. 2 It is clear from the record that the judge recognized the advisory nature of the Guidelines and that he took into account sentence u niformity as well as other considerations mandated in 18 U.S.C. § 3553(a). Itis also clear that he did not believe Galarza’s case presented unique circumstanc es that supported differentiating him from other similarly situated d efendants. II. Discussion We review sentences imposed by the district court f or reasonableness. Booker , 543 U.S. at 260–65; United States v. Kristl , 437 F.3d 1050, 1053 (10th Cir. 2006). Galarza claims his sentence was unreas onable and puts forth two arguments. First, he alleges the district court erroneously employed pre- Booker standards and analysis and thus did not grant prope r consideration to the relevant § 3553(a) factors. Second, he contends, even if th e court properly considered all relevant factors, it reached an unreasonable conclu sion in light of the evidence of his cultural assimilation.-5- A. At sentencing, the district court stated that Galar za’s circumstances would have to “fall outside the heartland” to be worthy o f a “departure,” or downward adjustment. Sent. Tr. at 13. Finding nothing exce ptional about his circumstances, the court sentenced Galarza to the low end of the applicable sentencing range. Galarza contends on appeal that the district court’ s statement suggests it considered the request for adjustment in a mandatory, pre- Booker fashion. Thus, he argues, even though the district judge explicitl y stated that the Guidelines were “nonmandatory, advisory only,” id. , he implicitly accepted the pre- Booker limitations on sentence adjustments, which preclude d him from considering all of the relevant § 3553(a) factors. We disagree. The term “heartland” has its origins in the Guideli nes’ policy statements. The Guidelines instructed courts not to depart froma sentencing range absent unusual circumstances. The reason for this was that departures outside the applicable range were intended for “extraordinary c ase[s] that, because of a combination of such characteristics or circumstance s, differ[] significantly from the heartland cases covered by the [G]uidelines.” United States v. Serrata , 425 F.3d 886, 911 (10th Cir. 2005) (quoting commentary to USSG § 5K2.0 (policy statement)) (internal quotations omitted). Courts used this terminology as a-6-

shorthand way of analyzing whether particular defen dants qualified for a downward or upward departure under the Guidelines. In this case, the district court, while using pre- Booker Guidelines terminology, did not sentence Galarza in a mandatory fashion. To the contrary, the record makes clear that the district court unde rstood its discretion and considered at least four § 3553(a) factors, includi ng (1) “the history and characteristics of the defendant”; (2) “the need fo r the sentence imposed to . . . promote respect for the law . . . [and] to afford a dequate deterrence to criminal conduct . . . and to protect the public from furthe r crimes of the defendant”; (3) “the sentencing range established for the appli cable category of offense committed by the applicable category of defendant”; and (4) “the need to avoid unwarranted sentence disparities among defendants w ith similar records who have been found guilty of similar conduct.” 18 U.S.C. § 3553(a)(1), (2), (4), and (6). Indeed the concept of a “heartland”—or similarity a mong cases—is a part of § 3553(a)(6) (avoiding sentencing disparities), andis a proper consideration when applied in a discretionary fashion. Even in the post- Booker legal landscape, we can expect judges to employ the familiar terminology of the Guidelines: The “no w-advisory Guidelines are also a factor to be considered in imposing a senten ce, which means that district courts ‘must consult those Guidelines and take theminto account when-7-

sentencing.’” Kristl , 437 F.3d at 1053 (quoting Booker , 543 U.S. at 264). Furthermore, “[a]lthough district courts post- Booke r have discretion to assign sentences outside of the Guidelines-authorized rang e, they should also continue to apply the Guidelines departure provisions in appropriate cases.” United States v. Sierra-Castillo , 405 F.3d 932, 936 n.2 (10th Cir. 2005). “[T]he s entencing court is not required to consider individually each facto r listed in § 3553(a) before issuing a sentence,” and we will “not demand that t he district court recite any magic words to show us that it fulfilled its respon sibility to be mindful of the factors that Congress has instructed it to consider.” United States v. ContrerasMartinez , 409 F.3d 1236, 1242 (10th Cir. 2005) (internal q uotations and citations omitted). Although the district court referenced the Guidelines’ departure language in evaluating Galaraza’s sentence, the record plainly shows it considered the relevant § 3553(a) factors in reaching its conclusi ons as to an appropriate sentence. Therefore, we find no error in the distr ict court’s consideration of the relevant factors for sentencing. B. Alternatively, Galarza challenges the reasonablenes s of the 57-month sentence imposed by arguing his cultural assimilati on necessitated an adjustment-8-

from the advisory Guidelines sentence. He does notdispute the calculation of the initial Guidelines range, in this case 57 to 71 mon ths. Where a defendant’s properly calculated sentence fa lls within the applicable Guidelines range, it is “entitled to a r ebuttable presumption of reasonableness.” See United States v. Kristl , 437 F.3d at 1054. The defendant or the government may rebut the presumption by showing the sentence is nonetheless unreasonable in light of the factors contained in 18 U.S.C. § 3553(a). Id. We review the district court’s legal conclusions de no vo and its factual determinations for clear error. Serrata , 425 F.3d at 906. Galarza seeks to rebut the presumption of reasonabl eness with evidence of his cultural assimilation. Prior to Booker , the Ninth Circuit had held that a sentencing court had authority to depart from the applicable range for illegal reentry under § 5K2.0 of the Guidelines based on a defendant’s cultural ties to the United States. See United States v. Lipman , 133 F.3d 726 (9th Cir. 1998). That court found that “cultural assimilation” is “akin t o the factor of ‘family and community ties’” and could support a departure “in extraordinary circumstances.” Id. at 730. The court’s rationale was that someone who illegally reenters the United States with the goal of reuniting with famil y and friends is somehow less blameworthy than someone who reenters for criminal or even economic reasons.-9-

Before Booker , we had not spoken specifically to this ground fordeparture, although other circuits had recognized the argument in varying degrees. See, e.g., United States v. Rodriguez-Montelongo , 263 F.3d 429, 433 (5th Cir. 2001) (holding cultural assimilation is permissible basis for downward departure); United States v. Sanchez-Valencia , 148 F.3d 1273, 1274 (11th Cir. 1998) (upholding district court’s recognition of its auth ority to depart in light of Lipman ); cf. United States v. Mejia , 309 F.3d 67, 71 (1st Cir. 2002) (finding that “family ties” such as a claimed cultural connection to the United States is a “discouraged factor” under the Guidelines). We need not address that debate in the altered post- Booker sentencing landscape. Now that the Guidelines are advisory, c ourts will continue to consider a defendant’s “history and characteristics” under § 3553(a)(1). The extensiveness of “family and cultural ties,” however the factor i s characterized, will still be part of tailoring an appropriate sentence. But it is al so clear in assessing the reasonableness of a sentence that a particular defe ndant’s cultural ties must be weighed against other factors such as (1) sentencin g disparities among defendants with similar backgrounds and characteristics, and ( 2) the need for the sentence to reflect the seriousness of the crime and promote re spect for the law. § 3553(a)(2), (6).-10-

A close review of the § 3553(a) factors, the argume nts presented by Galarza at sentencing, and the explanations provide d by the district court disclose that the court did not err in its assessment. Firs t, it was “presumptively reasonable” for the court to sentence Galarza withi n the applicable Guidelines range. Second, the district court specifically rev iewed and rejected Galarza’s claim in light of the relevant factors contained in § 3553(a) and the circumstances of the case. While not discrediting the grounds fo r Galarza’s request as a general matter, the court was also mindful of the need for sentencing uniformity. The judge stated that he had seen “lots of tragic situations” where “families’ lives are torn by the border” and that, after consulting the advisory Guidelines and comparing Galarza’s case with others, he did not be lieve that Galarza’s case warranted differentiation from the others. Sent. T r. at 12–13. Moreover, the court took special note of Galarza’s prior history of crime in the United States, which counterbalanced the mitigating circumstances presented. * * * We conclude the district court properly examined th e § 3553(a) factors. Taking into account the facts of this case, the con siderations behind the Guidelines calculations, and the concerns expressedby the district court, we are satisfied that the sentence imposed was reasonable. III. Conclusion-11-

For all of the above reasons, we find that the dist rict court did not err in sentencing Galarza. We therefore AFFIRM the decisi on below.