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 Defendant-Appellant.

David C. Iglesias, United States Attorney, and Norman Cairns, Assistant United

States Attorney, Office of the United States Attorney, 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 would not be of material
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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.

Eduardo Galarza-Payan, a Mexican citizen, pleaded guilty 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 ties 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, contending that the court acted

unreasonably in refusing to adjust his sentence downward. 

We take jurisdiction pursuant to 28 U.S.C. § 1291 and AFFIRM.

I. Background

Galarza was apprehended in Sunland Park, New Mexico, where he admitted

to entering the United States illegally. Galarza had previously been deported to

Mexico based upon a felony conviction (robbery) committed 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 departure from the applicable

range on the grounds of cultural assimilation. Specifically, he argued that his
1

 At the sentencing hearing, defense counsel told the 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.

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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 Guidelines advisory, rather

than mandatory. Responding to the changed legal landscape, Galarza filed a postBooker sentencing memorandum in which he reiterated his cultural assimilation

grounds for a sentence adjustment but urged the court 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 the time of sentencing in this

case); (2) he had attended middle school and high school in New Mexico; (3) he

had lived and worked in Texas, Colorado, and New Mexico; (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 was presently ill and scheduled

to undergo surgery. Therefore, his counsel concluded in oral argument, “all of

those circumstances . . . militate for finding that he came [to the United States]

for familial rather than economic [or other] reasons.” Sent. Tr. at 3.
2

 The judge determined Galarza’s sentence should fall between 57 and 71 months

and sentenced him to 57 months.

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The district court, after reviewing the facts of the case and hearing

arguments of counsel, announced that, while he acknowledged cultural

assimilation as a valid consideration for a sentence 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 uniformity as well as other

considerations mandated in 18 U.S.C. § 3553(a). It is also clear that he did not

believe Galarza’s case presented unique circumstances that supported

differentiating him from other similarly situated defendants.

II. Discussion

We review sentences imposed by the district court for 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 unreasonable and puts forth two

arguments. First, he alleges the district court erroneously employed pre- Booker

standards and analysis and thus did not grant proper consideration to the relevant

§ 3553(a) factors. Second, he contends, even if the court properly considered all

relevant factors, it reached an unreasonable conclusion in light of the evidence of

his cultural assimilation.
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A.

At sentencing, the district court stated that Galarza’s circumstances would

have to “fall outside the heartland” to be worthy of a “departure,” or downward

adjustment. Sent. Tr. at 13. Finding nothing exceptional 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 explicitly stated that the Guidelines were

“nonmandatory, advisory only,” id., he implicitly accepted the pre- Booker

limitations on sentence adjustments, which precluded him from considering all of

the relevant § 3553(a) factors. We disagree.

The term “heartland” has its origins in the Guidelines’ policy statements. 

The Guidelines instructed courts not to depart from a sentencing range absent

unusual circumstances. The reason for this was that departures outside the

applicable range were intended for “extraordinary case[s] that, because of a

combination of such characteristics or circumstances, 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
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shorthand way of analyzing whether particular defendants 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 understood its discretion and

considered at least four § 3553(a) factors, including (1) “the history and

characteristics of the defendant”; (2) “the need for the sentence imposed to . . .

promote respect for the law . . . [and] to afford adequate deterrence to criminal

conduct . . . and to protect the public from further crimes of the defendant”;

(3) “the sentencing range established for the applicable category of offense

committed by the applicable category of defendant”; and (4) “the need to avoid

unwarranted sentence disparities among defendants with 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 among cases—is a part of

§ 3553(a)(6) (avoiding sentencing disparities), and is 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 “now-advisory Guidelines are

also a factor to be considered in imposing a sentence, which means that district

courts ‘must consult those Guidelines and take them into account when
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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 range, 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 sentencing court

is not required to consider individually each factor listed in § 3553(a) before

issuing a sentence,” and we will “not demand that the district court recite any

magic words to show us that it fulfilled its responsibility 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 quotations 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 conclusions as to an appropriate

sentence. Therefore, we find no error in the district court’s consideration of the

relevant factors for sentencing.

B.

Alternatively, Galarza challenges the reasonableness of the 57-month

sentence imposed by arguing his cultural assimilation necessitated an adjustment
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from the advisory Guidelines sentence. He does not dispute the calculation of the

initial Guidelines range, in this case 57 to 71 months.

Where a defendant’s properly calculated sentence falls within the

applicable Guidelines range, it is “entitled to a rebuttable 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 novo and its factual

determinations for clear error. Serrata , 425 F.3d at 906.

Galarza seeks to rebut the presumption of reasonableness 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 to 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 family and friends is somehow less

blameworthy than someone who reenters for criminal or even economic reasons. 
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Before Booker , we had not spoken specifically to this ground for departure,

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 authority 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, courts will continue to consider

a defendant’s “history and characteristics” under § 3553(a)(1). The extensiveness

of “family and cultural ties,” however the factor is characterized, will still be part

of tailoring an appropriate sentence. But it is also clear in assessing the

reasonableness of a sentence that a particular defendant’s cultural ties must be

weighed against other factors such as (1) sentencing disparities among defendants

with similar backgrounds and characteristics, and (2) the need for the sentence to

reflect the seriousness of the crime and promote respect for the law. § 3553(a)(2),

(6).
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A close review of the § 3553(a) factors, the arguments presented by

Galarza at sentencing, and the explanations provided by the district court disclose

that the court did not err in its assessment. First, it was “presumptively

reasonable” for the court to sentence Galarza within the applicable Guidelines

range. Second, the district court specifically reviewed 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 for 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 believe that Galarza’s case

warranted differentiation from the others. Sent. Tr. 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 the § 3553(a) factors. 

Taking into account the facts of this case, the considerations behind the

Guidelines calculations, and the concerns expressed by the district court, we are

satisfied that the sentence imposed was reasonable.

III. Conclusion
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For all of the above reasons, we find that the district court did not err in

sentencing Galarza. We therefore AFFIRM the decision below.