* After examining appellant’s brief and the appellate record, this panel has

determined unanimously that oral argument would notmaterially assist the determination of this appeal. See Fed. R. App. P. 34(a)(2) and 10th Cir. R. 34.1(G). The case is therefore submitted without oral argume nt. This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, or collateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited un der the terms and conditions of 10th Cir. R. 36.3. 

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

### January 18, 2006 Elisabeth A. Shumaker Clerk of Court 

### UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff-Appellee,

v. JOSE LUIS REYES-ARMENDARIZ, Defendant-Appellant. No. 05-2082 (D.C. No. CR-04-783 LH) (New Mexico)



### ORDER AND JUDGMENT *

Before SEYMOUR , HARTZ , and McCONNELL , Circuit Judges. Jose Reyes-Armendariz contends the district court f ailed to adequately articulate the basis for calculating his sentence a fter he pled guilty. As a result, he maintains, we cannot meaningfully review the reason ableness of his sentence. For the reasons discussed below, we affirm.-2-

Mr. Reyes-Armendariz was charged by indictment withreentry into the United States following deportation without first s eeking permission from appropriate federal authorities, in violation of 8 U.S.C. §§ 1326(a)(1)-(2), (b)(2). He had been deported to his native country, Mexico, after completing a sentence on his conviction in New Mexico state court for agg ravated assault on a police officer. Mr. Reyes-Armendariz pled guilty to the instant offense. His presentence report (PSR) calculated his total offense level as 21 and his criminal history category at VI, resulting in a possible sen tencing range of 77 to 96 months. Mr. Reyes-Armendariz objected to the terms of the P SR, claiming a downward departure was warranted for cultural assim ilation and over representation of his criminal history. He asserte d he should be sentenced at the low end of a 57 to 71 month range. Prior to senten cing but after the Supreme Court issued its decision in United States v. Booker , 125 S. Ct. 738 (2005), Mr. Reyes-Armendariz submitted a supplemental sentencin g memorandum requesting the district court to specifically consider the fa ctors set forth in 18 U.S.C. § 3553(a), arguing that a 36 month sentence was appro priate under the statute and pursuant to Booker. At the sentencing hearing, the district court heard argument from the parties and commented that it had reviewed and considered a ll the evidence presented by-3-

both sides. After noting that the PSR calculated M r. Reyes-Armendariz’ imprisonment range as 77 to 96 months, the court ag reed with Mr. ReyesArmendariz that his criminal history was over-repre sented and reduced his criminal history category to IV. With a total off ense level of 21 and a criminal history category of IV, the suggested guideline ran ge for imprisonment was 57 to 71 months. The court then stated it had considered the factors set forth in 18 U.S.C. § 3553, and sentenced Mr. Reyes-Armendariz t o 57 months. On appeal, Mr. Reyes-Armendariz asserts the distric t court erred in failing to identify the specific § 3553(a) factors it consi dered in calculating his sentence. We review “the district court’s legal interpretatio n and application of the sentencing guidelines de novo and review the court’s factual findings for clear error, giving due deference to the district court’s application of the guidelines to the facts.” United States v. Henry , 164 F.3d 1304, 1310 (10th Cir. 1999). And in accordance with Booker , we now review sentences for “reasonableness,” fin ding guidance from the factors listed in 18 U.S.C. § 355 3(a). Booker , 125 S.Ct. at 766. In so doing, we find no error in the district court ’s articulation of Mr. ReyesArmendariz’ sentence. Bookerdirects a court to consider the several factors la id out in § 3553(a), including the now-advisory guideline ranges, when d etermining the sentence. See Booker , 125 S.Ct. at 757; 18 U.S.C. § 3553(a)(1)-(7). We have consistently held,-4-

prior to and since the Supreme Court’s issuance of Booker , that the sentencing court is not required to consid er individually each factor listed in § 3553(a) before issuing a sentenc e. We do not require “a ritualistic incantation to establish con sideration of a legal issue,” nor do we demand that the district court “r ecite any magic words” to show us that it fulfilled its responsibil ity to be mindful of the factors that Congress has instructed it to cons ider. Rather, it is enough if the district court considers § 3553(a) en masse and states its reasons for imposing a given sentence. United States v. Kelley , 359 F.3d 1302, 1305 (10th Cir. 2004) (citations o mitted); see also United States v. Rines , 419 F.3d 1104, 1107 (10th Cir. 2005) (district court not required to “march through” § 3553(a) sentencing factors); United States v. Contreras-Martinez , 409 F.3d 1236, 1241-42 (10th Cir. 2005) (court must consider § 3553(a) factors, but need not speci fically list considerations). Other circuits have ruled similarly. See United States v. Lamoreaux , 422 F.3d 750, 756 (8th Cir. 2005) (“Nothing in § 3553(a) or in the Bookerremedy opinion requires ‘robotic incantations’ that each statutoryfactor has been considered.”) (citation omitted); United States v. George , 403 F.3d 470, 472-73 (7th Cir. 2005) (“Judges need not rehearse on the record all of the considerations that 18 U.S.C. § 3553(a) lists; it is enough to calculate the range accurately and explain why (if the sentence lies outside it) this defendant deserves m ore or less.”); United States v. Crosby , 397 F.3d 103, 113 (2d Cir. 2005) (“Therefore, we will not prescribe any formulation a sentencing judge will be obliged to f ollow in order to demonstrate discharge of the duty to ‘consider’ the Guidelines. ”), abrogation on other grounds-5-

rec’g by United States v. Lake , 419 F.3d 111, 113 n.2 (2d Cir. 2005). Our review of the district court’s statements at se ntencing persuades us the court properly considered the sentencing factors li sted in § 3553(a). The court said as much, while also indicating it had viewed a ll of the evidence submitted by Mr. Reyes-Armendariz in support of his arguments fo r a lower sentence. The district court also satisfied its burden to “state in open court the reasons for its imposition of the particular sentence.” 18 U.S.C. § 3553(c). It agreed with Mr. Reyes-Armendariz that his criminal history was overrepresented, and expressly indicated it had considered the § 3553(a) factors. The district court complied with the requirements laid out in Bookerand our case law. Its alleged failure to discuss its sentencing reasons with the particulari ty desired by Mr. ReyesArmendariz does not render his sentence either unre viewable or unreasonable. We AFFIRM

. ENTERED FOR THE COURT Stephanie K. Seymour Circuit Judge