* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

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

### May 3, 2006
Elisabeth A. Shumaker Clerk of Court UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff - Appellee, No. 05-4139

v. (D. Utah) HERIBERTO GOMEZ-CASTILLO,

Defendant - Appellant. (D.C. No. 1:04-CR-173-01-DB)

ORDER AND JUDGMENT *

Before TACHA, Chief Circuit Judge, ANDERSON and BALDOCK , Circuit Judges.

After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materiallyassist in the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). T he case is therefore ordered submitted without oral argument.1 Under §§ 1326(b)(2) and 1101(a)(43), Gomez-Castillo could be imprisoned

for up to twenty years and fined $250,000 or both. -2- Defendant-Appellant Heriberto Gomez-Castillo pled g uilty to one count of illegal reentry by an alien who had been previouslydeported, in violation of 8 U.S.C. § 1326(a). He was sentenced to forty-six months’ imprisonment, followed by thirty-six months of supervised release . He appeals his sentence, which we affirm.

BACKGROUND Gomez-Castillo, a native and citizen of Mexico, was arrested on drug and weapons offense charges in Box Elder County, Utah, on October 19, 2004. On November 29, 2004, Bureau of Immigration and Custom s Enforcement (“BICE”) agents met with Gomez-Castillo in the Box Elder Cou nty jail and discovered that he was in the United States illegally and that he h ad been deported twice before, most recently in 2001. Gomez-Castillo was accordin gly indicted on one count of reentry of a previously deported alien, in violatio n of 8 U.S.C. § 1326(a). On December 17, 2004, the government filed a Notice of Sentencing Enhancement, based upon Gomez-Castillo’s prior conv iction for an aggravated felony, which made him eligible for the more severe penalties provided in 8 U.S.C. §§ 1326(b)(2) and 1101(a)(43). 1 On January 31, 2005, Gomez-Castillo-3-

pled guilty pursuant to a written plea agreement. In exchange for GomezCastillo’s guilty plea, the government agreed to re commend a reduction in his sentence for acceptance of responsibility, providedGomez-Castillo continued to display such acceptance. Following Gomez-Castillo’s guilty plea, the Probati on Office prepared a presentence report (“PSR”). It calculated a recomm ended sentence under the United States Sentencing Commission, Guidelines Man ual (“USSG”) (Nov. 2004). The PSR assigned Gomez-Castillo a base offe nse level of eight, which it then increased by sixteen levels because he had bee n previously deported after being convicted for a felony that was a crime of vi olence. USSG §2L1.2(b)(1)(A)(ii). After deducting three levels for acceptance of responsibility pursuant to §3E1.1, the PSR arrived at a total offe nse level of twenty-one. With a criminal history of category III, the Guideline sentencing range was forty-six to fifty-seven months. Gomez-Castillo filed a Sentencing Memorandum, in wh ich he made no objections to the PSR, but argued mitigating factor s should lead to a lower sentence than that suggested by the Guidelines. Sp ecifically, he argued that the nonviolent nature of his offense of reentry, couple d with the fact that his wife, step-daughter, father and two siblings lived in Utah and that he, his father and his siblings worked in Utah to support family members r emaining in Mexico, merit a-4-

“[v]ariance from the Guideline [r]ange.” Sentencin g Mem. at 3, R. Vol. I, doc. 21. Gomez-Castillo also argued that USSG §2L1.2 “u nreasonably assesses a level of dangerousness to [him] that is not warranted,” S entencing Mem. at 4, R. Vol. I, and that it double counts his prior felony convicti on, since it both enhances his base offense level and counts towards his criminal history. Finally, he argued that the existence of disparities between sentences impo sed in districts where “fasttrack” programs exist for aliens accused of illegal reentry and in districts, like Utah, where no such “fast-track” program exists mer its a lower sentence under the sentencing factors of 18 U.S.C. § 3553(a). The gov ernment responded to the Sentencing Memorandum, arguing for imposition of a sentence consistent with the Guideline range. At his sentencing proceeding, Gomez-Castillo inform ed the court that his family had left Utah to return to Mexico and will “ never come back here.” Tr. of Sentencing at 6, R. Vol. III. The district court t hen imposed a sentence of fortysix months. The court stated that the sixteen-point enhancement was appropriate “because [Gomez-Castillo] has the kind of criminal history that warrants the 16 point enhancement.” Id. at 7. The court noted that such an enhancement se rves “a simple desire . . . to keep the streets of Ameri ca safe.” Id. With respect to the disparity between sentences imposed in districts wi th “fast-track” programs and those without such programs, the court stated:-5- I have commented on this disparity between the fasttrack programs on the borders and the sentences we routin ely hand down . . . for two or three years now. I don’t apologiz e for it nor encourage any change in the system. I have only re presented to an Assistant U.S. Attorney from time to time that I wo nder if the Attorney General of the United States has really th ought this through, and is employing a system in a way they think is fa ir. There is no equal protection argument, there is no argument of any kind. The law has long had as a factor in term s of punishment and prosecution where a person gets caught and ther e are disparities. There is disparity between state and federal system s, and some disparity between federal to federal systems, in sp ite of the sentencing guidelines effort to make the sentences similar for similar crimes. There is nothing in this particular case that warrants a departure from that guideline system, and that will be the sentence.

. . . . Mr. Gomez, you even have pending charges before younow in the United States involving drug crimes. You have come to this country and committed the kinds of crimes that make this country extremely interested in keeping you out. Id. at 7-8. This appeal followed. Gomez-Castillo arg ues (1) the district court “applied an incorrect legal standard at sentencing by requiring Mr. GomezCastillo to make a showing that downward departure was warranted,” Appellant’s Op. Br. at 4, and (2) the district court’s “categor ical refusal” to take into account the undisputed sentencing disparities caused by the existence of “fast-track” programs in some districts was legal error resultin g in an unreasonable sentence. Id. at 14.-6- DISCUSSION Following the United States Supreme Court’s decisio n in United States v. Booker , 543 U.S. 220 (2005), the Guidelines are advisory rather than mandatory. Nonetheless, because sentencing courts are requiredto “consider” the properlycalculated Guidelines sentencing range, United Stat es v. Gonzalez-Huerta , 403 F.3d 727, 748-49 (10th Cir.) (en banc) (internal qu otation omitted), cert. denied , 126 S. Ct. 495 (2005), we continue to review the se ntencing court’s factual findings under the Guidelines for clear error and i ts legal determinations de novo. United States v. Serrata , 425 F.3d 886, 906 (10th Cir. 2005). We review fo r reasonableness the ultimate sentence imposed, Booke r , 543 U.S. at 261-62 (Breyer, J.), “guided by the factors set forth in 1 8 U.S.C. § 3553(a).” United States v. Kristl , 437 F.3d 1050, 1053 (10th Cir. 2006) (per curiam)

. We have recently explained how we conduct that reas onableness review. We have joined several other circuits in concluding that “a sentence that is properly calculated under the Guidelines is entitle d to a rebuttable presumption of reasonableness.” Kristl , 437 F.3d at 1054. Accordingly, when conducting reasonableness review of a sentenced imposed post-B ooker , we employ a “twostep approach[,] . . . [f]irst . . . determin[ing] whether the district court considered the applicable Guidelines range,” and correctly cal culated it. Id. at 1055. If the court sentenced the defendant within that range, th e defendant may then rebut that-7-

presumptively reasonable sentence “by demonstrating that the sentence is unreasonable in light of the other sentencing facto rs laid out in § 3553(a).” Id. That is “a deferential standard.” Id. at 1054.

I. Standard used by district court Gomez-Castillo focuses on the district court’s stat ement that “[t]here is nothing in this particular case that warrants a dep arture from that guideline system,” Tr. of Sentencing at 8, R. Vol. III, and a rgues that statement demonstrates that the district court “applied a leg al standard that no longer exists” after Booker . Appellant’s Op. Br. at 5. “By requiring Mr. Gom ez-Castillo to meet some unspecified burden in order to avoid a gu ideline sentence, the court appears to be re-imposing the same burden which Boo kerclearly remove[d].” Id. at 8. We disagree. As we indicated in Kristl , the starting point for the district court’s calculation of a sentence is the Guideline sentence , which is presumptively reasonable. That is what the district court first calculated in this case. It then becomes the defendant’s burden to rebut the presump tive reasonableness of that sentence by pointing to other factors in § 3553(a). Kristl , 437 F.3d at 1055; see United States v. Jimenez-Beltre , 440 F.3d 514, 519 (1st Cir. 2006) (en banc)-8-

(finding defendant failed to show that the existenc e of fast-track disparities warranted a sentence below the presumptively reason able Guideline sentence, and stating “[a]s with departures, the proponent of a f actor that would work in the proponent’s favor has to provide the basis to suppo rt it”). The fact that the district court used the word “departure” does not, by itself, convince us that the court failed to apply the standards announced in Bo oker . “Even in the postBookerlegal landscape, we can expect judges to employ th e familiar terminology of the Guidelines.” United States v. Galarza-Payan , 441 F.3d 885, 888 (10th Cir. 2006). It is clear that the district court underst ood that the Guideline sentence was no longer to be mandatorily imposed, but, rathe r, provided a starting point from which the court would determine a sentence aft er considering the 18 U.S.C. § 3553(a) factors. Further, we find no error in the court’s applicatio n of those factors. Section 3553(a) includes as sentencing factors the nature of the offense of conviction, the characteristics of the defendant, t he need for the sentence to reflect the seriousness of the crime, to provide ad equate deterrence, to protect the public, and to provide any needed treatment for the defendant, as well as the need to avoid unwarranted disparities among similarly si tuated defendants committing similar crimes. The only factors Gomez-Castillo ar gued were the nonviolent nature of the crime of reentry, the fact that his f amily lived in Utah, the degree of-9-

severity of his criminal history, and the dispariti es created by the existence of fast-track districts. Gomez-Castillo’s argument about the nonviolent natu re of the crime of reentry is just a generalized attack on sentences e stablished for the offense of illegal reentry and provides no basis for leniency in his particular case. With respect to his argument about his personal circumst ances, Gomez-Castillo did not develop any particularargument that the fact of his family being in Utah suggested the need for a sentence below the Guideli ne one. Moreover, by the time of sentencing, he had completely flipped this argument and asserted that because his family had gone back to Mexico, he woul d have no incentive in the future to return to the United States. The distric t court rightly concluded that neither of these factors assisted Gomez-Castillo inrebutting the presumptively reasonable Guideline sentence. With respect to the implications of the severity of Gomez-Castillo’s criminal history, the district court’s statements at sentencing indicated that it placed considerable weight on the need for the sent ence imposed to protect the public and to provide adequate deterrence. The cou rt noted Gomez-Castillo’s not insignificant criminal history, and his pending charges involving drugs. While Gomez-Castillo would have us look instead at the no nviolent nature of his offense of conviction (illegal reentry), he cannot ignore h is serious criminal history and-10-

repeated efforts to reenter and remain illegally in this country. The district court clearly felt that the Guideline sentence was approp riate and reasonable, because it felt Gomez-Castillo’s criminal history was signific ant and his sentence therefore needed to provide adequate deterrence and protectio n of society.

II. Fast-track disparities The final § 3553(a) factor which Gomez-Castillo wou ld have us give determinative effect is the undisputed existence of sentencing disparities between illegal aliens sentenced in districts containing fa st-track programs and districts without such programs. Section 3553(a)(6) states that, in sentencing defendants, courts must consider “the need to avoid unwarrantedsentence disparities among defendants with similar records who have been foundguilty of similar conduct.” Gomez-Castillo argues that the disparities created by fast-track programs are unwarranted and that the district court erred in re fusing to consider those disparities and/or refusing to sentence Gomez-Casti llo below the Guideline range. Fast-track programs originally were confined largel y to states bordering Mexico, where federal prosecutors were “faced with increasing numbers of illegal reentry and other immigration cases.” United State s v. Morales-Chaires , 430 F.3d 1124, 1127 (10th Cir. 2005). These programs permit“defendants accused of certain immigration offenses [to] plead guilty earl y in the process and waive their-11-

rights to file certain motions and to appeal, in ex change for a shorter sentence.” Id. Congress endorsed the concept in 2003 via the Pro secutorial Remedies and Other Tools to End the Exploitation of Children Tod ay Act (“PROTECT Act”), Pub. L. No. 108-21, 117 Stat. 650 (2003) (codified in scattered sections of 18, 28 and 42 U.S.C.), and the Sentencing Commission addeda new Guideline section authorizing departures up to four levels for defend ants participating in a fast-track program. See USSG §5K3.1, p.s. Jurisdictions seeking to implem ent a fast-track program must obtain authorization from the AttorneyGeneral. At the time Gomez-Castillo was sentenced, Utah did not have a f ast-track program, although a number of other jurisdictions did. In Morales-Chai res we described more fully the history of fast-track programs and the split am ong district courts, primarily, on whether sentencing disparities created by the ex istence of such programs in certain districts should lead to reduced sentences for defendants in districts without such programs. 430 F. 3d at 1127-28, 1130- 31. The defendant in Morales-Chaires made the identical argument GomezCastillo does here. We held in that case that we d id not “need [to] resolve whether sentencing disparities caused by the existe nce of fast-track programs in some jurisdictions are or are not, or may be in certain circumstances, considered unwarranted under § 3553(a)(6).” Id. at 1131. That was because § 3553(a)(6) “is but one of several factors for a court to consider in determining a reasonable2As the Eighth Circuit stated:

to require the district court to vary from the advi sory guidelines based solely on the existence of early disposition programs in other districts would conflict with the decision of Congr ess to limit the availability of such sentence reductions to select geographical areas, and with the Attorney General’s exercise of prosecutorial discretion to refrain from authorizing early disposition agree ments in [certain jurisdictions]. Sebastian , 436 F.3d at 916. -12- sentence.” Id. We held that a consideration of all the § 3553(a) factors indicated the sentence imposed in that case was reasonable. Since our decision in Morales-Chaires , the Eighth Circuit has held that “the sentencing disparities arising from fast-track prog rams [do not] make[] th[e] [defendant’s] sentence unreasonable.” United State s v. Sebastian , 436 F.3d 913, 916 (8th Cir. 2006). 2Similarly, the Seventh Circuit has held that any disparity between the defendant’s sentence and those availabl e to or imposed in fast-track jurisdictions “was considered appropriately as a si ngle, and not controlling, factor” and that the defendant’s sentence was not u nreasonable. United States v. Martinez-Martinez , 442 F.3d 539, 543 (7th Cir. 2006); see also United States v. Montes-Pineda , No. 05-4411, __ F.3d __, 2006 WL 1062154, at *4 ( 4th Cir. Apr. 24, 2006) (“[W]e hold that merely pointing out the existence of such [fast-track] disparities, with no reference to the characteristi cs of the particular defendant, does not render a within-Guidelines sentence unreas onable.”); United States v.-13-

Martinez-Flores , 428 F.3d 22, 30 n.3 (1st Cir. 2005) (stating in d icta “[i]t is arguable that even post-Booker , it would never be reasonable to depart downward based on disparities between fast-track and non-fas t-track jurisdictions given Congress’ clear (if implied) statement in the PROTE CT Act provision that such disparities are acceptable”), cert. denied , 126 S. Ct. 1449 (2006); Jimenez-Beltre , 440 F.3d at 519 (noting its dicta in Martinez-Flore s , and finding that in the case before it, the defendant “had not furnished a factu al basis for assessing the extent of the [fast-track] disparities or provided a reaso n why to take them into account[,] . . . [so] [i]n declining to alter the s entence on this ground, the district court did not act unreasonably” (citation omitted))

. Gomez-Castillo argues that the district court “cate gorically” refused to consider the disparities caused by fast-track progr ams. We disagree. The district court acknowledged the existence of those dispariti es, and noted that disparities were an inevitable result to some degree in the cri minal justice system. The court evidently believed that fast-track disparities are not unwarranted under § 3553(a)(6). Moreover, consistent with our decisi on in Morales-Chaires , the court found that those disparities did not trump th e remaining § 3553(a) sentencing factors; rather, disparities are afactor, to be considered along with the remaining § 3553(a) factors. In this case, the dis trict court correctly found that3 Of course, we encourage district courts to specific ally discuss the

§ 3553(a) factors, so that the rationale behind the sentence imposed is clear both to the defendant and to the appellate court. -14- the remaining sentencing factors supported the impo sition of the Guideline

sentence. Finally, we acknowledge that the district court’s e xplanation for its sentencing decision was not lengthy, nor did it spe cifically reference § 3553(a) or meticulously go through each factor. 3 But, it need not have. The sentencing court is not required to consider in dividually each factor listed in § 3553(a) before issuing a sentenc e, and we will not demand that the district court recite any magic wor ds to show us that it fulfilled its responsibility to be mindful of th e factors that Congress has instructed it to consider. Galarza-Payan , 441 F.3d at 888-89 (quoting United States v. Contreras-Martinez , 409 F.3d 1236, 1242 (10th Cir. 2005) (further quotation, citations, and alteration marks omitted). “[T]he record plainly shows that i t considered the relevant § 3553(a) factors in reaching its conclusions as to an appropriate sentence.” Id. at 889. In sum, we conclude that the sentence impose d was reasonable.

CONCLUSION For the foregoing reasons, we AFFIRM Gomez-Castillo ’s sentence. ENTERED FOR THE COURT Stephen H. Anderson Circuit Judge