Not For Publication in West's Federal Reporter

Citation Limited Pursuant to 1st Cir. Loc. R. 32.3

United States Court of Appeals

For the First Circuit

No. 05-1941

UNITED STATES,

Appellee,

v.

NICHOLAS ALVAREZ-ENCISO,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW HAMPSHIRE

[Hon. Joseph A. DiClerico, U.S. District Judge]

Before

 Selya, Lynch and Lipez,

Circuit Judges.

Bjorn Lange, Assistant Federal Public Defender, on brief for

appellant.

Mark S. Zuckerman, Assistant U.S. Attorney, and Thomas P.

Colantuono, United States Attorney, on brief for appellee.

June 9, 2006
8 U.S.C. § 1326(b)(2) establishes a maximum sentence of 20 1

years where the removal was subsequent to a conviction for

commission of an "aggravated felony."

Per Curiam. Defendant-appellant Nicholas Alvarez-Enciso

appeals from his sentence imposed following his guilty plea to

illegal re-entry to the United States, in violation of 8 U.S.C. §§

1326(a) and 1326(b)(2). Appellant does not challenge the district 1

court's calculation of the advisory guideline sentencing range

(GSR), but argues that the sentencing court's failure to reduce his

sentence below the GSR of 24 to 30 months based on certain

mitigating factors was unreasonable and resulted in a sentence that

was greater than necessary to effectuate the statutory purposes

under 18 U.S.C. § 3553(a).

Neither party disputes the calculation of that GSR.

Alvarez filed a sentencing memorandum requesting an 18-month

sentence, pressing certain mitigating factors as grounds for

sentencing below the GSR. The government filed an opposition to

that request and, at sentencing, recommended 24 months, at the

bottom of the applicable GSR. The court noted that in view of

Alvarez's prior deportations and repeated illegal re-entries, a

sentence in excess of 24 months would be warranted. However, it

followed the government's recommendation and imposed a 24-month

sentence. The court specifically mentioned several of the

mitigating factors relied upon by Alvarez, as well as the factors

mentioned by the government as reasons not to sentence him below

the GSR. Finally, the court referred to specific sentencing
-3-

purposes set forth in 18 U.S.C. § 3553(a), in explaining its reason

for imposing a 24-month sentence.

None of the mitigating factors relied upon by Alvarez

renders his sentence unreasonable. The first factor Alvarez relies

upon is the disparity created by the absence of a "fast-track"

program. As Alvarez concedes in a Rule 28(j) letter, JimenezBeltre "largely resolve[s] the parties' arguments about the absence

of a 'fast-track program' in the District of New Hampshire." In

Jimenez-Beltre, 440 F.3d 514, 519 (1 Cir. 2006) (en banc), we held st

that at least where a defendant had failed to "furnish[] a factual

basis for assessing the extent of the disparities or provided a

reason why to take them into account," the sentencing court did not

act unreasonably in declining to alter the sentence on that basis.

See also United States v. Martinez-Flores, 428 F.3d 22, 30 n. 3 (1st

Cir. 2005) (stating, in dicta, that "[i]t is arguable that even

post-Booker, it would never be reasonable to depart downward based

on disparities between fast-track and non-fast-track jurisdictions

given Congress' clear (if implied) statement in the PROTECT Act

provision that such disparities are acceptable"), cert. denied, __

U.S. __, 126 S. Ct. 1449 (2006).
-4-

The second factor on which Alvarez relies in support of

his request for a reduced sentence is the nature of the "aggravated

felony" on which his eight-level enhancement under U.S.S.G. §

2L1.2(b)(1)(C) was based. The underlying convictions were for

"Criminal Threatening" and "Simple Assault," arising from a single

incident involving Alvarez's assault upon a bartender who had

evicted him for creating a disturbance. Those convictions resulted

in two one-year sentences, which were suspended except for 183 days

of time served. 

Appellant acknowledges that under United States v.

Cordoza-Estrada, 385 F.3d 56, 57-58 (1 Cir. 2004), the convictions st

constitute an aggravated felony regardless of the fact that much of

the prison term was suspended. The mere fact that if the suspended

sentence imposed had been for less than one year, the eight-level

enhancement would not have been triggered does not render the

instant sentence unreasonable. Alvarez's argument that the light

sentences imposed demonstrate that the description of the offense

conduct contained in the presentence investigation report (PSR)

must be exaggerated is also unavailing. Alvarez did not object at

sentencing to the factual description of his conduct contained in

the PSR.

The final mitigating factor on which Alvarez relies is

"cultural assimilation," based on his family ties and work history

in this country. Assuming, without deciding, that cultural
-5-

assimilation might provide a proper basis for granting a sentence

below the GSR in certain illegal re-entry cases, it was not

unreasonable to decline to reduce Alvarez's sentence on this basis.

Alvarez was twenty years old when he came to this country. He is

unmarried, has one daughter living in Mexico, and is estranged from

his other daughter (who lives in the United States). While in the

United States, he lived and worked in at least three different

states.

The district court specifically stated that it had taken

family ties into account, finding that Alvarez "has substantial

family ties to the United States and fewer ties to his native

Mexico." However, the court also took into account that Alvarez

had repeatedly re-entered the country following deportation. It

was not unreasonable for the district court to find that Alvarez's

family ties were counterbalanced by his repeated immigration

offenses. See United States v. Rodriguez-Rodriguez, 441 F.3d 767,

770 (9 Cir. 2006)(holding that district court's determination that th

cultural assimilation factors were counterbalanced by defendant's

extensive criminal history was not unreasonable); cf. United States

v. Zapete-Garcia, __ F.3d __, 2006 WL 1216670, at * 2 (1 Cir., May st

8, 2006)(noting that it is not necessarily unreasonable for a judge

to increase the sentence (above the GSR) of a defendant who had

previously been deported more than once).
-6-

In imposing the 24-month sentence, the court expressly

identified the § 3553(a) purposes that would be effectuated by the

sentence imposed: to "reflect the seriousness of the offense . . .

and . . . provide just punishment for the offense," and "afford

adequate deterrence to others who may consider reentering the

country after deportation and will protect the public from further

crimes of this defendant." The court did not expressly address

each of the mitigating factors raised by Alvarez, however its

"reasoning can be inferred by comparing what was argued by the

parties or contained in the pre-sentence report with what the judge

did." Jimenez-Beltre, 440 F.3d at 519. While the court did not

specifically mention the "parsimony provision," under § 3553(a), it

stated that Alvarez's repeated illegal re-entries alone would

warrant imposing a sentence in excess of 24 months and identified

the purposes served by the sentence imposed. On this record, those

statements "suffice[] as a conclusion that the sentence was not

longer than necessary." United States v. Alli, 444 F.3d 34, 41 (1st

Cir. 2006).

The district court's calculation of the guideline range

is uncontested. The court provided a reasoned explanation for the

sentence it imposed, identifying the statutory purposes that would

be served. And the outcome - a sentence at the bottom of that

range - is plausible. See Jimenez-Beltre, 440 F.3d at 519.
-7-

Accordingly, we summarily affirm the sentence. See 1 Cir. R. 27(c). st

Affirmed.