United States v. Prado-Jimenez, 10th Cir. (2007)

F I L E D
United States Court of Appeals

Tenth Circuit
UNITED STATES CO URT O F APPEALS
TENTH CIRCUIT
May 18, 2007

Elisabeth A. Shumaker
Clerk of Court
U N ITED STA TES O F A M ER ICA,

Plaintiff - Appellee,
No. 06-1174
v.
(D. Colorado)
LUIS M AN UEL PRA DO -JIM ENEZ,

also know n as Luis Jimenez, also
known as Louis Prado,
(D.C. No. 05-CR-495-W DM )
Defendant - Appellant.
OR D ER AND JUDGM ENT *
Before KELLY, M U RPH Y, and O'BRIEN, Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument.
This order and judgment is not binding precedent except under the
doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
I.
Introduction
Appellant Luis Prado-Jimenez pleaded guilty to one count of illegal reentry
of a deported alien, in violation of 8 U.S.C. 1326(a) and (b)(2). The district

court sentenced him to fifty-seven months imprisonment, the low end of the
advisory guidelines range. Prado-Jimenez now appeals the sentence imposed by
the district court, arguing it is substantively unreasonable based on consideration
of the factors set forth in 18 U.S.C. 3553(a). See United States v. Booker, 543
U .S. 220, 261 (2005). Exercising jurisdiction pursuant to 28 U.S.C. 1291, w e
affirm Prado-Jimenezs sentence.
II.
Background
In 2005, Prado-Jimenez was arrested for speeding in Colorado. A records
check revealed he had previously been deported from the United States. He was
arrested and eventually charged with illegal reentry by a deported alien previously
convicted of an aggravated felony, in violation of 18 U.S.C. 1326(a) and (b)(2).
Prado-Jimenez pleaded guilty to the charge and the United States Probation
Office prepared a Presentence Investigation Report (PSR). The PSR calculated
the base offense level at eight but increased it sixteen levels pursuant to USSG
2L1.2(b)(1)(A) because Prado-Jimenez had a prior felony conviction for a crime
of violence. The offense level was then reduced by three levels for acceptance of
responsibility pursuant to USSG 3E1.1, yielding a total offense level of twentyone. Combined with Prado-Jimenezs criminal history category of IV , this
-2-
offense level resulted in an advisory guidelines sentencing range of fifty-seven to

seventy-one months imprisonment.
Prado-Jimenez filed a written objection to the PSR, arguing the sixteenlevel increase to his base offense level violated his Sixth Amendment rights
because the fact of the prior conviction that triggered the increase was not found
by a jury beyond a reasonable doubt. 1 But see Almendarez-Torres v. United
States, 523 U.S. 224, 226-27 (1998); United States v. M oore, 401 F.3d 1220,
1223-24 (10th Cir. 2005). He also filed a sentencing memorandum, arguing a
variance from the advisory guidelines range w as appropriate based on the nature
of the offense of conviction, his history and characteristics, and the need to avoid
unwarranted sentencing disparities. See 18 U.S.C. 3553(a). Specifically,
Prado-Jimenez asserted his offense was less serious because he illegally reentered
the country solely out of a desire to rejoin his immediate family, all of whom live
in the United States. W ith respect to his history and characteristics, he took the
position they warranted a lower sentence because he has no recent criminal
activity and maintained regular employment while in the United States. Finally,
he argued the absence of a fast-track program 2 in Colorado resulted in an
1
The district court rejected this argument as foreclosed by Supreme Court

precedent and Prado-Jimenez does not raise the issue in this appeal.
2
Fast-track programs permit defendants accused of certain immigration

offenses to plead guilty early in the process and waive their rights to file certain
motions and to appeal, in exchange for a shorter sentence. United States v.
(continued...)
-3-
unwarranted sentencing disparity between the advisory guidelines range

calculated in the PSR and sentences imposed for the same crime in jurisdictions
that have fast-track programs.
At the sentencing hearing, the district court considered Prado-Jimenezs
arguments but rejected his request for a sentencing variance. The district court
characterized Prado-Jimenezs desire to be with his family as understandable
but expressed concern that Prado-Jimenez admitted to reentering the United States
illegally on two occasions almost immediately after being deported, thereby
showing a disrespect for the law and the inability to be deterred from engaging in
illegal conduct. The court acknowledged Prado-Jimenezs criminal history was
limited to offenses occurring several years ago, but noted his prior offenses w ere
serious and evinced a significant disregard for the law. The district court also
rejected Prado-Jimenezs fast-track argument, concluding fast-track sentences are
the exception rather than the norm and thus do not constitute a legitimate reason
to impose a sentence outside a presumptively reasonable guidelines range. Based
on its consideration of the 3553(a) factors, the district court determined a
sentence at the bottom of the advisory guidelines range was appropriate and
sentenced Prado-Jimenez to fifty-seven months imprisonment.
(...continued)
M orales-Chaires, 430 F.3d 1124, 1127 (10th Cir. 2005).
-4-
III.
Discussion
This court reviews Prado-Jimenezs sentence for reasonableness. Booker,
543 U.S. at 260-61. Our [r]easonableness review is guided by the factors set
forth in 18 U.S.C. 3553(a). United States v. Kristl, 437 F.3d 1050, 1053 (10th
Cir. 2006). Those factors include the nature of the offense and characteristics of
the defendant, as well as the need for the sentence to reflect the seriousness of the
crime, to provide adequate deterrence, [and] to protect the public. Id. Because
Prado-Jimenezs sentence falls within a properly calculated guidelines range, it is
entitled to a rebuttable presumption of substantive reasonableness. Id. at 1054.
Consistent with the arguments he presented to the district court, PradoJimenez asserts his sentence is unreasonable in light of the 3553(a) factors,
because (1) his offense of conviction was motivated by a desire to be reunited
with his family; (2) he has an excellent employment history; (3) his prior criminal
offenses all occurred many years ago and he has aged out of a crime-filled
youth; (4) he is a fully assimilated American, having lived in the United States
since he was seven years old; and (5) the lack of a fast-track program in Colorado
creates an unwarranted sentencing disparity. 3 Prado-Jimenezs specific arguments
3
Prado-Jimenez also argues (1) his sentence should be viewed in the larger
context of Americas reliance on immigrant labor, (2) his employers and their
clients have benefitted from his offense, (3) Bureau of Prisons regulations
governing deportable aliens impair the ability to provide him with educational or
vocational training during his incarceration, and (4) the blindly punitive effect
of the application of the sixteen-point enhancement mandated by USSG
(continued...)
-5-
are part of a broader assertion his sentence is substantively unreasonable because

it is too long.
Prado-Jimenezs fast-track argument is foreclosed by our recent decision in
United States v. M artinez-Trujillo, 468 F.3d 1266 (10th Cir. 2006). In M artinezTrujillo, we concluded sentencing disparities resulting from the existence of fasttrack programs in some jurisdictions are not unwarranted under 3553(a)(6)
because they are specifically authorized by Congress. Id. at 1268-69. Having
reviewed and considered Prado-Jimenezs other arguments, 4 we conclude they are
insufficient, even considered in the aggregate, to rebut the presumption his
sentence is reasonable. The district court adopted the uncontested factual
findings in the PSR and fully considered the arguments Prado-Jimenez presented
3
(...continued)
2L1.2(b)(1)(A ) renders his sentence unreasonable. Because Prado-Jimenez did
not present any of these arguments to the district court, we do not consider them
here. See United States v. Alcaraz-Arellano, 441 F.3d 1252, 1260 (10th Cir.
2006).
4
This court has held that 5K2.11 departures are not allowed in illegal
reentry cases because the crime of illegal reentry is not a specific intent crime.
United States v. Hernandez-Baide, 392 F.3d 1153, 1157-58 (10th Cir. 2004), cert.
granted & judgment vacated by Hernandez-Baide v. United States, 544 U.S. 1015
(2005), opinion reinstated by United States v. Hernandez-Baide, 146 F. Appx
302, 305 (10th Cir. 2005). Recognizing the analytical distinctions between
departures and variances, it could nevertheless be argued, based on the analysis of
departures in Hernandez-Baide, that it would be likewise improper for a district
court to vary from the advisory guidelines range based solely on the defendants
motivation for reentering the United States. W e leave the resolution of this issue
for another day since the government does not raise it and the sentence imposed
by the district court is otherw ise reasonable.
-6-
in support of his request for a below-guidelines sentence. It then imposed a

sentence at the bottom of the correctly calculated advisory guidelines range.
Even in the absence of the Kristl presumption, we would conclude PradoJimenezs sentence is substantively reasonable.
IV.
Conclusion
The sentence imposed by the district court is affirmed.
ENTERED FOR THE COURT
M ichael R. M urphy
Circuit Judge
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F I L E D

United States Court of Appeals

May 18, 2007

U N ITED STA TES O F A M ER ICA,

LUIS M AN UEL PRA DO -JIM ENEZ,

(D.C. No. 05-CR-495-W DM )

OR D ER AND JUDGM ENT *

Before KELLY, M U RPH Y, and O'BRIEN, Circuit Judges.

of a deported alien, in violation of 8 U.S.C. 1326(a) and (b)(2). The district

offense level resulted in an advisory guidelines sentencing range of fifty-seven to

The district court rejected this argument as foreclosed by Supreme Court

Fast-track programs permit defendants accused of certain immigration

unwarranted sentencing disparity between the advisory guidelines range

are part of a broader assertion his sentence is substantively unreasonable because

in support of his request for a below-guidelines sentence. It then imposed a

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