UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

No. 06-2116
v.	(D. of N.M.)
BENJAMIN CAMPOS-DAVILA,

Defendant-Appellant.	(D.C. No. CR-05-1611-JH)

ORDER AND JUDGMENT*

Before HENRY, TYMKOVICH, and HOLMES, Circuit Judges.**

Benjamin Campos-Davila pleaded guilty to illegal re-entry after deportation subsequent to an aggravated felony conviction in violation of 8 U.S.C. §§ 1326(a)(1), (a)(2), and (b)(2). He was sentenced to forty-six months imprisonment. Counsel has filed an Anders1 brief and moves to withdraw. In his brief, counsel states he could find no arguably meritorious claim to raise on Campos-Davila's behalf. Counsel does, however, note that Campos-Davila's sentence was arguably unreasonable under 18 U.S.C. § 3553(a) and United States v. Booker, 543 U.S. 220 (2005). Campos-Davila has not filed any materials on his own behalf.

We review sentences imposed post-Booker for reasonableness. United States v. Kristl, 437 F.3d 1050, 1053 (10th Cir. 2006). "[A] sentence that is properly calculated under the [United States Sentencing] Guidelines [USSG] is entitled to a rebuttable presumption of reasonableness." Id. at 1054. "The defendant may rebut this presumption by demonstrating that the sentence is unreasonable in light of the other sentencing factors laid out in [18 U.S.C.] § 3553(a)." Id. at 1055.

Campos-Davila's sentence was properly calculated under the USSG. The guideline applicable for a conviction under 8 U.S.C. § 1326 is USSG § 2L1.2. Under this guideline, the base offense level is eight. USSG § 2L1.2(a). But this guideline calls for a sixteen-level enhancement if the defendant was previously deported or remained in the United States after a felony conviction for a "crime of violence." USSG § 2L1.2(b)(1)(A)(ii). The commentary to USSG § 2L1.2 defines "crime of violence" as including burglary of a dwelling.

Campos-Davila was deported on August 15, 2003 and again on December 30, 2003. Prior to being deported, he was convicted as a juvenile of Burglary of a Dwelling in 2001. He was also later convicted as an adult, though still only seventeen, of Conspiracy to Commit Aggravated Burglary of a Residence and Accessory Before the Fact to Larceny, both in 2002.2 Therefore, the sixteen-level enhancement was warranted, resulting in an adjusted offense level of twenty-four. Following a three-level downward adjustment for acceptance of responsibility under USSG § 3E1.1, Campos-Davila's total offense level was twenty-one. Pursuant to USSG §§ 4A1.1 and 4A1.2, and USSG Ch.5, Pt.A, his criminal history category was III, resulting in a guideline range of forty-six to fifty-seven months imprisonment. Thus, Campos-Davila's forty-six month sentence is presumptively reasonable.

Campos-Davila presents no argument to rebut the presumption of reasonableness. The district court reviewed the pre-sentence report, listened to counsel's request for a downward departure based on a withdrawn plea agreement3 and the absence of ties to Mexico, considered the factors set forth in § 3553(a), and found a forty-six month sentence reflected the seriousness of the offense and the defendant's criminal history. Even in the absence of the presumption, we would find the sentence reasonable.

After a careful review of the record, we GRANT counsel's request to withdraw and AFFIRM the sentence.

Entered for the Court

Timothy M. Tymkovich

Circuit Judge