United States v. Fuentes-Moreno

392 F. App'x 659

Opinion

FILED United States Court of Appeals Tenth Circuit UNITED STATES COURT OF APPEALS August 20, 2010 TENTH CIRCUIT Elisabeth A. Shumaker Clerk of Court

UNITED STATES OF AMERICA,

Plaintiff, Appellee, No. 10-1068 (D.C. No. 1:09-CR-00395-REB-1) v. (D. Colo.)

ALBERTO FUENTES-MORENO,

Defendant-Appellant.

ORDER AND JUDGMENT*

Before KELLY, EBEL and LUCERO, Circuit Judges.

Defendant-Appellant Alberto Fuentes-Moreno pled guilty to reentering the United

States illegally after having been previously deported subsequent to a conviction for an

aggravated felony, in violation of 8 U.S.C. §§ 1326(a) and (b). The district court

calculated Fuentes-Moreno’s advisory guidelines range as calling for 41 to 51 months’

* After examining the briefs and appellate record, this panel has determined unanimously to grant the parties= request for a decision on the briefs without oral argument. See Fed. R. App. P. 34(f) and 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 This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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. imprisonment, and Feuntes-Moreno does not challenge that calculation. The district

court imposed a sentence of 48 months’ imprisonment, which Fuentes-Moreno

characterizes as “near the top of the guideline range.” (Aplt. Br. at 9.) Fuentes-Moreno

now appeals his sentence, challenging only its substantive reasonableness. Exercising

jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a), we AFFIRM.

We review the substantive reasonableness of a sentence for an abuse of discretion.

See United States v. Rojas, 531 F.3d 1203, 1209 (10th Cir. 2008). “A district court

abuses its discretion when it renders a judgment that is arbitrary, capricious, whimsical,

or manifestly unreasonable.” United States v. Friedman, 554 F.3d 1301, 1307 (10th Cir.

2009) (quotation omitted). We accord a rebuttable presumption of reasonableness to a

sentence that falls within the properly calculated guidelines range. Rojas, 531 F.3d at

1209.

In this case, the district court provided an ample basis for Fuentes-Moreno’s

sentence that leads us to conclude the sentence falls within the acceptable range of

reasonableness. As a starting point, the district court’s sentence fell within the guidelines

range and is presumptively reasonable. Moreover, the district court explained that

immigration authorities discovered Fuentes-Moreno because he committed other criminal

offenses—offenses which Fuentes-Moreno now seeks to minimize as mere traffic

offenses, though he spent several days in jail as a result of those offenses. The district

court also emphasized that Fuentes-Moreno failed to grasp the seriousness of the offense

because he has entered the country illegally on four known occasions and was deported 2 three times. On appeal, Fuentes-Moreno highlights that he first entered the country

illegally as a teenager with his family, but this accounts for only one of his four illegal

entries. All three of Fuentes-Moreno’s deportations occurred when he was an adult, and,

after each one, he chose to reenter the United States unlawfully. Finally, the district court

expressed serious concern with Fuentes-Moreno’s criminal record, which includes two

felonies—one for unlawful sexual activity with a minor and one for possession of a

forgery writing device—and several traffic offenses, including one for driving under the

influence. Although Fuentes-Moreno again sought to minimize the traffic offenses, the

district court reasonably explained that the offenses were serious and reflected a disregard

for the law. And while Fuentes-Moreno also sought to minimize the seriousness of the

sex offense as involving a consensual encounter, the district court thoughtfully

considered and rejected that characterization of the offense.

In sum, the district court stated that it conducted a “careful individual assessment

of Mr. Fuentes [sic] and his unique circumstances and characteristics” (R. v.2 at 30), and

the record reflects that to be the case. Although the arguments raised by Fuentes-Moreno

may have justified a lower sentence, the district court engaged in a thoughtful analysis

that yielded a reasonable sentence. Accordingly, we cannot disturb that sentence on

appeal.

3 AFFIRMED.

ENTERED FOR THE COURT

David M. Ebel Circuit Judge