United States v. Guardado-Panuco

• Court: Court of Appeals for the Tenth Circuit
• Decided: January 7, 2019
• Docket: 18-1210
• Status: Unpublished

Opinion

FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT January 7, 2019 _________________________________ Elisabeth A. Shumaker Clerk of Court UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v. No. 18-1210 (D.C. No. 1:17-CR-00442-MSK-GPG-1) MARCOS GUARDADO-PANUCO, (D. Colo.)

Defendant - Appellant. _________________________________

ORDER AND JUDGMENT* _________________________________

Before HARTZ, McKAY, and MORITZ, Circuit Judges. _________________________________

Marcos Guardado-Panuco pleaded guilty to one count of illegal reentry, in

violation of 8 U.S.C. § 1326(a). He appeals his 24-month prison sentence.

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

Guardado-Panuco is a native and citizen of Mexico who has been removed

from the United States on several occasions. He was previously convicted of illegal

reentry in 2010 and was removed in 2011 after a term of imprisonment. He returned

* After examining the briefs and appellate record, this panel has determined unanimously to honor the parties’ request for a decision on the briefs without oral argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore 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 This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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. to the United States, spent additional time in prison (after revocation of a term of

supervised release imposed in his first illegal reentry conviction), and was removed

again in 2012. He returned to the United States once again in 2016, after learning

that his family was experiencing financial difficulties in this country. He was

apprehended and pleaded guilty to a second charge of illegal reentry.

Guardado-Panuco’s advisory guidelines sentencing range was 18 to

24 months’ imprisonment. After denying his request for a downward variant

sentence of 12 months and one day in prison, the district court sentenced him at the

top of the guidelines range to 24 months’ imprisonment. He argues that his sentence

is substantively unreasonable.

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

States v. Grigsby, 749 F.3d 908, 909 (10th Cir. 2014). “In reviewing a sentence for

substantive reasonableness, we recognize that the job of sentencing criminal

defendants is difficult. The court must individualize sentences without creating

unwarranted sentencing disparities. And the court must consider the seriousness of

crimes while recognizing the uniqueness of the individuals committing crimes.”

United States v. Walker, 844 F.3d 1253, 1255 (10th Cir. 2017). The fact that this

court might reasonably conclude that a different sentence was appropriate isn’t

sufficient to justify reversal. Gall v. United States, 552 U.S. 38, 51 (2007). Rather,

we will find that the district court acted within its discretion “unless the sentence was

arbitrary, capricious, whimsical, or manifestly unreasonable.” United States v.

Franklin, 785 F.3d 1365, 1370 (10th Cir. 2015) (internal quotation marks omitted).

2 Moreover, we apply a rebuttable presumption of reasonableness to a sentence falling

within the applicable advisory guidelines range. Id.

Guardado-Panuco doesn’t argue that the district court failed to address the

factors it must consider when imposing a sentence. See 18 U.S.C. § 3553(a). Rather,

he contends that the court over-emphasized his criminal history, while giving too

little weight to his personal mitigating circumstances, including his reason for

illegally reentering the United States: to support his family financially. But by

arguing that more weight should have been given to his personal circumstances,

Guardado-Panuco asks this court to substitute its judgment for that of the sentencing

court. This we cannot do. See Gall, 552 U.S. at 51-52. Moreover, we see no abuse

of discretion in the sentence imposed. The district court considered all of the

required factors, but ultimately placed more weight on Guardado-Panuco’s criminal

history, in particular his pattern of repeated illegal reentries. The court held that a

longer sentence would provide the appropriate level of deterrence.

Because the district court acted within its discretion in imposing a 24-month

sentence, the judgment is affirmed.

Entered for the Court

Nancy L. Moritz Circuit Judge