United States v. Mora

• Court: Court of Appeals for the Tenth Circuit
• Decided: December 24, 2025
• Docket: 25-5030
• Status: Unpublished

Opinion

Appellate Case: 25-5030 Document: 45-1 Date Filed: 12/24/2025 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT December 24, 2025 _________________________________ Christopher M. Wolpert Clerk of Court UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v. No. 25-5030 (D.C. No. 4:24-CR-00352-SEH-1) FELIPE BAUTISTA MORA, a/k/a (N.D. Okla.) Francisco Bautista-Mora, a/k/a Carlos Mora, a/k/a Francisco Gonzalez-Gonzalez, a/k/a Carlos Mora Camberos,

Defendant - Appellant. _________________________________

ORDER AND JUDGMENT * _________________________________

Before HARTZ, Circuit Judge, LUCERO, Senior Circuit Judge, and PHILLIPS, Circuit Judge. _________________________________

Felipe Bautista Mora, a native and citizen of Mexico, pleaded guilty to one

count of reentry of a removed alien. See 8 U.S.C. § 1326(b). The United States

District Court for the Northern District of Oklahoma sentenced him to 21 months’

imprisonment, an upward variance from the United States Sentencing Guidelines

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 This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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. Appellate Case: 25-5030 Document: 45-1 Date Filed: 12/24/2025 Page: 2

advisory range of 10 to 16 months’ imprisonment. Defendant appeals, arguing that

his sentence is procedurally and substantively unreasonable. Exercising jurisdiction

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

BACKGROUND

An indictment charged Defendant with one count of reentry of a removed

alien, alleging that he was found in the United States on October 15, 2024, after

being deported and removed on August 27, 2002. He pleaded guilty without a plea

agreement.

The probation office’s presentence report (PSR) calculated a total offense level

of 10. 1 Defendant had previously been deported on four separate occasions: October

4, 1994; July 1, 1996; October 18, 2000; and August 27, 2002. He was banned from

reentering the United States for a period of five to ten years as part of the removal

process, but he again reentered the United States in 2005. In addition, Defendant had

five prior convictions: (1) possession of a stolen vehicle in 1994; (2) possession of a

controlled substance in 1997; (3) operating a vehicle without a valid license in 2011;

(4) child abuse by injury in 2015; and (5) unlawful possession of a controlled drug

and obstructing an officer in 2024. The final offense led to the present illegal-reentry

prosecution: during a traffic stop, he did not obey a police officer’s orders, resisted

arrest, and had marijuana in his vehicle. The PSR assigned Defendant a criminal-

history category of III and a Guidelines range of 10 to 16 months’ imprisonment.

1 This included a four-level enhancement for a felony child-abuse conviction after being deported and a two-level reduction for acceptance of responsibility. 2 Appellate Case: 25-5030 Document: 45-1 Date Filed: 12/24/2025 Page: 3

Neither party objected to the PSR, but both submitted sentencing memoranda.

Defendant requested a 10-month sentence, arguing that such a term would be

adequate to satisfy the 18 U.S.C. § 3553(a) sentencing factors. The government

moved for an upward variance, requesting a 30-month sentence because of

Defendant’s criminal and removal history.

At sentencing, Defendant argued that his case was like other illegal-reentry

cases and an upward variance was unnecessary because the PSR already accounted

for his criminal history and previous removals. He urged that a 10-month sentence

would be both within the Guidelines and appropriate in his case. The government

argued that Defendant was not similarly situated to other illegal-reentry offenders

because his repetitive criminal conduct demonstrated “a habitual disregard” for the

law. R. Vol. III at 36. The government requested an upward variance to a 30-month

sentence, reasoning that Defendant had “shown, time and time again, [that] he is

wanting to come back to the United States and, while in the United States, he

commits crimes.” Id. Defendant responded that he had served his punishment for his

crimes and that his last crime outside of the 2024 offense was from 2015, almost 10

years earlier. He argued that the PSR already included his criminal history in its

recommended sentence, and any further enhancement was “double-dipping.” Id.

The district court agreed with the government that additional deterrence was

warranted. It adopted the PSR’s factual findings and addressed the applicable

18 U.S.C. § 3553(a) factors. It said that it had “considered the nature of the offense,

the Defendant’s criminal history, and his personal characteristics.” Id. at 40. The

3 Appellate Case: 25-5030 Document: 45-1 Date Filed: 12/24/2025 Page: 4

court reasoned that Defendant’s prior criminal convictions and removals were factors

that justified an upward variance, and that a sentence within a newly calculated

Guidelines range would adequately deter Defendant and others, promote respect for

the law, provide just punishment, and protect the public. It specifically noted that

there were factors that separated “Defendant from the mine-run of similarly situated

defendants to a degree that warrants a variance.” Id. at 39-40. It varied upward to a

total offense level of 12, which yielded a Guidelines range of 15 to 21 months’

imprisonment, and sentenced Defendant to 21 months’ imprisonment.

DISCUSSION

Review for reasonableness of a criminal defendant’s sentence “is a two-step

process comprising a procedural and a substantive component.” United States v.

Jackson, 82 F.4th 943, 949 (10th Cir. 2023) (internal quotation marks omitted). On

appeal Defendant challenges both the procedural and substantive reasonableness of

his sentence. 2

Procedural errors include “failing to calculate (or improperly calculating) the

Guidelines range, treating the Guidelines as mandatory, failing to consider the [18

U.S.C.] § 3553(a) factors, selecting a sentence based on clearly erroneous facts, or

2 Defendant relies on United States v. Guevara-Lopez for the proposition that procedural and substantive reasonableness are intertwined. United States v. Guevara-Lopez, 147 F.4th 1174, 1183 (10th Cir. 2025) (“Though relegated to separate categories, procedural reasonableness overlaps with substantive reasonableness when a challenge is based on the district court’s explanation of the § 3553(a) factors” (internal quotation marks omitted)). But given our analysis of the two reasonableness issues in this case, the nature and extent of any overlap is irrelevant. 4 Appellate Case: 25-5030 Document: 45-1 Date Filed: 12/24/2025 Page: 5

failing to adequately explain the chosen sentence—including an explanation for any

deviation from the Guidelines range.” Gall v. United States, 552 U.S. 38, 51 (2007).

Our review of claims of procedural error is ordinarily for abuse of discretion; but we

review only for plain error if the claim was not presented below. See United States v.

Eddington, 65 F.4th 1231, 1237 (10th Cir. 2023) (explaining that a procedural

reasonableness challenge that has been preserved is subject to abuse-of-discretion

review, but unpreserved procedural challenges are reviewed for plain error). And as

a general rule, “if a defendant does not argue for plain error in his opening brief on

appeal, he waives any plain error argument.” United States v. Garcia, 936 F.3d

1128, 1131 (10th Cir. 2019). Here, however, we need not concern ourselves with

whether the procedural-error claim was adequately preserved either in district court

or on appeal, because we can affirm on the ground that there was no abuse of

discretion.

A “district court abuses [its] discretion when it renders a judgment that is

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

Haley, 529 F.3d 1308, 1311 (10th Cir. 2008) (internal quotation marks omitted).

Defendant argues that his sentencing was procedurally unreasonable because the

district court failed to adequately explain its reliance on his prior convictions and

deportations to vary upward, notably because these prior acts happened several years

before the instant offense. He further argues that the explanation about what

separated his case from ordinary illegal-reentry cases was inadequate because the

Guidelines range from the PSR already accounted for his prior history.

5 Appellate Case: 25-5030 Document: 45-1 Date Filed: 12/24/2025 Page: 6

The district court did not commit the alleged procedural error in imposing

Defendant’s sentence. The court adequately explained the chosen sentence, both

invoking the § 3553(a) factors and pointing to specific facts from the record

regarding Defendant’s history and how that history related to the instant offense. Cf.

United States v. Mendoza, 543 F.3d 1186, 1192 (10th Cir. 2008) (concluding that a

variance was procedurally unreasonable where “the court’s statement contained

references to most of the relevant factors” but was otherwise “general in nature and

unrelated to the specific defendant before it” and “did not articulate one fact about

[the defendant] or his crime, other than to note that [the defendant] would likely be

deported and thus would not benefit from prison educational programs” (emphasis

omitted)). The district court’s reasons for imposing an upward variance were stated

with sufficient clarity and were far from arbitrary.

We also are unpersuaded by Defendant’s argument that his sentence is

substantively unreasonable. We review a substantive-reasonableness challenge,

“under a deferential abuse-of-discretion standard.” Gall, 552 U.S. at 41. Defendant

contends that none of the § 3553(a) factors on which the district court focused—“the

nature of the offense, [Defendant’s] personal characteristics, his criminal history,

promoting respect for the law, providing just punishment, providing adequate

deterrence, protecting the public, and avoiding sentencing disparities”—“warranted

an upward variance.” Aplt. Opening Br. at 7. But his only specific criticism is that

“there was no basis for an upward variance based on the age of the felonies (ten,

6 Appellate Case: 25-5030 Document: 45-1 Date Filed: 12/24/2025 Page: 7

twenty-eight and thirty-one years old) and the prior deportations (the last deportation

occurred twenty years ago).” Aplt. Reply Br. at 9.

The district court must impose a sentence that is “sufficient, but not greater

than necessary,” to comply with the purposes of § 3553(a)(2). 18 U.S.C. § 3553(a).

Substantive reasonableness of a sentence is judged by considering “the totality of the

circumstances in light of the . . . § 3553(a) factors.” United States v. Barnes,

890 F.3d 910, 915 (10th Cir. 2018) (internal quotation marks omitted). “[W]e uphold

even substantial variances when the district court properly weighs the § 3553(a)

factors and offers valid reasons for the chosen sentence.” Id. at 916. And “we must

give due deference to the district court’s decision that the § 3553(a) factors, on a

whole, justify the extent of the variance.” Id. at 917 (internal quotation marks

omitted).

We see no abuse of discretion in the imposition of a 21-month sentence in this

case. Defendant’s criminal and deportation history are proper and necessary factors

in assessing the need to afford adequate deterrence, promote respect for the law,

provide just punishment, and protect the public. See § 3553(a)(2). In particular, this

court has held that sentencing courts do not abuse their discretion by varying upward

when prior unlawful reentries indicate a need for deterrence. See United States v.

Cruz-Artiaga, 739 F. App’x 492, 494–95 (10th Cir. 2018) (rejecting substantive-

7 Appellate Case: 25-5030 Document: 45-1 Date Filed: 12/24/2025 Page: 8

reasonableness challenge); United States v. Espinoza-Flores, 712 F. App’x 836, 837

(10th Cir. 2018) (same). 3 That is also the case here.

We reject Defendant’s arguments that his sentence was procedurally and

substantively unreasonable.

CONCLUSION

We affirm the district court’s judgment.

Entered for the Court

Harris L Hartz Circuit Judge

3 Because “[u]npublished decisions are not precedential,” we cite these decisions for informational and persuasive purposes only. 10th Cir. R. 32.1(A). 8