Illegal Reentry Conviction Appealed

substantively unreasonable "because of the staleness of amezcua's prior iii, and an advisory guidelines range of 30-37 months, requesting a sentence of conclude that it is unnecessary to resolve the issue in this case because even so long as it falls within the realm of these rationally available (10th cir. 2008), cert. denied, 129 s. ct. 1391 (2009). a district court's sentence (9th cir. 2009). in that case, the ninth circuit held that a within-guidelines and collateral estoppel. it may be cited, however, for its persuasive value concerned that in pleading guilty to the 1996 offense, mr. diaz-gutierrez had adrian diaz-gutierrez, a citizen of mexico, appeals the substantive resulted in two additional years' imprisonment, that put him over the 13-month for the tenth circuit offense eventually exceeded 13 months by virtue of a more-recent probation nature and circumstances of the offense as well as the need for the sentence to these points on appeal. a probation officer prepared a presentence investigation report (psr) that entered for the court 16-level enhancement under � 2l1.2(b)(1)(a)(i) for a 1981 conviction on assault 16-level enhancement overstated the seriousness of his 1996 cocaine offense denied the downward variance in offense level, concluding that the two years' realm. consequently, we will not second-guess the court's judgment of sentence. clerk of court downward adjustment pursuant to �� 3e1.1(a) and (b) for acceptance of based on a variance from a guidelines range is not, united states v. wilken, threshold and triggered the 16-level enhancement of � 2l1.2(b)(1)(a)(i), a the variance led to a sentence that is substantively unreasonable. filed others that trigger the 16-level enhancement of � 2l1.2(b)(1)(a)(i), such as no. 09-1190 category iii, which lowered the guidelines range to 46-57 months. the court -9- before hartz, mckay, and anderson, circuit judges. defendant-appellant. the mitigating factors advanced by mr. diaz-gutierrez, and this court does not unanimously that oral argument would not materially assist the determination of 1996 cocaine conviction responsible for the 16-level enhancement under u.s.s.g. consistent with fed. r. app. p. 32.1 and 10th cir. r. 32.1. �� 3553(a)(1) and (a)(2)(a). he argues that the district court abused its reflect the seriousness of the offense, promote respect for the law, and provide mr. diaz-gutierrez's characteristics since his 1996 conviction, further supporting nature, and therefore the resulting sentencing range substantially overstates the of 12 levels instead of 16 levels, involved a clearly erroneous factual finding, "an violation, his admission that he had possessed a firearm in connection with that mr. diaz-gutierrez's 12-year-old enhancing conviction. moreover, as the district court recognized, mr. diaz-gutierrez was sentenced to additional prison time for felony. exercising jurisdiction under 28 u.s.c. � 1291 and 18 u.s.c. � 3742, we amezcua-vasquez is readily distinguishable on two grounds. first, the of 16 levels because of a 1996 conviction for felony possession of cocaine with mr. diaz-gutierrez's sentence. the district court's estimation that the 1996 offense was a serious one. (d. colo.) amezcua-vasquez, 567 f.3d at 1055. the court concluded that because of their drug-trafficking offenses that the district court could find fairly representative of wife, and his three u.s.-citizen children live in california, but he has not pressed for sale with a firearm." r., vol. 3 at 6 (quotation omitted). the court concluded trafficking offense for which the sentence imposed was 13 months or less." in carried little weight in the original state-court sentence. responsibility. the psr also calculated a criminal history category of iv. under probation. he was deported to mexico in 2005 and again in june 2008. in -3- "abuse-of-discretion standard." united states v. sells, 541 f.3d 1227, 1237 increase in offense level similar to what a low-level drug trafficker would receive fails to take into account the age of his prior enhancing conviction or its low-level united states court of appeals 2 ; an upward adjustment -7- illegally reentering the united states after having been convicted of an aggravated that conviction in 2004 as a result of a probation violation, thus lessening any united states v. mccomb, 519 f.3d 1049, 1053 (10th cir. 2007) (quotation with great bodily injury and attempted voluntary manslaughter charges, was all, including the 3-level downward departure for acceptance of responsibility, harming others or committing other crimes listed in section 2l1.2." -4- evidenced a lack of respect for the law, suggesting that the 46-month sentence plaintiff-appellee, category he maintained was appropriate for large-scale drug dealers and violent discussion he also pointed out that he was brought to the united states when he was and a dwai. the court made clear its view that the repeated convictions (d.c. no. 1:08-cr-00498-wyd-1) sentence is substantively reasonable. variance in offense level reasonably took into account "the nature and is substantively unreasonable "only if the court exceeded the bounds of in many cases there will be a range of possible outcomes the facts 57-71 months, and the probation officer recommended a sentence of 57 months. therefore ordered submitted without oral argument. this order and judgment is three years old, and that his u.s.-citizen mother and siblings, his common-law criminal history category iii under u.s.s.g. � 4a1.3(b)(1). he also sought a the judgment of the district court is affirmed. decision is either based on a clearly erroneous finding of fact or an not binding precedent, except under the doctrines of law of the case, res judicata, -8- methamphetamine, a felony, and sentenced to 270 days in jail and three years' charge and sentenced to one year of probation. he also was charged in federal affirm. omitted). in other words, the guidelines, these calculations resulted in an advisory sentencing range of recommended a total offense level of 21, calculated under the guidelines as mr. amezcua, who did not have any later convictions similar to his enhancing accordingly, we find amezcua-vasquez unpersuasive on the facts of this case. during the past many years." id. at 1056. security or terrorism, or human trafficking. he contends that � 2l1.2(b)(1)(a)(i) permissible choice, given the facts and the applicable law in the case at hand." sentence of 52 months for illegal reentry of an aggravated felon, which included a intent to distribute that qualified as "a drug trafficking offense for which the conviction rendered that offense within the � 2l1.2(b)(1)(a)(i) category, id. at 1053-54 (quotations omitted). guidelines (u.s.s.g. or guidelines) for acceptance of responsibility and to 1 united states of america, united states court of appeals in 2003, mr. diaz-gutierrez was convicted of criminal attempt to distribute an aggravated felony (his 2003 conviction), in violation of 8 u.s.c. �� 1326(a) erroneous conclusion of law[,] or . . . a clear error of judgment." mccomb, history category of iii and a total offense level of 21. the resulting advisory * offense level was not warranted and found that mr. diaz-gutierrez had a criminal background 519 f.3d at 1054 (quotation omitted). the district court weighed the aggravating all references to the guidelines are to the 2007 edition used in calculating among them ourselves, we will defer to the district court's judgment refusal to treat the 1996 cocaine offense like one for which a sentence of less than � 2l1.2(b)(1)(a)(i) was 12 years old at the time of sentencing and (2) he had no -2- of less than 13 months' imprisonment for that offense, it suggests a pattern of mr. diaz-gutierrez to 46 months, finding that the sentence was "sufficient but not unpersuasive as it pertains to the task of the federal sentencing court. reasonableness of a 46-month sentence he received after pleading guilty to pointed out that it was only the revocation of his probation in 2004, which originally received a 6-month jail sentence and three years' probation. he support, he relies heavily on united states v. amezcua-vasquez, 567 f.3d 1050 erroneous conclusion of law or manifests a clear error of judgment. stephen h. anderson because he was 19 years old at the time and a low-level drug dealer who and (b)(2). he agreed to plead guilty, and in exchange, the government agreed to permissible choice. see id. at 1053. the district court's sentence was within that felons but not for low-level drug dealers like him.2 under � 2l1.2(b)(1)(b), which applies to "a conviction for a felony drug driving while ability impaired (dwai). he was convicted in state court on that unreasonable because the district court did not adequately consider that (1) the we review the substantive reasonableness of a sentence under an circuit judge at sentencing, mr. diaz-gutierrez requested a downward departure to sentence imposed exceeded 13 months" under � 2l1.2(b)(1)(a)(i); and a 3-level october 2008, he was arrested in garfield county, colorado, on a charge of offense, and the fact that he had an additional drug-trafficking felony conviction id. � 3553(a)(1), namely, the fact that mr. diaz-gutierrez's sentence for that the district court granted the downward departure to criminal history follows: a base offense level of 8 pursuant to � 2l1.2(a)1 just punishment, which are factors a court is to consider under 18 u.s.c. factors mr. diaz-gutierrez had advanced. the court also reasoned that his circumstances of the offense and the history and characteristics of the defendant," whether a presumption of reasonableness applies to a sentence, such as the one 498 f.3d 1160, 1172 (10th cir. 2007), we have not deemed it necessary to decide v. warranting a 16-level increase, not a 12-level increase. the court also was discretion in giving more weight to his admission that he possessed a firearm in lack of any subsequent violent history, particularly where the firearm apparently adrian diaz-gutierrez, -5- for the law. for these reasons, the court concluded that a downward variance in admitted that he "willfully and unlawfully possessed a usable quantity of cocaine were without a weapon," id., vol. 2 at 27:23-24, and outweighed the mitigating violent criminal history or other qualifying offenses in the intervening years. in felony--his 2003 methamphetamine conviction. although he received a sentence -6- without the benefit of the presumption, we conclude that mr. diaz-gutierrez's repeated violations (two drug convictions and one dwai) indicated a disrespect mr. diaz-gutierrez first argues that his sentence was substantively connection with his 1996 offense than it gave to the age of that conviction and the imprisonment resulting from the revocation of probation on the 1996 cocaine reweigh such factors provided that the resulting sentence is within the realm of united states v. rosas-caraveo, 308 f. app'x 267, 269 n.1 (10th cir. 2009); enhancing conviction in that case was 25 years old, much older than 13 months was imposed, which would have resulted in a guidelines enhancement although the length of a within-guidelines sentence is entitled to a we disagree. the district court's refusal to grant a 4-level downward request a 3-level reduction in offense level under the united states sentencing crimes of violence and those involving firearms, child pornography, national little weight to his possession of the firearm is speculative and, in any event, court with one count of illegal reentry of a deported alien previously convicted of age, the prior convictions were "unrepresentative of amezcua's characteristics was necessary to promote respect for the law and provide just punishment. recommend a sentence at the bottom of the applicable guidelines range. guidelines range was 46-57 months. the district court sentenced that the presence of a firearm rendered the 1996 "offense more serious than if it 30 months. choices. . . . nonetheless, we will not hesitate to find abuse where a after examining the briefs and appellate record, this panel has determined vol. 2 at 43:19-20. he appeals his sentence on the sole ground that the denial of given the circumstances and the law, we cannot say that the district court's [enhancing] conviction and his subsequent history showing no convictions for and law at issue can fairly support; rather than pick and choose conviction, mr. diaz-gutierrez was later convicted of a similar drug-trafficking tenth circuit he asked for only a 12-level moreover, mr. diaz-gutierrez's proposition that the original state court accorded factors (firearm possession, probation violation, additional convictions) against elisabeth a. shumaker mr. diaz-gutierrez proposed an offense level of 17, a criminal history category of greater than necessary to accomplish the sentencing objectives" of � 3553(a). id., here, that results from a properly calculated guidelines departure, see, e.g., variance based on the sentencing factors of 18 u.s.c. � 3553(a), arguing that the february 24, 2010 wilken, 498 f.3d at 1172. after reviewing the record and the parties' briefs, we mr. gutierrez also argues that his 1996 cocaine offense is less serious than concern that the age of the offense undermines its seriousness. second, unlike rebuttable presumption of reasonableness on appeal, id. at 1053, and a sentence this appeal. see fed. r. app. p. 34(a)(2); 10th cir. r. 34.1(g). the case is order and judgment*