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

                            FOR THE TENTH CIRCUIT                        January 31, 2019
                        _________________________________
                                                                       Elisabeth A. Shumaker
                                                                           Clerk of Court
 UNITED STATES OF AMERICA,

       Plaintiff - Appellee,

 v.                                                            No. 18-1211
                                                  (D.C. No. 1:17-CR-00443-MSK-GPG-1)
 CARLOS LUIS RAMIREZ-PLATA, a/k/a                                (D. Colo.)
 Carlos Alberto Ramirez-Plata, a/k/a Carlos
 Alberto Ramirez,

       Defendant - Appellant.
                      _________________________________

                            ORDER AND JUDGMENT*
                        _________________________________

Before LUCERO, HARTZ, and McHUGH, Circuit Judges.
                  _________________________________

      Carlos Ramirez-Plata appeals the district court’s imposition of a 26-month

sentence. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.

                                              I

      Law enforcement in Summit County, Colorado, stopped Ramirez-Plata in June

2017 after he crossed a double-yellow line into oncoming traffic. Ramirez-Plata pled



      *
        After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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.
guilty to driving while impaired and without a license. He was referred to federal

immigration authorities and charged with illegal reentry after deportation subsequent

to a felony conviction in violation of 8 U.S.C. § 1326(a) and (b)(1). He pled guilty.

      Ramirez-Plata has illegally entered the United States on several occasions and

has multiple criminal convictions unrelated to illegal reentry. At his sentencing

hearing, he did not contest his total offense level of 13 or criminal history category of

IV, nor did he challenge his calculated Sentencing Guidelines range of 24 to 30

months. Ramirez-Plata requested a downward variance to 14 months, arguing a

lower sentence better reflected the nature and circumstances of his offense because

he claimed he had returned to the United States to earn money to pay for his mother’s

cancer treatment. The government requested a 30-month sentence. The district court

imposed a sentence of 26 months. Ramirez-Plata timely appealed.

                                           II

      We review the substantive reasonableness of a sentence for abuse of

discretion. United States v. Smart, 518 F.3d 800, 805-06 (10th Cir. 2008). We

reverse only if a sentence is “arbitrary, capricious, whimsical, or manifestly

unreasonable.” United States v. Friedman, 554 F.3d 1301, 1307 (10th Cir. 2009). If

the sentence imposed falls within a correctly calculated Guidelines range, it is

presumed reasonable. United States v. Kristl, 437 F.3d 1050, 1054 (10th Cir. 2006)

(per curiam). “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.

                                           2
      Ramirez-Plata has not overcome this presumption of reasonableness. The

district court did consider mitigating factors related to defendant’s family and

financial circumstances, including his wife and children in Mexico and his attempts

to help his ailing mother. The district court was skeptical that economic motivations

constitute mitigating circumstances to illegal reentry. It also noted that the alleged

mitigating circumstances provided defendant with an incentive to illegally reenter the

United States in the future. The district court’s decision not to grant a downward

variance on this basis was not an abuse of discretion.

      Further, the district court did not place unreasonable weight on deterrence or

public protection. Ramirez-Plata illegally entered the country on several other

occasions and has multiple unrelated felony convictions. The district court intended

its within-Guidelines sentence to “change th[e] calculus” and deter him from future

misconduct. Placing more weight on deterrence and public protection than on

defendant’s family circumstances was not “arbitrary, capricious, whimsical, or

manifestly unreasonable.” Friedman, 554 F.3d at 1307.

      The cases cited by defendant are inapposite. Unlike in United States v.

Walker, 844 F.3d 1253 (10th Cir. 2017), the district court in this case evaluated all

the statutory factors set out in § 3553(a). It was aware that defendant’s family

circumstances are relevant to § 3553(a)’s “history and characteristics” factor. But the

district court in this case, unlike in United States v. Muñoz-Nava, 524 F.3d 1137

(10th Cir. 2008), determined defendant’s family circumstances made him more likely



                                           3
to reoffend in the future, and thus those circumstances did not warrant a lesser

sentence.

                                          III

      For the foregoing reasons, the district court’s sentence of 26 months is

AFFIRMED.


                                           Entered for the Court


                                           Carlos F. Lucero
                                           Circuit Judge




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