                                                                                 FILED
                                                                     United States Court of Appeals
                                                                             Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                             July 11, 2011
                                   TENTH CIRCUIT
                                                                         Elisabeth A. Shumaker
                                                                             Clerk of Court


 UNITED STATES OF AMERICA,

        Plaintiff - Appellee,                                No. 11-2018
                                                   (D.C. No. 2:10-CR-02502-BB-1)
 v.                                                         (D. N. Mex.)

 CRESENCIO OCHOA-TOVALI,

        Defendant - Appellant.


                                ORDER AND JUDGMENT*


Before BRISCOE, Chief Judge, MURPHY and MATHESON, Circuit Judges.


       Cresencio Ochoa-Tovali pleaded guilty to reentry of a removed alien in violation

of 8 U.S.C. § 1326(a) and (b). He was sentenced to 57 months’ imprisonment, the low

end of the applicable Sentencing Guidelines range. This range reflected a criminal

history category of IV because Mr. Ochoa-Tovali committed a robbery in 1995 and

        *After examining appellant=s brief and the appellate record, this panel has
determined unanimously that oral argument would not materially assist the determination
of this appeal. See Fed. R. App. P. 34(a)(2) 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 This order and judgment is not
binding precedent, except under the doctrines of law of the case, res judicata, and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.
because his probation for a 1993 misdemeanor was revoked when he pleaded guilty to the

robbery. Under the Guidelines for illegal reentry, the range also reflected a 16 offense-

level enhancement for the robbery.

       On appeal, Mr. Ochoa-Tovali argues that the district court weighed too heavily his

1993 and 1995 offenses and weighed too lightly his reason for reentering, which was

flight from drug cartel violence in northern Mexico. He challenges his sentence as

substantively unreasonable. Exercising jurisdiction pursuant to 28 U.S.C. § 1291 and 18

U.S.C. § 3742(a)(2), we AFFIRM his sentence.

                                   I. BACKGROUND

A. Facts

       Mr. Ochoa-Tovali was born in Cuauhtemoc, a city in northern Mexico, and

entered the United States at age 13 in 1980. He committed a series of misdemeanors in

Colorado in the 1990’s. He was charged with misdemeanor assault in 1991 but failed to

appear in court. He was charged with a new domestic violence misdemeanor assault in

1993, pleaded guilty to that assault and the 1991 assault, and was sentenced to probation.

Later in 1993 he was again charged with domestic violence. He pleaded guilty to that

charge and received probation. In 1995 he pleaded guilty to DUI and was ordered to

complete community service before sentencing, but he failed to appear at sentencing. In

2004, the warrant for his failure to appear expired.

       Mr. Ochoa-Tovali committed two felonies before the illegal reentry here—robbery

and a previous illegal reentry. He pleaded guilty to a 1995 robbery in Colorado state
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court and was sentenced to eight years’ imprisonment. His robbery conviction caused the

probation on his most recent domestic violence conviction to be revoked, and he was

sentenced to two years’ imprisonment for that charge. In 2002, he was paroled to

Immigration and Customs Enforcement custody and deported to Mexico. Three days

after he was deported, he illegally reentered the country. He pleaded guilty to illegal

reentry in federal court in Arizona and was sentenced to 63 months’ imprisonment. In

2007 he was released from custody and deported again to Mexico.

       This appeal stems from Mr. Ochoa-Tovali’s second illegal reentry into the United

States. On August 31, 2010, he pleaded guilty without a plea agreement to reentry of a

removed alien under 8 U.S.C. § 1326(a) and (b) in federal district court in New Mexico.

B. Sentencing

       The presentence report (PSR) gave Mr. Ochoa-Tovali three criminal history points

for the two years he served after his probation was revoked on the 1994 domestic

violence charge, three points for the robbery, and three points for his earlier illegal

reentry. He received zero points for his two earlier assaults and his DUI because each of

those charges did not result in imprisonment and occurred over ten years before this

offense. See U.S.S.G. § 4A1.2(e)(2). Mr. Ochoa-Tovali’s nine criminal history points

put him in criminal history category IV. See U.S.S.G. § 5A.

       The base offense level for illegal reentry is eight. U.S.S.G. § 2L1.2(a). Mr.

Ochoa-Tovali received a 16-level increase because his robbery was a “crime of violence”

under U.S.S.G. § 2L1.2(b)(1)(A). For pleading guilty, he received a three-level
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downward adjustment for acceptance of responsibility. See U.S.S.G. § 3E1.1. His total

offense level of 21 and his category IV criminal history yielded a Guidelines range of 57

to 71 months.

       Mr. Ochoa-Tovali submitted to the court a sentencing memorandum requesting a

downward variance and a sentence of 30 months’ imprisonment. He included the two

arguments he raises on appeal.

       First, he argued that his criminal history was over-represented in both his criminal

history category and his total offense level. The former included points for two stale

convictions—three points for his 1995 robbery and, because that robbery caused his

probation to be revoked, three points for his 1993 misdemeanor conviction. The latter

included a 16-level increase for the 1995 robbery.

       Second, he argued that his sentence should reflect that his reason for reentering

was to avoid drug cartel violence in northern Mexico.

       The government asked for 63 months’ imprisonment. The district court imposed

57 months, the low end of the Guidelines range. Mr. Ochoa-Tovali appeals that sentence,

arguing that the district court’s denial of his request for a downward variance was an

abuse of discretion.

                                    II. DISCUSSION

A. Issue and Standard of Review

       The issue is whether Mr. Ochoa-Tovali’s sentence was substantively reasonable.

“[T]he familiar abuse-of-discretion standard of review . . . applies to appellate review of
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sentencing decisions.” Gall v. United States, 552 U.S. 38, 46 (2007); see also United

States v. Rausch, 638 F.3d 1296, 1302 (10th Cir. 2011) (“Substantive reasonableness . . .

is reviewed under an abuse-of-discretion standard.”). The Supreme Court has

emphasized that “[t]he fact that the appellate court might reasonably have concluded that

a different sentence was appropriate is insufficient to justify reversal of the district court.”

Gall, 552 U.S. at 51.

B. Substantive Reasonableness

       Mr. Ochoa-Tovali advances two arguments. First, he argues that the district court

imposed a harsher sentence than necessary to satisfy the sentencing goals of 18 U.S.C.

§ 3553(a) by weighing too heavily his criminal history, in particular his 1993

misdemeanor conviction and his 1995 robbery conviction. Second, he argues that his

sentence failed to recognize that his reentry was in part a flight from the drug violence in

northern Mexico.

       Because the district court sentenced Mr. Ochoa-Tovali within the applicable

Guidelines range, we start with a presumption that the sentence was reasonable. The

Supreme Court “permit[s] courts of appeals to adopt a presumption of reasonableness”

when the district court sentenced a defendant within the Guidelines range. Rita v. United

States, 551 U.S. 338, 354 (2007). This court has “applied a presumption of

reasonableness in reviewing within-guidelines sentences imposed upon conviction.”

United States v. McBride, 633 F.3d 1229, 1232 (10th Cir. 2011).


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       1. Criminal History

       Mr. Ochoa-Tovali argued in his sentencing memorandum and now argues on

appeal that his sentence weighs too heavily his 1993 misdemeanor conviction and his

1995 robbery conviction. These convictions affected his sentence in two ways: his

criminal history calculation and the 16 offense-level increase under the illegal reentry

Guideline.

       He received criminal history points for his 15-year-old robbery conviction because

it had been less than 15 years since he was released. See U.S.S.G. § 4A1.2(e)(1). He

also received criminal history points for his 17-year-old misdemeanor conviction because

he was sentenced to two years’ imprisonment following his probation revocation in 1996

and was released from that imprisonment less than 15 years ago. See id.

       Mr. Ochoa-Tovali received a 16 offense-level increase because his robbery was a

“crime of violence.” See U.S.S.G. § 2L1.2(b)(1)(A)(ii). He does not claim his criminal

history category or the offense-level increase was calculated incorrectly, just that the stale

convictions are weighed too heavily in the sentencing court’s consideration of the

§ 3553(a) factors.

       Mr. Ochoa-Tovali draws our attention to United States v. Amezcua-Vasquez, 567

F.3d 1050 (9th Cir. 2009). In Amezcua-Vasquez, the defendant was convicted of illegal

reentry and sentenced to 52 months, which was within a Guidelines range reflecting a 16-

level enhancement for two 25-year-old felonies. See id. at 1052-53. The Ninth Circuit

said that “[t]he staleness of the conviction does not affect the Guidelines calculation, but
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it does affect the § 3553(a) analysis.” Id. at 1056.

       In United States v. Chavez-Suarez, 597 F.3d 1137 (10th Cir. 2010), cert. denied,

131 S. Ct. 286 (2010), we discussed Amezcua-Vasquez and “agree[d] with the Ninth

Circuit that the staleness of an underlying conviction may, in certain instances, warrant a

below-Guidelines sentence.” 597 F.3d at 1138. In Chavez-Suarez we affirmed a within-

Guidelines range sentence of 41 months. The range reflected a 16-level enhancement

because the defendant had been sentenced to 18 months’ imprisonment on a marijuana

conviction 11 years before his illegal reentry conviction. Id. at 1137-39.

       Mr. Ochoa-Tovali’s staleness argument for a downward variance is even weaker

than Mr. Chavez-Suarez’s. Comparing the stale convictions in each case, Mr. Ochoa-

Tovali was sentenced to more than five times as much incarceration (eight years

compared to eighteen months) as Mr. Chavez-Suarez. Although Mr. Ochoa-Tovali’s

prior conviction was four years older than Mr. Chavez-Suarez’s, Mr. Ochoa-Tovali’s

release from prison was more proximate to his illegal reentry because he served such a

long sentence. Mr. Ochoa-Tovali committed a violent robbery after having committed

three prior assault offenses. The district court in this case decided that Mr. Ochoa-

Tovali’s extensive and violent criminal record precluded a downward variance.

       Our role is not to second-guess the district court’s treatment of the § 3553(a)

factors. “The sentencing judge is in a superior position to find facts and judge their

import under § 3553(a) in the individual case. The judge sees and hears the evidence,

makes credibility determinations, has full knowledge of the facts and gains insights not
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conveyed by the record.” Gall, 552 U.S. at 51 (quotation omitted).

       In this case, the district court explicitly considered the staleness of the offenses.

At the sentencing hearing, the government argued: “Although some of [Mr. Ochoa-

Tovali’s] convictions are for misdemeanors, as fully outlined in the presentence report

and in the response, these incidents are extremely violent, and he has a third degree

[misdemeanor] assault conviction.” ROA, Vol. 3 at 12. The court responded: “They are

not recent, however.” Id. The court ultimately concluded that Mr. Ochoa-Tovali had “a

substantial criminal record” that did not warrant a sentence “outside the range of the

guidelines.” Id. at 13.

       The court’s statement indicates that it sought to balance the staleness and the

seriousness of Mr. Ochoa-Tovali’s criminal history. Under our deferential standard of

review, “we are not persuaded that the district court's judgment fell outside the range of

rationally permissible choices before it.” Chavez-Suarez, 597 F.3d at 1139 (quotation

omitted). The court did not abuse its discretion by denying a downward variance based

on the staleness of the prior convictions.

       2. Drug Cartel Violence in Northern Mexico

       Mr. Ochoa-Tovali states that his primary reason for reentering the United States

was flight from drug cartel violence in northern Mexico. He contends the district court

abused its discretion by denying a downward variance on this ground.

       The district court considered this argument. Mr. Ochoa-Tovali raised it in his

sentencing memorandum and again at his sentencing hearing. Counsel for Mr. Ochoa-
                                              -8-
Tovali stated that her client “had lifesaving reasons for wanting to return here.” ROA,

Vol. 3 at 10. The court asked, “How are those [reasons] going to be any different when

he’s sent back?” Id. The court appeared open to the argument, stating that “this is a case

where [the court would] be inclined to depart or rely on [§] 3553” were it not for Mr.

Ochoa-Tovali’s criminal history. Id. at 13.

       Mr. Ochoa-Tovali cites no authority for the proposition that sentencing courts

must reduce sentences for illegal reentry defendants fleeing violence in their home

countries. His proposed solution—a shorter sentence and thus a quicker deportation to

Mexico—would not make it less likely that he will reenter the United States again. The

district court considered Mr. Ochoa-Tovali’s argument and decided it could not overcome

his criminal history. We find no abuse of discretion.

       We hold that Mr. Ochoa-Tovali’s reason for illegally reentering the United States

did not render his sentence substantively unreasonable.

                                  III. CONCLUSION

       The district court did not abuse its discretion by sentencing Mr. Ochoa-Tovali to

57 months’ imprisonment. Mr. Ochoa-Tovali’s sentence is AFFIRMED.

                                          ENTERED FOR THE COURT



                                          Scott M. Matheson, Jr.
                                          Circuit Judge




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