                                                                      FILED
                                                          United States Court of Appeals
                                                                  Tenth Circuit

                                                                  May 20, 2009
                    UNITED STATES COURT OF APPEALS
                                                 Elisabeth A. Shumaker
                                                                  Clerk of Court
                                 TENTH CIRCUIT



 UNITED STATES OF AMERICA,

               Plaintiff - Appellee,                    No. 08-2137
          v.                                         (D. New Mexico)
 MARIO BANUELOS-ALFARO,                      (D.C. No. 1:07-CR-02146-JCH-1)

               Defendant - Appellant.


                            ORDER AND JUDGMENT *


Before KELLY, BRISCOE, and HARTZ, Circuit Judges.


      Mario Banuelos-Alfaro, a citizen of Mexico, pleaded guilty to illegal

reentry into the United States after deportation. See 8 U.S.C. § 1326. His sole

argument on appeal is that his sentence—which he concedes was within a

properly calculated United States Sentencing Guidelines range—was

substantively unreasonable because his placement in criminal-history category III




      *
       After examining the briefs and 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); 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not binding precedent except under the doctrines of law of the case, res judicata,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.
overstated the severity of his past criminal record. We have jurisdiction under

28 U.S.C. § 1291 and affirm.

I.    BACKGROUND

      On August 18, 2007, Mr. Banuelos-Alfaro was found entering the United

States after having been previously deported in 1999. His base offense level

under the Sentencing Guidelines was 8. See USSG § 2L1.2(a). The district court

added 16 levels because of his conviction in 1994 for a felony drug-trafficking

offense for which the sentence imposed exceeded 13 months. See id.

§ 2L1.2(b)(1)(A)(i). Mr. Banuelos-Alfaro received a three-level downward

adjustment for acceptance of responsibility, see id. § 3E1.1, resulting in a total

offense level of 21.

      Mr. Banuelos-Alfaro received three criminal-history points for each of two

prior offenses. The first was a 1994 conviction for possession of cocaine with

intent to deliver, resulting in a sentence of 21 months’ imprisonment. See id.

§ 4A1.1(a). The second was a 1996 conviction for illegal reentry after

deportation (he had been deported in 1995), for which he was sentenced to 41

months’ imprisonment. See id. In 1999 he was again deported to Mexico, where

he presumably remained until the 2007 illegal-reentry offense before us.

      With a total of six criminal-history points, Mr. Banuelos-Alfaro was placed

in criminal-history category III. See id. ch. 5, pt. A. His guidelines sentencing

range was 46 to 57 months. See id. The United States District Court for the

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District of New Mexico sentenced him to 46 months’ imprisonment, the bottom of

the guidelines range.

II.   DISCUSSION

      Mr. Banuelos-Alfaro does not challenge the district court’s guidelines

calculation but only the substantive reasonableness of his sentence. “Review for

substantive reasonableness focuses on whether the length of the sentence is

reasonable given all the circumstances of the case in light of the factors set forth

in 18 U.S.C. § 3553(a).” United States v. Friedman, 554 F.3d 1301, 1307 (10th

Cir. 2009) (internal quotation marks omitted). In imposing sentence, a district

court has “broad discretion . . . to consider § 3553(a) factors,” United States v.

Gambino-Zavala, 539 F.3d 1221, 1232 (10th Cir. 2008), which it abuses only if

“it renders a judgment that is arbitrary, capricious, whimsical, or manifestly

unreasonable,” Friedman, 554 F.3d at 1307 (internal quotation marks omitted).

When a sentence is within the guidelines range, as this one is, we afford it a

presumption of reasonableness. See Gambino-Zavala, 539 F.3d at 1232.

      Mr. Banuelos-Alfaro’s substantive-unreasonableness challenge focuses on

his placement in criminal-history category III, which he maintains “significantly

over-represents the seriousness of his criminal history, or the likelihood that he

will commit future crimes.” Aplt. Br. at 5. In particular, he argues that (1) “the

typical Defendant with a Criminal History Category of III is likely to have more

recent criminal convictions, and is also likely to have a greater criminal history,

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including misdemeanor or felony convictions for violent offenses,” id. at 11; (2)

his 1994 and 1996 convictions are relatively old and approaching expiration as

countable offenses, see USSG § 4A1.2(e) (generally setting countability limit of

15 years since release from imprisonment); (3) he was only 20 and 22 years old at

the time of his convictions; and (4) he has not committed any criminal offenses in

the United States in the last 11 years. As a result, he argues, his “criminal history

is more like that of a defendant with a Criminal History Category of II.” Aplt.

Br. at 12.

      These contentions do not rebut the presumption of reasonableness that

attaches to Mr. Banuelos-Alfaro’s within-guidelines sentence. He provides no

empirical data to support his claim that he is atypical for a category-III defendant.

His 11 years without conviction for a crime in this country does not establish a

law-abiding life, because he was either in prison or outside this country during

that time. And “[t]he fact that Defendant ultimately returned to crime . . . speaks

to the likelihood of future recidivism.” United States v. Franklin-El, 554 F.3d

903, 913 (10th Cir. 2009). Moreover, we note that Mr. Banuelos-Alfaro had two

more criminal-history points than necessary to be within category III.




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III.   CONCLUSION

       We AFFIRM Mr. Banuelos-Alfaro’s sentence.

                                   ENTERED FOR THE COURT


                                   Harris L Hartz
                                   Circuit Judge




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