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

                            FOR THE TENTH CIRCUIT                             July 26, 2019
                        _________________________________
                                                                          Elisabeth A. Shumaker
                                                                              Clerk of Court
 UNITED STATES OF AMERICA,

       Plaintiff - Appellee,

 v.                                                          No. 18-2150
                                                   (D.C. No. 2:18-CR-00818-LRR-1)
 HUGO PENUELAS-GUTIERREZ,                                      (D.N.M.)

       Defendant - Appellant.
                      _________________________________

                            ORDER AND JUDGMENT*
                        _________________________________

Before TYMKOVICH, Chief Judge, EBEL and LUCERO, Circuit Judges.
                 _________________________________

      Hugo Penuelas-Gutierrez challenges his 37-month sentence for illegal reentry

and appeals the district court’s denial of his requests for a downward departure and

for a continuation of his sentencing hearing. We lack jurisdiction to review the

district court’s denial of a downward departure. Exercising jurisdiction under 28

U.S.C. § 1291, we affirm his sentence and the denial of his motion to continue.

                                           I

      Penuelas-Gutierrez pled guilty to illegal reentry after deportation in violation

of 8 U.S.C. § 1326(a) and (b) in March 2018. His Presentence Investigation Report



      *
         This order and judgment is not binding precedent, except under the doctrines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.
(“PSR”) listed a total offense level of 19 and a criminal history category of III,

resulting in an advisory Guidelines range of 37 to 46 months. Penuelas-Gutierrez

requested a sentence of twelve months and one day. His downward departure request

was based on alleged over-representation of his criminal history under U.S.S.G.

§ 4A1.3(b)(1) and rejection of the ten-level § 2L1.2(b)(2) enhancement as unfair. In

the alternative, he requested a variance under the 18 U.S.C. § 3553(a) factors.

      Penuelas-Gutierrez’s sentencing hearing was set for September 24, 2018. On

September 20, he filed an unopposed motion to continue the hearing so his wife and

parents could “attend.” His father was likely to undergo hip surgery and could not

travel from California to New Mexico at the time. At the hearing, counsel told the

court that Penuelas-Gutierrez’s parents and wife wished to “address the court.”1 The

district court verbally denied the motion.

      At sentencing, the government requested a sentence of 37 months. Penuelas-

Gutierrez again requested a sentence of twelve months and one day. The district

court denied Penuelas-Gutierrez’s requests for a downward departure or variance and

sentenced him to 37 months’ imprisonment to be followed by three years of

unsupervised release. Penuelas-Gutierrez timely appealed.

                                             II

      To the extent Penuelas-Gutierrez asks us to reverse the district court’s denial

of his request for a downward departure, we dismiss this claim for lack of


      1
       On appeal, counsel asserted for the first time that the family wished to testify
under oath.
                                                  2
jurisdiction.2 A defendant may appeal a sentence “imposed as a result of an incorrect

application of the sentencing guidelines.” § 3742(a)(2), (e)(2). But “the district

court’s refusal to exercise its discretion to depart downward from the guideline range

is not appealable” as an incorrect application of the sentencing guidelines. United

States v. Davis, 900 F.2d 1524, 1530 (10th Cir. 1990). “Congress did not grant

appellate jurisdiction for refusals to depart downward. Nor did Congress intend to

grant jurisdiction over departure-related decisions that are characterized as an

incorrect application of the sentencing guidelines.” United States v. Soto, 918 F.2d

882, 883 (10th Cir. 1990), abrogated on other grounds by Koon v. United States, 518

U.S. 81, 109 (1996). We have also rejected attempts to characterize a discretionary

denial of a downward departure as a sentence “imposed in violation of law” under

§ 3742(a)(1) and (e)(1). See Soto, 918 F.2d at 884.3

      Therefore, Penuelas-Gutierrez’s claim that the district court erred in denying a

downward departure is unreviewable unless the “denial is based on the sentencing

court’s interpretation of the Guidelines as depriving it of the legal authority to grant

the departure.” United States v. Fonseca, 473 F.3d 1109, 1112 (10th Cir. 2007). The


      2
        At oral argument, appellant conceded that we do not have jurisdiction to
review the denial of the downward departure motion.
      3
         Although United States v. Booker, 543 U.S. 220 (2005), changed the
standard of appellate review of sentences, it did not make a district court’s
discretionary decision to deny a downward departure appealable. United States v.
Sierra-Castillo, 405 F.3d 932, 936 & n.3 (10th Cir. 2005). Section 3742(a) confers
“the same jurisdiction to review Guidelines sentences as it [did] before the Supreme
Court’s decision in Booker.” Id. at n.3.

                                               3
district court clearly recognized it had the discretion to grant a downward departure,

stating “I know that I could depart in these situations if I felt it was the appropriate

thing to do . . . I find no basis to vary or depart.” Given that clear acknowledgment

of the trial court’s discretion, we lack jurisdiction to review the decision.

                                            III

                                            A

       Penuelas-Gutierrez also argues the district court imposed an unreasonable

sentence. This Court reviews the reasonableness of a sentence for abuse of

discretion. United States v. Caiba-Antele, 705 F.3d 1162, 1165 (10th Cir. 2012). A

district court abuses its discretion if it relies on an incorrect conclusion of law or a

clearly erroneous finding of fact. United States v. Piper, 839 F.3d 1261, 1265 (10th

Cir. 2016). The district court must have “render[ed] a judgment that [wa]s arbitrary,

capricious, whimsical, or manifestly unreasonable” for the sentence to be

unreasonable. United States v. Haley, 529 F.3d 1308, 1311 (10th Cir. 2008).

       “Our review includes both procedural reasonableness, which encompasses the

manner in which a sentence was calculated, and substantive reasonableness, which

concerns the length of the sentence.” Caiba-Antele, 705 F.3d at 1165. “A sentence

is procedurally unreasonable if the district court incorrectly calculates or fails to

calculate the Guidelines sentence, treats the Guidelines as mandatory, fails to

consider the § 3553(a) factors, relies on clearly erroneous facts, or inadequately

explains the sentence.” Id. Penuelas-Gutierrez has not established that his



                                                  4
Guidelines range was incorrectly calculated or otherwise was procedurally

unreasonable.

       In assessing the substantive reasonableness of a sentence, this court asks

whether 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. Chavez, 723 F.3d

1226, 1233 (10th Cir. 2013). A sentence may be substantively unreasonable if the

district court places undue weight on certain § 3553(a) factors, United States v.

Lente, 759 F.3d 1149, 1156 (10th Cir. 2014), or fails to adequately justify its

sentence in light of the § 3553(a) factors, id. at 1158. And although we lack

jurisdiction to reverse the district court’s downward departure decision, we may take

into account appellant’s “departure arguments in considering the overall

reasonableness of h[is] sentence.” United States v. Bergman, 599 F.3d 1142, 1150

(10th Cir. 2010).

       Review of the substantive reasonableness of the sentence “focuses on the

length of the sentence and requires that sentences be neither too long nor too short.”

United States v. Walker, 844 F.3d 1253, 1255 (10th Cir. 2017). A sentence is

substantively unreasonable if “the balance struck by the district court among the

factors set out in § 3553(a) is . . . arbitrary, capricious, or manifestly unreasonable.”

United States v. Sells, 541 F.3d 1227, 1239 (10th Cir. 2008). And if, as in this case,

the sentence is within the correctly-calculated Guidelines range, “the sentence is

entitled to a rebuttable presumption of reasonableness on appeal.” United States v.

Kristl, 437 F.3d 1050, 1054 (10th Cir. 2006).

                                                5
      Penuelas-Gutierrez has not rebutted the presumption that his sentence is

substantively reasonable. Regarding his request for a variance, Penuelas-Gutierrez’s

violent criminal history supported the within-Guidelines sentence under both the

history and characteristics of the defendant factor, § 3553(a)(1), and the need to

protect the public factor, § 3553(a)(2)(C). Further, the district court adequately

considered the other § 3553(a) factors. It noted that appellant had previously been

removed from the country twice, and that despite his prior prison term (of twelve

months and one day) for his first § 1326 conviction he returned to the United States,

demonstrating that “he lacks respect for the immigration laws of this country.” It

also specifically acknowledged his family circumstances, concluding that “[b]ased on

his prior history and the fact that his family resides in the United States, I think he’s

at high risk to recidivate and re-enter again.” And it rejected his claim that he was

forced to come to the United States due to violence in Mexico. The district court’s

weighing of the § 3553(a) factors was not “arbitrary, capricious, whimsical, or

manifestly unreasonable.” Haley, 529 F.3d at 1311.

      Nor do Penuelas-Gutierrez’s arguments regarding a potential downward

departure from the Guidelines range overcome the presumption of reasonableness.

Under § 4A1.3(b)(1), “[i]f reliable information indicates that the defendant’s criminal

history category substantially over-represents the seriousness of the defendant’s

criminal history or the likelihood that the defendant will commit other crimes, a

downward departure may be warranted.” The district court considered and

reasonably rejected appellant’s argument that the criminal history category III over-

                                                6
represented the seriousness of his prior felony convictions. Appellant pled guilty to

two serious felonies, and the district court was not required to accept the appellant’s

version of the crimes presented at his sentencing hearing.4

      As to his argument under § 2L1.2’s Application Note 5, the ten-level

enhancement did not “substantially . . . overstate[] the seriousness of the conduct

underlying the prior offense.” Penuelas-Gutierrez’s arguments that the district court

should have disregarded the enhancement are policy disagreements with that

Guideline provision. This district court was not required to disregard the ten-level

enhancement even if it had disagreed with the Guideline’s policy. See United States

v. Lewis, 625 F.3d 1224, 1232 (10th Cir. 2010).

      The district court also considered and rejected—or gave little weight to—

appellant’s other arguments for a reduced sentence. It determined his arguments

regarding his difficult childhood were unpersuasive, stated the unfortunate negative

impact of convictions on families “arises in the vast majority of criminal cases,” and

noted that although it accepted the favorable light in which the letters submitted on

Penuelas-Gutierrez’s behalf painted him, being a good worker and family man “does

not establish in the Court’s mind that a variance is appropriate.”




      4
         Further, this Court has held that enhancements based on prior convictions
that also affect a defendant’s criminal history category do not constitute
impermissible double counting. United States v. Ruiz-Terrazas, 477 F.3d 1196, 1204
(10th Cir. 2007). That appellant’s prior felony conviction affected both his criminal
history category and his total offense level does not mean his sentence is
unreasonably long.
                                               7
      The district court thoroughly considered the § 3553(a) factors and Penuelas-

Gutierrez’s arguments in favor of a downward departure in determining that a within-

Guidelines sentence was appropriate. He has not shown that determination was an

abuse of discretion.

                                          B

      Penuelas-Gutierrez also contends the district court erred in denying his

unopposed motion to continue his sentencing hearing and that the denial should be

reviewed for abuse of discretion. United States v. Trestyn, 646 F.3d 732, 739 (10th

Cir. 2011). The government asserts that because appellant “argued for a sentence

below the Guidelines range at his sentencing hearing, [but] did not raise the

procedural objection he now asserts,” i.e., that he was deprived of an opportunity to

present factual testimony in support of his sentencing argument, we should review for

plain error. United States v. Romero, 491 F.3d 1173, 1176 (10th Cir. 2007).5

      Assuming without deciding that Penuelas-Gutierrez adequately preserved this

claim, we affirm. There was significant uncertainty surrounding the timing of his

father’s hip surgery, which had not been scheduled at the time of the hearing.

Penuelas-Gutierrez had weeks to acquire factual support for his arguments, which

could have included affidavits from family members. The district court accepted and


      5
         As noted above, Penuelas-Gutierrez’s motion to continue the sentencing
hearing stated only that his “wife and parents wish[ed] to attend the sentencing.” At
the hearing itself, Penuelas-Gutierrez’s counsel noted only that his family members
wanted to “address the Court.” Appellant did not indicate his parents or wife would
testify under oath, nor did he make any offer of proof as to what his parents or wife
might wish to say.
                                              8
considered letters sent on his behalf, including from his mother and wife, and the

factual assertions that were rejected by the district court surrounding childhood abuse

and the circumstances of his prior convictions were not of such a nature that

testimony from his family members would have altered the sentencing outcome.

Given these circumstances, the district court’s refusal to continue the sentencing

hearing was not an abuse of discretion.

                                          IV

      We lack jurisdiction to review the district court’s denial of Penuelas-

Gutierrez’s motion for a downward departure. The district court’s imposition of a

37-month sentence and its denial of his motion to continue his sentencing hearing are

AFFIRMED.


                                           Entered for the Court


                                           Carlos F. Lucero
                                           Circuit Judge




                                               9
