                                                                     FILED
                                                          United States Court of Appeals
                                                                  Tenth Circuit

                                                               February 19, 2015
                   UNITED STATES COURT OF APPEALS
                                                Elisabeth A. Shumaker
                                                                  Clerk of Court
                               TENTH CIRCUIT



 UNITED STATES OF AMERICA,

             Plaintiff – Appellee,

 v.                                                    No. 14-1434
                                             (D.C. No. 1:12-CR-00438-JLK-2)
 SERGIO ALONSO MENDOZA-                                 (D. Colo.)
 HURTADO,

             Defendant - Appellant.


                          ORDER AND JUDGMENT *


Before PORFILIO, ANDERSON, and MURPHY, Circuit Judges.



      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.

      Defendant and Appellant, Sergio Mendoza-Hurtado, appeals the 70-month

sentence imposed on him following his plea of guilty to conspiracy to distribute


      *
       This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 32.1.
500 or more grams of methamphetamine, in violation of 21 U.S.C. §§ 841 and

846. Finding his sentence substantively reasonable, we affirm.

      We need not detail the facts concerning this case, inasmuch as they support

the government’s description that Mr. Mendoza-Hurtado “helped negotiate the

sale and delivery of 15 kilograms of methamphetamine between a confidential

informant in the United States and a supplier in Mexico.” Appellee’s Br. at 1.

Mr. Mendoza-Hurtado himself admits his “role in this offense was to be the

intermediary between the source of supply and the buyer.” Appellant’s Br. at 6.

This was Mr. Mendoza-Hurtado’s first conviction. He is a Mexican national who

has spent most of his life in Durango, Mexico, having entered the United States

apparently not long prior to the instant offense. 1

      In anticipation of sentencing under the United States Sentencing

Commission, Guidelines Manual (“U.S.S.G.”), the PSR calculated an advisory

Guidelines sentencing range of 135-168 months, but recommended a below-

Guidelines sentence of 72 months. In the plea agreement, both the government

and Mr. Mendoza-Hurtado contemplated a sentencing range of 108-135 months.

They also acknowledged there was a statutory mandatory minimum sentence of


      1
        The presentence report (“PSR”) prepared by the United States Probation
Office in preparation for sentencing states that “[p]rior to his arrest in the instant
offense, the defendant was residing with his wife at an unknown hotel in the
Denver metropolitan area for approximately 10 days. They had been renting a
home in . . . Durango, Mexico, for approximately eight years. He intends to
return to that area upon his release from custody.” PSR at ¶ 45; R. Vol. 2 at 25.

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ten years, which all parties agreed would not apply due to Mr. Mendoza-

Hurtado’s eligibility for a safety-valve reduction under 18 U.S.C. § 3553(f) and

U.S.S.G. § 5C1.2. The government then agreed with the PSR’s recommendation

of a 72-month sentence.

      Mr. Mendoza-Hurtado filed a motion requesting a below-Guidelines

sentence and, at his sentencing hearing on October 2, 2014, he requested a

sentence of time served, which would have amounted to approximately 24

months, based upon his claim that his involvement in the instant offense was

limited, he was unaware of the nature of the drugs involved, and his overall

situation, as discussed more fully below, compelled a reduced sentence. The

government adhered to a 72-month sentence, stating that such a sentence “while a

significant departure from whatever the guideline calculation turns out to be, still

is appropriate because . . . while not the top of the pinnacle in this case, this

defendant certainly was of more culpability than the two individuals who were

transporting the methamphetamine on his . . . behalf.” Tr. of Sentencing Hr’g at

4; R. Vol. 3 at 21.

      The district court determined that the advisory sentencing range was 108-

135 months, but sentenced Mr. Mendoza-Hurtado to 70 months, with “credit for

time already served on this case which as of today amounts to 730 days [24

months].” Tr. of Sentencing Hr’g at 18; R. Vol. 3 at 35. The district court

explained its sentencing decision as follows:

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              The defendant’s motion for sentencing below the guidelines
      . . . has been granted. The government’s motion for a non-guideline
      sentence has likewise been granted.

             And I am trying to come to grips with how to explain
      something to you. You didn’t know about these drugs and what they
      were when you did this for $2,000, but you did know that you were
      doing something wrong. You did know that. And when you shake
      hands with the devil, you don’t know where it’s going to take you.
      It’s taken you on a long, bad trip.

Id. at 13-14; R. Vol. 3 at 30-31. The court thus indicated its awareness of Mr.

Mendoza-Hurtado’s claimed lesser role and lack of awareness of the severity of

his offense. The court then considered other factors:

             I appreciate the fact that you have cooperated with the
      authorities, in particularly that you have tried to save some other
      people . . . . But the other factors that I am thinking of is the
      disastrous effects that this has had on your health. Your health and
      your heart are both broken and this is where we end up.

             I also remember vividly the efforts you made and the broken
      heart that you have because of the difficulties and suffering that were
      caused to your wife by having her be brought into this terrible
      experience.

             All of those things bring a sense of compassion to my
      sentencing, but I also have the other side that I have to deal with in
      sentencing you and that is that we are dealing with amphetamines, a
      very dangerous drug. And while I understand what your attorney,
      Mr. Barnard, is saying – and incidentally, he has done an excellent
      job for you. You were facing more than 10 years imprisonment. He
      has done a very good job in representing you.

             I disagree with his argument about the quality of meth,
      however, because to me saying you had nothing to do with the
      quality of the meth tells me one of two things, and that’s that you – I
      don’t know whether it speaks well or ill of you. On the one hand,
      you are acting as a middleman on something that you don’t know

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      about is a sign of reckless indifference to what it does to other
      people, so that’s not much better than intentionally trying to give
      people polluted substances.

             The other is that, as I have said, your attorney has already
      accomplished a great deal in avoiding this minimum mandatory
      sentence and the government has done something in looking at your
      case in that regard. But here is the thing. I cannot send a message
      back to Durango that the U.S. laws have no teeth.

Id. at 14-15; R. Vol. 3 at 31-32 (emphasis added). The court then sentenced Mr.

Mendoza-Hurtado to a significantly below-Guideline sentence of 70 months, with,

as indicated above, credit for time served. This appeal followed.

      Mr. Mendoza-Hurtado challenges the substantive reasonableness of his

sentence. “[S]ubstantive reasonableness addresses 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. Damato, 672 F.3d 832,

838 (10th Cir. 2012) (internal quotation marks omitted). We review substantive

reasonableness claims for abuse of discretion, id., “afford[ing] substantial

deference to [the] district court[].” United States v. Smart, 518 F.3d 800, 806

(10th Cir. 2008). We find an abuse of discretion only if the district court was

“arbitrary, capricious, whimsical, or manifestly unreasonable” when it weighed

the “permissible § 3553(a) factors in light of the totality of the circumstances.”

United States v. Sayad, 589 F.3d 1110, 1116, 1118 (10th Cir. 2009) (quotations

omitted); see also United States v. Reyes-Alfonso, 653 F.3d 1137, 1145 (10th Cir.

2011) (“In many cases there will be a range of possible outcomes the facts and

                                         -5-
law at issue can fairly support; rather than pick and choose among them

ourselves, we will defer to the district court’s judgment so long as it falls within

the realm of these rationally available choices.” (quotations and alterations

omitted)). Furthermore, a sentence below the properly-calculated advisory

Guidelines range is presumptively reasonable. United States v. Balbin-Mesa, 643

F.3d 783, 788 (10th Cir. 2011); see also United States v. Trent, 767 F.3d 1046,

1051 (10th Cir. 2014) (holding that a below-Guidelines sentence is

“presumptively reasonable against an attack by a defendant claiming that the

sentence is too high”). Mr. Mendoza-Hurtado may rebut that presumption, but

“[t]hat burden is a hefty one” under our deferential abuse-of-discretion standard

of review. United States v. Verdin-Garcia, 516 F.3d 884, 898 (10th Cir. 2008).

      Mr. Mendoza-Hurtado argues with considerable vigor that the

circumstances surrounding his background and condition, including his age, his

impoverished and deprived upbringing, his poor health, his lack of a criminal

background, his alien status, and his family support, as well as the details

regarding his offense of conviction, including his claimed unawareness of the

nature of the methamphetamine involved, his cooperation, and the crime’s effect

on his family, compel a lower sentence. Nonetheless, as the excerpts above

indicate, the district court was acutely aware of all of those circumstances. It

gave him a below-Guideline sentence, and brought a “sense of compassion” in

selecting that sentence. The court clearly weighed the numerous sentencing

                                          -6-
factors applicable in this case, and reached a decision which reflected all those

factors. We cannot say that the sentence selected is unreasonable. Mr. Mendoza-

Hurtado has failed to rebut its presumptive reasonableness.

      For the foregoing reasons, we AFFIRM the sentence imposed in this case.

                                               ENTERED FOR THE COURT


                                               Stephen H. Anderson
                                               Circuit Judge




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