                                                                                  FILED
                                                                      United States Court of Appeals
                                                                              Tenth Circuit
                        UNITED STATES COURT OF APPEALS
                                                                              July 11, 2019
                              FOR THE TENTH CIRCUIT
                                                                          Elisabeth A. Shumaker
                          _________________________________                   Clerk of Court
    UNITED STATES OF AMERICA,

         Plaintiff - Appellee,

    v.                                                         No. 18-8023
                                                     (D.C. No. 1:17-CR-00256-ABJ-1)
    PEDRO JOSE ROSALES-TRUJILLO,                                 (D. Wyo.)

         Defendant - Appellant.

    –––––––––––––––––––––––––––––––––––

    UNITED STATES OF AMERICA,

         Plaintiff - Appellee,

    v.
                                                               No. 18-8032
    PEDRO ROSALES-TRUJILLO,                          (D.C. No. 2:18-CR-00031-ABJ-1)
                                                                 (D. Wyo.)
         Defendant - Appellant.
                        _________________________________

                              ORDER AND JUDGMENT*
                          _________________________________

Before HARTZ, SEYMOUR, and HOLMES, Circuit Judges.
                  _________________________________



*
  After examining the briefs and appellate record, this panel has determined unanimously
to honor the parties’ request for a decision on the briefs without oral argument. See
Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore 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 This order and judgment is not binding precedent, except under the doctrines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.
       Defendant Pedro Jose Rosales-Trujillo appeals the 21-month sentence imposed for

his violation of the terms of his supervised release. Exercising jurisdiction under

28 U.S.C. § 1291, we affirm. His sentence was within the Sentencing Guidelines policy

statement, it is therefore presumed substantively reasonable, and Defendant has not

overcome the presumption.

       Defendant, who was about 50 years old when sentenced, has an impressive history

of violating this nation’s immigration laws. He was first ordered deported from the

United States on July 28, 1989. Since then, Defendant has never obtained, or even

applied for, official consent for readmission to the United States. He has been deported

13 times, and in 1998, 2001, 2004, 2010, and 2018, he was convicted of illegal reentry

after deportation. See 8 U.S.C. § 1326. For his 2010 violation, the United States District

Court for the Western District of Texas sentenced him to 77 months’ imprisonment and

three years’ supervised release. On July 6, 2016, Defendant’s term of supervised release

commenced when he was released from custody and ordered deported from the United

States. In June 2017, while still subject to the terms of his supervised release, Defendant

was discovered in the United States when he was arrested in Wyoming for riding a train

without a ticket. On January 17, 2018, a jury in the United States District Court for the

District of Wyoming found him guilty of illegal reentry after deportation.

       Before Defendant was sentenced, jurisdiction over his supervised release was

transferred from the Western District of Texas to the District of Wyoming. Defendant

waived his right to a preliminary hearing, agreed to have the matter disposed of at


                                             2
sentencing on his illegal-reentry conviction, and admitted his illegal reentry in violation

of the terms of his supervised release.

       For the illegal-reentry conviction, the presentence report (PSR) determined that

Defendant’s total offense level was 12 and his criminal-history category was VI, which

resulted in a guidelines range of 30 to 37 months’ imprisonment. Because Defendant’s

illegal reentry in 2017 was an offense punishable by a term of imprisonment exceeding

one year, Defendant’s violation of the terms of his supervised release was a Grade B

violation. See USSG § 7B1.1. Under the United States Sentencing Commission

sentencing policy for violation of the terms of supervised release, a Grade B violation

with a criminal-history category of VI (at the time he was sentenced to supervised release

in 2010, see USSG § 7B1.4(a)) results in a recommended imprisonment range of 21 to 27

months. See USSG § 7B1.4. But the maximum term for violating supervised release is

24 months if, as here, the original conviction was for a Class C felony. See 18 U.S.C.

§ 3583(e)(3); id. § 3559(a)(3) (definition of Class C felony); 8 U.S.C. § 1326(b)

(maximum penalties for violations of 8 U.S.C. § 1326(a)).

       At sentencing, Defendant’s counsel attempted to garner sympathy for him by

arguing that the majority of his criminal history happened in the 1990s and that in recent

years his crimes were all tied to his “being illegal and being impoverished.” R., Vol. III

at 145. He requested that the district court sentence Defendant to 7 months in prison for

the supervised-release violation and a combined total sentence of 36 to 42 months. The

district court declined the request. It recounted Defendant’s long criminal history dating

back to the 1980s and including “convictions for possession of controlled substances,


                                              3
burglary, sale or transportation of marijuana, possession of marijuana for sale, unlawful

taking of a vehicle, vehicle theft, false identification to police, second degree robbery,

attempted burglary, illegal re-entry, attempted unauthorized use of a motor vehicle,

illegal re-entry and then after 2000” a series of illegal-reentry convictions. Id. at 151–52.

The court also emphasized that Defendant had no significant record of employment or

apparent friends or family in the United States:

       Mr. Rosales blames the United States of America for his predicament rather
       than acknowledging that he has some responsibility and is responsible for
       his situation. He does not have family or loved ones. And when in this
       country, probably due to his fear of coming to the attention of law
       enforcement no real direction or purpose, other than riding the rails and
       moving from place to place. At some point, the needs of the United States
       have to be considered.

Id. at 152. It concluded that in accordance with the factors enumerated in 18 U.S.C.

§ 3553(a), Defendant’s history “should reflect a high-end sentence.” Id. at 153. For the

illegal reentry, the court sentenced him to 37 months’ imprisonment with no term of

supervised release. In addition, it sentenced Defendant to 21 months’ imprisonment for

violating his supervised release, to be served consecutively to the illegal-reentry

sentence.1

       Defendant claims that his 21-month revocation sentence is substantively

unreasonable. Substantive reasonableness “concerns whether the length of the sentence



1
  Defendant does not contest that the district court may reasonably impose a consecutive
sentence for a violation of supervised release. See USSG § 7B1.3(f) (“Any term of
imprisonment imposed upon the revocation of probation or supervised release shall be
ordered to be served consecutively to any sentence of imprisonment that the defendant is
serving . . . .”).

                                              4
is reasonable in light of the statutory factors under 18 U.S.C. § 3553(a).” United States v.

Adams, 751 F.3d 1175, 1181 (10th Cir. 2014). This proposition applies to revocation of

supervised release as well as initial sentencing on a conviction. See United States v.

McBride, 633 F.3d 1229, 1231 (10th Cir. 2011) (“Before deciding whether to revoke a

term of supervised release and determining the sentence imposed after revocation, the

district court must consider the factors set out in 18 U.S.C. § 3553(a)(1), (a)(2)(B),

(a)(2)(C), (a)(2)(D), (a)(4), (a)(5), (a)(6), and (a)(7).” ) In assessing a district court’s

application of these factors, we apply a deferential abuse-of-discretion standard. See id.

at 1232.

           When imposing a sentence for a violation of the terms of supervised release, one

of the statutory sentencing factors to be considered is “the applicable guidelines or policy

statements issued by the Sentencing Commission.” 18 U.S.C. § 3553(a)(4)(B). And we

presume that “a revocation-of-supervised-release sentence within the range suggested by

the Commission’s policy statements” is substantively reasonable. McBride, 633 F.3d at

1233. This presumption may be rebutted “by demonstrating that the sentence is

unreasonable in light of the other sentencing factors laid out in . . . § 3553(a).” Id.

       The presumption of reasonableness applies to Defendant’s sentence. His sentence

of 21 months’ imprisonment is at the low end of the recommended 21–27 month range

for a defendant who committed a Grade B offense and has a criminal-history category of

VI. See USSG § 7B1.4. Defendant has not rebutted the presumption of reasonableness.

Indeed, given that he has been deported 13 times and had previously violated a condition

of supervised release prohibiting reentry into this country, one could reasonably justify a


                                                5
sentence longer than that recommended by the policy statement. We are not persuaded

by Defendant’s two arguments to the contrary.

      First, Defendant complains of a “disparity in punishments,” Aplt. Br. at 17,

because the Western District of Texas imposed a sentence of only seven months when he

violated a prior condition of supervised release by unlawfully entering the country. Cf.

18 U.S.C. § 3553(a)(6) (court imposing sentence should consider “the need to avoid

unwarranted sentence disparities among defendants with similar records who have been

found guilty of similar conduct”). We see two flaws in this argument. To begin with,

substantive reasonableness can encompass a wide range of sentences. As we have

explained:

             [W]e recognize that in many cases there will be a range of possible
             outcomes the facts and 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. And there are perhaps few arenas where
             the range of rationally permissible choices is as large as it is in
             sentencing, a task calling on a district court’s unique familiarity with
             the facts and circumstances of a case and its judgment in balancing a
             host of incommensurate and disparate considerations, ranging from
             the degree of the defendant's cooperation and remorse to the need for
             deterring potential future offenders.

United States v. McComb, 519 F.3d 1049, 1053–54 (10th Cir. 2007) (internal quotation

marks omitted)). Two sentences can both be reasonable even if one is significantly

longer than the other. Both a 7-month and a 21-month sentence could be substantively

reasonable even if the circumstances were identical. A simple disparity in sentences,

particularly when the challenged sentence is within the range recommended by the

sentencing commission, cannot support a claim of substantive unreasonableness. See


                                            6
United States v. Bartlett, 567 F.3d 901, 908 (7th Cir. 2009) (“A sentence within a

properly ascertained range . . . cannot be treated as unreasonable by reference to

§ 3553(a)(6).”). Further, we cannot accept Defendant’s assumption that the Western

District of Texas would decide to impose a seven-month sentence for this second

violation of the conditions of supervised release. Just because a court thinks that a

particular sentence is appropriate for disregarding the court’s first order hardly means that

the same court would think the identical sentence is appropriate for a second violation.

Ordinarily, repeated violations are punished more harshly.

       Defendant’s second argument is that the penalty for a violation of supervised

release is inappropriate because the sentencing commission now recommends against

imposing supervised release on those who will be deported after serving their sentences.

See USSG § 5D1.1(c). But the new policy is not based on a view that there is no need to

punish recidivism by aliens. The rationale is that there is no real need for a separate

proceeding to increase the punishment by imposing a sentence for violating conditions of

supervised release, since the court can just impose a harsher sentence for the new

violation itself. Cf. id. cmt. 5. Here, the district court simply imposed guidelines

sentences for both the new offense and the violation of supervised release, rather than

increasing the sentence for the new violation because of Defendant’s egregious recidivist

history.

       In sum, we are not persuaded that Defendant has overcome the presumption of the

reasonableness of his sentence.




                                             7
We AFFIRM Defendant’s sentence.


                                  Entered for the Court


                                  Harris L Hartz
                                  Circuit Judge




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