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

                             FOR THE TENTH CIRCUIT                            June 25, 2018
                         _________________________________
                                                                          Elisabeth A. Shumaker
                                                                              Clerk of Court
UNITED STATES OF AMERICA,

      Plaintiff - Appellee,

v.                                                          No. 17-1399
                                                  (D.C. No. 1:17-CR-00184-RM-1)
CARLOS CRUZ-ARTIAGA, a/k/a Helmer                            (D. Colo.)
Isaias Calix-Arteaga,

      Defendant - Appellant.
                      _________________________________

                             ORDER AND JUDGMENT*
                         _________________________________

Before BRISCOE, MATHESON, and EID, Circuit Judges.
                  _________________________________

      Carlos Cruz-Artiaga pleaded guilty to illegally reentering the United States

after being convicted of an aggravated felony. See 8 U.S.C. § 1326(a) and (b)(2).

It was his fourth such conviction, and at sentencing, the district court recognized the

need to deter Mr. Cruz-Artiaga’s conduct. Consequently, the court considered the

sentencing factors under 18 U.S.C. § 3553(a) and varied up from the applicable

sentencing guideline range of 33 to 41 months to sentence Mr. Cruz-Artiaga to


      *
        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 This order and judgment is not binding precedent,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.
45 months in prison. Mr. Cruz-Artiaga now contends his sentence is substantively

unreasonable because the district court over-emphasized the need for deterrence.

Exercising jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a), we affirm.

                                            I

      We review the district court’s sentence “for reasonableness under an

abuse-of-discretion standard.” Peugh v. United States, 569 U.S. 530, 537 (2013).

The court acts “within its discretion unless the sentence was arbitrary, capricious,

whimsical, or manifestly unreasonable.” United States v. Franklin, 785 F.3d 1365,

1370 (10th Cir. 2015) (internal quotation marks omitted). Our review for

reasonableness involves a procedural and a substantive component. United States v.

Alapizco-Valenzuela, 546 F.3d 1208, 1214 (10th Cir. 2008). Procedural review

questions whether the sentence was correctly calculated and explained, while

“[s]ubstantive review involves 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).” Id. at 1214-15 (internal quotation marks omitted).

      “Although sentences imposed within the correctly calculated [g]uidelines

range may be presumed reasonable on appeal, sentences imposed outside the

[g]uidelines range may not be presumed unreasonable.” United States v. Huckins,

529 F.3d 1312, 1317 (10th Cir. 2008). When the district court deviates from the

applicable guideline range, “we consider the extent of the deviation but give due

deference to the district court’s decision that the § 3553(a) factors, on a whole, justify

the extent of the variance.” Id. (internal quotation marks omitted). We are not at

                                            2
liberty to reverse a sentence just because we “might reasonably have concluded that a

different sentence was appropriate.” Gall v. United States, 552 U.S. 38, 51 (2007).

                                          II

      The district court adopted the sentencing guideline range of 33 to 41 months’

imprisonment prescribed by the presentence investigation report. The parties filed

competing motions to vary from range, however, with the government seeking an

upward variance to 48 months and Mr. Cruz-Artiaga requesting a downward variance

to 24 months. At sentencing, the government emphasized that this was

Mr. Cruz-Artiaga’s fourth conviction for unlawfully reentering the United States.

The government argued that an upward variance was warranted because his prior

sentences of 15, 28, and 37 months in prison, respectively, were insufficient to deter

him from once again reentering the United States illegally. The government also

noted that he was detained by immigration officials in this case after he was stopped

for driving under the influence.

      Mr. Cruz-Artiaga responded that it was inappropriate to narrowly focus on

deterrence. He insisted that doing so would lose sight of other mitigating factors,

namely his efforts to help another man from Honduras, stay away from drugs, hold

legitimate jobs, and generally be a good person while in this country. He suggested

he was “not hurting people” or “actively engaging in a criminal lifestyle” and urged

the court to stop “ratcheting up” his sentence. R., Vol. 3 at 51-52. Moreover, he

discouraged the court from using tax dollars to impose a more-lengthy sentence,

noting a longer prison term could put him at greater risk of joining a prison gang.

                                           3
       For the most part, the district court was unpersuaded by Mr. Cruz-Artiaga’s

arguments. The court explained it was not focusing solely on deterrence and, in

considering and weighing the § 3553(a) factors, it was not prevented from

emphasizing some factors over others. The court indicated its duty was to impose a

sentence that was sufficient, but not greater than necessary, to achieve the purposes

of § 3553(a). To that end, the court observed that, at least based on the sentences he

received, Mr. Cruz-Artiaga’s prior non-immigration offenses were relatively modest

and did not appear to include violent crimes or serious drug offenses. The court also

noted there was no evidence that he was engaged in street-level drug activity since

his second illegal-reentry conviction. Nonetheless, the court observed that this was

the fourth time he appeared in federal court convicted of illegally reentering the

United States and each time he sustained a greater sentence, none of which

successfully deterred him from repeating the offense.

       Before the court announced the sentence, Mr. Cruz-Artiaga addressed the

court, stating that he preferred to be in prison in the United States rather than return

to Honduras. The court then indicated that it had considered the presentence

investigation report, the parties’ material related to that report, the parties’

arguments, Mr. Cruz-Artiaga’s statement, and the § 3553(a) factors. In weighing

those factors, the court noted that Mr. Cruz-Artiaga expressly admitted he would

rather be in prison than return to Honduras. The court explained, however, that the

“immigration laws . . . are laws of the United States, [and] they merit being

enforced.” Id. at 62. The court further explained that Mr. Cruz-Artiaga’s presence

                                             4
here was unlawful, notwithstanding whether or not he did anything else illegal while

he was here. To the extent he was deserving of some leniency for not committing

other crimes, the court indicated it would “dial back the government’s request . . . for

an upward variance” and sentence him to 45 months in prison. Id. at 63. Yet the

court made clear it was intentionally varying upwards because Mr. Cruz-Artiaga’s

prior sentence of 37 months was insufficient, as would be a top-of-the-guidelines

sentence of 41 months.

      We perceive no abuse of discretion. The district court began by recognizing

the applicable sentencing guideline range of 33 to 41 months. See 18 U.S.C.

§ 3553(a)(4) (directing court to consider the sentencing guidelines). In announcing

its sentence, the court repeatedly stated that it considered the § 3553(a) factors in

fashioning an appropriate sentence. The court discussed Mr. Cruz-Artiaga’s criminal

history and what it considered the relatively modest nature of his non-immigration

offenses. See id. § 3553(a)(1) (directing court to consider the circumstances of the

offense and the history and characteristics of the offender). The court also cited his

history and characteristics on its written statement of reasons for granting the

variance, noting that Mr. Cruz-Artiaga had a “[h]istory of incarceration and . . .

continuing to return to the US regardless of the sentence imposed.” R., Vol. 2 at 78.

Although the court tempered its sentence because he attempted to stay away from

drugs and was helping another person, the court balanced those mitigating factors

against the need to impose a sentence that reflected the seriousness of the offense and

promoted respect for the law, see 18 U.S.C. § 3553(a)(2)(A). Because this was

                                            5
Mr. Cruz-Artiaga’s fourth illegal-reentry conviction, the court sought to impose a

sentence that deterred him from committing another illegal reentry. See 18 U.S.C.

§ 3553(a)(2)(B). The district court’s sentence was substantively reasonable in light

of the § 3553(a) factors.

      Mr. Cruz-Artiaga insists, however, that the district court over-emphasized the

need for deterrence to the exclusion of the other relevant § 3553(a) factors. He

points out that the court stated that “[t]he one factor that seems to be deserving of

more emphasis . . . is the deterrence of the defendant.” Id., Vol. 3 at 62. But the

court was required to provide a “‘specific reason’” for varying upwards from the

guidelines, Huckins, 529 F.3d at 1317 (quoting 18 U.S.C. § 3553(c)(2)), and we have

recognized that “[t]he district court must consider . . . the need to deter the defendant

and others,” United States v. Walker, 844 F.3d 1253, 1257 (10th Cir. 2017). Given

Mr. Cruz-Artiaga’s history of recidivism, the district court properly put weight on the

need to deter him from committing another unlawful reentry. To the extent

Mr. Cruz-Artiaga suggests that in doing so the court excluded from its consideration

other § 3553(a) factors, the foregoing discussion demonstrates it did not.

      Finally, Mr. Cruz-Artiaga contends his sentence was unreasonable because it is

fifty percent longer than it would have been if the court had granted his request for a

downward variance. But the court denied his request, and in any event, “sentencing

review may not be based on a rigid mathematical formula that uses the percentage of

a departure as the standard for determining the strength of the justifications required

for a specific sentence,” United States v. Smart, 518 F.3d 800, 807 (10th Cir. 2008).

                                            6
Here, the district court varied only four months above the applicable guideline range

after considering the relevant § 3553(a) factors and recognizing the need for

deterrence. The court noted that Mr. Cruz-Artiaga’s previous sentences, including

his most recent sentence of 37 months in prison, were insufficient to deter his

recidivism and achieve the sentencing goals of § 3553(a). The court therefore varied

upwards slightly from the top guideline sentence of 41 months to 45 months. This

was less than the 48 months requested by the government in light of the mitigating

factors identified by Mr. Cruz-Artiaga. The court sufficiently justified the variance,

and there was nothing arbitrary, capricious, whimsical, or manifestly unreasonable

about the sentence. Even if we disagreed with the manner in which the district court

weighed the deterrence factor (which we do not), that would provide no basis for

reversing the district court’s sentence. See Gall, 552 U.S. at 51.

                                          III

      The judgment of the district court is affirmed.



                                            Entered for the Court


                                            Allison H. Eid
                                            Circuit Judge




                                           7
