                                                                                 FILED
                                                                     United States Court of Appeals
                                                                             Tenth Circuit

                                                                             April 23, 2013

                                                                         Elisabeth A. Shumaker
                      UNITED STATES COURT OF APPEALS                         Clerk of Court
                                   TENTH CIRCUIT




 UNITED STATES OF AMERICA,

        Plaintiff–Appellee,                                  No. 12-1472
                                                   (D.C. No. 1:12-CR-00124-JLK-1)
 v.                                                           (D. Colo.)

 ALDO ALONSO HOLGUIN-ESPINO,
 a/k/a Aldo Javalera-Espino,

        Defendant–Appellant.


                              ORDER AND JUDGMENT*


Before LUCERO, McKAY, and MURPHY, Circuit Judges.


       Aldo Alonso Holguin-Espino appeals his below-Guidelines sentence, claiming it is

substantively unreasonable. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.



        * After examining appellant’s brief and the 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) and 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 This order and judgment is not
binding precedent, except under the doctrines of law of the case, res judicata, and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.
                                            I

       Holguin-Espino pled guilty to Illegal Re-Entry after Deportation Subsequent to an

Aggravated Felony Conviction, a violation of 8 U.S.C. § 1326(a) and (b)(2). According

to his pre-sentence investigation report (“PSR”), Holguin-Espino has been convicted of

several misdemeanors, including disturbing the peace, assault, and possession of a

concealed weapon. In 2005, he was also convicted in Colorado state court of

Possession/Sale of a Schedule I or II Controlled Substance, a felony. The conviction

stemmed from a 1997 search of Holguin-Espino’s home in which police found 5.4 ounces

of cocaine. Holguin-Espino failed to appear after he was released on bond, and was re-

arrested in Mexico several years later.

       Holguin-Espino was deported to Mexico after serving his felony sentence. He

became involved in politics and was hired as the Director of Public Works for a town in

Chihuahua. In 2011, Holguin-Espino was attacked as part of a spate of apparently

politically-motivated violence, and a passenger in the car he was driving was killed. His

home was later shot at and three people, including the former mayor of his town, were

killed. He returned to the United States in March 2011.

       In February 2012, Holguin-Espino was stopped for driving erratically. He became

belligerent during the stop and was arrested. Subsequent tests revealed a .225 blood

alcohol content. Holguin-Espino pled guilty to driving under the influence in Colorado

state court. While detained on those charges, Holguin-Espino admitted that he had
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reentered the United States without authorization.

       Holguin-Espino’s PSR calculated an advisory Guidelines range of forty-six to

fifty-seven months’ imprisonment and a supervised release term of one to three years.

He requested a downward variance, asking for a sentence of eighteen months. At

sentencing, the district court expressed its disagreement with the illegal reentry

Guidelines and stated its intent to vary on that basis. However, the district court rejected

Holguin-Espino’s argument that he fled to the United States only to escape political

violence. The court noted that he could have moved to another part of Mexico or another

country. Focusing on Holguin-Espino’s history of violent behavior and recidivism, the

court concluded that a term of thirty-six months’ imprisonment was appropriate. The

court also imposed a three-year term of supervised release “to serve as incentive to not

come back, because he will be immediately in violation of the conditions of supervise[d]

release if he did reenter the United States illegally.” Holguin-Espino timely appealed his

sentence.

                                             II

       On appeal, Holguin-Espino argues that his sentence is substantively unreasonable.

We review the substantive reasonableness of a sentence for abuse of discretion. See

United States v. Montgomery, 550 F.3d 1229, 1233 (10th Cir. 2008). “A district court

abuses its discretion when it renders a judgment that is arbitrary, capricious, whimsical,

or manifestly unreasonable.” United States v. Friedman, 554 F.3d 1301, 1307 (10th Cir.
                                             -3-
2009) (quotation omitted). “If the district court correctly calculates the Guidelines range

based upon the facts and imposes [a] sentence within that range, the sentence is entitled

to a presumption of reasonableness.” United States v. Sutton, 520 F.3d 1259, 1262 (10th

Cir. 2008). This presumption also applies to a below-Guidelines sentence. See United

States v. Balbin-Mesa, 643 F.3d 783, 788 (10th Cir. 2011).

       Holguin-Espino argues that the district court erred by placing no weight on the

political violence that prompted him to flee Mexico. However, the district court cogently

explained its reasons for placing little weight on this issue: Holguin-Espino could have

fled to any number of places rather than returning to the United States illegally. See

United States v. Escobedo, 427 F. App’x 676, 677-78 (10th Cir. 2011) (unpublished)

(affirming sentence and noting that district court “acknowledged the violence in Mexico

but reiterated that [defendant] was prohibited from fleeing it by illegally reentering the

United States”). The court also explained that it was particularly swayed by Holguin-

Espino’s criminal history: he had committed two felonies, probation had not deterred his

criminal activity, and he had repeatedly engaged in violent conduct. See 18 U.S.C.

§ 3553(a)(2) (directing sentencing courts to consider “the need for the sentence

imposed—(A) to reflect the seriousness of the offense, to promote respect for the law,

and to provide just punishment for the offense; (B) to afford adequate deterrence to

criminal conduct; [and] (C) to protect the public from further crimes of the defendant . .

.”). Holguin-Espino has not shown that the district court unreasonably weighed these
                                             -4-
factors.

       Holguin-Espino also argues that the district court should not have imposed three

years of supervised release. The Guidelines state that a district court “ordinarily should

not impose a term of supervised release in a case in which supervised release is not

required by statute and the defendant is a deportable alien who likely will be deported

after imprisonment.” U.S.S.G. § 5D1.1(c). However, an application note states that

courts may “consider imposing a term of supervised release on such a defendant if the

court determines it would provide an added measure of deterrence and protection based

on the facts and circumstances of a particular case.” § 5D1.1 app. n.5. The district court

permissibly concluded in this case that Holguin-Espino required additional deterrence

based on his specific history of recidivism.

                                               III

       Holguin-Espino has not shown that the district court’s imposition of a below-

Guidelines sentence was “arbitrary, capricious, whimsical, or manifestly unreasonable.”

Friedman, 554 F.3d at 1307 (quotation omitted). Accordingly, we AFFIRM.


                                          Entered for the Court



                                          Carlos F. Lucero
                                          Circuit Judge



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