                                                                     FILED
                                                          United States Court of Appeals
                                                                  Tenth Circuit

                   UNITED STATES COURT OF APPEALS                 July 15, 2014
                                                              Elisabeth A. Shumaker
                               TENTH CIRCUIT                      Clerk of Court



 UNITED STATES OF AMERICA,

             Plaintiff - Appellee,

 v.                                                    No. 14-6030
                                                      (W.D. Okla.)
 ENRIQUE MARTINEZ-GONZALEZ,                   (D.C. No. 5:13-CR-00263-R-1)

             Defendant - Appellant.


                          ORDER AND JUDGMENT *


Before KELLY, ANDERSON, and BACHARACH, 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, Enrique Martinez-Gonzalez, a Mexican citizen,

appeals his fifty-seven-month sentence imposed following his guilty plea to one


      *
       This order and judgment is not binding precedent, except under the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.
count of illegally reentering the United States, following a previous deportation

after an aggravated felony conviction. His only argument on appeal is that his

sentence is substantively unreasonable. Finding his sentence to be substantively

reasonable, we affirm.



                                BACKGROUND

      Mr. Martinez-Gonzalez was born in Mexico, but has resided in the

Oklahoma City area since approximately 1989. While in the United States, he

pled guilty to various criminal offenses, including joy riding in 1993, and larceny

of merchandise from a retailer, concealing stolen property, and jumping bail, all

separate crimes committed in 1996.

      In 1997, following his arrest for unauthorized use of a motor vehicle, Mr.

Martinez-Gonzalez was ordered removed by an immigration judge and he was

granted a voluntary return to Mexico. He subsequently reentered the United

States and, in 1999, was convicted of possessing cocaine with intent to distribute.

Mr. Martinez-Gonzalez served two years in prison for that offense, before he was

paroled to the custody of the Immigration Customs Enforcement (“ICE”) and

deported on January 25, 2001. He returned to the United States later that year

and, in October, was arrested for shooting with intent to kill. He was convicted

of that offense and served approximately nine years in prison, following which he

was deported on January 5, 2011.

                                        -2-
         Mr. Martinez-Gonzalez subsequently reentered the United States for a final

time and, on November 21, 2012, he was arrested and charged with assault and

battery with a dangerous weapon. The charge was later dismissed when the

victim failed to appear.

         On April 5, 2013, Mr. Martinez-Gonzalez was arrested for grand larceny.

On October 30, 2013, he was released to ICE custody, after the initial grand

larceny charges were dismissed. The charges were later re-filed and, as of the

time of briefing in this appeal, those charges were pending in Oklahoma state

court.

         A federal grand jury indicted Mr. Martinez-Gonzalez on November 12,

2013, charging him with illegally reentering the United States, in violation of 8

U.S.C. § 1326(a). He then waived his right to a jury trial and pled guilty.

         In preparation for sentencing under the United States Sentencing

Commission, Guidelines Manual (“USSG”), the United States Probation Office

prepared a presentence report (“PSR”). The PSR calculated a base offense level

of eight under USSG § 2L1.2. Mr. Martinez-Gonzalez’s prior convictions for

possession of cocaine with intent to distribute and shooting with intent to kill

resulted in a sixteen-level increase to his base offense level, thereby creating a

total offense level of twenty-four. After a three-level decrease for acceptance of

responsibility, Mr. Martinez-Gonzalez’s total adjusted offense level was twenty-




                                          -3-
one. With a criminal history category of III, his advisory Guideline sentencing

range was forty-six to fifty-seven months’ imprisonment.

      Mr. Martinez-Gonzalez filed a Sentencing Memorandum, requesting a

sentence below the advisory Guideline range “based on the excessive and

unwarranted severity of the illegal reentry guideline itself.” Sent. Mem. at 4; R.

Vol. 1 at 24. He argued that “[f]rom both a policy perspective and a fairness

perspective, it makes sense that a non-violent, non-drug-related offense that is

essentially a status crime would not be punished as severely as more factually

serious crimes.” Id. at 5; R. Vol. 1 at 25. Furthermore, because the sixteen-level

increase in the Guideline level is based on certain serious prior convictions, and

those convictions are also counted in calculating criminal history points, Mr.

Martinez-Gonzalez charged the Guidelines with impermissibly double-counting.

He also argued that the “fundamental flaw in the illegal reentry guideline is that it

was not based on empirical research concerning deterrent efficacy or any other

variable relevant to the purposes of sentencing.” Id. at 8; R. Vol. 1 at 28.

      He reiterated these arguments at his sentencing hearing. The district court

listened to those arguments but declined to sentence Mr. Martinez-Gonzales

below the advisory Guideline range. In fact, the court concluded that, in view of

Mr. Martinez-Gonzalez’s extensive criminal history, a sentence at “the high end

of the guidelines [is] appropriate.” Tr. of Sent. Hr’g at 6; R. Vol. 3 at 65. As the

court bluntly stated to Mr. Martinez-Gonzalez, “frankly, looking at your criminal

                                         -4-
history, I believe the only appropriate place for you to be is in prison, given your

criminal history. I think you’re a threat to society.” Id. The court therefore

sentenced Mr. Martinez-Gonzalez to fifty-seven months’ imprisonment. This

appeal followed.



                                   DISCUSSION

      Mr. Martinez-Gonzalez’s only argument on appeal is that his fifty-seven-

month sentence is substantively unreasonable. “[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, “afford[ing] substantial deference to [the] district court.” United

States v. Smart, 518 F.3d 800, 806 (10th Cir. 2008). A sentence within the

properly-calculated Guidelines range is presumed on appeal to be reasonable.

United States v. Alvarez-Bernabe, 626 F.3d 1161, 1167 (10th Cir. 2010).

      Mr. Martinez-Gonzalez argues that his fifty-seven-month sentence is

greater than necessary and unreasonable when compared to the Guidelines range

for crimes that are “factually more injurious or potentially injurious.”

Appellant’s Br. at 11. We have, however, “consistently observed that reentry of

an ex-felon is a serious offense.” United States v. Martinez-Barragan, 545 F.3d

                                         -5-
894, 905 (10th Cir. 2008); see also United States v. Algarate-Valencia, 550 F.3d

1238, 1245 (10th Cir. 2008) (“Congress has made it clear, through the Sentencing

Guidelines, that it considers the illegal re-entry of an alien who has committed a

violent crime to be far more serious than a standard trespassing offense.”); United

States v. Navarrete-Medina, 554 F.3d 1312, 1314 (10th Cir. 2009) (same). And,

Mr. Martinez-Gonzalez’s argument that his “history does not present heightened

concern that he will return to the U.S. unlawfully” is, as the government points

out, wholly inconsistent with his immigration history. Appellant’s Br. at 12.

      Mr. Martinez-Gonzalez also makes a policy objection to the sixteen-level

increase to his offense level imposed by USSG § 2L1.2(b)(1)(A). We have stated

that, “[a]lthough a district court is ‘entitled’ to vary downward from the

guidelines based on a policy disagreement with the guidelines, it is also entitled

to defer to the policy judgment of the guidelines[.]” United States v. Escobar-

Aguirre, 409 Fed. Appx. 209, 212 (10th Cir. 2010) (unpublished). 1 As we have

also observed, “‘a sentence is not rendered unreasonable merely because of a

district court’s refusal to deviate from the advisory guideline range’ based on

disagreements with the policies underlying a particular Guideline provision.”

United States v. Wilken, 498 F.3d 1160, 1172 (10th Cir. 2007) (quoting United

States v. McCullough, 457 F.3d 1150, 1171 (10th Cir. 2006)).


      1
       We note that we typically do not cite unpublished opinions. We cite this
case, however, because we agree with its statement.

                                         -6-
      Furthermore, we are not persuaded by Mr. Martinez-Gonzalez’s argument

that the Guideline for reentry offenses is not based on empirical evidence and is

therefore not entitled to deference. We have rejected the argument that a

sentencing enhancement is invalid “because it lacks a specific explanation and

justification by the Sentencing Commission.” Alvarez-Bernabe, 626 F.3d at 1166.

      Finally, we have previously rejected the argument that impermissible

double-counting occurs when the same conviction is used both to calculate the

offense level under USSG § 2L1.2(b)(1)(A) and the criminal history category

under USSG § 4A1.1(a). “[W]e have routinely upheld as reasonable the use of

prior convictions to calculate both the criminal history category and a sentence

enhancement where, as here, the Guidelines authorize it.” United States v. Ruiz-

Terrazas, 477 F.3d 1196, 1204 (10th Cir. 2007). Indeed, in Ruiz-Terrazas, we

upheld a fifty-seven-month sentence for an alien who, like Mr. Martinez-

Gonzalez, illegally reentered the United States and had an aggravated felony in

his criminal history.

      In sum, we perceive nothing unreasonable in Mr. Martinez-Gonzalez’s

sentence. The district court did not abuse its discretion in imposing it.




                                         -7-
                         CONCLUSION

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

                                      ENTERED FOR THE COURT


                                      Stephen H. Anderson
                                      Circuit Judge




                                -8-
