                                                                      FILED
                                                          United States Court of Appeals
                                                                  Tenth Circuit
                   UNITED STATES COURT OF APPEALS
                                                                  May 30, 2013
                               TENTH CIRCUIT                  Elisabeth A. Shumaker
                                                                  Clerk of Court

 UNITED STATES OF AMERICA,

             Plaintiff - Appellee,
                                                       No. 12-3307
 v.                                         (D.C. No. 2:12-CR-20052-KHV-1)
                                                       (D. Kansas)
 JUVENAL CAVILLO-ARZATE,

             Defendant - Appellant.


                          ORDER AND JUDGMENT *


Before PORFILIO and ANDERSON, Circuit Judges, and BRORBY, Senior
Circuit Judge.



      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.




      *
       This order and judgment is not binding precedent, except under the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.
      Defendant and appellant, Juvenal Cavillo-Arzate, pled guilty to one count

of illegal reentry by a deported alien who had previously been convicted of an

aggravated felony, in violation of 8 U.S.C. § 1326(a), (b)(2). He was sentenced

to forty-one months’ imprisonment. Arguing that his sentence is substantively

unreasonable, Mr. Cavillo-Arzate appeals. We affirm.



                                BACKGROUND

      Mr. Cavillo-Arzate was convicted in 1996 of three counts of selling

methamphetamine. He was sentenced to three years of imprisonment, which he

satisfied. He was then deported to Mexico on February 14, 1998. Mr. Cavillo-

Arzate returned illegally to the United States in November of 1999, some twenty-

one months after he was deported. In the intervening period between his illegal

reentry and his arrest on the instant offense, Mr. Cavillo-Arzate lived in Kansas

with his wife and three children, the younger two of whom were born in the

United States and are American citizens.

      In the early morning hours of April 21, 2012, Mr. Cavillo-Arzate was

stopped by the police in Shawnee, Kansas, at a DUI checkpoint. Mr. Cavillo-

Arzate did not have a driver’s license. When police officers inquired further of

their dispatcher, it was determined that he was an unlawful alien. He was taken

into custody by the police and subsequently turned over to agents of the Bureau of

Immigration and Customs Enforcement.

                                        -2-
      As indicated, Mr. Cavillo-Arzate was then indicted for illegal reentry by a

deported alien following a conviction for an aggravated felony. He pled guilty on

July 11, 2012. In preparation for sentencing under the advisory United States

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

Probation Office prepared a presentence report (“PSR”). After setting the base

offense level at 8, under USSG §2L1.2(a), the PSR applied the 16-level

enhancement provided by USSG §2L1.2(b)(1)(A)(i), based upon Mr. Cavillo-

Arzate’s prior deportation following his conviction for a drug trafficking offense

for which the sentence imposed exceeded thirteen months (i.e., his three

methamphetamine sales counts). With a 3-level reduction for acceptance of

responsibility, the PSR calculated a total offense level of 21. The PSR also

assigned 3 criminal history points for Mr. Cavillo-Arzate’s prior conviction for

three counts of the sale of methamphetamine, resulting in a criminal history

category of II. Thus, his advisory Guidelines sentencing range was 41 to 51

months.

      The PSR then described a number of Mr. Cavillo-Arzate’s personal

characteristics, including his family history, family ties, physical and mental

condition, education, and employment history. It identified no factors which

might warrant a departure or variance from the advisory range.

      Mr. Cavillo-Arzate did not file a sentencing memorandum. At his

sentencing hearing, he argued that he should receive a downward variance from

                                         -3-
the 41- to 51-month sentencing range. He presented letters from his family and

church, and he asserted that while he had been illegally in the United States, he

had been a good provider and father to his children, two of whom were American

citizens. Mr. Cavillo-Arzate then argued that he was entitled to a variance

because he had taken steps to show that he would not return to the United States

by getting assurances from schools in Mexico that they would accept his children

as students even though they were United States citizens.

      Mr. Cavillo-Arzate then argued that the advisory Guideline range was

unreasonable in view of the facts surrounding his prior (methamphetamine)

conviction. It was his first offense, he argued, but he did not get the “benefit” of

it being a first offense, in that he was given a three-year sentence, as opposed to

some lesser sentence like probation, which often is given to first-time offenders. 1

Thus, that prior conviction qualified as an aggravated felony for the purpose of

his instant conviction, and “his guideline range in this case was greater than

others similarly situated because he pleaded guilty as charged.” Appellee’s Br. at

4. The court responded to this by noting that Mr. Cavillo-Arzate was represented

by counsel at his prior conviction, and that (for all we know now) he may have



      1
       As his attorney explained at Mr. Cavillo-Arzate’s sentencing hearing, “I
thought it was kind of odd that for a first time offender at the state level in
California, that there was no amendment to the charge, that he didn’t have the
opportunity for probation or anything like that, but it was essentially a three year
sentence.” Tr. of Sentencing Hr’g at 7, R. Vol. 2 at 30.

                                          -4-
committed something worse, but pleaded to the three sales counts in a bargained

plea.

        In imposing sentence, the court acknowledged that it was required to

consider a “broad variety of factors under the sentencing statute [18 U.S.C.

§ 3553(a)].” Tr. of Sentencing Hr’g at 13, R. Vol. 2 at 36. After enumerating

those factors, the court stated as follows:

              One of the big factors is giving the same kind of sentences to
        the same defendants or two defendants who commit similar types of
        crimes and have similar types of criminal records because we think if
        you commit a certain kind of crime and you have a certain kind of
        criminal record, then you should get a certain sentence. . . .

               I honestly don’t see any factors here which would take this
        case outside of the heartland of other immigration cases which I see.
        Sadly, given the fact that the family tragedy that this involves for
        you, this is the kind of scenario that repeats itself in a lot of the cases
        I see where somebody comes here illegally and then marries and sets
        down roots and has children who become American citizens, and it’s
        heart wrenching. But if I were to grant your attorney’s request for a
        downward variance or departure based on that, then it would be
        running straight into conflict with the principles about giving
        uniform sentences to people who commit similar crimes.

Id. at 14. The court then, with “regret,” imposed a 41-month sentence, at the

bottom of the advisory Guidelines range. Mr. Cavillo-Arzate objected to the

substantive reasonableness of the sentence. This appeal followed.




                                            -5-
                                  DISCUSSION

      Mr. Cavillo-Arzate argues his 41-month sentence is substantively

unreasonable. We review sentences “under an abuse of discretion standard for

procedural and substantive reasonableness.” United States v. Gordon, 710 F.3d

1124, 1126 (10th Cir. 2013). “[W]e review the district court’s legal conclusions

de novo and its factual conclusions for clear error.” United States v. Gallant, 537

F.3d 1202, 1234 (10th Cir. 2008). Mr. Cavillo-Arzate only challenges the

substantive reasonableness of his sentence.

      “[S]ubstantive reasonableness review broadly looks to whether the district

court abused its discretion in weighing permissible § 3553(a) factors in light of

the ‘totality of the circumstances.’” United States v. Sayad, 589 F.3d 1110, 1118

(10th Cir. 2009) (quoting Gall v. United States, 552 U.S. 38, 51 (2007)). We

apply a presumption of reasonableness to a sentence which is within a properly

calculated advisory Guidelines range. United States v. McBride, 633 F.3d 1229,

1232-33 (10th Cir. 2011). A defendant may rebut this presumption, however, by

showing that his sentence is unreasonable in light of the sentencing factors set

forth in 18 U.S.C. § 3553(a). United States v. Alapizco-Valenzuela, 546 F.3d

1208, 1215 (10th Cir. 2008).

      Mr. Cavillo-Arzate’s challenge to the substantive reasonableness of his

sentence is both generalized and specific: “The district court’s failure to impose

a parsimonious sentence in Mr. Cavillo-Arzate’s case was a result of a failure to

                                        -6-
account for an unreasonable enhancement under the guidelines and a failure to

recognize Mr. Cavillo-Arzate’s mitigated circumstances.” Appellant’s Br. at 6.

The “general” objections address the wisdom and reasonableness of the 16-level

enhancement as applied to any illegal reentrant; his specific objections address

that enhancement as applied to Mr. Cavillo-Arzate and his particular situation.

We address the general arguments first.

      Mr. Cavillo-Arzate argues that USSG §2L1.2(a)(1)(A) lacks a sound policy

rationale, was haphazardly adopted by the Sentencing Commission, and has been

the subject of “thoughtful criticism” by “judges and other criminal justice

professionals.” Id. at 8. We need not address these arguments in specificity, as

our court, and other courts, have rejected such generalized challenges to the

validity of the Guideline enhancement. In United States v. Alvarez-Bernabe, 626

F.3d 1161 (10th Cir. 2010), we rejected the defendant’s argument that the history

and development of the sixteen-level enhancement demonstrated its inadequacy

and illegality. 2 We observed that a number of other courts had likewise rejected

this argument. See id. at 1166 (discussing cases). We accordingly rely on that




      2
       We noted, in part, that, in enacting the sixteen-level enhancement, “the
Sentencing Commission was merely following Congressional policy to impose
more severe statutory penalties on previously deported aliens with a criminal
record, who illegally return to the United States. Thus, [the defendant’s]
argument really should be directed at Congress, not the Sentencing Commission.”
Alvarez-Bernabe, 626 F.3d at 1166.

                                          -7-
precedent to reject Mr. Cavillo-Arzate’s challenge to the validity of the sixteen-

level enhancement employed to calculate his sentence.

      As applied specifically to Mr. Cavillo-Arzate, he argues that the

enhancement is unfair and erroneous because: his aggravated felony conviction is

old (some sixteen years prior to the instant offense) and is his only prior

conviction; he committed no other crime in connection with the instant offense;

his family situation qualifies him for a lesser sentence; the district court

improperly “double-counted” his prior conviction because it was used both as the

basis for the sixteen-level enhancement and as the basis for his criminal history

category of II; and his sentence is unusually long compared to other individuals

who commit other offenses after a prior controlled substance conviction.

      None of these arguments persuade us that the district court abused its

discretion in applying the sixteen-level enhancement and in declining to vary

from the advisory Guidelines sentencing range. With respect to his double-

counting argument, the commentary to USSG §2L1.3 expressly states that, in

computing a defendant’s criminal history category, a “conviction taken into

account [in calculating an offense level enhancement] is not excluded from

consideration of whether that conviction receives criminal history points . . . .”

USSG §2L1.2 cmt. 6. Furthermore, we have stated that we “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

                                          -8-
authorize it.” United States v. Ruiz-Terrazas, 477 F.3d 1196, 1204 (10th Cir.

2007).

         Mr. Cavillo-Arzate also argues the age of his prior conviction (some

sixteen years before) militates against application of the enhancement. As the

government points out, the length of time between his prior conviction and his

instant conviction is irrelevant, inasmuch as illegal residence in the United States

is a continuing offense, which he has been committing since his illegal reentry in

November 1999, only a few years after his aggravated felony offense. Thus, the

fact that it took a number of additional years before he was caught is immaterial.

         Similarly, the fact that Mr. Cavillo-Arzate did not commit any other crime

in connection with his apprehension on the instant offense, and that he committed

no further crimes after his aggravated felony, is laudable but in no way

diminishes the seriousness of either his prior felony conviction or his current

offense. And his family situation is no different, in any relevant way, from many

other illegal aliens who have been subject to the sixteen-level enhancement.

         Finally, Mr. Cavillo-Arzate argues that his sentence is unusually long

compared to the sentences of others who commit a crime after an aggravated

felony. He particularly points to the six-level increase (as opposed to the sixteen-

level increase here) that applies under USSG §2K2.1(a)(4)(A) to a felon in

possession of a firearm who had a prior felony conviction for a crime of violence.

That Guideline provision is distinguishable, as the government points out. The

                                           -9-
statutory maximum sentence for firearm possession is lower than the statutory

maximum for the instant offense, and other enhancements can be added to the six-

level enhancement in the firearm context. There is therefore no unfair

discrepancy between the two Guideline schemes. 3

      In short, Mr. Cavillo-Arzate has failed to rebut the presumption that his

sentence, which was at the bottom of the advisory Guidelines sentence range, is

unreasonable.



                                 CONCLUSION

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

                                               ENTERED FOR THE COURT


                                               Stephen H. Anderson
                                               Circuit Judge




      3
       Mr. Cavillo-Arzate also argues that the Guidelines impose a higher base
offense level for those, like him, who illegally reenter the United States following
a deportation after an aggravated felony conviction, than for those who commit
far “worse” offenses. We decline to second-guess the Sentencing Commission’s
decisions, in this context, regarding the comparative seriousness of different
offenses.

                                        -10-
