                                                                       FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                                                                    May 15, 2012
                    UNITED STATES COURT OF APPEALS
                                                 Elisabeth A. Shumaker
                                                                    Clerk of Court
                                 TENTH CIRCUIT



 UNITED STATES OF AMERICA,

               Plaintiff - Appellee,                     No. 11-6330
          v.                                           W.D. Oklahoma
 SERGIO SAAVEDRA-VEGA,                          (D.C. No. 5:11-CR-00093-F-1)

               Defendant - Appellant.


                            ORDER AND JUDGMENT *


Before MURPHY, ANDERSON, and HARTZ, 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.

I.    Introduction

      Appellant Sergio Saavedra-Vega pleaded guilty to one count of illegal

reentry after deportation subsequent to an aggravated felony conviction, in


      *
        This order and judgment is not binding precedent except under the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.
violation of 8 U.S.C. § 1326(a). The district court sentenced him to seventy-six

months’ imprisonment, one month below the bottom of the advisory guidelines

range. Saavedra-Vega appeals the sentence imposed by the district court, arguing

it is substantively unreasonable because it is greater than necessary to achieve the

sentencing goals of 18 U.S.C. § 3553(a). Exercising jurisdiction pursuant to 28

U.S.C. § 1291 and 18 U.S.C. § 3742(a), we affirm Saavedra-Vega’s sentence.

II.   Background

      In 2007, while incarcerated in a facility operated by the Oklahoma

Department of Corrections, Saavedra-Vegas was discovered by Immigration and

Customs Enforcement (“ICE”) agents. The agents interviewed Saavedra-Vega,

who conceded he had previously been deported to Mexico and had not received

permission to reenter the United States. ICE filed a detainer with the Oklahoma

Department of Corrections but Saavedra-Vega was released from custody in 2008.

He was rearrested in 2009 for failure to pay child support and released to ICE

custody in 2011. Saavedra-Vega was subsequently charged in federal court with

the crime of illegal reentry by a deported alien previously convicted of an

aggravated felony. See 8 U.S.C. § 1326(a), (b)(2). He pleaded guilty to the

charge without a written plea agreement. He did, however, sign a petition to

enter a plea of guilty wherein he stated:

      On or about June 4, 2007, I was found in the Western District of
      Oklahoma, after I had been removed from the United States by
      immigration authorities (in 2003), following conviction for a felony

                                            -2-
      which is defined in federal law as an “aggravated felony.” I am not a
      U.S. citizen and I did not seek or receive permission from the
      Attorney General or Secretary for Homeland Security to reapply for
      admission and return.

After the district court accepted Saavedra-Vega’s plea, the United States

Probation Office prepared a Presentence Investigation Report (“PSR”). The PSR

calculated Saavedra-Vega’s base offense level at eight but increased it sixteen

levels pursuant to USSG § 2L1.2(b)(1)(A)(I) because Saavedra-Vega had a prior

conviction for possession of a controlled dangerous substance with intent to

distribute. The offense level was reduced by three levels for acceptance of

responsibility pursuant to USSG § 3E1.1, resulting in a total offense level of

twenty-one. Saavedra-Vega’s criminal history points totaled eighteen,

corresponding to a criminal history category of VI. The prior convictions used to

calculate his criminal history score included various drug and theft crimes and a

conviction for omitting to provide for a child. Saavedra-Vega’s combined offense

level and criminal history category resulted in an advisory guidelines sentencing

range of seventy-seven to ninety-six months’ imprisonment.

      Saavedra-Vega submitted a sentencing memorandum, requesting a sentence

below the bottom of the advisory guidelines range. With respect to the nature and

circumstances of the offense and his history and characteristics, Saavedra-Vega

noted he came to the United States as a child and this country is the only home he

knows. He asserted his family will suffer when he is again deported to Mexico


                                         -3-
and he now appreciates the seriousness with which the United States views and

punishes illegal reentry. Saavedra-Vega argued his illegal reentry offense is a

regulatory “or status” offense that does not implicate malicious intent and is far

less serious than other criminal offenses with the same guidelines offense level.

He asserted he had no intention of returning again to the United States and noted

his deportation, accordingly, will prevent him from committing additional crimes

in the United States. In addition to specific arguments discussing each of the

§ 3553(a) factors, he also argued generally that any sentence within the advisory

guidelines range was greater than necessary to satisfy the objectives of sentencing

and thus he requested a sentence “well below” the range.

      At the sentencing hearing, the district court considered Saavedra-Vega’s

arguments but concluded they did not support a sentence significantly below the

advisory guidelines range. In considering the § 3553(a) factors, the court noted

Saavedra-Vega’s criminal history which included prior convictions for grand

larceny, concealment of stolen property, possession of a controlled substance with

intent to distribute, omitting to provide for a child, and possession of 19.5 grams

of marijuana. The court concluded a below-guidelines sentence was not justified

based on the need to promote respect for the law, provide just punishment, deter

criminal conduct, and protect the public from further crimes. The court

specifically noted its disbelief of Saavedra-Vega’s assertion that he would not

return to the United States, stating:

                                         -4-
              I don’t believe for a minute that this defendant intends to
       remain in Mexico. I’m well-satisfied that his plan would be to return
       to the United States. He has compelling reasons to do so. He may be
       mentally and emotionally prepared to be returned to Mexico, but I
       think it is quite unlikely that he is prepared mentally or emotionally
       or in any other way to stay in Mexico.

The district court sentenced Saavedra-Vega to seventy-six months’ incarceration,

one month below the bottom of the advisory guidelines range to effectively credit

him with the month he was detained in ICE custody.

III.   Discussion

       This court reviews Saavedra-Vega’s challenge to the substantive

reasonableness of his sentence under a deferential abuse of discretion standard.

Rita v. United States, 551 U.S. 338, 351 (2007). “Substantive reasonableness

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).”

United States v. Conlan, 500 F.3d 1167, 1169 (10th Cir. 2007). Those factors

“include the nature of the offense and characteristics of the defendant, as well as

the need for the sentence to reflect the seriousness of the crime, to provide

adequate deterrence, [and] to protect the public.” United States v. Kristl, 437

F.3d 1050, 1053 (10th Cir. 2006). When a sentence falls within a properly

calculated guidelines range, it is entitled to a rebuttable presumption of

substantive reasonableness. United States v. Parker, 553 F.3d 1309, 1322 (10th

Cir. 2009). When a defendant challenges the substantive reasonableness of a


                                         -5-
below-guidelines sentence, the same rebuttable presumption applies. United

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

bears the burden of demonstrating his sentence is outside the range of sentences

the record can “fairly support.” United States v. McComb, 519 F.3d 1049, 1053

(10th Cir. 2007).

      Repeating many of the arguments he presented to the district court,

Saavedra-Vega asserts a weighing of the § 3553(a) factors supports a shorter

sentence than the one imposed by the district court. Our review of the record

reveals no reversible error in the district court’s analysis of the § 3553(a) factors.

The court considered each one, disagreeing with Saavedra-Vega over whether his

personal history and the nature of the offense supported a sentence significantly

below the advisory guidelines range. To the extent Saavedra-Vega argues the

district court abused its discretion by failing to vary downward based on policy

disagreements with the Guidelines, his argument has already been rejected by this

court. United States v. Wilken, 498 F.3d 1160, 1172 (10th Cir. 2007) (“[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.” (quotation omitted)).

      After reviewing and considering Saavedra-Vega’s appellate arguments, we

conclude he has failed to rebut the presumption his sentence is reasonable. The

district court fully considered the arguments Saavedra-Vega presented in support

                                          -6-
of his request for a sentence significantly below the advisory guidelines range. It

weighed the § 3553(a) factors, explained its reasoning, and imposed a sentence

one month below the bottom of the correctly calculated advisory guidelines range.

Saavedra-Vega has not shown that sentence is outside the range of sentences the

record can fairly support. McComb, 519 F.3d at 1053.

IV.   Conclusion

      The sentence imposed by the district court is affirmed.

                                               ENTERED FOR THE COURT


                                               Michael R. Murphy
                                               Circuit Judge




                                         -7-
