                                                                      FILED
                                                          United States Court of Appeals
                                                                  Tenth Circuit

                                                               December 1, 2010
                    UNITED STATES COURT OF APPEALS
                                                 Elisabeth A. Shumaker
                                                                  Clerk of Court
                                 TENTH CIRCUIT



 UNITED STATES OF AMERICA,

               Plaintiff - Appellee,                    No. 09-2236
          v.                                         (D. New Mexico)
 MARTIN CHACON-OROZCO,                        (D.C. No. 2:08-CR-01688-WJ-1)

               Defendant - Appellant.


                            ORDER AND JUDGMENT *


Before HARTZ, ANDERSON, and TYMKOVICH, Circuit Judges.


I.    INTRODUCTION

      On April 3, 2009, Martin Chacon-Orozco pleaded guilty without a plea

agreement to unlawful entry by a deported alien, in violation of 8 U.S.C.

§§ 1326(a) and (b). The United States District Court for the District of New

Mexico sentenced him to 96 months’ imprisonment, the top of the advisory

guidelines range of 77 to 96 months. On appeal he raises two unpreserved


      *
       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
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 This order and judgment is not binding
precedent except under the doctrines of law of the case, res judicata, and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.
challenges to the procedural reasonableness of his sentence, and also challenges

its substantive reasonableness. We affirm.

II.    BACKGROUND

       In 1990 Mr. Chacon-Orozco pleaded guilty to kidnapping, conspiracy to

commit kidnapping, and robbery, and was sentenced to 12 years’ imprisonment.

He had initially been charged with homicide and felony kidnapping. In 1996,

while incarcerated, he was twice convicted of the crime of possession of a deadly

weapon by a prisoner, and sentenced to an additional nine years’ imprisonment,

six months of which was suspended. On February 5, 2007, after serving nearly 17

years in prison, he was deported to Mexico.

       Two United States Border Patrol agents encountered Mr. Chacon-Orozco

walking in an area south of Deming, New Mexico, on June 18, 2008. When

questioned, he admitted that he had illegally entered the United States from

Mexico the previous evening. He was arrested on a charge of unlawful entry by a

deported alien.

III.   DISCUSSION

       A.    Procedural Reasonableness

       Mr. Chacon-Orozco challenges the procedural reasonableness of his

sentence, arguing that it was improper for the district court to consider at

sentencing (1) that he waited until three days before the scheduled start of trial to

plead guilty to the illegal-reentry charge and (2) that in 1990 he originally was

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charged with homicide. Because he failed to object below to the court’s

consideration of these matters, we review his procedural-reasonableness challenge

for plain error only. See United States v. Caraway, 534 F.3d 1290, 1298 (10th

Cir. 2008). “Plain error occurs when there is (1) error, (2) that is plain, which (3)

affects the [defendant’s] substantial rights, and which (4) seriously affects the

fairness, integrity, or public reputation of judicial proceedings.” Id. (internal

quotation marks omitted). The defendant has the burden of establishing all four

elements of plain error. See United States v. Gonzalez, 558 F.3d 1193, 1199 (10th

Cir. 2009).

      Mr. Chacon-Orozco’s arguments fail at the first step. The district court

committed no procedural error. Mr. Chacon-Orozco received a two-level

decrease in offense level for acceptance of responsibility. But he was not entitled

to a further one-level decrease because he delayed too long in accepting

responsibility. By waiting until the eve of trial to offer his plea, he put the

government to the burden of substantial trial preparation. Under the guidelines

his offense level could be reduced by an additional point only if he had “timely

notif[ied] authorities of his intention to enter a plea of guilty, thereby permitting

the government to avoid preparing for trial and permitting the government and the

court to allocate their resources efficiently.” USSG § 3E1.1(b).

      Nor did the district court err in considering the 1988 homicide charge. The

court referred to that charge in observing that the victim of the 1988 kidnapping

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had died. The inference drawn by the court was a reasonable one. In any event,

the court’s observation did not affect Mr. Chacon-Orozco’s offense level. The

16-level enhancement to his offense level under USSG § 2L1.2(b)(1)(A)(ii) was

based on his prior kidnapping conviction. See USSG § 2L1.2 cmt. n.1(B)(iii)

(“‘Crime of violence’ means any of the following offenses under federal, state, or

local law: murder, manslaughter, kidnapping, aggravated assault . . . .”).

      B.     Substantive Reasonableness

      Mr. Chacon-Orozco also challenges the substantive reasonableness of his

sentence. He argues that the 16-level enhancement he received under USSG

§ 2L1.2(b)(1)(A)(ii) is overly punitive, that the guidelines double-counted his

prior kidnapping conviction because the conviction caused both a 16-level

enhancement to his offense level and a three-point addition in determining his

criminal-history category, and that the length of his sentence acts as a

disincentive for rehabilitation. He points out that his guidelines offense level was

comparable to that for such offenses as robbery with serious bodily injury and sex

trafficking of children.

      We review the substantive reasonableness of Mr. Chacon-Orozco’s

sentence for abuse of discretion, giving substantial deference to the district

court’s determination. See United States v. Sayad, 589 F.3d 1110, 1116 (10th Cir.

2009). “A district court abuses its discretion when it renders a judgment that is

arbitrary, capricious, whimsical, or manifestly unreasonable.” United States v.

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Lewis, 594 F.3d 1270, 1277 (10th Cir. 2010) (internal quotation marks omitted).

A sentence imposed within a properly calculated guidelines range is

presumptively reasonable, see id., although the defendant may rebut the

presumption “by demonstrating that the sentence is unreasonable when viewed

against the other factors delineated in § 3553(a),” id. (internal quotation marks

omitted).

      Mr. Chacon-Orozco has failed to rebut the presumption of reasonableness.

He acknowledges that the challenged double counting is permitted by the

guidelines. See United States v. Ruiz-Terrazas, 477 F.3d 1196, 1204 (10th Cir.

2007) (this court has “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”). More importantly, his criminal history

reveals his dangerousness and contempt for the law. This country does not

welcome people with records like his, and severe punishment is appropriate for

his uninvited entry. We do not address Mr. Chacon-Orozco’s contention that his

sentence discourages rehabilitation. We do not understand it, and he does not

develop it. See Bronson v. Swensen, 500 F.3d 1099, 1104 (10th Cir. 2007) (“[W]e

routinely have declined to consider arguments that . . . are inadequately

presented[] in an appellant’s opening brief.”).




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IV.   CONCLUSION

      We AFFIRM the judgment below.


                                 ENTERED FOR THE COURT


                                 Harris L Hartz
                                 Circuit Judge




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