                                                                 FILED
                                                     United States Court of Appeals
                      UNITED STATES COURT OF APPEALS         Tenth Circuit

                                   TENTH CIRCUIT                              May 9, 2012

                                                                         Elisabeth A. Shumaker
                                                                             Clerk of Court

 UNITED STATES OF AMERICA,

        Plaintiff - Appellee,

 v.                                                          No. 11-6238
                                                    (D.C. No. 5:11-CR-00122-M-1)
 JOSE AVITIA-BUSTAMANTE,                                    (W.D. Okla.)

        Defendant - Appellant.


                                ORDER AND JUDGMENT*


Before LUCERO, O’BRIEN and MATHESON, Circuit Judges.


       Jose Avitia-Bustamante challenges his 46-month sentence for illegal re-entry of a

deported or removed alien after a prior conviction for an aggravated felony, in violation

of 8 U.S.C. § 1326. The 46 months fell at the low end of the range under the U.S.

Sentencing Guidelines (the “Guidelines”). Mr. Avitia-Bustamante challenges the

sentence as both procedurally and substantively unreasonable. Exercising jurisdiction

       *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 This order and judgment is not
binding precedent, except under the doctrines of law of the case, res judicata, and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.
under 28 U.S.C. § 1291 and 18 U.S.C. § 3742, we affirm.

                                   I.     BACKGROUND

       Mr. Avitia-Bustamante first came to the United States from Mexico when he was

19 years old. His wife and children are U.S. citizens. He claims he had held a steady job

with the same company for approximately 10 years before the arrest that led to this case.

       In 1999 and 2008, Mr. Avitia-Bustamante was apprehended and allowed to return

to Mexico voluntarily. Between those two returns, Mr. Avitia-Bustamante pled guilty to

assault and battery with a dangerous weapon in 2004. Mr. Avitia-Bustamante has also

had multiple convictions and arrests for driving under the influence of alcohol. In 2010,

Mr. Avitia-Bustamante was arrested for driving under the influence as well as various

other legal violations. Because of the earlier assault and battery incident, he was

deported and prohibited from returning to the United States. Mr. Avitia-Bustamante

returned to the United States in November 2010.

       In February 2011, Mr. Avitia-Bustamante was arrested again for driving under the

influence of alcohol. On April 5, 2011, a grand jury indicted him for illegal re-entry into

the United States after prior conviction of an aggravated felony, in violation of 8 U.S.C.

§ 1326. He pled guilty without a plea agreement.

       The presentence report (“PSR”) calculated the applicable Guidelines range as

between 46 and 57 months. Mr. Avitia-Bustamante’s base offense level was 8 for re-

entry, but because he had been previously deported following a felony conviction for a


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crime of violence, the offense level was increased by 16 to a total of 24.1 His previous

conviction for a crime of violence also added 2 points to his criminal history. His total of

6 points for criminal history gave him a criminal history category of III. The statutory

maximum prison sentence for illegal re-entry after “removal . . . subsequent to a

conviction for commission of an aggravated felony” is 20 years. 8 U.S.C. § 1326(b)(2).

       Before receiving a sentence, Mr. Avitia-Bustamante filed a sentencing

memorandum that argued, among other things, that “the advisory guideline range for

illegal re-entry is comparatively harsh, vis-à-vis malicious and/or dangerous crimes, lacks

empirical support, and ends up over-representing actual criminal history [because] the

illegal reentry guideline structure double-counts prior convictions by using the same

conviction to calculate both the offense level and the criminal history.” Aplt. Br. at 3-4.

He also argued that his relatively stable background compelled a lower sentence under 18

U.S.C. § 3553(a) factors. He made similar arguments at the sentencing hearing.

       After hearing both parties’ arguments regarding an appropriate sentence, the

district court sentenced Mr. Avitia-Bustamante to 46 months in prison. Other than stating

at the beginning of the sentencing hearing that it had reviewed the PSR, “the file,” and

the sentencing memorandum, the district court offered no explanation for its choice of

sentence. See ROA, Vol. 4, at 3, 7-11.

       Mr. Avitia-Bustamante filed a timely notice of appeal.

       1
        Three points were subtracted for acceptance of responsibility, making a total
adjusted offense level of 21.

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                                      II.     DISCUSSION

         Mr. Avitia-Bustamante challenges his sentence as substantively and procedurally

unreasonable. We review the procedural and substantive reasonableness of a sentence for

abuse of discretion. Gall v. United States, 552 U.S. 38, 51 (2007).

               [We] must first ensure that the district court committed no
               significant procedural error, such as failing to calculate (or
               improperly calculating) the Guidelines range, treating the
               Guidelines as mandatory, failing to consider the § 3553(a)
               factors, selecting a sentence based on clearly erroneous facts,
               or failing to adequately explain the chosen sentence—
               including an explanation for any deviation from the
               Guidelines range.

Id. (emphasis added). We “then consider the substantive reasonableness of the sentence

imposed . . . . tak[ing] into account the totality of the circumstances . . . .” Id.

   A. Procedural Reasonableness and Plain Error

         Mr. Avitia-Bustamante argues that his sentence is procedurally unreasonable

because the district court did not explain its basis for choosing a 46-month sentence.

However, he admits that he did not object to this lack of explanation at the sentencing

hearing and therefore agrees with the government that this court must review for plain

error.

         To establish plain error, Mr. Avitia-Bustamante must show that the district court

(1) erred, (2) the error was plain, and (3) the plain error affected his substantial rights.

United States v. Ventura-Perez, 666 F.3d 670, 674 (10th Cir. 2012). “If all these

conditions are met, a court reviewing the error may exercise discretion to correct it if [4]

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the error seriously affects the fairness, integrity, or public reputation of judicial

proceedings.” Id. (quotations omitted). “The defendant has the burden of establishing all

four elements of plain error.” Id. (quotations omitted).

       The Government argues that we need not consider all the plain error elements

because Mr. Avitia-Bustamante has at least failed to show that his substantial rights have

been affected. Generally, “to have the requisite [effect] on substantial rights, an error

must be ‘prejudicial,’ which means that there must be a reasonable probability that the

error affected the outcome of the trial.” United States v. Bader, ---F.3d.---, 2012 WL

1548579, at *5 (10th Cir. 2012) (quotations omitted). In the context of this case, where

Mr. Avitia-Bustamante is challenging the length of his sentence, he “must demonstrate

that but for the claimed error, his sentence would have been different.” United States v.

Begaye, 635 F.3d 456, 471 (10th Cir. 2011) (quotations omitted).

       We agree with the Government that Mr. Avitia-Bustamante has not shown (nor

attempted to argue) that, if the judge had explained his sentencing choice, there is a

reasonable probability that the judge would have chosen a lower sentence, especially

when he received a low-end-of-the-Guidelines-range sentence. Thus, Mr. Avitia-

Bustamante has failed to show his substantial rights were affected. He has not

demonstrated plain error, and his procedural reasonableness claim fails.

   B. Substantive Reasonableness

       Mr. Avitia-Bustamante also argues that his sentence, which is at the bottom of the

Guidelines range, is substantively unreasonable. Substantive reasonableness addresses
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“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. Verdin-Garcia,

516 F.3d 884, 895 (10th Cir. 2008) (quotations omitted). “A sentence within the

correctly calculated Guidelines range is presumed to be reasonable, [and] the burden is on

the appellant to rebut the presumption.” Id. at 898 (citation omitted). “That burden is a

hefty one, because abuse-of-discretion is a deferential standard of review.” Id. “A

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

whimsical, or manifestly unreasonable.” United States v. Alvarez-Bernabe, 626 F.3d

1161, 1165 (10th Cir. 2010) (quotations omitted).

       Mr. Avitia-Bustamante argues that his sentence is substantively unreasonable in

light of the nature of his offense and his history and characteristics. First, he argues his

illegal re-entry is a “status” offense and it is unreasonable for his offense level to triple

from 8 to 24 simply because he had been previously removed for his felony offense. He

asserts that his crime does not reasonably compare in severity to other crimes that receive

a similar offense level and that there are some crimes he considers more severe than his

own that have a lower offense level. He states that it is “fundamentally unfair,” Aplt. Br.

at 18, for his prior felony conviction to both add 16 offense levels and contribute 2 points

to his criminal history.

       Mr. Avitia-Bustamante further argues that his stable family and work life should

have weighed more heavily in his favor. He seems to argue that lenient punishment in

the past for both his alcohol related and re-entry offenses did not provide him sufficient
                                              -6-
warning that he might face a sentence of this magnitude—or at least that the sentence is

unreasonable in comparison with his past treatment. He states that the § 3553(a) factors

would have been satisfied by a sentence far below the Guidelines range and that those

same factors cannot justify a 46-month sentence.

         We agree with the Government that these arguments are not sufficient to rebut the

presumption of reasonableness. First, “[w]e have consistently observed that reentry of an

ex-felon is a serious offense.” United States v. Martinez-Barragan, 545 F.3d 894, 905

(10th Cir. 2008). Mr. Avitia-Bustamante’s previous aggravated felony offense was

violent, and the Guidelines reflect a legitimate concern in protecting society from the

return of those who have committed such crimes. Given the dangerous nature of Mr.

Avitia-Bustamante’s previous and present offenses, we do not find his within Guidelines

sentence to be substantively unreasonable. This court has previously considered and

upheld as reasonable sentences that use a prior conviction to calculate both the criminal

history category and a sentencing enhancement when the Guidelines authorize such

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

2007).

         We agree with Mr. Avitia-Bustamante that portions of his personal characteristics

and history weigh in his favor. But there is also sufficient evidence to uphold the district

court’s sentence as substantively reasonable. For example, beyond the severity of the re-

entry offense as outlined above, the district court could have considered Mr. Avitia-

Bustamante’s multiple arrests and convictions that were alcohol related as evidence of
                                             -7-
reckless propensities. Even if a lower sentence may have satisfied the § 3553(a) factors,

the government is correct that the district court’s sentence was “within the realm of

rational choices available, especially in light of § 3553(a) factors like the need for the

sentence to protect the public from further crimes, deter criminal conduct, and promote

respect for the law.” Aple. Br. at 14-15. We can reverse a sentence for substantive

unreasonableness only when the district court’s decision “exceeded the bounds of

permissible choice.” United States v. McComb, 519 F.3d 1049, 1053 (10th Cir. 2007)

(quotations omitted).

              And there are perhaps few arenas where the range of
              rationally permissible choices is as large as it is in
              sentencing, a task calling on a district court’s unique
              familiarity with the facts and circumstances of a case and its
              judgment in balancing a host of incommensurate and
              disparate considerations, ranging from the degree of the
              defendant’s cooperation and remorse to the need for
              deterring potential future offenders.

Id. at 1053-54 (quotations omitted) (emphasis added).

       Because Mr. Avitia-Bustamante has failed to overcome the presumption of

reasonableness of his within-Guidelines sentence, his substantive reasonableness claim

also fails.

                                    III.   CONCLUSION

       Mr. Avitia-Bustamante has not shown plain error on his procedural claim. He has

also failed to rebut the presumption that his within-Guidelines sentence is substantively




                                             -8-
reasonable. We therefore affirm.

                                   ENTERED FOR THE COURT


                                   Scott M. Matheson, Jr.
                                   Circuit Judge




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