                                                                       FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                                                                  January 4, 2013
                   UNITED STATES COURT OF APPEALS
                                                Elisabeth A. Shumaker
                                                                    Clerk of Court
                                TENTH CIRCUIT


 UNITED STATES OF AMERICA,

              Plaintiff-Appellee,
                                                    Nos. 11-2023; 11-2031
 v.                                           (D.C. Nos. 2:10-CR-02574-JAP-2;
                                                   2:10-CR-02574-JAP-1)
 RICARDO ARELLANO-SANDOVAL,                               (D.N.M.)
 and JAVIER ARELLANO-
 SANDOVAL,

              Defendants-Appellants.


                           ORDER AND JUDGMENT *


Before HARTZ, HOLLOWAY, and HOLMES, Circuit Judges.


      Brothers Ricardo and Javier Arellano-Sandoval both pleaded guilty to one

count of conspiracy to possess with intent to distribute marijuana, in violation of

21 U.S.C. § 841(a)(1), (b)(1)(D), and one count of illegal reentry of a removed

alien, in violation of 8 U.S.C. § 1326(a), (b). Because the district court found

that Messrs. Arellano-Sandoval had each previously been convicted of a crime of

violence, the district court applied a sixteen-level sentencing enhancement

pursuant to U.S. Sentencing Guidelines (“U.S.S.G.”) § 2L1.2, and imposed on


      *
             This order and judgment is not binding precedent, except under the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 Federal Rule of Appellate
Procedure 32.1 and Tenth Circuit Rule 32.1.
each of them a sentence of forty-one months, the bottom of the Guidelines range.

On appeal, Messrs. Arellano-Sandoval challenge whether their prior convictions

qualify as crimes of violence under U.S.S.G. § 2L1.2, and Ricardo Arellano-

Sandoval also contests whether his sentence was substantively reasonable. For

the reasons that follow, we affirm both sentences.

                                          I

      Messrs. Arellano-Sandoval were among three people encountered and

questioned by United States Border Patrol agents in New Mexico. The agents

were investigating footprints near a highway when they found burlap backpacks

containing a green, leafy substance. Nearby, they noticed Messrs. Arellano-

Sandoval lying on the ground in an attempt to conceal themselves. The agents

approached Messrs. Arellano-Sandoval and questioned them regarding their

citizenship. They admitted to being citizens of Mexico and being in the United

States illegally. Immigration records later revealed that they had both been

previously deported and had never applied for re-admission to the United States.

      Subsequently, Messrs. Arellano-Sandoval were charged with and pleaded

guilty to conspiracy to possess with intent to distribute marijuana and illegal

reentry. Each man’s Presentence Investigation Report (“PSR”) recommended a

sixteen-level increase to the applicable offense level under U.S.S.G.

§ 2L1.2(b)(1)(A)(ii) because each had a previous conviction for a crime of

violence—namely, aggravated assault with a deadly weapon, in violation of Texas

                                         2
Penal Code § 22.02. 1

      Specifically, as to the offense at issue, Messrs. Arellano-Sandoval had

pleaded guilty in 2006 to aggravated assault with a deadly weapon, in violation of

Texas Penal Code § 22.02. They were each sentenced to four years’

imprisonment. The facts underlying their convictions are as follows: Ricardo

Arellano-Sandoval was at his girlfriend’s apartment when her ex-boyfriend

entered the apartment by crawling through her bedroom window. The ex-

boyfriend attacked Ricardo Arellano-Sandoval. Ricardo Arellano-Sandoval asked

the ex-boyfriend to stop hitting him, which he did. Ricardo Arellano-Sandoval

then left the apartment. He returned later with Javier Arellano-Sandoval and a

cousin, and together, the three men used weapons to assault the ex-boyfriend.

      The PSRs stated that “[i]n assessing whether the aforementioned conviction

for Aggravated Assault with a Deadly Weapon warranted a sixteen level increase,

the categorical approach was utilized . . . comparing the similarities of the

elements of the crime between the statu[t]e of conviction and the Model Penal

Code definition.” R., Vol. II, ¶ 24, at 6 (Ricardo Arellano-Sandoval PSR,

disclosed Oct. 19, 2010); accord id., ¶ 24, at 22 (Javier Arellano-Sandoval PSR,

disclosed Oct. 19, 2010). The PSRs further stated that “[a]fter review, the



      1
             The Probation Office used the 2009 edition of the U.S.S.G. in
preparing the PSR. The parties have not contested the applicability of that edition
on appeal. Accordingly, in conducting our analysis, we also use the 2009 edition.

                                          3
predicate offense is an enumerated offense [under U.S.S.G. § 2L1.2, comment

note 1(B)(iii)], as Aggravated Assault in the State of Texas and generic

Aggravated Assault have similar elements.” Id., ¶ 24, at 6 (emphasis added);

accord id., ¶ 24, at 23. Each man’s PSR recommended an advisory Guidelines

sentencing range of forty-one to fifty-one months’ imprisonment. See id. at 11,

27.

      Ricardo Arellano-Sandoval filed a sentencing memorandum in which he

requested a downward variance on the grounds that the “serious and highly

provoking violent act by the jealous ex-boyfriend mitigates the seriousness of Mr.

[Arellano-Sandoval’s] later retaliation against his assailant.” Id., Vol. I., at 26

(Mot. & Mem. for Downward Departure or Variance in Offense Level &

Objection to PSR, filed Dec. 1, 2010). He also averred, in a single paragraph

citing no authority, that because the Texas statute under which he was convicted

allows for conviction with a “mental state of recklessness rather than intention,”

the sixteen-level crime of violence enhancement should not be imposed. See id.

at 26–27.

      Javier Arellano-Sandoval filed an objection to the PSR. He argued that the

sixteen-level crime of violence enhancement should not apply because his prior

conviction for aggravated assault does not constitute a crime of violence under

United States v. Zuniga-Soto, 527 F.3d 1110 (10th Cir. 2008). See R., Vol. I, at

41–43 (Am. Objections to the PSR, filed Dec. 2, 2010).

                                          4
       At Javier Arellano-Sandoval’s sentencing hearing, 2 the district court

imposed the sixteen-level increase because it agreed with the government’s

argument that Zuniga-Soto is “wholly irrelevant.” Id., Vol. III, at 44–45 (Javier

Arellano-Sandoval Sentencing Hr’g, held Jan. 20, 2011). Unlike in Zuniga-

Soto—which concerned whether a particular crime qualified as a “crime of

violence” under U.S.S.G. § 2L1.2, comment note 1(B)(iii)’s generic, crime of

violence definition—“[h]ere, we have an enumerated offense, aggravated assault.”

Id. at 44 (emphasis added).

                                            II

       We turn first to Messrs. Arellano-Sandoval’s challenges to the crime of

violence enhancement.

                                            A

       Under U.S.S.G. § 2L1.2(b)(1)(A)(ii), a sentencing court must increase a

defendant’s offense level by sixteen levels “[i]f the defendant previously was

deported . . . after . . . a conviction for a felony that is . . . a crime of violence.”

The application note to U.S.S.G. § 2L1.2(b)(1) defines “crime of violence” as:

              [M]urder, manslaughter, kidnapping, aggravated assault,
              forcible sex offenses . . . , statutory rape, sexual abuse of
              a minor, robbery, arson, extortion, extortionate extension


       2
             Although Ricardo Arellano-Sandoval originally contested the
sixteen-level crime of violence enhancement in his sentencing memorandum, he
did not object to the enhancement at his sentencing hearing. See R., Vol. III, at
15 (Ricardo Arellano-Sandoval Sentencing Hr’g, held Jan. 21, 2011).

                                                 5
             of credit, burglary of a dwelling, or any other offense
             under federal, state, or local law that has as an element the
             use, attempted use, or threatened use of physical force
             against the person of another.

U.S.S.G. § 2L1.2, cmt. n.1(B)(iii) (emphases added). “This definition is

disjunctive.” United States v. Rivera-Oros, 590 F.3d 1123, 1126 (10th Cir. 2009).

“A felony conviction qualifies as a crime of violence if either (1) the defendant

was convicted of one of the twelve enumerated offenses; or (2) the use, attempted

use, or threatened use of physical force was an element of the offense.” Id.

(emphasis added); see United States v. Reyes-Alfonso, 653 F.3d 1137, 1141 (10th

Cir. 2011) (explaining that there are two ways a previous felony conviction can be

a crime of violence under U.S.S.G. § 2L1.2: if it qualifies as an enumerated

offense or if it fits under the generic definition); Zuniga-Soto, 527 F.3d at 1115

(same).

      “Whether a prior offense is a ‘crime of violence’ under U.S.S.G. § 2L1.2(b)

is a question of law that we . . . review de novo.” Reyes-Alfonso, 653 F.3d at

1141 (alteration in original) (quoting Rivera-Oros, 590 F.3d at 1125) (internal

quotation marks omitted).

                                          B

      Turning first to Ricardo Arellano-Sandoval, he asks us to find that the

application of the crime of violence enhancement was plain error, acknowledging

that he did not object to the enhancement before the district court at sentencing.


                                          6
To prevail under plain-error review he must show: “(1) an error, (2) that is plain,

which means clear or obvious under current law, and (3) that affects substantial

rights. If he satisfies these criteria, this Court may exercise discretion to correct

the error if [4] it seriously affects the fairness, integrity, or public reputation of

judicial proceedings.” United States v. McGehee, 672 F.3d 860, 876 (10th Cir.

2012) (alteration in original) (quoting United States v. Cooper, 654 F.3d 1104,

1117 (10th Cir. 2011)) (internal quotation marks omitted). Because Ricardo

Arellano-Sandoval has not shown that the district court erred in applying the

enhancement, and thus cannot satisfy the first prong of the plain-error test, we

need not reach the other prongs of the test.

      In Ricardo Arellano-Sandoval’s opening brief before this court he cites

only one case: Zuniga-Soto. In Zuniga-Soto, “[t]he district court did not find, and

the government [did] not argue[], that [the defendant’s] prior offense could be

properly characterized as one of the [enumerated] offenses” in U.S.S.G. § 2L1.2,

comment note 1(B)(iii). 527 F.3d at 1115. Therefore, our “sole task” was to

determine whether the defendant’s prior felony conviction qualified as a crime of

violence under U.S.S.G. § 2L1.2, comment note 1(B)(iii)’s generic, crime of

violence definition. Id. However, Zuniga-Soto’s analysis is inapposite here, as

the district court determined that Messrs. Arellano-Sandoval had been convicted

of one of the twelve enumerated offenses—namely, aggravated assault.

      As we explained in Zuniga-Soto, “a felony automatically qualifies [as a

                                            7
crime of violence] if it is one of twelve enumerated offenses.” Id. Ricardo

Arellano-Sandoval admittedly made no argument in his opening brief before this

court that his prior conviction—aggravated assault in violation of Texas Penal

Code § 22.02—is not properly considered one of the twelve enumerated offenses.

See Oral Arg. at 11:47–12:33; id. at 13:18–14:20. Although he attempted to

advance such an argument in his reply brief and at oral argument, any argument

not advanced in his opening brief is waived. 3 See Cooper, 654 F.3d at 1128 (“It


      3
              Ricardo Arellano-Sandoval submitted supplemental authority
pursuant to Federal Rule of Appellate Procedure 28(j), arguing that United States
v. Duran, 696 F.3d 1089 (10th Cir. 2012), supports his position in this case. In
Duran, applying the modified categorical approach, see id. at 1092–93, we
concluded that the defendant’s conviction for aggravated assault under Texas
Penal Code § 22.02 was not a crime of violence under U.S.S.G. § 4B1.2(a)
because it “could be committed with a reckless state of mind,” id. at 1095. At
issue in Duran was language of § 4B1.2(a)’s so-called “residual clause” that
designates as a “crime of violence” certain felonies that “involve[] conduct that
presents a serious potential risk of physical injury to another.” Id. at 1091–92
(quoting U.S.S.G. § 4B1.2(a)) (internal quotation marks omitted). Notably, this
language does not even appear in U.S.S.G. § 2L1.2’s crime of violence definition.
To the extent that Ricardo Arellano-Sandoval relies on Duran to advance his
opening brief’s argument pertaining to Zuniga-Soto and U.S.S.G. § 2L1.2’s
generic, crime of violence definition, this reliance is unavailing. As we have
noted, this argument is inapposite to our assessment of the district court’s
application of U.S.S.G. § 2L1.2’s crime of violence enhancement because the
court based its application of this enhancement on the unchallenged finding that
Ricardo Arellano-Sandoval’s conviction under Texas Penal Code § 22.02
qualified as a crime of violence, since it equates to a Guidelines enumerated
offense—that is, “aggravated assault” under U.S.S.G. § 2L1.2, comment note
1(B)(iii). Furthermore, even if Duran provides support for Ricardo Arellano-
Sandoval’s late-blooming position that his Texas conviction does not in fact
constitute a Guidelines enumerated offense of “aggravated assault,” Ricardo
Arellano-Sandoval has waived any such argument by not raising it in his opening
                                                                        (continued...)

                                          8
is well-settled that ‘[a]rguments inadequately briefed in the opening brief are

waived.’” (alteration in original) (quoting Adler v. Wal-Mart Stores, Inc., 144

F.3d 664, 679 (10th Cir. 1998))); Bronson v. Swensen, 500 F.3d 1099, 1104 (10th

Cir. 2007) (“[W]e routinely have declined to consider arguments that are not

raised, or are inadequately presented, in an appellant’s opening brief.”).

         Turning next to Javier Arellano-Sandoval, he too relies on Zuniga-Soto to

contest the applicability of the crime of violence enhancement. Although he does

go further than simply relying on Zuniga-Soto—also citing, inter alia, Leocal v.

Ashcroft, 543 U.S. 1 (2004)—his only line of argument relates to whether his

aggravated assault conviction constitutes a crime of violence under U.S.S.G.

§ 2L1.2’s generic definition. As stated above, this argument misses the mark,

since the district court increased Javier Arellano-Sandoval’s offense level because

aggravated assault is an enumerated offense under U.S.S.G. § 2L1.2.

         Javier Arellano-Sandoval admittedly made no argument before the district

court or before this court that aggravated assault in violation of Texas Penal Code

§ 22.02 is not properly considered the Guidelines enumerated crime of aggravated

assault. See Oral Arg. at 3:03–4:08; id. at 9:08–10:34. To the extent that he

attempted to make this argument for the first time at oral argument, see id. at

5:19–5:31 (“[A]n enumerated offense of aggravated assault is not necessarily a


         3
               (...continued)
brief.

                                           9
crime of violence. Then, in that case, the court can . . . use the modified

categorical approach and look to the statute of conviction.”), as was the case for

Ricardo Arellano-Sandoval, the argument is waived. See Cooper, 654 F.3d at

1128; Bronson, 500 F.3d at 1104.

      We decline to construct arguments for Messrs. Arellano-Sandoval, or to

entertain arguments first advanced in a reply brief or at oral argument, that

aggravated assault in violation of Texas Penal Code § 22.02 is not the enumerated

offense of “aggravated assault” under the Guidelines. We need not determine

whether aggravated assault in violation of Texas Penal Code § 22.02 is a crime of

violence because it “has as an element the use, attempted use, or threatened use of

physical force against the person of another,” U.S.S.G. § 2L1.2, cmt. n.1(B)(iii),

as the district court did not apply the crime of violence enhancement on that

basis. Instead, the district court found that aggravated assault under Texas Penal

Code § 22.02 constituted the enumerated offense of “aggravated assault” under

the Guidelines, and this determination goes unchallenged by Messrs. Arellano-

Sandoval on appeal.

      We may affirm on the basis of this unchallenged finding alone, as it is

sufficient to support the application of the crime of violence enhancement

regardless of whether their aggravated assault convictions otherwise qualify as

crimes of violence. See Murrell v. Shalala, 43 F.3d 1388, 1390 (10th Cir. 1994)

(holding that because there was an “unchallenged . . . sufficient basis” for

                                          10
affirming the district court’s decision, the appellant’s “success on appeal is

foreclosed—regardless of the merit of his [other] arguments”); see also Starkey ex

rel. A.B. v. Boulder Cnty. Soc. Servs., 569 F.3d 1244, 1252 (10th Cir. 2009)

(“When an appellant does not challenge a district court’s alternate ground for its

ruling, we may affirm the ruling.”); Metzger v. UNUM Life Ins. Co., 476 F.3d

1161, 1168 (10th Cir. 2007) (affirming the district court’s grant of summary

judgment because the appellant failed to challenge an “independent ground” for

affirmance).

                                         III

      We now turn to the substantive reasonableness of Ricardo Arellano-

Sandoval’s sentence.

                                          A

      We review a criminal sentence for substantive reasonableness under a

deferential abuse-of-discretion standard. See Gall v. United States, 552 U.S. 38,

41 (2007); United States v. Lewis, 594 F.3d 1270, 1277 (10th Cir. 2010).

“[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) (alteration in original) (quoting United States v. Huckins, 529 F.3d 1312,

1317 (10th Cir. 2008)) (internal quotation marks omitted). “A district court

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

                                         11
whimsical, or manifestly unreasonable.” Id. (quoting Lewis, 594 F.3d at 1277)

(internal quotation marks omitted).

                                         B

      Ricardo Arellano-Sandoval argues that his sentence is substantively

unreasonable because the district court failed to reduce his sentence based on his

argument that he was the initial victim of the fracas that led to the charged

aggravated assault. More specifically, Ricardo Arellano-Sandoval contends that

“[a]bsent th[at] initial attack [against him], there would’ve been no incident

resulting in an assault conviction.” Ricardo Arellano-Sandoval Reply Br. at 3.

However, as the government correctly points out, it was not as if Ricardo

Arellano-Sandoval assaulted his victim in immediate retaliation. Instead, Ricardo

Arellano-Sandoval “was able to get the victim to stop, gather his belongings, and

leave the apartment. . . . Ricardo [then] returned to the apartment, bringing two

other men with him, and assaulted the victim with a deadly weapon.” Aplee. Br.

at 32 (citations omitted).

      The district court considered Ricardo Arellano-Sandoval’s PSR, sentencing

memorandum, criminal history, stated reason for reentering the United States

unlawfully, family situation, the quantity of marijuana involved in his crime, and

the § 3553(a) factors. It then sentenced Ricardo Arellano-Sandoval at the low end

of the Guidelines range.

      A within-Guidelines sentence is presumptively reasonable, but that

                                         12
presumption is rebuttable if “either the defendant or the government . . .

demonstrat[es] that the sentence is unreasonable when viewed against the other

factors delineated in § 3553(a).” United States v. Kristl, 437 F.3d 1050, 1054

(10th Cir. 2006) (per curiam); see United States v. Alapizco-Valenzuela, 546 F.3d

1208, 1215 (10th Cir. 2008) (“[A] within-Guidelines sentence is entitled to a

presumption of substantive reasonableness on appeal.”). Here, Ricardo Arellano-

Sandoval has not rebutted the presumption by demonstrating that his sentence is

unreasonable. 4 Because he has not done so, we conclude that the district court’s

decision does not fall “outside the range of rationally permissible choices before

it.” United States v. Vasquez-Alcarez, 647 F.3d 973, 978 (10th Cir. 2011)

(quoting United States v. Chavez-Suarez, 597 F.3d 1137, 1139 (10th Cir. 2010))

(internal quotation marks omitted). Thus, our determination ineluctably follows

that Ricardo Arellano-Sandoval’s sentence is not substantively unreasonable.

                                         IV

      We AFFIRM Javier Arellano-Sandoval’s sentence because the district

court’s determination that aggravated assault in violation of Texas Penal Code

§ 22.02 qualifies as a crime of violence as an enumerated offense under U.S.S.G.


      4
             A panel of this court rejected a similar challenge to the substantive
reasonableness of a sentence in United States v. Ramirez-Vazquez, 252 F. App’x
870 (10th Cir. 2007). In that case, Mr. Ramirez-Vazquez requested a downward
variance on the grounds that his earlier assault and battery occurred strictly in
self-defense. See id. at 872. The district court denied Mr. Ramirez-Vazquez’s
request for a variance and the panel affirmed. See id. at 872–73.

                                         13
§ 2L1.2, comment note 1(B)(iii) stands as unchallenged on appeal. We AFFIRM

Ricardo Arellano-Sandoval’s sentence for the same reason, and also because he

has not demonstrated that his sentence is substantively unreasonable.



                                      ENTERED FOR THE COURT



                                      Jerome A. Holmes
                                      Circuit Judge




                                        14
