                                                                              FILED
                                                                 United States Court of Appeals
                                                                         Tenth Circuit

                                                                         May 17, 2012
                         UNITED STATES COURT OF APPEALS
                                                                     Elisabeth A. Shumaker
                                    TENTH CIRCUIT                        Clerk of Court



 UNITED STATES OF AMERICA,

           Plaintiff-Appellee,
 v.                                                           No. 11-6288
 PEDRO DIAZ-MARTINEZ,                               (D.C. No. 5:CR-11-00117-C-1)
                                                            (W. D. Okla.)
           Defendant-Appellant.



                                 ORDER AND JUDGMENT*


Before BRISCOE, Chief Judge, McKAY and HOLMES, Circuit Judges.



       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,

submitted without oral argument.

       Defendant Pedro Diaz-Martinez (Diaz) pled guilty to a single count of illegal

reentry after previous deportation or removal, in violation of 8 U.S.C. § 1326(a), and was



       *
        This order and judgment is not binding precedent, except under the doctrines of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.
sentenced to a term of imprisonment of 57 months. Diaz now appeals, arguing that the

sentence imposed by the district court was substantively unreasonable. We exercise

jurisdiction pursuant to 28 U.S.C. § 1291, and affirm the sentence imposed by the district

court.

                                               I

         On April 16, 2009, Diaz was arrested in Woodward County, Oklahoma, “on

charges of arson first degree, endangering human life during arson, displaying false

identification cards-social security card[,] displaying false identification card-resident ID

card[,] and public intoxication.” ROA, Vol. 2, at 8. The following day, April 17, 2009,

an agent from the United States Department of Homeland Security, Immigration and

Customs Enforcement (ICE), interviewed Diaz and determined he was an alien

unlawfully present in the United States. Consequently, “[a] federal hold was placed on”

Diaz during the pendency of the state court proceedings that resulted from his arrest.1 Id.

         On April 5, 2011, a federal grand jury indicted Diaz on one count of illegal reentry

after previous deportation, removal or exclusion, in violation of 8 U.S.C. § 1326(a).

Approximately two months later, on June 7, 2011, Diaz entered a plea of guilty to the

         1
         According to the record, two criminal cases were filed against Diaz in the District
Court of Woodward County. In the first case, Diaz was charged with one count of first-
degree arson and one count of endangering human life during arson. On February 16,
2011, Diaz pled nolo contendere to both counts and was subsequently sentenced to a term
of imprisonment of five years, “with all but the first year suspended, [and] with credit for
time served.” ROA, Vol. 2, at 14. In the second case, Diaz was charged with displaying
a false social security card, displaying a false resident ID card, and public intoxication.
Diaz pled guilty to the first of these charges and received a five-year suspended sentence.
The remaining charges were dismissed.

                                               2
single count alleged in the indictment.

       The probation department prepared and submitted to the district court and parties a

presentence investigation report (PSR). The PSR, following the provisions of U.S.S.G. §

2L1.2, applied a base offense level of 8, and then enhanced that base offense level by 16

levels because Diaz had previously been deported, or unlawfully remained in the United

States, following a felony conviction for a crime of violence.2 ROA, Vol. 2, at 10.

The PSR then applied a three-level reduction pursuant to U.S.S.G. §§ 3E1.1(a) and (b) for

acceptance of responsibility, resulting in a total offense level of 21. The PSR also

recounted Diaz’s criminal history, which included nine criminal cases filed against Diaz

in three different states between February 1995 and January 2011. The PSR determined

that this resulted in a total of 8 criminal history points and a criminal history category of

IV. Based upon the total offense level and criminal history category, the PSR concluded

that “the guideline range for imprisonment [wa]s 57 to 71 months.” Id. at 21.

       On October 6, 2011, Diaz filed a sentencing memorandum asking the district court

to impose “a sentence below the advisory guideline range advanced in the [PSR].” ROA,

Vol. 1 at 19. In support of this request, Diaz argued that “the advisory guideline range of

57 to 71 months [wa]s severely flawed and grossly exceed[ed] what [wa]s necessary to

reflect the seriousness of [his] crime, promote respect for the law, and justly punish

[him].” Id. at 20. More specifically, Diaz argued that “the illegal reentry guideline


       2
        The PSR specifically noted that Diaz “was convicted on October 16, 1997, of
corporal injury to spouse in San Diego County Superior Court.” ROA, Vol. 2, at 10.

                                               3
lack[ed] empirical support” and was instead “driven largely by the nature of the

defendant’s prior convictions.” Id. at 21. And in his case, Diaz argued, “[t]he flawed

nature of the illegal reentry guideline ha[d] produced a sentencing range . . . greater than

necessary to achieve [18 U.S.C.] § 3553(a)’s goals.” Id. at 22. Diaz also argued that,

even though “the crime of illegal reentry [wa]s a regulatory or status offense” that

involved “no malicious intent, no victim, [and] no loss,” it was being treated by the

Guidelines in comparable fashion to “inherently dangerous or harmful crimes” such as

“[a]ggravated assault involving discharge of a gun and resulting in serious injury” and

“[d]istribution of 80-100 grams of heroin.” Id. Lastly, Diaz argued that the Guidelines

had effectively “double-counted” his 1997 conviction by first using it to increase his base

offense level and then using it to increase his criminal history category. Based upon these

arguments, Diaz asked the district court to impose “a sentence substantially below the

advisory guideline range of 57 to 71 months.” Id. at 28.

       Diaz re-urged these arguments at the October 12, 2011, sentencing hearing. The

district court rejected Diaz’s arguments and concluded that a sentence at the bottom of the

advisory guideline range was appropriate:

              [T]he whole point is, you keep coming back and you keep
       committing crimes. That’s how you’re before me; not because you’re not a
       citizen or are here illegally. You’re here before me because you’ve been
       sent back a number of times and you keep returning and committing crimes.

              For that reason I think a sentence within the guideline range is the
       only thing sufficient to protect the public, to serve as an example to others,
       to convince you that you can’t keep committing this conduct. I think the
       guideline range is appropriate.

                                              4
              It is for that reason that I commit you to the custody of the Bureau of
       Prisons to be imprisoned for a term of 57 months.

Supp. ROA, Vol. 1, at 17.

       Final judgment was entered in the case on October 17, 2011. Diaz has since filed a

timely notice of appeal.

                                               II

       On appeal, Diaz argues that the 57-month sentence imposed by the district court is

substantively unreasonable. “[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) (internal quotation marks omitted). “We review substantive reasonableness claims

for abuse of discretion,” id., “afford[ing] substantial deference to [the] district court,”

United States v. Smart, 518 F.3d 800, 806 (10th Cir. 2008). “[I]n many cases there will

be a range of possible outcomes the facts and law at issue can fairly support; rather than

pick and choose among them ourselves, we will defer to the district court’s judgment so

long as it falls within the realm of these rationally available choices.” United States v.

McComb, 519 F.3d 1049, 1053 (10th Cir. 2007).

       It is undisputed in this case that the district court properly calculated Diaz’s

sentence under the Sentence Guidelines and ultimately selected a sentence within the

advisory guideline range. Consequently, the sentence imposed by the district court “is

entitled to a rebuttable presumption of reasonableness.” United States v. Halliday, 665


                                               5
F.3d 1219, 1224 (10th Cir. 2011).

       In attempting to rebut the presumption of reasonableness, Diaz argues that “the

crime of illegal reentry is a ‘status’ offense, implicating no evil intent whatsoever or

financial loss or physical injury to a victim.” Aplt. Br. at 6. In turn, he argues that “the

comparatively benign nature of illegal reentry is a mitigating circumstance not adequately

taken into consideration by the Sentencing Commission.” Id. at 8. Diaz also argues that

when the crime of illegal reentry after a violent felony is “compar[ed] . . . with other

crimes that yield an offense level of 24, the illegal reentry guideline seems to lack any

sense of logic or proportionality.” Id. at 6. As a result, Diaz argues, “a ‘guidelines

sentence’ in this kind of case yields a result that is illogical and overly harsh when

contrasted with guidelines for crimes that are factually more injurious or potentially

injurious.” Id. at 8.

       Diaz also agues that the 57-month sentence imposed by the district court “is an

unreasonable result based on the particular facts of this case.” Id. Diaz specifically notes

that (a) he “came to the United States from Mexico at the tender age of one year old,” (b)

when he was two years old, “he was severely injured in an automobile accident” that

killed his father and brother, (c) “[h]is surviving family of origin lives in Oklahoma,” (d)

his prior criminal history is not “egregious,” and (e) having “been previously removed

from the United States on three [prior] occasions . . . , he had no reason to think U.S.

immigration law was this drastic.” Id.

       Lastly, Diaz complains that his 1997 conviction for a violent felony was

                                              6
essentially double-counted under the Guidelines because it was first used to increase his

base offense level by 16 levels (effectively tripling the otherwise applicable base offense

level), and then was used to increase his criminal history score and category.

       We conclude, however, that all of these arguments are insufficient to overcome the

presumption of reasonableness attached to the within-Guidelines sentence imposed by the

district court. We have previously rejected arguments similar, if not identical, to the

general attacks that Diaz makes to the Sentencing Guidelines governing his crime of

conviction. E.g., United States v. Martinez-Barragan, 545 F.3d 894, 905 (10th Cir. 2008)

(“[R]eentry of an ex-felon is a serious offense.”); United States v. Ruiz-Terrazas, 477

F.3d 1196, 1204 (10th Cir. 2007) (holding that so-called “double-counting” of a prior

conviction to calculate both the offense level and the criminal history category is

permissible). Moreover, Diaz effectively presented both these general arguments, as well

as his more particularized arguments, to the district court in his sentencing memorandum

and in his oral arguments at the time of sentencing. The district court rejected them and

concluded that a within-Guidelines sentence was appropriate given Diaz’s history of

illegally reentering the United States and committing additional criminal offenses.

Indeed, the district court concluded that the term of imprisonment it imposed was

necessary to protect the public from Diaz’s criminal conduct and to persuade Diaz from

reentering the United States again. We have no trouble concluding that the district

court’s determination was both rational and reasoned.




                                             7
The judgment of the district court is AFFIRMED.



                                       Entered for the Court


                                       Mary Beck Briscoe
                                       Chief Judge




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