                                                                        FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                                                                     July 6, 2011
                    UNITED STATES COURT OF APPEALS
                                                 Elisabeth A. Shumaker
                                                                    Clerk of Court
                                 TENTH CIRCUIT



 UNITED STATES OF AMERICA,

               Plaintiff - Appellee,                        No. 10-1495
          v.                                               (D. Colorado)
 JUAN CARLOS RODRIGUEZ                           (D.C. No. 1:10-CR-00217-LTB-1)
 ESCOBEDO, also known as Christopher
 Alvaro Suazo, also known as Juan Eduardo
 Perez, also known as Carlos Navarro, also
 known as Juan Carlos Escalante-Martinez,
 also known as Juan Carlos Esparza, also
 known as John Doe, also known as
 Christophe Alvado Suaza, also known as
 Christophe Suavecito, also known as
 Christophe Alvado Smooth, also known as
 Eduardo Silva-Perez, also known as
 Alejandro Andres Ortiz, also known as
 Andrez Soto, also known as Rogelio Solis,
 also known as Juan Rodriguez-Esc, also
 known as Juan Carlos Escalande, also
 known as Juan Rodriguez, also known as
 Andres Soto, also known as Christopher
 Smooth, also known as Juan Martinez
 Escala Esparza, also known as Juan Carlos
 Martinez, also known as Juan C.
 Rodriguez-Escobledo, also known as J.
 Carlos Rodriguez-Escobledo-Rodriguez,

               Defendant - Appellant.


                            ORDER AND JUDGMENT *


      *
       This order and judgment is not binding precedent except under the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,
                                                                        (continued...)
Before BRISCOE, Chief Judge, ANDERSON, and MURPHY, Circuit Judges.



I.    Introduction

      Appellant Juan Carlos Rodriguez Escobedo pleaded guilty to one count of

illegal reentry after deportation subsequent to a felony conviction, in violation of

8 U.S.C. § 1326(a) and (b)(1). The district court sentenced him to thirty months’

imprisonment, the high end of the advisory guidelines range. Escobedo now

appeals the sentence imposed by the district court, arguing it is substantively

unreasonable because the court failed to properly weigh the factors set forth in 18

U.S.C. § 3553(a). Exercising jurisdiction pursuant to 28 U.S.C. § 1291, we

affirm Escobedo’s sentence.

II.   Background

      In 2010, while incarcerated in the Arapahoe County Jail on unrelated

charges, Escobedo was referred to Immigration and Customs Enforcement

(“ICE”). After ICE confirmed Escobedo had been deported to Mexico in 2009

and had not received permission to reenter the United States, a detainer was filed

to prevent his release from incarceration. Escobedo was subsequently charged



      *
        (...continued)
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.


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with the federal crime of illegal reentry by a deported alien previously convicted

of a felony. See 8 U.S.C. § 1326(a), (b)(1). He entered into a written plea

agreement with the Government, pleading guilty to the single charge contained in

the indictment.

      Subsequent to the guilty plea, the United States Probation Office prepared a

Presentence Investigation Report (“PSR”). The PSR calculated Escobedo’s base

offense level at eight and increased it four levels pursuant to USSG

§ 2L1.2(b)(1)(D) because Escobedo had a prior felony conviction. The offense

level was then reduced by two levels for acceptance of responsibility pursuant to

USSG § 3E1.1, yielding a total offense level of ten. Escobedo’s Category VI

criminal history was based on five prior felony convictions and eight

misdemeanor convictions. 1 His combined offense level and criminal history

category resulted in an advisory guidelines sentencing range of twenty-four to

thirty months’ imprisonment.

      Escobedo filed a sentencing statement, asserting that a sentence at the

bottom of the advisory guidelines range was appropriate based on an

individualized assessment of the factors set forth in 18 U.S.C. § 3553(a).

Escobedo based his argument on his history and characteristics; the nature of the

offense of conviction; and the seriousness of the crime, the need to provide


      1
      The PSR also noted that Escobedo had previously been deported or
removed four times.

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adequate deterrence, and the need to protect the public. See 18 U.S.C. § 3553(a).

With respect to his history and characteristics, Escobedo took the position they

warranted a lower sentence because he first came to the United States when he

was sixteen years old. During the time he lived in Colorado, he supported his

wife and four children by working in the construction industry and refurbishing

vehicles. Escobedo also asserted his offense was less serious because he illegally

reentered the country in order to support his family and escape gang violence in

Mexico. Finally, he argued he had never previously served a sentence longer than

sixteen months and, therefore, a sentence of twenty-four months for the offense of

conviction would represent “a graduated approach to sentencing, which in turn

effectuates deterrence.”

      At the sentencing hearing, the district court considered Escobedo’s

arguments but concluded they did not support a sentence at the bottom of the

advisory guidelines range. The court acknowledged the violence in Mexico but

reiterated that Escobedo was prohibited from fleeing it by illegally reentering the

United States. The district court then expressed concern that Escobedo had

twenty-two aliases, had been removed or deported four times, had eight

misdemeanor convictions, and had previously been convicted of five felonies,

three of which were for possession of a controlled substance and one of which

had indications of drug trafficking. The court interpreted this history, coupled

with Escobedo’s assertion that he reentered the United States to provide for his

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family, as indicating Escobedo was likely to again return to the United States

illegally and continue to engage in criminal conduct. The court noted that

Escobedo could use his skills at repairing automobiles to find employment in

Mexico, undermining his argument that he needed to return to the United States to

support his family. Finally, the district court characterized Escobedo’s argument

that he has never served more than sixteen months in prison as “curious.” The

court found the short sentences did not excuse Escobedo’s criminal behavior and,

if anything, indicated he “should have served more jail time in the past.” In

short, the district court concluded that the reasons Escobedo relied on as support

for a lower sentence, in fact, supported the imposition of a higher sentence.

       Based on its consideration of the § 3553(a) factors, the district court

determined that a sentence at the top of the advisory guidelines range was

appropriate and sentenced Escobedo to thirty months’ imprisonment.

III.   Discussion

       Escobedo challenges only the substantive reasonableness of his sentence, a

matter this court reviews 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

                                          -5-
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). Because Escobedo’s sentence falls within a properly calculated

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

reasonableness. Id. at 1054. On appeal, Escobedo 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).

      Escobedo asserts his sentence is unreasonable in light of the § 3553(a)

factors because the district court placed too much weight on his criminal history

and not enough on his personal characteristics. See United States v. Sayad, 589

F.3d 1110, 1118 (10th Cir. 2009) (“[S]ubstantive reasonableness review broadly

looks to whether the district court abused its discretion in weighing permissible

§ 3553(a) factors in light of the totality of the circumstances.” (quotation

omitted)). We discern no error in the district court’s analysis of the § 3553(a)

factors. The court considered each one, disagreeing with Escobedo over whether

his personal history and the nature of the offense supported a sentence at the low

end of the advisory guidelines range. The record reveals the district court did not

fail to weigh the factors, as Escobedo argues. Instead, the court concluded the

factors weighed in favor of a higher sentence, not a lower sentence.

      Having reviewed and considered Escobedo’s appellate argument, we

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

                                          -6-
district court fully considered the arguments Escobedo presented in support of his

request for a bottom-of-the-range sentence. It weighed the factors and imposed a

sentence at the top of the correctly calculated advisory guidelines range.

IV.   Conclusion

      The sentence imposed by the district court is affirmed.

                                               ENTERED FOR THE COURT


                                               Michael R. Murphy
                                               Circuit Judge




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