                                                                       FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                   UNITED STATES COURT OF APPEALS                  May 19, 2009
                                                               Elisabeth A. Shumaker
                                TENTH CIRCUIT                      Clerk of Court



 UNITED STATES OF AMERICA,

              Plaintiff–Appellee,
                                                       No. 08-2251
 v.                                           (D.C. No. 1:08-CR-01254-JB-1)
                                                         (D.N.M.)
 MIGUEL TAPIA-CORTEZ,

              Defendant–Appellant.


                          ORDER AND JUDGMENT *


Before LUCERO, MURPHY, and McCONNELL, Circuit Judges.


      Miguel Tapia-Cortez pleaded guilty to one count of reentry of a removed

alien subsequent to a conviction for an aggravated felony in violation of 8 U.S.C.

§§ 1326(a)(1) and (b)(2). The district court denied his motion for a downward

variance and sentenced him to 41 months’ imprisonment followed by two years’

supervised release. Tapia-Cortez now appeals, arguing that the sentence imposed




      *
        The case is unanimously ordered submitted without oral argument
pursuant to Fed. R. App. P. 34(a)(2) and 10th Cir. R. 34.1(G). This order and
judgment is not binding precedent, except under the doctrines of law of the case,
res judicata, and collateral estoppel. The court generally disfavors the citation of
orders and judgments; nevertheless, an order and judgment may be cited under the
terms and conditions of 10th Cir. R. 32.1.
is substantively unreasonable. Exercising jurisdiction under 28 U.S.C. § 1291 and

18 U.S.C. § 3742, we affirm.

                                          I

      In 1997, Tapia-Cortez, a permanent resident alien at the time, was

convicted of two counts of sexual abuse in the first degree in Oregon state court.

As a result of these felony convictions, he lost his resident alien status and was

deported in 2004 after serving a 75-month term of imprisonment. In 2008, an

Immigration and Customs Enforcement (“ICE”) agent encountered Tapia-Cortez

in a detention center in Albuquerque, New Mexico. In the course of removal

proceedings, ICE determined that Tapia-Cortez had been previously deported,

leading to the charge underlying this case. See 8 U.S.C. §§ 1326(a)(1), (b)(2).

On June 6, 2008, he entered a plea of guilty.

      Prior to sentencing, a probation officer prepared a presentence report

(“PSR”) detailing Tapia-Cortez’s prior convictions and personal history. Based

on United States Sentencing Guidelines § 2L1.2, the PSR calculated a base

offense level of 8 and a 16-level specific offense characteristic enhancement for a

prior felony conviction for a crime of violence. Pursuant to § 3E1.1, it also

included a 3-level downward adjustment for acceptance of responsibility for a

total offense level of 21. Based on his Oregon state convictions for sexual abuse,

the PSR assigned Tapia-Cortez 3 criminal history points, placing him in criminal

history category II. Based on the above, the PSR calculated a final advisory

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Guidelines range of 41 to 51 months’ imprisonment and 2 to 3 years’ supervised

release.

      In response to the PSR, Tapia-Cortez filed a motion for a downward

variance. He argued that his circumstances warranted a variance because he was

culturally assimilated to the United States as a result of living here for almost

thirty years (the vast majority of his life), because nearly all his family lives here,

and because he returned to visit his ailing mother rather than for economic

reasons. He did not dispute that he was previously convicted for sexual abuse but

maintained his innocence with respect to those charges. The district court

addressed his arguments at the sentencing hearing and rejected them. It weighed

the factors set forth in 18 U.S.C. § 3553(a) and decided that a sentence at the

bottom of the Guidelines range best reflected those considerations. It then

imposed a sentence of 41 months’ imprisonment followed by 2 years’ supervised

release. Tapia-Cortez renewed the argument he raised in his motion but otherwise

did not object. He now appeals his sentence.

                                          II

      Tapia-Cortez raises a single issue on appeal: whether the sentence imposed

was substantively unreasonable. He argues that the advisory Guidelines range for

unlawful reentry, when enhanced 16 levels for a prior crime of violence, resulted

in a sentence greater than necessary to achieve the goals of 18 U.S.C. § 3553(a),

particularly in light of the fact that he was motivated to return by his mother’s

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illness. Specifically, he argues that the 16-level enhancement is not supported by

empirical evidence and therefore not entitled to our presumption that a within-

Guidelines sentence is reasonable. See United States v. Kristl, 437 F.3d 1050,

1054 (10th Cir. 2004) (establishing a rebuttable presumption of reasonableness

for within-Guidelines sentences).

      After the Supreme Court’s decision in United States v. Booker, 543 U.S.

220 (2005), this court reviews sentences for reasonableness. United States v.

Friedman, 554 F.3d 1301, 1307 (10th Cir. 2009).

      Reasonableness review is a two-step process comprising a procedural
      and a substantive component. Review for procedural reasonableness
      focuses on whether the district court committed any error in
      calculating or explaining the sentence. Review for substantive
      reasonableness focuses on 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).

Id. (quotations and citations omitted). We review Tapia-Cortez’s sentence for

abuse of discretion. Id. This standard “requir[es] substantial deference to district

courts. A district court abuses its discretion when it renders a judgment that is

arbitrary, capricious, whimsical, or manifestly unreasonable.” Id. (quotations

omitted).

      We first address Tapia-Cortez’s argument that we should not presume his

sentence is reasonable simply because it is within the Guidelines’ advisory range.

He argues that “[s]ince Kristl, the federal sentencing landscape has changed. In

Kimbrough[ v. United States, 128 S. Ct. 558 (2007)], the Supreme Court

                                        -4-
identified infirmities in guidelines that were not promulgated based on empirical

research.” He argues that, analogous to the crack cocaine Guidelines at issue in

Kimbrough, the unlawful reentry Guidelines at issue here are without an empirical

basis.

         However, we need not make such a determination because Kimbrough does

not bear on whether we should apply our presumption of reasonableness.

Kimbrough addressed whether the district court, in exercising its discretion, was

permitted to consider whether a Guideline has an empirical basis, and the

Supreme Court held that it was. Id. This is a critical distinction because even

though a district court may not presume that a Guidelines sentence is reasonable,

an appellate court may. Gall v. United States, 128 S. Ct. 586, 597-98 (2007). We

note that the Supreme Court reaffirmed this distinction in Gall, the same day it

decided Kimbrough. Id. Before the district court, Tapia-Cortez did not advance

the argument that the unlawful reentry Guidelines lack an empirical basis, and the

district court did not consider it. Therefore, the issue of the district court’s

discretion to vary for this reason is not before us, and we do not consider it. On

the other hand, our presumption of reasonableness is based on the purpose of

promoting uniformity in sentencing, Kristl, 437 F.3d at 1054, and is thus equally

applicable in unlawful reentry cases as in other contexts. See United States v.

Navarrete-Medina, 554 F.3d 1312, 1313 (10th Cir. 2009) (applying the

presumption in an unlawful reentry case subsequent to Kimbrough).

                                         -5-
      Under this standard, we conclude that Tapia-Cortez has failed to rebut the

presumption that his Guidelines sentence is substantively reasonable. Although

his motivation for reentry was neither unlawful nor simply economic, a virtuous

motivation for returning is not extraordinary, and it does not necessarily outweigh

the seriousness of his prior convictions. See id. at 1313-14. While returning to

visit one’s ill mother is a better reason than some for returning, Tapia-Cortez does

have six siblings who legally reside in Los Angeles, the same city as his mother.

As the district court noted, the circumstances of his sexual abuse convictions are

disturbing, and he has a number of other offenses on his record as well. We are

in a particularly poor position relative to the district court to evaluate Tapia-

Cortez’s cultural assimilation, and we defer to the district court’s determination

that his circumstances are not outside the norm in this respect. None of these

considerations suggest that Tapia-Cortez’s bottom-of-the-Guidelines sentence is

“arbitrary, capricious, whimsical, or manifestly unreasonable.” Friedman, 554

F.3d at 1307.

                                          III

      AFFIRMED.

                                        ENTERED FOR THE COURT



                                        Carlos F. Lucero
                                        Circuit Judge


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