                                                                 NOT PRECEDENTIAL


                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                ______________

                                       No. 19-2534
                                     ______________

                            UNITED STATES OF AMERICA

                                             v.

                   EPOLITO ESTEVEZ-ULLOA, a/k/a Polito Esteves,
                     a/k/a Cecar Santiago, a/k/a Vistor R. Martinez,
                                                             Appellant
                                   ______________

                     On Appeal from the United States District Court
                        for the Eastern District of Pennsylvania
                              (D.C. No. 2-18-cr-00126-001)
                       District Judge: Honorable Paul S. Diamond
                                    ______________

                       Submitted under Third Circuit LAR 34.1(a)
                                    April 15, 2020
                                   ______________

              Before: AMBRO, JORDAN, and SHWARTZ, Circuit Judges.

                                  (Filed: April 16, 2020)
                                     ______________

                                        OPINION
                                     ______________




       
        This disposition is not an opinion of the full court and pursuant to I.O.P. 5.7 does
not constitute binding precedent.
SHWARTZ, Circuit Judge.

       Epolito Estevez-Ulloa appeals his sentence for illegal reentry. Because the

sentence was substantively reasonable, we will affirm.

                                             I

       Estevez-Ulloa is a native and citizen of the Dominican Republic. Around 1991, he

illegally entered the United States but thereafter obtained lawful permanent resident

status. Thereafter, he was arrested and convicted of federal and state drug crimes and

was deported. He again illegally reentered the United States, and was again convicted of

drug offenses. Instead of being immediately deported, he was charged with unlawful

reentry after deportation, in violation of 8 U.S.C. § 1326(a), (b)(2). He pleaded guilty.

       As part of sentencing, Estevez-Ulloa submitted a letter stating that he provided

information about corrupt narcotics officers, which was later shown to be untrue. The

Court continued the sentencing hearing to review the letter. At the next sentencing

hearing, the Government represented that no evidence supported the letter, and Estevez-

Ulloa’s counsel suggested that the letter may have been the result of psychological

problems. The Court again continued the sentencing hearing to allow defense counsel to

determine whether such psychological problems existed. At the next sentencing hearing,

defense counsel stated that Estevez-Ulloa was mentally competent and relayed other

information, but the Court said that this information did not corroborate the allegations in

the letter. The Court ordered an amended presentence report to address a possible

enhancement for obstruction of justice.



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       The amended report applied a two-level enhancement to Estevez-Ulloa’s offense

level for obstruction of justice pursuant to U.S.S.G. § 3C1.1, explaining that the letter

was false and that Estevez-Ulloa had made contradictory statements about the letter to the

Probation Office. Given that enhancement, other adjustments, and his criminal history,

the report placed his Guidelines range at 70 to 87 months’ imprisonment. Estevez-Ulloa

objected to the enhancement at the next sentencing hearing and the Court continued the

hearing so the Government could respond. Estevez-Ulloa subsequently withdrew his

objection.

       At the fifth and final sentencing hearing, the District Court adopted without

objection the facts and conclusions in the amended presentence report. The Government

moved for a downward departure based on matters unrelated to the letter. The Court

granted the motion and departed downward two levels, resulting in a Guidelines range of

57 to 71 months’ imprisonment.

       The District Court sentenced Estevez-Ulloa to 72 months’ imprisonment followed

by three years’ supervised release. The 72-month sentence included a one-month upward

variance, which the Court explained was warranted based on the facts before the Court,

including the letter. In explaining its sentence, the Court cited, among other things,

Estevez-Ulloa’s criminal history since residing in the United States and the fact that he

only made his living selling drugs. In imposing a term of supervised release, the Court

found that the presumption against supervised release for deportable defendants had been

rebutted based on Estevez-Ulloa’s prior criminal activity and the presence of his wife in

the United States and that supervised released would deter reentry.

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       Estevez-Ulloa appeals his sentence.

                                             II

       Estevez-Ulloa claims that the District Court’s (1) one-month upward variance and

(2) imposition of a term of supervised release were substantively unreasonable. We

review the substantive reasonableness of a sentence for abuse of discretion. United States

v. Miller, 833 F.3d 274, 285 (3d Cir. 2016). We will overturn a sentence as substantively

unreasonable “only where ‘no reasonable sentencing court would have imposed the same

sentence on that particular defendant for the reasons the district court provided.’” United

States v. Napolitan, 830 F.3d 161, 164 (3d Cir. 2016) (quoting United States v. Freeman,

763 F.3d 322, 335 (3d Cir. 2014)). We look at the totality of the circumstances, United

States v. Tomko, 562 F.3d 558, 567 (3d Cir. 2009) (en banc), and the record before the

District Court, United States v. Lessner, 498 F.3d 185, 203 (3d Cir. 2007).

                                             A

       Estevez-Ulloa argues that the one-month upward variance was substantively

unreasonable because the District Court’s reasons for the variance were already

encompassed in the determination of his Guidelines range. At the outset, “we cannot

presume that a sentence is unreasonable simply because it falls outside the advisory

Guidelines range.” Tomko, 562 F.3d at 567. Moreover, “a sentencing court is not

prohibited from considering the factual basis underlying a defendant’s sentence

enhancements, and indeed, should consider those facts in order to tailor the sentence to

the defendant’s individual circumstances.” United States v. Greenidge, 495 F.3d 85, 103

(3d Cir. 2007) (emphasis omitted); see also United States v. Siddons, 660 F.3d 699, 708

                                             4
(3d Cir. 2011). Indeed, a sentencing court may consider conduct that also supports an

obstruction enhancement when applying the § 3553(a) factors and “fixing a sentence.”

Greenidge, 495 F.3d at 102-03.

       Here, the District Court explained that a variance was warranted based on the

record, which includes Estevez-Ulloa’s extensive criminal history, his sole vocation of

drug dealing, his multiple illegal entries into the United States, and his obstructive

conduct. See Lessner, 498 F.3d at 203. As to this latter point, his letter falsely accused

several law enforcement officers of wrongdoing. Not only were the accusations false, but

Estevez-Ulloa’s motivation for his accusations against the agents was based on their

failure to fulfill a purported promise that he could remain in the United States despite his

unlawful status. Moreover, Estevez-Ulloa provided shifting explanations about the letter.

He first told Probation that he wrote the letter himself in Spanish and that another inmate

typed it in English, but he later stated that he told an inmate what he wanted to say and

that inmate relayed the information to another inmate who typed the letter. Furthermore,

the submission of the letter caused the Government to waste resources to investigate its

contents, caused his counsel to probe unnecessarily Estevez-Ulloa’s psychological

fitness, and caused the Court to convene five separate sentencing proceedings. A

reasonable sentencing court could easily conclude that the impact of the letter and

Estevez-Ulloa’s statements about it, together with his repeated drug-dealing while

illegally in the United States, warranted additional punishment.

                                              B



                                              5
       Estevez-Ulloa’s argument that imposing supervised release was substantively

unreasonable also fails. “Deportable immigrants are presumptively exempt from the

discretionary imposition of supervised release . . . . ” United States v. Azcona-Polanco,

865 F.3d 148, 151 (3d Cir. 2017) (citing U.S.S.G. § 5D1.1(c)). Nonetheless, a court may

impose supervised release if “the court determines it would provide an added measure of

deterrence and protection based on the facts and circumstances of a particular case.”

U.S.S.G. § 5D1.1 cmt. n.5. In Azcona-Polanco, we noted that we would affirm a term of

supervised release imposed upon a deportable defendant as substantively reasonable

given, among other facts, the defendant’s “serious criminal history,” “that after being

deported he illegally reentered the United States,” and that he “assumed an alias to

remain in the United States illegally.” 865 F.3d at 154-55 & n.3. Those same facts are

present here. Estevez-Ulloa entered the United States twice without authorization, used

aliases, and dealt drugs while in the United States. Given those facts, and the fact that his

wife resides in the United States, a reasonable sentencing court would conclude that an

additional deterrent in the form of supervised release was warranted.

                                             III

       For the foregoing reasons, we will affirm Estevez-Ulloa’s sentence.




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