                                                                     FILED
                                                         United States Court of Appeals
                          UNITED STATES COURT OF APPEALS         Tenth Circuit

                                FOR THE TENTH CIRCUIT                         July 30, 2019
                            _________________________________
                                                                          Elisabeth A. Shumaker
                                                                              Clerk of Court
    UNITED STATES OF AMERICA,

           Plaintiff - Appellee,

    v.                                                           No. 18-1318
                                                    (D.C. No. 1:18-CR-00018-MSK-GPG-1)
    JAVIER MARTINEZ-PALOMINO, a/k/a                                (D. Colo.)
    Jorge Domingues, a/k/a Jorge Dominguez,
    a/k/a Jose Gonzales, a/k/a Jose Gonzalez,
    a/k/a Javier G. Martinez, a/k/a Javier, a/k/a
    Javier Palomino, a/k/a Jose Palomino-
    Ramirez, a/k/a Elisio Rodriguez-Robles,
    a/k/a Rafael Fernando Palomino,

           Defendant - Appellant.
                          _________________________________

                                ORDER AND JUDGMENT*
                            _________________________________

Before HARTZ, PHILLIPS, and EID, Circuit Judges.
                  _________________________________

          Defendant Javier Martinez-Palomino appeals the sentence imposed by the United

States District Court for the District of Colorado on his plea of guilty to unlawful reentry

of an alien who had been deported after a felony conviction. See 8 U.S.C. § 1326(a),



*
  After examining the briefs and appellate record, this panel has determined unanimously
that oral argument would not materially assist in the determination of this appeal. See
Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted
without oral argument. This order and judgment is not binding precedent, except under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.
(b)(1). He argues that the district court acted unreasonably, both procedurally and

substantively, in varying upward to impose a sentence of 33 months’ imprisonment. But

the district court did not abuse its discretion in selecting that sentence. Exercising

jurisdiction under 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291, we affirm.

       I.     BACKGROUND

       Defendant is a native and citizen of Mexico. He first entered the United States

illegally in 1995 or 1996. After multiple convictions in Colorado for felony possession

of a controlled substance, driving under the influence, and driving without a license or

insurance, he was removed to Mexico in 2001. He soon was back in Colorado and was

married there in 2002. He and his wife have two children, now aged about 9 and 14, who

were born in this country; and his wife and children have apparently lived continuously in

Colorado. He was again convicted of driving under the influence and driving without

insurance in March 2004, and was removed again in April 2004, but he promptly returned

to Colorado. In July 2004 he was charged with unlawful reentry of a deported alien after

a felony conviction, and pleaded guilty. He was sentenced to 33 months of incarceration;

at the conclusion of his prison term in 2007, he was once more removed to Mexico.

       In 2017 Defendant was again arrested in Colorado and charged with felony driving

under the influence, driving without a license, and speeding. Federal prosecutors brought

the present charges against him in January 2018. He pleaded guilty as part of a plea

agreement, under which the government agreed to recommend that he receive credit in

sentencing for acceptance of responsibility, see USSG § 3E1.1, and to recommend a

sentence within the guideline range calculated by the court.


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       The presentence investigation report (PSR) calculated Defendant’s total offense

level as 10 and his criminal-history category as II, leading to an advisory guidelines

sentencing range of 8 to 14 months of incarceration. But the PSR recommended an

upward variance from the guidelines range to a sentence of 24 months on the grounds (1)

that his criminal-history category underrepresented his criminal record because two

felony convictions and three driving-under-the-influence convictions were too old to be

considered in the guidelines calculation and (2) that his prior 33-month sentence for

illegal reentry apparently failed to deter him from engaging in similar conduct.

       At Defendant’s sentencing hearing, both Defendant and the government requested

a 14-month prison sentence. The district court stated that it was “not interested at all in

the historical drug convictions,” R., Vol. III at 16, but concluded that Defendant “has a

track record of coming back illegally,” and “has a greater justification for coming back

now than he did in 2004, because he has two U.S. kids.” Id. at 31–32. It consequently

determined that any sentence shorter than 33 months—the sentence imposed in 2004—

would not adequately deter him from reentering, and it sentenced Defendant to 33

months’ imprisonment, followed by three years of supervised release.

       II.    DISCUSSION

       Defendant argues that his sentence was both substantively and procedurally

unreasonable. “We review sentences for reasonableness under a deferential abuse of

discretion standard.” United States v. Haley, 529 F.3d 1308, 1311 (10th Cir. 2008). “A

sentence is substantively unreasonable if the length of the sentence is unreasonable given

the totality of the circumstances in light of the 18 U.S.C. § 3553(a) [sentencing] factors.”


                                              3
Id. “A sentence is procedurally unreasonable if the district court incorrectly calculates or

fails to calculate the Guidelines sentence, treats the Guidelines as mandatory, fails to

consider the [statutory sentencing] factors, relies on clearly erroneous facts, or

inadequately explains the sentence.” Id.

              A. Substantive Reasonableness

       Defendant argues that his sentence was substantively unreasonable because the

district court overweighted the need to deter him from future illegal reentries and

consequently imposed too long a term of imprisonment. “A sentencing decision is

substantively unreasonable [only] if it exceeds the bounds of permissible choice, given

the facts and the applicable law.” United States v. Chavez, 723 F.3d 1226, 1233 (10th

Cir. 2013) (brackets and internal quotation marks omitted). The statute that sets forth the

proper sentencing factors is 18 U.S.C. § 3553(a), which “requires district courts to

consider seven factors in sentencing: (1) the nature and circumstances of the offense and

the history and characteristics of the defendant; (2) the need for a sentence to reflect the

basic aims of sentencing, namely (a) just punishment (retribution), (b) deterrence, (c)

incapacitation, and (d) rehabilitation; (3) the kinds of sentences available; (4) the

Sentencing Commission Guidelines; (5) Sentencing Commission policy statements; (6)

the need to avoid unwarranted sentencing disparities; and (7) the need for restitution.”

United States v. Cookson, 922 F.3d 1079, 1092 (10th Cir. 2019) (citation and internal

quotation marks omitted). The district court reasonably applied those factors to impose a

33-month sentence.




                                              4
       Defendant argues that the court was single-mindedly and unreasonably focused on

his history of reentry and the possibility that he might wish to illegally reenter yet again.

True, in explaining its sentence the district court focused on Defendant’s criminal history.

But so did defense counsel at the outset of her presentation at sentencing. R., Vol. III at

13 (“It seems that the main issue in dispute involves [Defendant’s] criminal history.”).

And the court appropriately considered that history in assessing the need for deterrence.

It explained that Defendant has a history of illegally reentering this country after being

removed, and that he has a strong incentive to do so because his children live here. It

observed that a prior 33-month sentence had been insufficient to deter Defendant from

illegal reentry in the past, and thus that a shorter sentence would not reflect the basic aims

of sentencing this time. A court may “quite reasonably attach[] great weight” to key

factors without acting unreasonably. Gall v. United States, 552 U.S. 38, 57 (2007); see

also United States v. Sanchez-Leon, 764 F.3d 1248, 1268 (10th Cir. 2014) (“[T]he district

court need not afford equal weight to each of the factors.”); United States v. Zamora-

Solorzano, 528 F.3d 1247, 1251 (10th Cir. 2008) (affirming a sentence where “the district

court reasonably attached considerable weight to” a single factor, the sentencing

guidelines). And we have repeatedly held that district courts do not abuse their discretion

by considering the failure of a prior illegal-reentry sentence to deter subsequent reentries

in determining that a sentence at least as long is required to serve the purpose of

deterrence. See United States v. Sandoval-Enrique, 870 F.3d 1207, 1215 (10th Cir.

2017); United States v. Cruz-Artiaga, 739 F. App’x 492, 494–95 (10th Cir. 2018)

(rejecting substantive-reasonableness challenge); United States v. Espinoza-Flores, 712


                                              5
F. App’x 836, 837 (10th Cir. 2018) (same); see also United States v. Higuera-Llamos,

574 F.3d 1206, 1211–12 (9th Cir. 2009) (upholding as substantively reasonable the

district court’s illegal-reentry sentence where court “found it necessary to impose a

greater sentence” than imposed for a prior illegal-reentry offense because it found “the

previous . . . sentence was insufficient to deter” reentry). Defendant has not presented us

with any reason to depart from that rationale.

       Defendant also argues that the applicable sentencing guideline, USSG § 2L1.2,

already provided for a four-level increase to his offense level based on a previous

conviction for a prior felony reentry offense, see USSG § 2L1.2(b)(1)(A), and that it was

therefore unreasonable for the court to further increase his sentence on the basis of his

history of reentry. But the obvious rationale of that guidelines provision is that

recidivism requires a harsher penalty, both because it is more deserving of punishment

and because the prior sentence was clearly not adequate deterrence. See USSG Supp. to

app. C, amend. 802 at 147 (2018) (“The Commission determined that a defendant’s

demonstrated history of [illegal reentry] is appropriately accounted for in a separate

enhancement.”). That rationale supports the district court’s decision in this case, rather

than undermining it. For various reasons, the guideline sentencing range for the present

violation was lower than it was for Defendant’s prior conviction. But as we explained in

Sandoval-Enrique, a court can reasonably conclude that “however the [prior district

court] reached the earlier . . . sentencing decision, that amount of prison time had not

adequately deterred [the defendant’s] criminal conduct.” 870 F.3d at 1215.




                                             6
       Defendant further argues that there is no reliable empirical evidence that supports

the district court’s, and indeed the Sentencing Commission’s, conclusion that longer

sentences are likely to deter repeat offenses. This argument is barred by the judgment of

Congress that, under § 3553(a), courts “must consider not only the crime’s seriousness

and the need for just punishment, but also the need to deter the defendant and others.”

United States v. Walker, 844 F.3d 1253, 1257 (10th Cir. 2017) (emphasis added). We

recognize that some studies have been interpreted to show that harsher penalties add little

deterrence value. But courts have never been bound by such studies, which have not

always stood the test of time.

       Finally, Defendant argues that it was unreasonable for the district court to select a

sentence by reference to his previous sentence, because doing so replaced individualized

consideration of his circumstances by adherence to a prior judgment under different

circumstances. He relies on an unpublished per curiam decision by an Eleventh Circuit

panel in United States v. Ochoa-Molina, 664 F. App’x 898 (11th Cir. 2016), which held a

sentence for illegal reentry substantively unreasonable when a district court stated that it

could not impose a sentence lower than what the defendant had received for his prior

conviction for the same offense. See Ochoa-Molina, 664 F. App’x at 900. Of course, we

are not bound by the decisions of another circuit, much less unpublished ones. But in any

event, Ochoa-Molina was based on the circuit court’s perception that the district court

believed its sentence had to exceed that of the prior sentence regardless of any other

sentencing factors. See 664 F. App’x at 900–901. That is not our perception of the

reasoning of the district court in this case.


                                                7
              B. Procedural Reasonableness

       Defendant argues that the district court committed procedural error in two ways:

(1) by basing his sentence in part on an inaccurate factual finding; and (2) by failing to

comply with the “parsimony principle” expressed in § 3553(a), which requires courts to

“impose a sentence sufficient, but not greater than necessary, to comply with the four

identified purposes of sentencing: just punishment, deterrence, protection of the public,

and rehabilitation,” Dean v. United States, 137 S. Ct. 1170, 1175 (2017) (internal

quotation marks omitted). We reject both arguments.

       Defendant contends that the district court improperly varied his sentence upward

to 33 months because it found that after his 2007 removal he likely reentered the United

States before 2017, though both defense counsel and the government informed the court

that there was no evidence of earlier reentry. “[S]electing a sentence based on clearly

erroneous facts” is a “significant procedural error.” Gall, 552 U.S. at 51. “To be clearly

erroneous, the finding must be simply not plausible or permissible in light of the entire

record on appeal.” United States v. Zapata, 546 F.3d 1179, 1192 (10th Cir. 2008)

(internal quotation marks omitted).

       We reject Defendant’s contention because it is based on a false premise. The

district court certainly expressed doubts about Defendant’s candor in describing his life in

this country—including his account of when he made his most recent entry. But the court

made no finding on when that entry occurred, and it said nothing to indicate that its




                                              8
sentence depended in any way on when that entry was.1 To put the court’s statements in

context, we begin with Defendant’s version of events.

       Defendant did not speak at his sentencing. The only account by him available to

the court was from his telephone interview with a probation officer while he was in jail

awaiting sentencing. The report of that interview in the PSR reveals substantial gaps and

apparent inconsistencies in Defendant’s account. He said that he had been deported for

the first time in 2001, and had stayed in Mexico after that removal until 2003, but he also

said that he married his wife in Colorado in 2002. He stated that he was most recently

deported in March 2007 and that before returning to the United States illegally ten years

later in 2017, he lived with his parents in Mexico for approximately eight years. He did

not state where he lived during the two years unaccounted for, nor did he explain the

birth of his daughter in Colorado in 2010. He claimed that he did not know his wife’s

immigration status or the address where she lives with their two children, although he

stated that he has always lived with his children when he is in Colorado, had lived with

his wife and children before his arrest, and recalled that he paid $1,200 per month in rent.

He stated that he typically worked in the United States as a landscaper for cash payment


1
  At sentencing, defense counsel never asked the court whether it was making a finding
that Defendant reentered before 2017, nor did counsel argue that such a finding would be
clear error. Consequently, the government argues that we should review this argument
only for plain error. If our review is for plain error, we will reverse only if Defendant
shows “(1) error, (2) that is plain, which (3) affects substantial rights, and which (4)
seriously affects the fairness, integrity, or public reputation of judicial proceedings.”
United States v. Wireman, 849 F.3d 956, 962 (10th Cir. 2017) (internal quotation marks
omitted). But since we discern no error, there is no need to decide whether the plain-
error standard applies. See United States v. Sayad, 589 F.3d 1110, 1117 n.2 (10th Cir.
2009).

                                             9
but did not identify a current employer. And he stated that he last drank alcohol in 2004,

although the charge on which he was arrested in 2017 was driving under the influence.

       At the sentencing hearing the court explained that it was “extraordinarily

concerned about [Defendant’s] presence in the United States, flying under the radar,

working for cash, and not knowing where his family is, according to the presentence

report. . . . [T]his suggests to me that I need to be concerned about whether the last

sentence I imposed had the deterrent effect I had intended, which was not coming back to

the United States illegally.” R., Vol. III at 16. It pointed out that though Defendant was

residing with his wife and children at the time of the arrest, and had been for a year, he

claimed that he could not recall the address—even as he could recall the rent precisely—

and that though he could identify specific employers during his previous periods of

residence in the United States, he did not identify his most recent employer. It also noted

a number of “statements that are inconsistent, ambiguous, unclear, as to facts which

would demonstrate that [Defendant] came back in 2017, as he states he did.” Id. at 31;

see also id. at 30 (“The question in my mind is how long he has been here.”). It

questioned how Defendant could have a (then) eight-year-old child, who was presumably

conceived in 2009, if he had not returned to the United States between 2007 and 2017,

and it noted the apparent two-year gap between when he said he left his parents’ home in

Mexico and when he said he reentered this country.

       Nevertheless, after first expressing doubts, the court stated that it “ha[d] not made

findings” on matters including whether Defendant had entered before 2017. Id. at 17.

Nor did the court later rescind that statement, make an express finding that Defendant had


                                             10
returned before 2017, or specify any earlier date at which it thought he might have

returned. Instead, the court explained its sentence in terms of Defendant’s history of

recidivism generally: “[U]ltimately, in assessing [Defendant’s] likelihood of returning to

the United States, he has a track record of coming back illegally. He has a greater

justification for coming back now than he did in 2004, because he has two U.S. kids.

And I cannot in good conscience find that a 14-month sentence—even though that is a

guideline sentence—is sufficient to deter his return after he is deported.” Id. at 31–32.

The court stated that it was “left with the obvious conclusion that if 33 months was not

sufficient last time, certainly nothing less than that will be sufficient this time.” Id. at 32.

       In sum, the court expressed quite reasonable doubts about the credibility of

Defendant’s account but ultimately justified an increase in the sentence (as

recommended, although to a lesser extent, by the PSR) on the need for deterrence in light

of the failure of his previous sentence to deter him from reentry and his likely significant

motivations for reentering in the future. We reject the suggestion that the court made a

finding that Defendant returned to the country before 2017, or that it selected a sentence

based on such a finding.

       Defendant’s second claim of procedural error is that the court failed to attempt to

select a sentence sufficient, but not greater than necessary, to comply with the

permissible purposes of sentencing. See Dean, 137 S. Ct. at 1175 (describing this

requirement as the parsimony principle). Defendant concedes that he did not raise this

argument in the district court and so our review is only for plain error. See Wireman, 849

F.3d at 961. “We will find plain error only when there is (1) error, (2) that is plain, which


                                               11
(3) affects substantial rights, and which (4) seriously affects the fairness, integrity, or

public reputation of judicial proceedings.” Id. at 962 (internal quotation marks omitted).

We see no error. The factual basis of Defendant’s claim is contradicted by the record.

The court expressly relied on the parsimony principle, stating that “to serve the objectives

of promoting respect for the law, providing just punishment, deterring future criminal

conduct, and protecting the public from further crimes by the defendant . . . the sentence

that is sufficient but not greater than necessary cannot be less than 33 months.” R., Vol.

III at 32; see United States v. Martinez-Barragan, 545 F.3d 894, 904 (10th Cir. 2008)

(“The record clearly reflects that the district court was aware of its responsibilities under

§ 3553(a).”). Defendant argues that although the court paid “lip service” to the

parsimony principle, it in fact was “driven only to find a sentence sufficient to deter

[Defendant] from coming back to the United States.” Aplt. Br. at 17. But § 3553(a)

required the district court to select a sentence sufficient to “afford adequate deterrence to

criminal conduct.” Having determined that no sentence shorter than 33 months would

achieve that goal, the court did not err in imposing that sentence. Cf. Sandoval-Enrique,

870 F.3d at 1215 (affirming a sentence imposed to deter future reentries as within the

district court’s discretion); Cruz-Artiaga, 739 F. App’x at 495 (same); Espinoza-Flores,

712 F. App’x at 837 (same).




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III.   CONCLUSION

We AFFIRM Defendant’s sentence.


                                   Entered for the Court


                                   Harris L Hartz
                                   Circuit Judge




                                  13
