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

                        FOR THE TENTH CIRCUIT                  February 28, 2018
                      _________________________________
                                                              Elisabeth A. Shumaker
                                                                  Clerk of Court
UNITED STATES OF AMERICA,

       Plaintiff - Appellee,
                                                    No. 17-1264
v.                                        (D.C. No. 1:17-CR-00082-RM-1)
                                                     (D. Colo.)
JOSE DANIEL ESPINOZA-
FLORES,

       Defendant - Appellant.
                    _________________________________

                        ORDER AND JUDGMENT *
                     _________________________________

Before BRISCOE, HARTZ, and BACHARACH, Circuit Judges.
                 _________________________________

      This appeal is brought by Mr. Jose Daniel Espinoza-Flores, who was

convicted of illegal reentry after conviction of an aggravated felony and

sentenced to 36 months’ imprisonment. Mr. Espinoza-Flores appeals,

arguing that his sentence is substantively unreasonable. We disagree.



*
      The parties have not requested oral argument, and we conclude that
oral argument would not materially aid our consideration of the appeal. See
Fed. R. App. P. 34(a)(2)(C); 10th Cir. R. 34.1(G). Thus, we have decided
the appeal based on the briefs.

      Our order and judgment does not constitute binding precedent except
under the doctrines of law of the case, res judicata, and collateral estoppel.
But the order and judgment may be cited for its persuasive value under
Fed. R. App. P. 32.1(a); 10th Cir. R. 32.1(A).
I.    We apply the abuse-of-discretion standard.

      We review the substantive reasonableness of Mr. Espinoza-Flores’s

sentence under the abuse-of-discretion standard. United States v. Steele,

603 F.3d 803, 809 (10th Cir. 2010). “[A]s long as the balance struck by the

district court among the factors set out in § 3553(a) is not arbitrary,

capricious, or manifestly unreasonable, we must defer to that decision even

if we would not have struck the same balance in the first instance.” United

States v. Sells, 541 F.3d 1227, 1239 (10th Cir. 2008).

II.   The district court varied upward.

      Mr. Espinoza-Flores pleaded guilty to one count of illegal reentry of

a removed alien subsequent to an aggravated felony conviction. See 8

U.S.C. § 1326(a), (b)(2). This charge stemmed from Mr. Espinoza-Flores’s

fourth illegal reentry into the United States. The guideline range was 21 to

27 months, but the district court varied upward to 36 months.

      In varying upward, the district court observed that the guidelines had

sent mixed signals to Mr. Espinoza-Flores regarding the risk of illegally

reentering the country. With this observation, the court assessed the

statutory sentencing factors, acknowledging Mr. Espinoza-Flores’s

challenging life in Honduras as a reason for his repeated efforts to

emigrate to the United States. But because of the multiple convictions, the

court determined that an upward variance was necessary to deter Mr.



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Espinoza-Flores from reoffending. The district court ultimately decided on

a 36-month sentence.

III.   The district court did not abuse its discretion in imposing the 36-
       month sentence.

       Mr. Espinoza-Flores contends that the length of his sentence is

substantively unreasonable because the district court gave undue weight to

the need for deterrence. We disagree.

       “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). When reviewing the sentence, we “‘give

due deference to the district court’s decision that the § 3553(a) factors, on

a whole, justify the extent of the variance.’” United States v. Smart, 518

F.3d 800, 808 (10th Cir. 2008) (quoting Gall v. United States, 552 U.S. 38,

51 (2007)).

       “We have consistently observed that reentry of an ex-felon is a

serious offense.” United States v. Martinez-Barragan, 545 F.3d 894, 905

(10th Cir. 2008). In light of the seriousness of the offense, the district

court considered the need to deter Mr. Espinoza-Flores from reentering the

country. He had already illegally reentered the United States four times.

The court observed that his last sentence for illegal reentry totaled 30

months but proved an inadequate deterrent because Mr. Espinoza-Flores


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had illegally reentered the country again. The court could reasonably

conclude that the sentence needed to exceed 30 months to deter Mr.

Espinoza-Flores from illegally reentering the country for the fifth time.

      Mr. Espinoza-Flores points to other factors supporting a lesser

sentence. For example, Mr. Espinoza-Flores was repeatedly reentering the

country because of adverse conditions in his native country (Honduras).

But illegal reentry is a serious crime, and the district court could

reasonably consider any lesser sentence inadequate as a deterrent. See

United States v. Sandoval-Enrique, 870 F.3d 1207, 1215 (10th Cir. 2017)

(upholding a sentence for illegal reentry because the prior sentence had not

stopped the defendant from illegally returning to the United States); see

also United States v. Higuera-Llamos, 574 F.3d 1206, 1208, 1211-12 (9th

Cir. 2009) (holding that an upward departure to 30 months from 15 to 21

months for illegal reentry was substantively reasonable because of the

defendant’s prior illegal reentries and the failure of prior sentences to

deter further reentries). Because the district court did not abuse its

discretion, we affirm.

                                    Entered for the Court



                                    Robert E. Bacharach
                                    Circuit Judge




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