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

                             TENTH CIRCUIT                     December 24, 2014

                                                              Elisabeth A. Shumaker
                                                                  Clerk of Court
    UNITED STATES OF AMERICA,

             Plaintiff - Appellee,
        v.                                            No. 14-2011
                                                   (D. New Mexico)
    JAYLEEN ARMIJO,                         (D.C. No. 1:13-CR-00336-WJ-1)

             Defendant - Appellant.



                        ORDER AND JUDGMENT *


Before BRISCOE, Chief Judge, HOLMES and BACHARACH, Circuit
Judges.



       Ms. Jayleen Armijo pleaded guilty to assault resulting in serious

bodily injury, as well as aiding and abetting that offense. She received a

24-month sentence, and a codefendant received probation. Ms. Armijo

appeals, arguing that the sentence was procedurally and substantively

unreasonable. We reject both arguments.

       In the procedural challenge, Ms. Armijo contends that the district

judge failed to recognize that he could consider the codefendant’s

*
      This 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) and 10th Cir. R. 32.1(A).
probationary sentence. This challenge is based on an erroneous

interpretation of the judge’s explanation. The judge never said that he

lacked the legal authority to consider the codefendant’s probationary

sentence.

      Ms. Armijo also argues that her sentence is substantively

unreasonable because the district court did not adequately account for her

rehabilitation since the arrest, the role the victim had played in the

altercation, and the disparity between Ms. Armijo’s sentence and her

codefendant’s. But the district court sentenced Ms. Armijo to a

presumptively reasonable sentence within the guidelines and considered

the pertinent factors. Doing so, the court acted within its discretion to

arrive at a 24-month sentence.

      We affirm.

I.    The Fight

      On a winter night in 2012, Ms. Jayleen Armijo and her boyfriend,

Mr. Benjamin Menchego, attended a bonfire party. Ms. Amber Baca also

attended.

      At the party, Ms. Baca allegedly told Mr. Menchego’s cousin, a local

Medicine Man, to go away before she “kicked his a**.” Ms. Armijo

thought Ms. Baca’s comment was disrespectful, and a fight erupted.

      In the fight, Ms. Armijo bit and choked Ms. Baca. Some, including

Ms. Baca, reported that Mr. Menchego had punched and kicked Ms. Baca

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in the face, causing a serious eye injury. Others saw Mr. Menchego trying

to pull the two women away from each other, stating that a different

attacker had caused Ms. Baca’s eye injury.

      Ms. Baca went to the hospital with severe pain, ruptured blood

vessels in her eye, loss of consciousness, bite marks, scarring, and bruises.

II.   Procedural Error

      Ms. Armijo contends the sentence was procedurally unreasonable.

We disagree.

      Our review is limited, for we decide only whether the district court

abused its discretion. United States v. Sanchez-Leon, 764 F.3d 1248, 1262

(10th Cir. 2014). In exercising its discretion, the court had to consider the

sentencing factors in 18 U.S.C. § 3553(a). Gall v. United States, 552 U.S.

38, 51 (2007).

      Ms. Armijo contends that when she objected to the disparity between

her sentence and the codefendant’s, the district court limited its analysis to

§ 3553(a)(6). This section states a court must take into account “the need

to avoid unwarranted sentence disparities among defendants with similar

records who have been found guilty of similar conduct.” 18 U.S.C.

§ 3553(a)(6) (2012).

      Ms. Armijo acknowledges that § 3553(a)(6) applies to defendants

nationwide and does not apply to codefendants, but points out that the

disparity could still be considered. See United States v. Smart, 518 F.3d

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800, 804-05 (10th Cir. 2008). She argues that because the judge mentioned

only § 3553(a)(6), he must not have understood his authority to consider

the disparity under other § 3553(a) factors.

     This argument separates the judge’s comment from its context. In a

sentencing memorandum, defense counsel had complained of the disparity,

invoking § 3553(a)(6). Def.’s Sentencing Mem. at 5 (Dec. 12, 2013) (Dkt.

No. 87). 1 Addressing this complaint, the judge stated that § 3553(a)(6) did

not apply. But the judge apparently made this remark at least in part

because defense counsel had relied on § 3553(a)(6) in his sentencing

memorandum.

     The judge apparently understood his authority to broadly consider

sentencing disparities. He declined to consider this disparity not because

he lacked authority, but because Ms. Armijo had pleaded guilty to a felony

and Mr. Menchego had pleaded guilty to a misdemeanor:


1
     Defense counsel stated in his memorandum:

           This court can and should take into consideration the
     unequal treatment of the two defendants in this case, a factor
     recognized by 18 U.S.C. § 3553 which states at ¶ (a)(6) “the
     need to avoid unwarranted sentencing disparity among
     defendants with similar records who have been found guilty of
     similar conduct.” Although both defendants did not plead
     guilty to a felony assault charge, the Court cannot ignore the
     evidence that was present against both defendants which could
     have resulted in a jury finding both defendants guilty at the
     conclusion of a trial.

Def.’s Sentencing Mem. at 5 (Dec. 12, 2013) (Dkt. No. 87).
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         Mr. Menchego . . . stands guilty of a misdemeanor offense,
         and the defendant stands guilty of a felony offense.

         . . . .

         [A]s I recall with Mr. Menchego’s plea was that the
         evidence that the government had at trial was not going to
         support, you know, a felony conviction, or at least there was
         serious concern on the part of the government. So based on
         that . . . the government chose to offer a misdemeanor plea
         to the codefendant, and then Ms. Armijo pled straight up to
         the felony charge.

         So you have one defendant convicted of a misdemeanor and
         one defendant convicted of a felony, and there may be
         heartburn or there may be a view that the government was
         more generous to Mr. Menchego. But in terms of disparity
         analysis under the sentencing factors and that factor that
         talks about the need to avoid unwarranted sentencing
         disparities among defendants who have been found guilty of
         similar conduct, I don’t consider that factor to come into
         play here because Ms. Armijo is convicted of the felony and
         Menchego was convicted of the . . . misdemeanor offense.

Tr. at 39-40 (Dec. 17, 2013) (Dkt. No. 104).

      The judge considered the disparity, but viewed Ms. Armijo’s

circumstances as different from Mr. Menchego’s. Relying on this

dissimilarity, rather than a lack of legal authority, the district court acted

within its discretion. 2 Thus, Ms. Armijo’s sentence was not procedurally

unreasonable.


2
      In her reply brief, Ms. Armijo suggests that the government had to
disprove Mr. Menchego’s guilt. Appellant’s Reply Br. at 12. This
suggestion is new and unexplained. In her opening brief, Ms. Armijo
argued that the court had mistakenly denied authority to consider the
disparity with Mr. Menchego’s sentence. The argument did not involve
sufficiency of the government’s evidence to justify the disparity. But,
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III.   Substantive Reasonableness

       The sentence was substantively reasonable. Gall v. United States,

552 U.S. 38, 51 (2007).

       In our review, we again apply the abuse-of-discretion standard.

United States v. Lente, 759 F.3d 1149, 1158 (10th Cir. 2014).

       For the issue of substantive reasonableness, we consider whether the

length of the sentence was reasonable under the § 3553(a) factors. United

States v. Lente, 759 F.3d at 1155. We presume a sentence is reasonable

when it falls within the guideline range. United States v. Chavez, 723 F.3d

1226, 1233 (10th Cir. 2013). Though this presumption can be rebutted, the

party challenging the sentence bears the burden. United States v. Kristl,

437 F.3d 1050, 1054 (10th Cir. 2006).

       Ms. Armijo’s sentence lies within the guideline range, so it is

presumptively reasonable. But, she argues her sentence was excessive

because

       ●    she had been rehabilitated after the offense,

       ●    the victim had started the altercation, and

       ●    Mr. Menchego had inflicted the most serious injuries to the
            victim and obtained a milder sentence.

These factors did not compel the district court to impose a lighter sentence.



even in her reply brief, Ms. Armijo does not explain why the government
would have to disprove Mr. Menchego’s guilt.
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      A.    Post-Arrest Rehabilitation

      In Ms. Armijo’s view, her post-arrest rehabilitation demonstrates that

she is no longer “the same person who committed the offense.” Appellant

Br. at 35. In support, Ms. Armijo cites cases where courts have affirmed

district court decisions to apply a downward variance because of a

defendant’s post-arrest rehabilitation. See, e.g., Gall v. United States, 552

U.S. 38, 58 (2007) (holding that it was proper for the district court to take

into account a defendant’s post-arrest behavior as an indication that he

would not engage in illicit conduct in the future).

      Ms. Armijo concedes that her rehabilitation was factored into the

sentence. The concession is correct, for the district court assessed Ms.

Armijo’s post-arrest rehabilitation: “[I]n terms of Ms. Armijo’s

participation in AA and her . . . efforts since she’s been at the halfway

house to deal with her alcohol problem, . . . that’s commendable.” Tr. at

40 (Dec. 17, 2013) (Dkt. No. 104). The court noted that this factor

supported Ms. Armijo, but was matched by her history of alcohol-related

and violent crimes in tribal court.

      The court acted within its discretion in weighing Ms. Armijo’s post-

arrest rehabilitation.

      B.    Victim’s Role in the Altercation

      Ms. Armijo also argues that her sentence is substantively

unreasonable because Ms. Baca started the fight. We disagree.

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      A victim’s actions can support a downward departure from the

guidelines. See United States v. LaVallee, 439 F.3d 670, 708-09 (10th Cir.

2006) (holding that where the victim “made sexually explicit remarks to a

female officer, threatened [the defendant] immediately before the assault,

and made an aggressive move toward him,” the district court did not abuse

its discretion in granting a downward departure).

      The district court analyzed Ms. Baca’s conduct, but explained that it

did not warrant Ms. Armijo’s violent reaction. Tr. at 18 (Dec. 17, 2013)

(Dkt. No. 104). This explanation was reasonable, and the district court

acted within its discretion in considering Ms. Baca’s role in the

altercation.

      C.       Mr. Menchego’s Lesser Sentence

      Finally, Ms. Armijo argues that the sentence was unreasonable

because it was harsher than Mr. Menchego’s. The district court recognized

the difference in sentences, but acted reasonably in giving Ms. Armijo 24

months.

      The district court justified Ms. Armijo’s greater sentence based on

her greater culpability. This rationale was justifiable based on the

information supplied to the court.

      This information included the difference in the offenses: Ms. Armijo

pleaded guilty to assault resulting in serious injury, while Mr. Menchego

pleaded guilty to touching the victim without consent. The government

                                      8
explained that it had agreed to the lesser charge for Mr. Menchego because

of differences in the bystanders’ accounts. These differences created proof

problems in the prosecution against Mr. Menchego.

        These problems did not exist in the prosecution against Ms. Armijo.

As her guilty plea reflects, she admitted that she had assaulted Ms. Baca,

causing serious injury. This admission led the district court to observe:

“[T]his case involved a situation where the defendant physically assaulted

the victim, who was bitten numerous times and sustained a serious eye

injury. By ‘serious,’ . . . I’m not only including the eye injury but . . . the

various times the victim was bit.” Tr. at 38 (Dec. 17, 2013) (Dkt. No.

104).

        The district court acted within its discretion in viewing Ms. Armijo

as more culpable than Mr. Menchego. Thus, the district court had the

discretion to conclude that Ms. Armijo deserved a 24-month sentence even

though Mr. Menchego had obtained probation.

IV.     Conclusion

        In light of these conclusions, we affirm.


                                     Entered for the Court



                                     Robert E. Bacharach
                                     Circuit Judge



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