                                                                         FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                                                                December 13, 2012
                    UNITED STATES COURT OF APPEALS
                                                 Elisabeth A. Shumaker
                                                                    Clerk of Court
                                 TENTH CIRCUIT



 UNITED STATES OF AMERICA,

               Plaintiff-Appellee,                       No. 12-1197
          v.                                             (D. of Colo.)
 JAVIER TORRES,                               (D.C. No. 1:11-CR-00492-PAB-1)

               Defendant-Appellant.


                           ORDER AND JUDGMENT *


Before KELLY, TYMKOVICH, and GORSUCH, Circuit Judges. **


      Javier Torres pleaded guilty to one count of illegal reentry of a deported

alien in violation of 8 U.S.C. § 1326(a)(1) and (b)(2). On appeal, Torres argues

his fifty-one-month sentence is substantively unreasonable under the 18 U.S.C.

§ 3553(a) sentencing factors because the district court placed undue weight on the




      *
         This order and judgment is not binding precedent except under the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.
      **
         After examining the briefs and the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1(G). The cause is therefore ordered submitted without oral argument.
United States Sentencing Guidelines (USSG) and failed to consider a number of

mitigating factors presented by Torres.

      We exercise jurisdiction pursuant to 18 U.S.C. § 3742(a) and 28 U.S.C.

§ 1291 and AFFIRM Torres’s sentence.

                                 I. Background

      On January 27, 2012, Torres pleaded guilty to a one-count Information

charging him with illegal reentry. The base level offense for illegal reentry is 8.

See USSG § 2L1.2(a). The Guidelines also provide for a 16-level enhancement if

someone convicted of illegal reentry has been previously convicted of a drug-

trafficking felony for which the sentence imposed exceeds 13 months. See id.

§ 2L1.2(b)(1)(A). In Torres’s case, the probation office prepared a Presentence

Investigation Report in which it determined that this enhancement would apply

due to his prior conviction for possession with intent to distribute cocaine. Torres

concedes that his sentence is subject to this enhancement. Thus, given the prior

drug conviction, Torres could have been subject to an offense level of 24.

      Nevertheless, in exchange for his guilty plea, the United States agreed to

recommend a three-level reduction in Torres’s offense level for acceptance of

responsibility and an additional one-level downward variance for Torres’s




                                          -2-
agreement to a limited appeal waiver. 1 See USSG § 3E1.1(a)-(b) (downward

departure for acceptance of responsibility). These reductions would bring

Torres’s offense level to 20.

      Further, as part of his plea agreement, Torres and the government agreed

that “while [his prior drug] conviction technically qualifies for a sixteen-level

specific offense characteristic enhancement, . . . the sentencing range resulting

from a twelve-level enhancement provides a sufficient sentence to reflect the

goals of sentencing set forth in 18 U.S.C. § 3553(a).” R., Vol. I at 13. The

probation office also supported this treatment of the prior felony drug conviction.

Thus, the plea agreement contemplated an offense level of 16. Torres had

criminal history category of IV. His guideline range with an offense level of 16

would be 33-41 months; the range for an offense level of 20 would be 51-63

months.

      At the sentencing hearing, the district court accepted the sentencing

reductions for acceptance of responsibility and waiver of certain appellate rights.

The district court, however, denied the four-level variance for the felony drug

charge enhancement. Rather, the court concluded that the 16-level enhancement

should apply in Torres’s case. Thus, the court calculated the offense level as 20




      1
        This limited waiver nevertheless allows for an appeal of a sentence based
on an offense level greater than 17, a condition clearly met in this case.

                                         -3-
and then sentenced Torres to 51 months’ imprisonment, the lowest sentence in the

guidelines range for this offense level and criminal history.

      Torres objected to the district court’s application of the 16-level

enhancement and renews the challenge here on appeal, claiming the 51-month

sentence is substantively unreasonable.

                                   II. Analysis

      “Our appellate review for reasonableness includes both a procedural

component, encompassing the method by which a sentence was calculated, as well

as a substantive component, which relates to the length of the resulting sentence.”

United States v. Smart, 518 F.3d 800, 803 (10th Cir. 2008). “Unlike procedural

reasonableness review, which focuses on the permissibility of relying on a

particular factor, substantive reasonableness review broadly looks to whether the

district court abused its discretion in weighing permissible § 3553(a) factors in

light of the ‘totality of the circumstances.’” United States v. Sayad, 589 F.3d

1110, 1118 (10th Cir. 2009) (quoting Gall v. United States, 552 U.S. 38, 51

(2007)).

      In reviewing a sentence for substantive reasonableness, we give deference

to the district court under an abuse of discretion standard. Smart, 518 F.3d at

805–06. Further, as is the case here, if the sentence calculated by the district

court is within the correctly calculated guidelines range for the offense, we apply

a presumption of reasonableness. See United States v. Kristl, 437 F.3d 1050,

                                          -4-
1053–55 (10th Cir. 2006) (per curiam). A defendant may rebut this presumption

by demonstrating the sentence is unreasonable when viewed under the § 3553(a)

factors. Id. at 1054-55. At the same time, “as 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).

      Torres advances several arguments in favor of the position that his sentence

was substantively unreasonable. First, he argues that the district court erred by

“mechanically follow[ing]” the Guidelines in applying his sentence, a result

which he suggests runs contrary to United States v. Booker, 543 U.S. 220 (2005).

Aplt. Br. at 13. He also suggests the district court did not adequately consider the

nature of his prior drug conviction or the fact that the offense level applied in his

case is normally applied for crimes he considers much more serious than illegal

reentry.

      Similarly, Torres argues the district court unduly discounted certain

circumstances that mitigated against the 51-month sentence, such as Torres’s

upbringing in poverty, the violence plaguing the region of Mexico where Torres

grew up, and the stresses caused by the illness of Torres’s father. Finally, Torres

claims that the 51-month sentence violates the parsimony principle, a requirement

that “the sentence [imposed] be ‘sufficient, but not greater than necessary, to

                                          -5-
comply with the purposes’ of criminal punishment.” United States v.

Martinez-Barragan, 545 F.3d 894, 904 (10th Cir. 2008) (citing 18 U.S.C.

§ 3553(a)(2)).

      Torres has failed to rebut the presumption of reasonableness that we apply

to his within-the-guidelines sentence. As an initial matter, we note that the

district court did not merely “mechanically apply” the Guidelines in Torres’s

case. Rather, after noting that the Guidelines are advisory post-Booker, the court

considered the offense level for Torres’s crime, one of the factors that must be

considered under 18 U.S.C. § 3553(a). See id. § 3553(a)(4). There is no dispute

that the applicable offense level for Torres’s crime is 24. The court nevertheless

granted a one-level downward variance for the waiver of appellate rights and

agreed to lower the sentence by three more levels given Torres’s acceptance of

responsibility. The record also reveals the court considered Torres’s difficult life

circumstances but weighed this observation against the fact that Torres had

continued to commit criminal violations of the law—from drunk driving to

violations of probation—and did so despite having avoided harsher sentences in

the past.

      To be sure, Torres might have preferred the district court to place more

weight on the § 3553(a) factor concerning “history and characteristics” of the

defendant, see 18 U.S.C. § 3553(a)(1), and less weight on the applicable

sentencing range under the Guidelines, see id. § 3553(a)(4). Yet this is not the

                                         -6-
standard that Torres must meet to obtain reversal for substantive

unreasonableness. We find no basis for concluding that this sentence was

arbitrary, capricious, or manifestly unreasonable.

         We also disagree with Torres’s contention that the district court violated

the parsimony principle in failing to apply a sentence “sufficient, but not greater

than necessary” in Torres’s case. To the contrary, the district court decided that a

sentence at the bottom end of the applicable guidelines range would be “sufficient

but not greater than necessary to impress upon Mr. Torres” that he needed to be

deterred from reentering the United States illegally and that he must be held to

account for his past illegal returns to the country, returns which were

“characterized by him committing crimes, including drug crimes.” R., Vol. III at

56.

                                   III. Conclusion

         Based on the foregoing analysis, we AFFIRM the judgment of the district

court.

                                                      Entered for the Court,

                                                      Timothy M. Tymkovich
                                                      Circuit Judge




                                           -7-
