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

                               FOR THE TENTH CIRCUIT                        October 22, 2019
                           _________________________________
                                                                          Elisabeth A. Shumaker
                                                                              Clerk of Court
 UNITED STATES OF AMERICA,

          Plaintiff - Appellee,

 v.                                                           No. 19-3037
                                                   (D.C. No. 6:18-CR-10115-JWB-1)
 JULIO CASTANDEDA-RUIZ,                                        (D. Kan.)

          Defendant - Appellant.
                         _________________________________

                               ORDER AND JUDGMENT*
                           _________________________________

Before LUCERO, O’BRIEN, and CARSON, Circuit Judges.
                  _________________________________

      Julio Castandeda-Ruiz challenges the procedural and substantive

reasonableness of his sentence. Exercising jurisdiction under 28 U.S.C. § 1291, we

affirm.

                                            I

      Castandeda-Ruiz pled guilty to one count of felony illegal reentry of a

previously removed or deported alien in violation of 8 U.S.C. § 1326(a). His



      *
        After examining the briefs and appellate record, this panel has determined
unanimously to honor the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
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 This order and judgment is not binding precedent,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.
presentence investigation report (“PSR”), listed a total offense level of 6 and a

criminal history category of I, resulting in an advisory Guidelines range of 0 to 6

months’ imprisonment. The PSR also noted Castandeda-Ruiz was convicted of

misdemeanor illegal reentry in 2017 and had illegally entered the United States on

eight occasions between 2005 and 2016.

      Neither the government nor Castandeda-Ruiz objected to the PSR. The district

court accepted the PSR’s calculations as correct but advised the parties it was

considering an upward variance because Castandeda-Ruiz had “unlawfully entered

the United States ten times.” Both the government and defense counsel requested

Castandeda-Ruiz, who had been in custody for seven months, be sentenced to time

served. The district court considered the sentencing factors under 18 U.S.C.

§ 3553(a) and announced a tentative sentence of 18 months’ imprisonment as

follows:

              [The] Court’s required pursuant to [§] 3553(a) to impose a sentence
      that is sufficient but not greater than necessary to comply with the purposes
      of sentencing identified in that statute. . . . [T]he Court has considered the
      . . . Guidelines which promote uniformity in sentencing and assists the
      Court in determining an appropriate sentence by weighing the basic nature
      of the offense, as well as aggravating and mitigating factors.
      ....

             [The] Court . . . notes that this defendant has at least ten separate
      occurrences of being removed from the United States, counting this
      offense, within the last 13 years. It is this Court’s opinion that the
      defendant has failed to understand the severity of his conduct as
      demonstrated by his continual disregard of the laws of the United States
      applicable to entering into this country.
             In enumerating a little more precisely the sentencing factors under
      [§] 3553, I find that the defendant’s criminal history does not reflect the
                                             2
      presence of these other unlawful entries. As I say, based on the [PSR], this
      is the tenth time he’s come back into the United States unlawfully. It
      happens over and over, and so I am taking that into account.
              I also want to reflect the seriousness of the offense, promote respect
      for the law, provide just punishment, because I expect these laws to be
      followed. . . . [Also,] I think I need a sentence that is going to afford
      adequate future deterrence, and thus far, this defendant’s experience with
      our criminal justice system and immigration system has failed to provide
      sufficient deterrence.
              And I’m also not unaware of the need to avoid unwanted sentencing
      disparities. I know that . . . two of the other individuals who were arrested
      at the same time as this defendant . . . received a time served sentence
      which is what is being requested here, but these individuals . . . had one
      prior unlawful reentry as compared to ten with this defendant.
             And so to apply a time served sentence with this person’s history of
      violating these types of laws seems to me to be unjust and so after
      considering all these factors, the advisory sentencing guidelines, the nature
      and circumstances of the offense, the defendant’s history and
      characteristics, the Court intends to vary from the applicable guideline
      range and sentence the defendant to a term of 18 months imprisonment. . . .
      ....

             The Court believes that such a sentence is sufficient but not greater
      than necessary to reflect the seriousness of the offense, promote respect for
      the law, and provide just punishment for the offense. Further, the sentence
      should afford adequate deterrence to criminal conduct and protect the
      public from further crimes of the defendant.
      In response to the district court’s explanation for the proposed variance,

Castandeda-Ruiz’s counsel argued his client did not have a history of violence or

drug trafficking and only came to this country to work to help support his family. He

also maintained that the taxpayers would save money if he were given a time-served

sentence. Nonetheless, counsel said he “underst[ood] the Court’s reasoning behind

[the] . . . sentence.” The court imposed the 18-month sentence. Castandeda-Ruiz

timely appealed.
                                             3
                                            II

      “On appeal, we review sentences for ‘reasonableness,’ which has both

procedural and substantive dimensions.” United States v. Martinez-Barragan,

545 F.3d 894, 898 (10th Cir. 2008). “That is, we consider both the length of the

sentence, as well as the method by which the sentence was calculated.” Id.

(quotation omitted).

                                            A

      As to procedural reasonableness, a defendant must “contemporaneously object

in the district court to the method by which the district court arrived at a sentence,

including arguments that the sentencing court failed to explain adequately the

sentence imposed, if he or she hopes to avoid plain error review on appeal of any

alleged procedural flaw.” United States v. Wireman, 849 F.3d 956, 961 (10th Cir.

2017) (quotation omitted). “We will find plain error only when there is (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.” Id. at 962

(quotation omitted). The defendant bears the burden to establish all four factors. See

United States v. Dominguez Benitez, 542 U.S. 74, 82 (2004).

      After the district court announced the tentative 18-month sentence and the

reasons for it, the court asked the parties if they objected. Castandeda-Ruiz

responded with substantive arguments regarding his sentence but did not object to the

adequacy of the court’s explanation of the sentence. Accordingly, our review is for

plain error. See Wireman, 849 F.3d at 961.

                                            4
        Castandeda-Ruiz maintains the district court failed to adequately explain its

substantial variance and failed to consider his material, non-frivolous arguments.

“To satisfy the third prong of plain-error review, a defendant generally must

demonstrate that an error was prejudicial, meaning that there is a reasonable

probability that, but for the error claimed, the result of the proceeding would have

been different.” United States v. Bustamante-Conchas, 850 F.3d 1130, 1138

(10th Cir. 2017) (en banc) (quotation omitted). “[A] reasonable probability is a

probability sufficient to undermine confidence in the outcome.” Id. (quotation

omitted). We conclude Castandeda-Ruiz has not shown a reasonable probability that

his arguments would have caused the district court to impose a lesser sentence. The

court was required to “adequately explain the chosen sentence to allow for

meaningful appellate review and to promote the perception of fair sentencing,” Gall

v. United States, 552 U.S. 38, 50 (2007), and did so when it gave a lengthy and

detailed explanation of its justification for the sentence.

                                            B

       “[W]e review the length of [a] sentence for an abuse of discretion.” Martinez-

Barragan, 545 F.3d at 905 (quotation omitted). “Under a deferential abuse-of-

discretion standard, we deem a sentence unreasonable only if it is arbitrary,

capricious, whimsical, or manifestly unreasonable.” United States v. Gantt, 679 F.3d

1240, 1249 (10th Cir. 2012) (quotation omitted).

       Castandeda-Ruiz argues that his eighteen-month sentence is substantively

unreasonable because the district court: (1) gave too much weight to his criminal

                                            5
history; (2) failed to adequately weigh his characteristics; (3) placed improper weight

on each of his past removals despite their differences; and (4) did not provide a

supportable rationale for a major variant sentence that placed him well outside

national sentencing norms. We disagree.

      Even if a district court settles on a sentence that varies from the recommended

Guidelines sentence, “we must 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) (quotation omitted). “Although a major

departure should be supported by a more significant justification than a minor one,

we no longer require that extraordinary circumstances justify a sentence outside the

Guidelines range. . . .” United States v. Huckins, 529 F.3d 1312, 1317 (10th Cir.

2008) (citation and quotation omitted). And under 18 U.S.C. § 3553(a)(6), a

sentencing court need only consider “unwarranted sentence disparities.” Id.

(emphasis added).

      We disagree with Castandeda-Ruiz that the upward variance was an abuse of

discretion. To the contrary, the court noted, among other things, this was the tenth

time Castandeda-Ruiz had entered the United States illegally. Although he disagrees

with the manner in which the court weighed the § 3553(a) sentencing factors, this

does not mean the sentence is substantively unreasonable. “[I]t is not the job of an

appellate court to review de novo the balance struck by a district court among the

factors set out in § 3553(a).” United States v. Sells, 541 F.3d 1227, 1239 (10th Cir.

2008). Rather, “as long as the balance struck by the district court among the factors

                                           6
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.” Id.

                                          III

      AFFIRMED.




                                           Entered for the Court


                                           Carlos F. Lucero
                                           Circuit Judge




                                           7
