                                                                      FILED
                                                          United States Court of Appeals
                                                                  Tenth Circuit

                                                                March 28, 2013
                    UNITED STATES COURT OF APPEALS
                                                 Elisabeth A. Shumaker
                                                                  Clerk of Court
                                 TENTH CIRCUIT



 UNITED STATES OF AMERICA,

               Plaintiff - Appellee,                    No. 12-3274
          v.                                            (D. Kansas)
 LUIS AVALOS-ESTRADA,                        (D.C. No. 6:12-CR-10120-EFM-1)

               Defendant - Appellant.


                            ORDER AND JUDGMENT *


Before PORFILIO and ANDERSON, Circuit Judges, and BRORBY, Senior
Circuit Judge.



      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.

      Defendant and appellant, Luis Avalos-Estrada, pled guilty to illegally

reentering the United States after being deported following the commission of a



      *
       This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 32.1.
drug trafficking crime for which the sentence imposed was more than thirteen

months, in violation of 8 U.S.C. § 1326. He was sentenced to fifty-seven months’

imprisonment. Arguing that his sentence is unreasonable because it includes a

sixteen-level enhancement, thereby leading to a higher sentence, Mr. Avalos-

Estrada appeals. We affirm.



                                BACKGROUND

      As indicated, Mr. Avalos-Estrada pled guilty on July 24, 2012, to illegal

reentry, following a prior deportation after the commission of an aggravated

felony (cocaine distribution in 2007). In preparation for sentencing under the

advisory United States Guidelines Commission, Guidelines Manual (“USSG”), the

United States Probation Office prepared a presentence report (“PSR”). The PSR

calculated Mr. Avalos-Estrada’s total offense level at 21, which included a 16-

level increase pursuant to USSG §2L1.2(b)(1)(A)(i) because he had been

previously deported following a conviction for a drug trafficking crime for which

he received a sentence in excess of thirteen months. With a criminal history

category of IV, the PSR recommended a sentencing range of 57 to 71 months.

      Mr. Avalos-Estrada filed a sentencing memorandum seeking a “variance”

from the advisory Guidelines range, arguing that there should be a policy change

from the 16-level increase under USSG §2L1.2(b)(1)(A) and that his favorable

characteristics warranted a variance from the advisory range.

                                        -2-
      At his sentencing hearing, Mr. Avalos-Estrada again sought the downward

“variance.” The district court explicitly recognized it had authority to depart

from the Guidelines range, but decided not to. The district court addressed Mr.

Avalos-Estrada’s request for a variance at length:

             I understand the policy arguments Mr. Henderson’s made with
      respect to the 16-point enhancement, and I certainly understand why
      many consider that to be, perhaps, excessively harsh, but as he’s
      acknowledged, that’s a policy argument. That’s probably a policy
      argument that is addressed to Congress or to the U.S. Sentencing
      Commission. I have the authority to vary from the U.S. Sentencing
      Guidelines, but I think, as the lawyers know, I’m generally reluctant
      to do that, and because those bodies, specifically Congress and the
      sentencing commission, that have been entrusted with making the
      policy decisions, have assigned 16 points to the history and behavior
      which this defendant presents with, I don’t feel it’s appropriate for
      me to second-guess those decisions.

Tr. of Sentencing H’rg at 19-20, R. Vol. 3 at 21-22. Thus, after explaining why it

would not deviate from the 16-level enhancement to Mr. Avalos-Estrada’s total

offense level, the district court further explained why no departure or variance at

all was warranted:

             So given the guideline calculation that those policy decisions
      lead us to, and given my concerns that, if anything, the criminal
      history may be underrepresented because of Mr. Avalos’ lengthy
      record of driving offenses, which violated our country’s rules and,
      frankly, put citizens at risk, . . . I’m not inclined to think that a
      variance or departure from the guideline calculation that exists in this
      case is appropriate or warranted.




                                         -3-
Id. at 22. After providing that explanation, and noting the 18 U.S.C. § 3553(a)

sentencing factors, the court sentenced Mr. Avalos-Estrada to 57 months’

imprisonment, followed by 2 years of supervised release.

      Mr. Avalos-Estrada appeals his sentence, arguing “[i]t was not reasonable

for the District Court to defer to the Sentencing Commission and apply th[e] 16

level enhancement.” Appellant’s Br. at 2.



                                   DISCUSSION

      We review sentences for reasonableness under a deferential abuse-of-

discretion standard. See United States v. Alapizco-Valenzuela, 546 F.3d 1208,

1214 (10th Cir. 2008). “‘Reasonableness review is a two-step process comprising

a procedural and a substantive component.’” Id. (quoting United States v.

Verdin-Garcia, 516 F.3d 884, 895 (10th Cir. 2008). See Gall v. United States,

552 U.S. 38, 51 (2007). Mr. Avalos-Estrada concedes that the district court

correctly calculated his sentence under the Guidelines; he therefore makes no

argument about the procedural reasonableness of the sentence. He challenges

only its substantive reasonableness.

       “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). Sentences which fall within a properly calculated guidelines range are

                                         -4-
entitled to a rebuttable presumption of substantive reasonableness. United States

v. Parker, 553 F.3d 1309, 1322 (10th Cir. 2009).

      The government initially argues that we have no jurisdiction to hear this

appeal. We have held that we lack jurisdiction to review a district court’s

discretionary decision to deny a motion for a downward departure on the grounds

that a particular defendant’s circumstances do not warrant such a departure. See

United States v. Sierra-Castillo, 405 F.3d 932, 936 (10th Cir. 2005). Rather, a

“district court is presumed to understand that it has discretion to downwardly

depart unless the court unambiguously states that it lacks such discretion.” Id.

The district court in this case made it clear it had the discretion in this case to

depart from an advisory Guidelines sentence. But, it did not refuse to “depart” or

“vary” on the ground that Mr. Avalos-Estrada’s particular circumstances did not

warrant such a departure; rather, it decided to follow the advisory Guidelines as

written, and not deviate based upon a policy disagreement with the Guidelines.

Such a decision is reviewable.

      Mr. Avalos-Estrada’s primary argument involves the applicability of the

16-level enhancement accorded his sentence. He argues that it contributes to a

sentence for him which is as long as sentences imposed for much more serious

crimes. He makes several more specific arguments in opposition to the 16-level

enhancement: (1) there is no policy rationale supporting it; (2) it is “excessive

and defective” when compared to “historical and average sentences in

                                           -5-
immigration cases, as well as to average sentences imposed for all federal

criminal offenses nationwide”; (3) the average sentence for immigration offenders

was 5.7 months before the imposition of the Guidelines, but 16.8 months with the

Guidelines in place; 1 (4) illegal re-entry crimes are categorized at the same level

as much more serious crimes; and (5) by using prior convictions to increase the

base offense level and to compute criminal history categories, there is prohibited

“double-counting.” Appellant’s Br. at 2. He thus claims the 16-level

enhancement provision is unreasonable and his sentence including such an

enhancement is unreasonable.

      As Mr. Avalos-Estrada concedes, all of these arguments have been rejected

by our court in previous cases. See, e.g., United States v. Alvarez-Bernabe, 626

F.3d 1161, 1165-67 (10th Cir. 2010) (rejecting the argument that USSG

§21.2(b)(1)(A) is invalid because it lacks a policy rationale and it results in

unwarranted disparities); United States v. Soto-Lopez, 2013 WL 1112189, at **2-

4 (10th Cir. 2013) (unpublished) (rejecting argument about double-counting and

lack of policy rationale); United States v. Carrera-Diaz, 2013 WL 518527, at *2


      1
       Mr. Avalos-Estrada endeavors to make an argument comparing the average
sentence for all federal crimes with some other average sentence. Unfortunately,
the sentence as stated in his brief, making this argument, reads as follows: “The
average sentence for all federal crimes in 2010 was 44.3 months. By comparison,
the average sentence for all federal crimes in 2010 was 44.3 months.”
Appellant’s Br. at 7. And we were unable to locate the source for these statistics
by using the internet cite provided. Thus, we do not directly address this
argument.

                                         -6-
& n.1 (10th Cir. 2013) (unpublished) (upholding validity of enhancement because

bound by precedent and rejecting argument about lacking a policy rationale);

United States v. Gomez-Alvarez, 482 Fed. Appx. 330, 334 (10th Cir. 2012)

(unpublished) (upholding validity of enhancement because bound by precedent);

United States v. Aguilar-Perez, 459 Fed. Appx. 791, 794-95 (10th Cir. 2012)

(unpublished) (rejecting argument comparing illegal re-entry sentences with

sentences for “more serious” crimes and upholding its validity as bound by

precedent); United States v. Gonzalez-Barreras, 434 Fed. Appx. 766, 767-68 (10th

Cir. 2011) (unpublished) (rejecting argument about lack of empirical data

supporting enhancement and upholding validity as bound by precedent); United

States v. Rincon-Torres, 439 Fed. Appx. 683, 686-87 (10th Cir. 2011)

(unpublished) (rejecting argument that enhancement unfairly double-counts);

United States v. Ochoa-Olivas, 426 Fed. Appx. 612, 615 (10th Cir. 2011)

(unpublished) (rejecting argument that enhancement unfairly double-counts);

United States v. Chacon-Orozco, 421 Fed. Appx. 810, 813-14 (10th Cir. 2010)

(unpublished) (rejecting double-counting argument). 2

      We cannot, and would not wish to, rule against these multiple precedents.

Despite amendments to the Guidelines on a regular basis, the Sentencing

Commission has declined to alter the challenged enhancement. As we have stated

      2
       We note that we do not regard unpublished decisions as citable precedent.
We nonetheless cite these unpublished decisions because we agree with the
reasoning of them.

                                        -7-
before, arguments about the wisdom of such an enhancement should be addressed

to the Commission and Congress.



                                  CONCLUSION

      For the foregoing reasons, we AFFIRM the sentence in this case.

                                            ENTERED FOR THE COURT


                                            Stephen H. Anderson
                                            Circuit Judge




                                      -8-
