                                                                         FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                                                                December 15, 2011
                    UNITED STATES COURT OF APPEALS
                                                 Elisabeth A. Shumaker
                                                                    Clerk of Court
                                 TENTH CIRCUIT



 UNITED STATES OF AMERICA,

               Plaintiff-Appellee,                       No. 11-1067
          v.                                             (D. of Colo.)
 JOSE ANGEL CARRILLO-                           (D.C. No. 10-CR-00218-REB)
 RODRIGUEZ, a/k/a Angel
 Garcia-Perea, a/k/a Angel Garcia
 Pereira,

               Defendant-Appellant.


                           ORDER AND JUDGMENT *


Before O’BRIEN, McKAY, and TYMKOVICH, Circuit Judges. **


      Mr. Carrillo-Rodriguez pleaded guilty to the offense of illegal reentry after

deportation subsequent to an aggravated felony conviction. At sentencing, he

moved for a downward variance from the applicable United States Sentencing

Guidelines (USSG) range based on the staleness of his prior felony. The district


      *
         This order and judgment is not binding precedent except under the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.
court declined to grant it, instead sentencing Carillo-Rodriguez at the bottom of

the applicable guidelines range. He appeals his sentence, arguing that it is

substantively unreasonable.

      Exercising our jurisdiction under 18 U.S.C. § 3742(a) and 28 U.S.C.

§ 1291, we AFFIRM the decision of the district court.

                               I. BACKGROUND

      The record shows Carrillo-Rodriguez is approximately 40 years old and

was born in Mexico. He first entered the United States when he was 14 years old.

In 1995, he was convicted in Colorado on state charges of possession of heroin

with intent to distribute, and sentenced to 4 years imprisonment. In 1996, he was

deported to Mexico. At some point after removal, he reentered the United States.

He committed several more crimes, including reckless driving in 2002, shoplifting

in 2009, driving while impaired in 2009, and theft in 2010. In March 2010,

Colorado authorities released him to the custody of U.S. Immigrations and

Customs Enforcement (ICE). He was charged with the present offense in April

2010, and pleaded guilty in September 2010 pursuant to a plea agreement.

      Carrillo-Rodriguez’s offense carried a base offense level of 8 under the

Guidelines. But his offense level was increased to 24 pursuant to USSG

§ 2L1.2(b)(1)(A)(I), due to his 1995 drug conviction, which qualified as a drug

trafficking offense. After making the appropriate adjustments for Carrillo-

Rodriguez’s criminal history and acceptance of responsibility, the district court

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arrived at a guidelines range of 57 to 71 months imprisonment. Carrillo-

Rodriguez moved for a downward departure and variance, based on the staleness

of his 1995 conviction, which he characterized as his only “serious” prior

conviction. R., Vol. 2 at 42.

      The district court denied Carillo-Rodriguez’s motion. It acknowledged that

it had discretion to depart downward, but found that “the defendant’s criminal

record does not substantially overrepresent his criminal history category or the

likelihood of recidivism.” Id. at 49. In considering “the nature and

circumstances of the offense as committed by Mr. Carrillo,” id. at 50, the court

reasoned:

             I distinguish between two groups of defendants; those whose
      discovery in this country is fortuitous, bordering on the accidental,
      and those whose illegal immigration status come to the attention of
      ICE because while they are in the custody of state or local authorities
      while detained or incarcerated on non-immigration related criminal
      charges, they come to the attention of the authorities.
             Mr. Carrillo falls squarely into the disfavored second
      group. . . .
      ...
             He certainly has reaped the benefits, privileges and advantages
      afforded by this country. But to his detriment he has failed to
      reciprocate.
             While in this country, even illegally, Mr. Carrillo had the
      simple duty and responsibility to live a law-abiding life. For reasons
      best known to himself he has chosen to do otherwise.
             He has been convicted of an aggravated felony which resulted
      in his first removal. He reentered this country illegally, again with
      the opportunity to lead a law-abiding life, and again for reasons best
      known to himself, did not do so.
      ...


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            He stands before the court frankly with a philosophy that
      evinces to a disturbing extent a disrespect and disregard for state and
      federal authority . . . and federal immigration authority.

Id. at 50–51. Based on this reasoning, the court sentenced Carrillo-Rodriguez to

57 months, the bottom of the guidelines range.

                                 II. DISCUSSION

      We review a claim of substantive unreasonableness for abuse of discretion.

United States v. Lewis, 594 F.3d 1270, 1277 (10th Cir. 2010). “A district court

abuses its discretion when it renders a judgment that is arbitrary, capricious,

whimsical, or manifestly unreasonable.” Id. (internal quotation marks omitted).

A sentence “within the properly calculated guidelines range . . . is presumed

reasonable.” Id. “The defendant may rebut the presumption, however, by

demonstrating that the sentence is unreasonable when viewed against the other

factors delineated in [28 U.S.C.] § 3553(a).” Id. (internal quotation marks

omitted).

      Section 3553(a) lists the factors a sentencing court must consider when

imposing a sentence. Carrillo-Rodriguez’s argument focuses on two of these

factors: “the nature and circumstances of the offense,” § 3553(a)(1), and “the

history and characteristics of the defendant,” § 3553(a)(2).

      Carillo-Rodriguez argues that his sentence is unreasonable under § 3553

because of the staleness of his prior felony convictions. He urges that because his

prior felony was committed in 1995, and he has not had another felony conviction

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since then, the district court should have given less weight to the history of the

defendant, and more weight to the nature of the offense.

      In support of his argument, Carillo-Rodriguez relies heavily on United

States v. Amezcua-Vasquez, 567 F.3d 1050 (9th Cir. 2009). In that case, the

defendant, Amezcua-Vasquez, was convicted of attempted illegal reentry after

deportation for an aggravated felony. Id. at 1052. Amezcua-Vasquez had

originally moved to the United States in 1957, when he was two years old, and

became a permanent resident. Id. His aggravated felony was a 1981 conviction

for assault with great bodily injury related to a bar fight. Id. After his release in

1984, he was convicted of four other offenses: battery in 1987, violation of a

court order in 1993, driving under the influence in 1993, and “us[ing], or be[ing]

under the influence of any controlled substance” in 1999. Id. at 1052 & n.1. In

2006, he was deported based on his 1981 conviction, pursuant to the Illegal

Immigration Reform and Immigrant Responsibility Act of 1996, which expanded

the class of deportable felonies and applied retroactively. See id. at 1056 n.4.

Two weeks after being deported, he was apprehended entering the United States.

Id. at 1052.

      Amezcua-Vasquez pleaded guilty to attempted illegal reentry after

deportation for an aggravated felony. At sentencing, he was sentenced to 52

months imprisonment, in the middle of the applicable guidelines range of 46 to 57




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months. Id. at 1053. He objected to the substantive reasonableness of his

sentence. Id.

      On appeal, the Ninth Circuit Court of Appeals found that his sentence was

substantively unreasonable, because the guidelines range gave too much weight to

his 1981 felony conviction. The court explained,

      [a]lthough it may be reasonable to take some account of an
      aggravated felony, no matter how stale, in assessing the seriousness
      of an unlawful reentry into the country, it does not follow that it is
      inevitably reasonable to assume that a decades-old prior conviction is
      deserving of the same severe additional punishment as a recent one.

Id. at 1055. The court found that the aggravated felony was “unrepresentative of

[Defendant’s] characteristics,” because “there is no indication that he has

committed another offense listed in [USSG] Section 2L1.2 or has harmed another

person or the property of another for the past twenty years.” Id. at 1056. The

court also found it significant that Amezcua-Vasquez’s crime did not become a

deportable offense until 1996, 15 years after he committed it. Id. The court

noted that a below-guidelines sentence would not create “unwarranted sentencing

disparities” under § 3553(a)(6) due to the defendant’s “record of relative

harmlessness to others for the past twenty years.” Id. at 1058. Thus, it vacated

the defendant’s sentence and remanded for resentencing. Id.

      Carrillo-Rodriguez argues he is in a position similar to Amezcua-Vasquez,

and should be sentenced accordingly. Of course, we are not bound by Ninth

Circuit sentencing jurisprudence, and our own approach to substantive

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reasonableness in sentencing differs in significant ways. For example, we apply a

presumption of reasonableness to a within-guidelines sentence, while the Ninth

Circuit does not. Compare Lewis, 594 F.3d at 1277, with Amezcua-Vasquez, 567

F.3d at 1055.

      We recently considered, and rejected, a similar substantive reasonableness

claim based on Amezcua-Vasquez. In United States v. Vasquez-Alcarez, 647 F.3d

973, 975 (10th Cir. 2011), another illegal reentry case, the defendant’s sentencing

enhancement was based on an 11-year-old conviction for cocaine trafficking, and

the district court refused to grant a downward variance. We acknowledged “that

the staleness of an underlying conviction may, in certain instances, warrant a

below-Guidelines sentence.” Id. at 978 (quoting United States v. Chavez-Suarez,

597 F.3d 1137, 1138 (10th Cir. 2010)). But we found no unreasonableness

because the defendant trafficked a “serious drug,” and because the district court

fully considered the defendant’s “criminal history, his pattern of reentry, his

family situation, and his acceptance of responsibility.” Id. Here, the district

court did exactly the same, and Carrillo-Rodriguez’s prior felony was likewise for

a “serious drug” offense—possession of heroin with intent to distribute.

      Even assuming for the sake of argument that Amezcua-Vasquez is

persuasive, many relevant differences exist between Carillo-Rodriguez and

Amezcua-Vasquez that illustrate why Carillo-Rodriguez’s sentence was

substantively reasonable. Furthermore, these differences are grounded in facts

                                         -7-
that the district court specifically relied upon in rejecting Carillo-Rodriguez’s

request for a downward variance.

      First, Amezcua-Vasquez’s last conviction for any crime was seven years

prior to his arrest for illegal reentry. Here, in contrast, Carillo-Rodriguez was

convicted of theft and drunk driving immediately prior to his conviction for

illegal reentry. In fact, it was his arrest on larceny charges that led directly to the

instant case. As the district court noted, Carrillo-Rodriguez’s discovery by

immigration authorities was not “fortuitous, bordering on the accidental,” but was

a direct result of his arrest. R., Vol. 2, Doc. 36, at 50.

      Second, the Amezcua-Vasquez court focused on what it considered to be the

less-serious nature of the defendant’s most recent prior conviction, which was for

“us[ing], or be[ing] under the influence of any controlled substance.” Amezcua-

Vasquez, 567 F.3d at 1052. The court explained that “although [Amezcua-

Vasquez] has evidently struggled with a substance addiction, there is no

indication that he . . . has harmed or attempted to harm another person or the

property of another for the past twenty years.” Id. at 1056. Here, in contrast,

Carillo-Rodriguez was convicted for theft, an intentional property crime. While

we do not here endorse the view that crimes related to substance abuse are

unserious, even if we were to adopt that view, it would not excuse Carillo-

Rodriguez’s choice to steal from others on at least two recent occasions.




                                           -8-
      Third, Amezcua-Vasquez was arrested during his attempted reentry. In

contrast, Carillo-Rodriguez was arrested many years after he reentered the United

States. Thus, Carillo-Rodriguez, unlike Amezcua-Vasquez, had an opportunity to

demonstrate his “relative harmlessness to others” after reentering. Amezcua-

Vasquez, 567 F.3d at 1058. But, as the district court emphasized, after reentering

Carillo-Rodriguez had “the opportunity to lead a law-abiding life, and again for

reasons best known to himself, did not do so.” R., Vol. 2, Doc. 36 at 50. His

continued engagement in criminal activity heightens the contrast between him and

Amezcua-Vasquez and further illustrates the appropriateness of a within-

guidelines sentence.

      Fourth, at the time of Amezcua-Vasquez’s aggravated assault conviction in

1981 (which formed the basis for his deportation in 2006), aggravated assault was

not considered an “aggravated felony” for purposes of deportation. See Amezcua-

Vasquez, 567 F.3d at 1056. In addition, Amezcua-Vasquez was a legal permanent

resident prior to his deportation. Thus, Amezcua-Vasquez was not ‘on notice’ in

1981 that his conviction for aggravated assault would result in deportation. In

contrast, Carillo-Rodriguez was not a legal resident, and even if he had been,

heroin possession with intent to distribute was a deportable offense at the time he

committed it. See 8 U.S.C. § 1251(a)(2)(B) (1994). Thus, Carillo-Rodriguez was

not taken unawares by a subsequent legislative change that made him eligible for

deportation.

                                         -9-
       The district court considered the § 3553(a) factors, including Carillo-

Rodriguez’s specific characteristics. Based on Carillo-Rodriguez’s persistent

involvement in crime, the court declined to grant a downward variance, and

instead imposed a sentence at the bottom of the guidelines range. The district

court clearly acted within “‘the range of rationally permissible choices’ before it.”

Chavez-Suarez, 597 F.3d at 1139 (quoting United States v. McComb, 519 F.3d

1049, 1053 (10th Cir. 2007)).

                                III. CONCLUSION

       Because the district court did not abuse its discretion in declining to grant

Carillo-Rodriguez’s request for a downward variance, we AFFIRM the judgment

of the district court.

                                        ENTERED FOR THE COURT,

                                        Timothy M. Tymkovich
                                        Circuit Judge




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