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

                                   TENTH CIRCUIT                          February 3, 2015

                                                                         Elisabeth A. Shumaker
                                                                             Clerk of Court

 UNITED STATES OF AMERICA,

        Plaintiff - Appellee,

 v.                                                          No. 14-1267
                                                   (D.C. No. 1:13-CR-00500-RBJ-1)
 ADRIAN CASTILLO-ARELLANO,                                    (D. Colo.)

        Defendant - Appellant.


                                ORDER AND JUDGMENT*


Before HARTZ, McKAY, and MATHESON, Circuit Judges.


       Appellant Adrian Castillo-Arellano was convicted under 8 U.S.C. § 1326(a) and

(b)(2) for illegal reentry of a noncitizen previously removed after an aggravated felony.

The district court sentenced Mr. Castillo-Arellano to 41 months in prison, which is the

low end of the applicable United States Sentencing Guidelines (“Guidelines”) range.


       *After examining the brief and the appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of this
appeal. See Fed. R. App. P. 34(a)(2) and 10th Cir. R. 34.1(G). The case is therefore
ordered 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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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.
      Mr. Castillo-Arellano appeals his sentence, arguing it is substantively

unreasonable. Exercising jurisdiction under 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291,

we affirm.

                                  I. BACKGROUND

      Mr. Castillo-Arellano entered the United States without authorization on February

18, 2004. In early 2011, he was 25 years old when he met a 14-year-old girl at a house

party in Colorado. They had both consumed alcohol. The girl told Mr. Castillo-Arellano

she was 17 years old and would be turning 18 soon. As she later described, she then

“talked him into having sex with her.” ROA, Vol. II at 24.

      Within weeks of the party, the girl learned she was pregnant. When she told Mr.

Castillo-Arellano about the pregnancy, he promised to support her and suggested she

move out of her parents’ home when she turned 18. The girl admitted she was only 14,

which upset Mr. Castillo-Arellano. The girl informed her mother of the pregnancy and

the sexual encounter with Mr. Castillo-Arellano, but she asked her mother not to notify

the police. Her mother reported the incident to Broomfield Police Department on March

19, 2011.

      On July 18, 2011, two police officers located Mr. Castillo-Arellano, who provided

fake names to them before eventually providing his real name. He admitted having sex

with the 14-year-old girl and knowing she was pregnant. When the officers told Mr.

Castillo-Arellano he was under arrest, he attempted to flee. The officers pursued and

struggled to capture him. After Mr. Castillo-Arellano was stopped, he again fought to
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escape, but the officers were able to restrain him. Neither officer was seriously injured.

       Mr. Castillo-Arellano pled guilty to the Colorado state offenses of obstructing a

peace officer (a class 2 misdemeanor), negligent child abuse resulting in serious bodily

injury (a class 4 felony), and attempted sexual assault on a child (a class 5 felony). The

state district court sentenced him to four years of probation. He was removed to Mexico

on February 28, 2012.

       Mr. Castillo-Arellano was unable to comply with his probation terms because he

was outside the United States. Broomfield County’s probation office requested and

received a warrant for Mr. Castillo-Arellano’s arrest for violating his probation.

       On February 8, 2013, Mr. Castillo-Arellano presented himself at the Ysleta port of

entry in El Paso, Texas. When Customs and Border Patrol officers discovered the

outstanding arrest warrant, he was taken into custody, paroled into the United States, and

extradited to Colorado. On April 19, 2013, the state district court revoked and terminated

Mr. Castillo-Arellano’s probation, sentenced him to 200 days in jail, and gave him credit

for time served. The next day, Mr. Castillo-Arellano was again removed to Mexico.

       Months later, Immigration and Customs Enforcement (“ICE”) learned Mr.

Castillo-Arellano had returned to Colorado and was residing with family in Boulder. On

November 22, 2013, ICE agents found Mr. Castillo-Arellano at his sister’s apartment in

Boulder. He provided his full name to the agents and admitted he had been removed to

Mexico in April. The agents arrested him and processed him for administrative removal.

On March 17, 2014, Mr. Castillo-Arellano pled guilty in federal district court to illegal
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reentry under 8 U.S.C. § 1326(a) and (b)(2).

       The U.S. Probation Office prepared a Presentence Report (“PSR”). It used the

2013 United States Sentencing Commission’s Guidelines Manual (“U.S.S.G.”) to

calculate the applicable guideline range of 41 to 51 months based on a total offense level

of 21 and a criminal history category of II.

       The total offense level resulted from a base level of 8 under U.S.S.G. § 2L1.2(a), a

16-level enhancement for a crime of violence under U.S.S.G. § 2L1.2(b)(1)(A) based on

Mr. Castillo-Arellano’s conviction for attempted sexual assault of a child,1 and a 3-level

reduction based on his acceptance of responsibility under U.S.S.G. § 3E1.1(a) and (b).

       Mr. Castillo-Arellano’s criminal history category of II resulted from his prior jail

sentence from his 2011 convictions, which qualified him for two criminal history points

under U.S.S.G. § 4A1.1(b).

       Mr. Castillo-Arellano was sentenced on June 24, 2014. He moved for a downward

variance to 13 months in prison followed by three years of supervised release. He argued

the Guidelines range was greater than necessary to achieve the objectives of the 18

U.S.C. § 3553(a) factors. First, he argued his prior conviction did not warrant imposing

both a 16-level enhancement and an increase in the criminal history category for the same

offense. Second, he contended the 16-level enhancement overstated the seriousness of

his prior conviction. Third, he asserted 13 months in prison would be adequate to deter

       1
       “Crime of violence” for purposes of U.S.S.G. § 2L1.2(b)(1)(A) includes various
enumerated offenses, including statutory rape. See U.S.S.G. § 2L1.2 cmt. n.1(B)(iii).

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future illegal reentries, and his removal after serving a 13-month sentence would

adequately protect the public.

       The Government sought a sentence of 41 months in prison with no supervised

release. It noted the seriousness of Mr. Castillo-Arellano’s sexual encounter with a 14-

year-old and his attempt to resist arrest, and argued a lighter sentence would not

adequately deter future criminal conduct or protect the public.

       The district court rejected Mr. Castillo-Arellano’s arguments about the prior

conviction, noting the 14-year-old girl’s supposed consent did not detract from the

seriousness of the offense. It discussed the need to impose a sentence that would deter

Mr. Castillo-Arellano from engaging in criminal conduct again, and the community

safety concerns associated with serious sex offenses. The court also explained its

concerns about Mr. Castillo-Arellano’s attempts to avoid arrest. Based on these

considerations, the court denied Mr. Castillo-Arellano’s motion for variance and imposed

a sentence at the bottom of the applicable Guidelines range—41 months in prison without

supervised release. Mr. Castillo-Arellano now appeals, arguing this sentence is

substantively unreasonable.

                                    II. DISCUSSION

                     A. Standard of Review and Legal Background

       We review sentences imposed by district courts under the abuse of discretion

standard. Gall v. United States, 552 U.S. 38, 41 (2007). “A district court abuses its

discretion when it renders a judgment that is arbitrary, capricious, whimsical, or
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manifestly unreasonable.” United States v. Regan, 627 F.3d 1348, 1352 (10th Cir. 2010)

(quotations omitted).

       “Reasonableness review is a two-step process comprising a procedural and a

substantive component.” United States v. Alapizco-Valenzuela, 546 F.3d 1208, 1214

(10th Cir. 2008) (quotations omitted). “[F]irst [we] ensure that the district court

committed no significant procedural error, such as failing to calculate (or improperly

calculating) the Guidelines range, treating the Guidelines as mandatory, failing to

consider the § 3553(a) factors, selecting a sentence based on clearly erroneous facts, or

failing to adequately explain the chosen sentence.” Gall, 552 U.S. at 51.

       “In considering whether a defendant’s sentence is substantively reasonable, we

examine 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. Chavez,

723 F.3d 1226, 1233 (10th Cir. 2013) (quotations omitted). “We may not examine the

weight a district court assigns to various § 3553(a) factors, and its ultimate assessment of

the balance between them, as a legal conclusion to be reviewed de novo.” United States

v. Smart, 518 F.3d 800, 808 (10th Cir. 2008). “[I]n many cases there will be a range of

possible outcomes the facts and law at issue can fairly support; rather than pick and

choose among them ourselves, we will defer to the district court’s judgment so long as it

falls within the realm of these rationally available choices.” United States v. McComb,

519 F.3d 1049, 1053 (10th Cir. 2007). Sentences within the Guidelines range are entitled

to a rebuttable presumption of reasonableness. United States v. Balbin-Mesa, 643 F.3d
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783, 788 (10th Cir. 2011).

                                        B. Analysis

       Mr. Castillo-Arellano does not challenge the district court’s sentence on

procedural reasonableness grounds. Our review is therefore limited to substantive

reasonableness. Mr. Castillo-Arellano has not overcome the presumption of

reasonableness. We conclude the district court’s sentence fell within the realm of

rationally available choices.

       The district court concluded 41 months in prison was sufficient, but not greater

than necessary, in light of Mr. Castillo-Arellano’s illegal reentry, prior convictions, and

resistance to arrest. First, the court explained the sentence would promote respect for the

law because “[Mr. Castillo-Arellano] got a break before, he took his chances, and

unfortunately for him, when he came back this latest time illegally, basically he stuck his

chin out and asked the system to whack him, and that’s what I think he deserves, quite

frankly.” ROA, Vol. III at 35. Second, the court concluded 41 months would deter

future criminal conduct by Mr. Castillo-Arellano because it would demonstrate to him the

serious consequences of such activity. Third, the court considered the public safety

concerns relating to individuals who have committed serious sex offenses or attempted to

evade or act aggressively toward police officers.

       Mr. Castillo-Arellano points out we considered a similar situation in United States

v. Hernandez-Castillo, 449 F.3d 1127 (10th Cir. 2006), which also involved a noncitizen

convicted of illegal reentry who received a 16-level enhancement for a prior conviction
                                             -7-
arising from a consensual sexual relationship between the defendant and a 14-year-old

girl. Id. at 1129, 1131. Although Mr. Hernandez-Castillo did not challenge the

reasonableness of his sentence, we suggested these circumstances could raise substantive

reasonableness concerns. Id. at 1131-32.

       Hernandez-Castillo is distinguishable from this case. Mr. Hernandez-Castillo had

been convicted for statutory rape of a 14-year-old when he was 18. Id. at 1131. The

relationship produced a child. Id. At the time of sentencing, he had maintained support

and contact with the child and mother. Id. Mr. Castillo-Arellano, by contrast, was 25 at

the time of his sexual relationship with the 14-year-old, and the record does not show he

maintains support or contact with the child or mother. Additionally, Mr. Hernandez-

Castillo’s prior conviction could be classified as either a misdemeanor or a felony under

California law. Id. at 1130-31. But Mr. Castillo-Arellano’s prior conviction is classified

as only a felony under Colorado law. See Colo. Rev. Stat. §§ 18-2-101(4), 18-3-405(2).

       Mr. Castillo-Arellano also attacks the district court’s sentence because statutory

rape results in the same enhancement as a prior conviction for murder. But the

enhancement applies to a wide range of convictions designated as crimes of violence by

U.S.S.G. § 2L1.2—statutory rape, murder, kidnapping, aggravated assault, sexual abuse

of a minor, robbery, arson, extortionate extension of credit, and more. U.S.S.G. § 2L1.2

cmt. n.1(B)(iii). Although downward variances may be “based on the relatively benign

nature of a particular offense in comparison to other offenses triggering the same

enhancement,” this decision is left to the sentencing court’s discretion. United States v.
                                            -8-
Chavez-Suarez, 597 F.3d 1137, 1138-39 (10th Cir. 2010). The district court rejected a

downward variance after considering the nature of Mr. Castillo-Arellano’s prior

conviction, the circumstances surrounding his arrest in July 2011, and his decision to

reenter the United States without authorization. The district court weighed the § 3553(a)

factors. Mr. Castillo-Arellano cannot overcome the presumptive reasonableness of his

sentence under these circumstances.

                                  III. CONCLUSION

       For the foregoing reasons, we affirm Mr. Castillo-Arellano’s sentence.

                                          ENTERED FOR THE COURT



                                          Scott M. Matheson, Jr.
                                          Circuit Judge




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