                                                                                 FILED
                                                                     United States Court of Appeals
                                                                             Tenth Circuit

                     UNITED STATES COURT OF APPEALS                       November 3, 2010
                                    TENTH CIRCUIT                        Elisabeth A. Shumaker
                                                                             Clerk of Court

UNITED STATES OF AMERICA,

      Plaintiff - Appellee,
                                                             No. 10-2081
v.                                                            (D. N.M.)
                                                   (D.C. No. 2:09-CR-03608-WJ-1)
MIGUEL PIÑON-MEDINA,

      Defendant - Appellant.



                              ORDER AND JUDGMENT*


Before BRISCOE, Chief Circuit Judge, TACHA, and O’BRIEN, Circuit Judges.


      Miguel Piñon-Medina appeals from a 41-month sentence imposed for illegal

reentry after removal subsequent to an aggravated felony conviction in violation of 8

U.S.C. §§ 1326(a)(1) and (b)(2). He argues his sentence is procedurally and

substantively unreasonable and seeks a reduction based on the 2010 amendments to the

sentencing guidelines. We affirm.


      *
        The parties have waived oral argument. See Fed. R. App. P. 34(f); 10th Cir. R.
34.1(G). This case is submitted for decision on the briefs.

        This order and judgment is an unpublished decision, not binding precedent. 10th
Cir. R. 32.1(A). Citation to unpublished decisions is not prohibited. Fed. R. App. 32.1.
It is appropriate as it relates to law of the case, issue preclusion and claim preclusion.
Unpublished decisions may also be cited for their persuasive value. 10th Cir. R. 32.1(A).
Citation to an order and judgment must be accompanied by an appropriate parenthetical
notation B (unpublished). Id.
                                    I.    BACKGROUND

       Piñon-Medina pled guilty to illegal reentry after removal subsequent to an

aggravated felony conviction. The presentence investigation report (PSR) calculated

Piñon-Medina’s total offense level to be 13, with a base offense level of 8, an 8-level

enhancement for his aggravated felony conviction and a 3-level reduction for acceptance

of responsibility.1 His criminal history category was VI. The result was a guideline

sentence range of 33 to 41 months imprisonment.

       At sentencing, Piñon-Medina accepted the PSR’s calculations but asked the

district court to vary downward from the guideline range. Conceding his criminal history

was “lengthy,” he asked the court to consider his substance abuse problems and the petty

nature of most of his criminal acts. (R. Vol. 3 at 8.) In the alternative, he requested a

sentence at the low end of the guideline range for the same reasons. The government

argued for a sentence at the high end of the guideline range because of Piñon-Medina’s

extensive criminal history and repeated removal from the country for immigration

violations. The court sentenced Piñon-Medina to 41 months in prison.

                                    II.   DISCUSSION

       Piñon-Medina complains his sentence is procedurally and substantively

unreasonable, prompting a deferential abuse of discretion standard. United States v.

Smart, 518 F.3d 800, 802 (10th Cir. 2008).

A.     Procedural Unreasonableness

       We first determine whether the sentence was procedurally reasonable. Id. at 804.
       1
           The PSR was based on the 2009 edition of the sentencing guidelines.


                                            -2-
“Procedural reasonableness addresses whether the district court incorrectly calculated or

failed to calculate the Guidelines sentence, treated the Guidelines as mandatory, failed to

consider the § 3553(a) factors, relied on clearly erroneous facts, or failed to adequately

explain the sentence.” United States v. Huckins, 529 F.3d 1312, 1317 (10th Cir. 2008).

       [W]here a defendant has raised a nonfrivolous argument that the § 3553(a)
       factors warrant a below-Guidelines sentence and has expressly requested
       such a sentence, we must be able to discern from the record that the
       sentencing judge did not rest on the guidelines alone, but considered
       whether the guidelines sentence actually conforms, in the circumstances, to
       the statutory factors.

United States v. Sanchez-Juarez, 446 F.3d 1109, 1117 (10th Cir. 2006) (internal

quotation marks omitted). The district court need not address each argument separately

on the record but must provide adequate explanation for the sentence it eventually

imposes. United States v. Jarillo-Luna, 478 F.3d 1226, 1229-30 (10th Cir. 2007).

       [W]hen a judge decides simply to apply the Guidelines to a particular case,
       doing so will not necessarily require lengthy explanation. Circumstances
       may well make clear that the judge rests his decision upon the
       Commission’s own reasoning that the Guidelines sentence is a proper
       sentence (in terms of § 3553(a) and other congressional mandates) in the
       typical case, and that the judge has found that the case before him is typical.

United States v. Rita, 551 U.S. 338, 356-57 (2007).

       Piñon-Medina argues his sentence is procedurally unreasonable because the

district court failed to consider the non-violent and relatively minor nature of the

aggravated felony used to apply the 8-level enhancement to his base offense level. He

claims the district court “failed to state adequate reasons for rejecting [his] non-frivolous

factors for a reduction in sentence.” (Appellant’s Br. at 6.) We need not determine

whether Piñon-Medina’s argument is frivolous because the record shows the district court


                                            -3-
specifically considered the nature of the aggravated felony in reaching its sentencing

decision. It said:

       I’ve reviewed the Presentence Report’s factual findings. I’ve considered
       the sentencing guideline applications and the sentencing factors of 18
       U.S.C. 3553(a)(1) through (7). The offense level is 13. The defendant’s
       criminal history category is VI. Under the guidelines, that’s a range of 33
       to 41 months. I note the defendant reentered the United States illegally
       subsequent to a prior aggravated felony conviction, that being burglary of a
       building.

       I looked at the defendant’s criminal history closely, because as [the
       prosecutor] knows, on some illegal reentry cases where defendants are in
       Category VI, I had rejected 11(c)(1)(C) plea agreements because the
       criminal history is off the charts. I looked closely at the defendant’s
       criminal history. He’s got, as I said earlier, felony convictions out of the
       State of Texas, New Mexico, and Colorado. I guess the State of Texas had
       enough or the judge in Harris County, because for the conviction in
       Paragraph 26, they gave him seven years’ custody in [sic] Texas
       Department of Corrections.

       I will -- I think, [defense counsel], you’re correct. There was not a crime of
       violence in there or a crime that constitutes, under the guidelines definition,
       a crime of violence. But still, oftentimes, particularly on the burglaries of a
       dwelling and the property crimes and the theft crimes, somebody’s being
       victimized.

(R. Vol. 3 at 10-11.)

       Piñon-Medina’s sentence is not procedurally unreasonable.

B.     Substantive Unreasonableness

       Piñon-Medina also claims his sentence is substantively unreasonable.

“[S]ubstantive reasonableness addresses 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).” Huckins, 529 F.3d at 1317 (internal quotation marks omitted). “[I]n many

cases there will be a range of possible outcomes the facts and law at issue can fairly


                                             -4-
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). On appeal we presume

a sentence within the properly calculated guideline range to be reasonable. United States

v. Kristl, 437 F.3d 1050, 1055 (10th Cir. 2006).

       Piñon-Medina argues his within-guideline sentence is substantively unreasonable

because he was not engaged in criminal activity (other than illegal presence) at the time

he was arrested, the crime used to enhance his sentence was merely the theft of a $30.00

radio, 2 defendants with similar histories were sentenced at the low end of the calculated

guideline ranges for their offenses and his criminal history was overrepresented by the

guideline calculation. In support of his argument, Piñon-Medina cites a number of cases

in which we upheld sentences at the lower end of the guideline range where the

defendants were convicted of illegal reentry and their sentences were enhanced for prior

aggravated felony convictions. See United States v. Torres-Leal, 365 Fed. Appx. 954,

957 (10th Cir. 2010) (unpublished) (upholding a sentence of 46 months where the

guideline range for the crime of illegal reentry after removal was 46-57 months); United

States v. Mancera-Perez, 505 F.3d 1054, 1056 (10th Cir. 2007) (finding no plain error in

a sentence of 46 months for the same offense with a calculated guideline range of 46-57

months); and United States v. Murriega-Santos, 205 Fed. Appx. 703, 705-06 (10th Cir.

       2
        The aggravated felony used to enhance Piñon-Medina’s sentence was a 2002
conviction for burglary of a building in Texas. The PSR reflects that Piñon-Medina
broke into the leasing office of an apartment complex and stole a radio valued at
approximately $30.00.


                                            -5-
2006) (unpublished) (finding reasonable a sentence of 30 months where the guideline

range for the same offense was 30-37 months).

      Notably, two of the sentences Piñon-Medina cites for the proposition his sentence

creates the appearance of disparity exceed the sentence in this case. Although we have

concluded a reduction of a sentence because of the relatively minor nature of the

aggravated felony used for enhancement was permissible, it is only one of many factors

to be considered at sentencing and a whole range of sentences would be reasonable. In

any event, the district court, as noted above, pointed out that Piñon-Medina’s aggravated

felony was not as minor as he wished the court to believe and also rejected Piñon-

Medina’s argument that his criminal history category under the Guidelines

overrepresented his criminal conduct.

      In fact, the transcript shows the court considered varying upward from the

guideline range because his criminal history included ten misdemeanor convictions and

seven felonies, some of which were not factored into his sentence calculation under the

Guidelines:

      So I gave close consideration to sentencing above the guidelines pursuant
      to the authority that I have under Booker, but I decided that I was not going
      to do that and that I was going to impose a guideline sentence. But a
      sentence that I will find that is sufficient but not greater than necessary to
      satisfy the factors in Paragraph 2 of 18 U.S.C. 3553(a) and to achieve the
      goals of sentencing is a sentence on the high end, because, and as [the
      prosecutor] noted, four of the defendant’s felony convictions are
      Paragraphs 19, 24, 25, and 26 resulted in no criminal history points, and I
      suspect the overriding reason for that is because the conviction in
      Paragraph 26, he spent -- got seven years’ time in the Texas Department of
      Corrections. So as a result of sitting in prison in Texas for seven years, he
      timed out in terms of having any criminal history points on those
      convictions identified in Paragraphs 26, 25, and the earlier ones.

                                           -6-
       So I’m going to impose a sentence of 41 months’ custody in the Bureau of
       Prisons.

(R. Vol. 3 at 11-12.) Piñon-Medina has failed to rebut the appellate presumption that his

within-guideline sentence is reasonable.

C.     18 U.S.C. § 3582(c)(2)

       In an argument raised for the first time on appeal, Piñon-Medina asserts his

sentence should be reduced under 18 U.S.C. § 3582(c)(2)3 because application of the

2010 amendments to the sentencing guidelines would result in a lower sentence. He

argues the 2010 amendments eliminate U.S.S.G. §4A1.1(e), a provision that resulted in

two points being added to his criminal history, and modified §5H1.4 to permit a

downward departure based on drug or alcohol dependence. We do not decide whether

Piñon-Medina will be eligible for a sentence reduction based on the 2010 amendments

because those amendments are not currently in effect and will not take effect until

November 1, 2010. See United States v. Richards, 5 F.3d 1369, 1372 n.1 (10th Cir.

1993) (pending amendments do not affect decisions on appeal). A reduction under §

3582(c)(2) is a matter of discretion for the district court. United States v. Ivy, 83 F.3d

1266, 1296 (10th Cir. 1996). The proper vehicle for this challenge, once the amendments

take effect, would be to file a motion in the district court requesting a sentence reduction

under 18 U.S.C. § 3582(c)(2).




       3
        18 U.S.C. § 3582(c)(2) allows a court to reduce a sentence of imprisonment if the
sentence was based on a sentencing range that has subsequently been lowered by the
Sentencing Commission.


                                             -7-
AFFIRMED.

            Entered by the Court:

            Terrence L. O’Brien
            United States Circuit Judge




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