                                                                                 FILED
                                                                     United States Court of Appeals
                                                                             Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                           August 20, 2010
                                   TENTH CIRCUIT                         Elisabeth A. Shumaker
                                                                             Clerk of Court


 UNITED STATES OF AMERICA,

        Plaintiff-Appellee,                                  No. 10-2051
                                                   (D.C. No. 2:09-CR-02430-BB-1)
 v.                                                           (D. N.M.)

 SERGIO CANUL-YANEZ,

        Defendant-Appellant.


                              ORDER AND JUDGMENT*


Before KELLY, EBEL and LUCERO, Circuit Judges.


       Defendant-Appellant Sergio Canul-Yanez pled guilty, without a plea agreement,

to reentering the United States illegally after having been previously deported subsequent

to a conviction for an aggravated felony, in violation of 8 U.S.C. § 1326(a) and (b).

Although the district court calculated that Canul-Yanez’s advisory guidelines range

       * After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties= request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f) 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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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.
sentence was 41 to 51 months’ imprisonment, a calculation Canul-Yanez does not

challenge on appeal, it sentenced him to only 34 months’ imprisonment. Canul-Yanez

now challenges the substantive reasonableness of that sentence. Exercising jurisdiction

under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a), we AFFIRM.

       We review the substantive reasonableness of a sentence for an abuse of discretion.

See United States v. Rojas, 531 F.3d 1203, 1209 (10th Cir. 2008). “A district court

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

or manifestly unreasonable.” United States v. Friedman, 554 F.3d 1301, 1307 (10th Cir.

2009) (quotation omitted). A sentence that falls within the properly calculated guidelines

range is entitled to a rebuttable presumption of reasonableness. Rojas, 531 F.3d at 1209.

        Here, the district court’s sentence was well-within the acceptable range of

reasonableness. The district court explained that Canul-Yanez had a history of substance

abuse including a fairly dated conviction for cocaine distribution—and the district court

acknowledged it was dated—and a recent arrest for using methamphetamine. It further

found that Canul-Yanez, in particular, needed deterrence from future efforts to reenter the

country illegally because he failed to grasp the seriousness of the offense as he reentered

the country just a few months after his previous deportation. The district court also

acknowledged that, like Canul-Yanez, illegal immigrants frequently come to the United

States for economic and family reasons. Moreover, it ultimately imposed a below-

guideline sentence that reflects some of the mitigating factors, such as Canul-Yanez’s

family ties and cultural assimilation, that Canul-Yanez argues makes the sentence of 34

months’ imprisonment still unreasonable. Under these circumstances, however, we

                                             2
cannot conclude the district abused its discretion by imposing a sentence of 34 months’

imprisonment.

      AFFIRMED.

                                         ENTERED FOR THE COURT


                                         David M. Ebel
                                         Circuit Judge




                                            3
