                                                                       FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                                                                 October 3, 2011
                     UNITED STATES COURT OF APPEALS
                                                  Elisabeth A. Shumaker
                                                                   Clerk of Court
                            FOR THE TENTH CIRCUIT


    UNITED STATES OF AMERICA,

                Plaintiff-Appellee,

    v.                                                   No. 10-1528
                                              (D.C. No. 1:10-CR-00207-REB-1)
    NICOLAS COBOS-CHACHAS,                                (D. Colo.)

                Defendant-Appellant.


                            ORDER AND JUDGMENT *


Before HARTZ, Circuit Judge, HOLLOWAY and PORFILIO, Senior Circuit
Judges.


         Nicolas Cobos-Chachas, a citizen of Mexico, pleaded guilty to unlawfully

reentering the United States after deportation. At sentencing, the district court

varied downward from the advisory guidelines range and sentenced him to

thirty-eight months’ imprisonment, which was three months below the bottom of

the advisory guideline range. Mr. Cobos-Chachas challenges the length of his



*
       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); 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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and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 as substantively unreasonable in light of the sentencing factors listed in

18 U.S.C. § 3553(a). Exercising jurisdiction pursuant to 28 U.S.C. § 1291 and

18 U.S.C. § 3742(a), we affirm.

                                          I.

      In 2006, Mr. Cobos-Chachas was apprehended while driving undocumented

co-workers to a job-site. He pleaded guilty to transporting an illegal alien in

violation of 8 U.S.C. § 1324(a)(1)(A)(ii), (B)(ii), an offense classified as an

aggravated felony, see United States v. Martinez-Candejas, 347 F.3d 853, 857

(10th Cir. 2003). For the offense, he was sentenced to time served and deported

to Mexico.

      Mr. Cobos-Chachas returned to this country in September 2007. Upon his

arrest and detention for a traffic offense in March 2010, he admitted to an

immigration agent that he had entered the United States after being deported. He

was charged with unlawfully reentering the United States after deportation for

conviction of an aggravated felony, in violation of 8 U.S.C. § 1326(a), (b)(2).

He entered a plea of guilty in exchange for the government’s agreement to

recommend a sentence within the advisory guideline range.

      A probation officer prepared a presentence report calculating

Mr. Cobos-Chachas’ sentence under the applicable United States Sentencing

Guidelines. His probation officer determined that the base offense level was

eight. See U.S.S.G. § 2L1.2(a). Then, he added a sixteen-level enhancement

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because Mr. Cobos-Chachas had previously been deported after conviction of an

alien-smuggling offense. See U.S.S.G. § 2L1.2(b)(1)(A). Finally, the probation

officer applied a three-level reduction for acceptance of responsibility. See

U.S.S.G. § 3E1.1. The result was an adjusted offense level of twenty-one. Based

on the offense level and a criminal history category of II, the advisory range was

41 to 51 months’ imprisonment. The probation officer, however, recommended a

variant sentence of 36 months primarily because Mr. Cobos-Chachas’ criminal

history was minimal compared to other defendants charged with similar offenses.

      At the sentencing hearing, Mr. Cobos-Chachas requested a downward

variant sentence because he had never been incarcerated for a significant length

of time and he had family ties and business opportunities in Mexico. The

prosecution asked for a sentence at the low end of the guideline range, but also

suggested a possible justification for a variant sentence: the harshness of a

sixteen-level enhancement where the prior transporting offense did not involve

bringing illegal aliens across the border.

      The district judge imposed a sentence of 38 months, commenting that a

“sentence variance should be granted somewhat anomalously for the reasons

suggested by the [prosecution].” R., Vol. 2 at 50. The sentence was three months

below the low end of the advisory guidelines range and two months above the

probation officer’s recommendation. The district judge stated that he had reached




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his determination after considering all the relevant information in light of the

sentencing factors listed in 18 U.S.C. § 3553(a).

                                          II.

      On appeal, Mr. Cobos-Chachas argues that his sentence is substantively

unreasonable, “prompting a deferential abuse of discretion standard.” United

States v. Reyes-Alfonso, No. 10-2091, 2011 WL 3134683, at *6 (10th Cir.

July 27, 2011). “Substantive 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).” Id., at *7 (alteration and internal

quotation marks omitted). Often “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.” Id. (internal quotation marks

omitted).

      In conducting our review, we presume that a below-guideline sentence is

substantively reasonable. United States v. Balbin-Mesa, 643 F.3d 783, 788

(10th Cir. 2011). “The defendant may rebut this presumption by demonstrating

that the sentence is unreasonable” under the § 3553(a) sentencing factors.

Reyes-Alfonso, 2011 WL 3134683, at *7 (internal quotation marks omitted).

      Mr. Cobos-Chachas argues that a proper consideration of the § 3553(a)

sentencing factors ordains a shorter sentence. In his view, the “minor variance”

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granted by the district judge “was not enough” because it does not acknowledge

that his transporting conduct was relatively trivial in comparison to the more

serious offenses that also trigger a sixteen-level enhancement. Aplt. Br. at 8,

9-12. Further, he states that he does not present a danger to the community and

that a lesser sentence would provide adequate deterrence.

      The record indicates, however, that the district judge reached a sentencing

decision after conducting an appropriate evaluation under the dictates of

18 U.S.C. § 3553. The district judge had considered “the nature and

circumstances of the offense and the history and characteristics of the defendant,”

id, § 3553(a)(1) and reached a sentence that he concluded was “sufficient, but not

greater than necessary, to comply with” statutory purposes, id., § 3553(a).

      We do 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). Rather, we defer “to the district court’s decision that the

§ 3553(a) factors, on a whole, justify the extent of the variance.” Id. (internal

quotation marks omitted). Mr. Cobos-Chachas’ own perception that the

sentencing factors compel a more marked variance does not rebut the

presumption that his below-guideline sentence is substantively reasonable. The




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district court did not abuse its discretion in imposing a sentence of thirty-eight

months’ imprisonment.

      The judgment of the district court is AFFIRMED.

                                                     Entered for the Court



                                                     William J. Holloway, Jr.
                                                     Senior Circuit Judge




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