                                                                       FILED
                                                          United States Court of Appeals
                                                                  Tenth Circuit

                                                                February 8, 2010
                   UNITED STATES COURT OF APPEALS
                                                Elisabeth A. Shumaker
                                                                  Clerk of Court
                                TENTH CIRCUIT



 UNITED STATES OF AMERICA,

              Plaintiff - Appellee,                     No. 09-3171
 v.                                                      (D. Kansas)
 ELVERTO DAVILA,                                 (D.C. No. 2:06-CR-20056-
                                                       KHV-DJW-2)
              Defendant - Appellant.


                           ORDER AND JUDGMENT *


Before HARTZ, SEYMOUR, and ANDERSON, Circuit Judges.



      Defendant Elverto Davila was sentenced to 212 months’ imprisonment after

pleading guilty to six drug offenses, including conspiracy to distribute cocaine

and marijuana from April 2003 through March 2006. He appeals his sentence as

substantively unreasonable. Exercising jurisdiction under 28 U.S.C. § 1921, we

affirm.



      *
       After examining the briefs and appellate record, this panel has determined
unanimously to honor 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 This order and judgment is not binding
precedent except under the doctrines of law of the case, res judicata, and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.
      The United States District Court for the District of Kansas calculated

Mr. Davila’s advisory sentencing range under the United States Sentencing

Guidelines as follows: His base offense level was 34 under the guidelines for

drug-trafficking offenses. See USSG § 2D1.1(c)(3). He received (1) a two-level

enhancement because of his management role in the conspiracy, see id.

§ 3B1.1(c); (2) a two-level enhancement because a firearm was possessed in

connection with the offense, see id. § 2D1.1(b)(1); and (3) a two-level reduction

for acceptance of responsibility, see id. § 3E1.1(a). This yielded a total offense

level of 36. His criminal-history category was I because he had no significant

prior convictions. The advisory guidelines sentencing range was therefore 188 to

235 months. See id. Ch. 5 Pt. A.

      Mr. Davila requested that the district court vary from the guidelines and

impose a ten-year sentence, which the government had apparently once offered

him on condition that he cooperate. Observing that Mr. Davila was seeking “the

benefit of the Plea Agreement without any of the obligations,” the court rejected

his request and sentenced him to 212 months’ imprisonment. R., Vol. 2 at 275.

      On appeal Mr. Davila contends that his sentence is substantively

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

discretion. See United States v. Sells, 541 F.3d 1227, 1237 (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. Munoz-

                                         -2-
Nava, 524 F.3d 1137, 1146 (10th Cir. 2008) (internal quotation marks omitted).

Because Mr. Davila’s sentence fell within the advisory guidelines range, it is

entitled to a presumption of reasonableness. See United States v. Kristl, 437 F.3d

1050, 1054 (10th Cir. 2006). He may rebut the presumption, however, “by

demonstrating that the sentence is unreasonable when viewed against the other

factors delineated in § 3553(a).” Id.

      Mr. Davila has not overcome this presumption. He argues that his sentence

is too long for a first-time offender who committed nonviolent crimes,

particularly in light of his age (he was born on January 8, 1980). But this

argument ignores the seriousness of the offenses that he committed. As the

district court stated:

      I think that this sentence is appropriate to reflect the seriousness of
      your offense, including the violence that surrounded the dealings that
      this conspiracy had with other members of the community. I think
      it’s important to protect the public from further crimes by you, to
      send a message of deterrence to you and other people who might be
      inclined to engage in this kind of behavior.

      ....

      [Y]ou sold a lot of drugs. You were responsible for putting a lot of
      drugs into this community. Did you ever—did it ever occur to you
      that you were selling drugs to other people’s children, that you’re
      taking advantage of their weaknesses, exploiting their weaknesses to
      make money to support your lifestyle . . . ?

R., Vol. 2 at 300, 305–306. It was well within the court’s proper discretion to

sentence Mr. Davila to 212 months’ imprisonment for his crimes.


                                        -3-
We AFFIRM Mr. Davila’s sentence.

                            ENTERED FOR THE COURT


                            Harris L Hartz
                            Circuit Judge




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