                                                                       FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit
                 UNITED STATES COURT OF APPEALS
                                                                December 22, 2009
                                 TENTH CIRCUIT                 Elisabeth A. Shumaker
                                                                   Clerk of Court



 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,
                                                        No. 09-1056
 v.
                                             (D.C. No. 1:08-CR-00221-MSK-1)
                                                         (D. Colo.)
 ARMANDO SOLANO-LECHUGA,
 a/k/a Armando Solano,

          Defendant-Appellant.




                          ORDER AND JUDGMENT *

Before HARTZ, SEYMOUR and ANDERSON, Circuit Judges.


      Mr. Solano-Lechuga pled guilty to re-entering the United States without

permission of the Attorney General after a previous deportation, in violation of 8

U.S.C. § 1326(a), (b)(2). On appeal, he claims that his sentence is substantively

unreasonable. We disagree, and affirm.


      *
       After examining the briefs and 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); 10th Cir. R. 34.1(G). This 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not binding precedent, except under the doctrines of law of the case, res judicata,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 10th Cir. R. 32.1 and 10th Cir. R. 32.1.
      The Pre-Sentence Report (“PSR”), to which Mr. Solano-Lechuga did not

object, placed his total offense level at 17 and his criminal history category at II,

for a resulting guideline range of 27-33 months. Mr. Solano-Lechuga filed a

motion seeking a variance from the guideline-recommended sentence. His motion

did not challenge the calculation of the guidelines, but instead argued that the

guidelines and applicable law were “unjust” as applied to him. See Aplt. Br. at

10. The district court acknowledged that his motion may have some merit from a

policy standpoint, but the court denied the motion and imposed a within-

guidelines sentence of twenty-seven months after examining the case in light of

Mr. Solano-Lechuga’s extensive criminal history. In so doing, the court

observed:

      The total number of criminal history points is two, and that puts the
      defendant in Criminal History Category II. However, this calculation
      does not reflect the entirety of the defendant’s criminal history.
      There are a number of convictions for which he receives no credit.
      His first conviction was in 1986 at age 27. It was a felony
      conviction for possession of marijuana for sale. This was followed
      by a conviction at age 31 in 1990 of third-degree assault. This was
      followed by a third-degree assault conviction in 1991, when the
      defendant was 32. And this was followed by a motor vehicle
      conviction, operating a vehicle without insurance, in 1992. In 1993,
      the defendant was convicted of speeding 35-30–oh, 35 miles an hour
      in a 30-mile an hour zone; and in 1994, he was convicted of being in
      possession of marijuana, a felony conviction. In 19[9]5, he was
      convicted of failure to present proof of insurance. In that same year,
      he was convicted of driving under the influence. In 1996, he was
      convicted of exceeding a reasonable and prudent speed. In 1996, he
      was convicted of another felony, possession of 8 ounces of
      marijuana.


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Feb. 2, 2009 Sentencing Transcript at 4-5.

      The parties dispute the standard of review applicable to a portion of Mr.

Solano-Lechuga’s claims. Although they agree that an abuse of discretion

standard adheres to our review of the substantive reasonableness of Mr. Solano-

Lechuga’s sentence, the government contends that Mr. Solano-Lechuga’s brief

contains two procedural reasonableness challenges mistitled as “substantive.” See

Aple. Br. at 17. The government asserts that a heightened plain-error standard

applies to Mr. Solano-Lechuga’s challenges to the district court’s failure to

consider the presence of “fast-track” programs and in failing to consider the

“affect (sic) of deportation programs.” See id. at 17, 29. We need not engage in

an intense standard of review inquiry, however, because Mr. Solano-Lechuga’s

claims fail even under the more liberal abuse-of-discretion standard.

      When we review the reasonableness of a sentence, our first step is

generally to “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 18 U.S.C. §

3553(a) factors, selecting a sentence based on clearly erroneous facts, or failing to

adequately explain the chosen sentence.” Gall v. United States, 552 U.S. 38, 51

(2007). But Mr. Solano-Lechuga concedes he raised only a substantive

reasonableness challenge in the district court below and contends he challenges

only the substantive reasonableness of his sentence now. In light of Mr. Solano-

                                         -3-
Lechuga’s concession that no procedural reasonableness challenge has been made,

we apply a presumption of reasonableness to Mr. Solano-Lechuga’s within-

guidelines sentence. See Rita v. United States, 551 U.S. 338 (2007); United

States v. Kristl, 437 F.3d 1050, 1055 (10th Cir. 2006). A defendant may rebut

this presumption by demonstrating that the sentence is unreasonable in light of

the other sentencing factors laid out in § 3553(a).

      Mr. Solano-Lechuga asserts no specific challenge to the district court’s

application of the sentencing factors in § 3553(a); rather, he argues that given his

“unique circumstances” and the “structural defects marring sentencing in this area

generally (mainly, the unequal distribution of fast track) and U.S.S.G. §

2L1.2(b)(1)(B) in particular (its failure to make just and logical distinctions

among types and quantities of drugs),” he is entitled to a downward variance. See

Aplt. Br. at 12. More specifically, he contends that in light of his status as a

“fully assimilated American,” he will “experience the effects of . . . deportation

more harshly than other offenders in his shoes.” Id. at 10-11.

      To be sure, “[r]easonable people differ on how lenient or harsh sentences

should be, both in general and for particular crimes and particular types of

offenders.” United States v. Wittig, 528 F.3d 1280, 1289 (10th Cir. 2008) (Hartz,

J., concurring). Nevertheless, we discern no abuse of discretion in the district

court’s application of the advisory sentencing guidelines and its adherence to the

laws applicable to this case. We have upheld the use of fast-track sentencing in

                                          -4-
some districts but not others against challenges based on the resulting sentencing

disparities. See United States v. Martinez-Trujillo, 468 F.3d 1266, 1268 (10th

Cir. 2006). We will not revisit that issue here. Nor are we persuaded the

sentence was unreasonable because the district court declined to consider

favorably the less-serious type of drugs involved in Mr. Solano-Lechuga’s

criminal history or the impact on him of the deportation that will occur when he

finishes his sentence. The district court’s sentence was within “the bounds of

permissible choice, given the facts and the applicable law and therefore a proper

exercise of its discretion.” United States v. McComb, 519 F.3d 1049, 1053 (10th

Cir. 2007) (quotations omitted).

      Accordingly, we AFFIRM.


                                      ENTERED FOR THE COURT


                                      Stephanie K. Seymour
                                      Circuit Judge




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