                                                                 FILED
                                                     United States Court of Appeals
                      UNITED STATES COURT OF APPEALS         Tenth Circuit

                                   TENTH CIRCUIT                          December 19, 2011

                                                                          Elisabeth A. Shumaker
                                                                              Clerk of Court

 UNITED STATES OF AMERICA,

        Plaintiff - Appellee,                                No. 11-2150
                                                   (D.C. No. 2:09-CR-02757-JEC-1)
 v.                                                          (D. N. Mex.)

 FERNANDO ONOFRE-JAVIER,

        Defendant - Appellant


                                ORDER AND JUDGMENT*


Before BRISCOE, Chief Judge, MURPHY and MATHESON, Circuit Judges.


       Fernando Onofre-Javier appeals the district court’s imposition of a 12-month

sentence for his violation of supervised release, which is to run consecutively to a 15-

month sentence for illegally reentering the United States. He argues the 12-month

sentence is substantively unreasonable. Exercising jurisdiction under 28 U.S.C. § 1291


        *After examining appellant=s brief and the 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) and 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument. This order is not binding precedent,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.
and 18 U.S.C. § 3742(a), we affirm.

                                     I. BACKGROUND

       Mr. Onofre-Javier has been convicted of illegal reentry of a removed alien under

8 U.S.C. § 1326 on four occasions. Most recently, he was arrested for illegal reentry on

February 7, 2011, after having been deported on November 14, 2010. Mr. Onofre-Javier

pled guilty to illegal reentry for his most recent offense. The district court accepted the

plea agreement and sentenced Mr. Onofre-Javier to 15 months’ imprisonment and three

years’ supervised release.

       Because of a 2009 illegal reentry conviction, Mr. Onofre-Javier was already

subject to supervised release conditions until November 13, 2012. Those conditions

provided that Mr. Onofre-Javier “shall not commit another federal, state, or local crime,”

and that he “must not reenter the United States without legal authorization.” ROA, Vol. 2

at 16. His 2011 reentry was therefore also a violation of those conditions. Mr. Onofre-

Javier admitted to having violated the terms of his supervised release.

       At the sentencing hearing for both the illegal reentry conviction and the supervised

release violation, Mr. Onofre-Javier requested a four-month consecutive sentence for the

latter violation. The U.S. Sentencing Commission’s recommended sentence range for the

supervised release violation was 12 to 18 months. See ROA, Vol. 3 at 9-10. Mr. Onofre-

Javier’s counsel argued that a four-month sentence added to the 15-month sentence

imposed for the reentry conviction “would be greater than he got the last time.” Id. at 7-

8. Counsel also argued that a sentence “within the guideline range would be
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unreasonable in this case because it just seems to be odd that a supervised release

violation’s range should be the same as the underlying offense. It seems it should be

something less.” Id. at 8.

       The district court rejected this argument and sentenced Mr. Onofre-Javier to an

additional 12 months for the supervised release violation, to run consecutively to his 15-

month sentence for the reentry conviction.

       Mr. Onofre-Javier challenges on appeal only the 12-month sentence for violation

of supervised release as substantively unreasonable.

                                      II. DISCUSSION

       “We will not reverse a revocation sentence imposed by the district court if it can

be determined from the record to have been reasoned and reasonable.” United States v.

McBride, 633 F.3d 1229, 1232 (10th Cir. 2011) (quotations omitted). “[A] ‘reasoned’

sentence is one that is ‘procedurally reasonable;’ and a ‘reasonable’ sentence is one that

is ‘substantively reasonable.’ To say that the district court acted reasonably—either

procedurally or substantively—is to say that it did not abuse its discretion.” Id.

       Procedural reasonableness is not at issue here. “[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).” United States v. Huckins,

529 F.3d 1312, 1317 (10th Cir. 2008) (quotations omitted). The factors a court must

consider in determining a reasonable sentence after revocation of supervised release

include those “set out in 18 U.S.C. § 3553(a)(1), (a)(2)(B), (a)(2)(C), (a)(2)(D), (a)(4),
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(a)(5), (a)(6), and (a)(7).” McBride, 633 F.3d at 1232 (citing 18 U.S.C. § 3583(e)).

       Especially relevant to this case, those factors include: “the nature and

circumstances of the offense and the history and characteristics of the defendant,” 18

U.S.C. § 3553(a)(1); “the need for the sentence . . . to afford adequate deterrence to

criminal conduct,” id. at (a)(2)(B); “applicable guidelines or policy statements issued by

the Sentencing Commission,” id. at (a)(4)(B); and “the need to avoid unwarranted

sentence disparities among defendants with similar records who have been found guilty

of similar conduct,” id. at (a)(7).

       The parties argued at length in their briefs over whether the 12-month sentence

should be entitled to a presumption of reasonableness because it is within the U.S.

Sentencing Commission’s recommended range. This issue was resolved in a recent case

where we decided that a “presumption is . . . appropriate in reviewing a revocation of

supervised release sentence within the range suggested by the Commission’s policy

statements.” McBride, 633 F.3d at 1233. However, “the presumption is a rebuttable one.

It may be rebutted by demonstrating that the sentence is unreasonable in light of the other

sentencing factors laid out in 18 U.S.C. § 3553(a).” Id. (quotations omitted).

       Here, Mr. Onofre-Javier has failed to rebut the presumption of reasonableness. He

argues that anything longer than a four-month consecutive sentence for the supervised

release violation is substantively unreasonable in that it is “harsher than necessary to

achieve [the sentencing goals of 18 U.S.C. § 3553(a)(2)] and would violate the parsimony


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principle embodied in these goals.”1 Aplt. Opening Br. at 4.


       1
         In his opening brief, Mr. Onofre-Javier argues that the 12-month sentence is too
long. He states that “a four month sentence for his supervised release violation, which, if
imposed consecutively to his 15 month sentence for the offense of conviction, would
result in a total period of 19 months, and adequate punishment to satisfy the sentencing
goals of 18 U.S.C. § 3553(a)(2).” Aplt. Opening Br. at 4. He further clarifies that he
“did not challenge the consecutive imposition of [his] sentence in the district court and
does not do so on appeal.” Id. at 8 (emphasis added). In his reply brief, however, Mr.
Onofre-Javier completely changes course. He claims that he “does not challenge the
reasonableness of the length of his sentence, only the district court’s order that he serve
it consecutive to his sentence for illegal reentry, the identical conduct that resulted in his
supervised release violation.” Aplt. Reply Br. at 6 (emphasis added).
        We do not address Mr. Onofre-Javier’s argument made for the first time in his
reply brief that the sentences should not be consecutive. Arguments not raised or
inadequately briefed in the opening brief are waived. See United States v. Cooper, 654
F.3d 1104, 1128 (10th Cir. 2011) (“It is well-settled that arguments inadequately briefed
in the opening brief are waived.” (quotations omitted)); Bronson v. Swensen, 500 F.3d
1099, 1104 (10th Cir. 2007) (“[W]e routinely have declined to consider arguments that
are not raised, or are inadequately presented, in an appellant’s opening brief.”). Here,
Mr. Onofre-Javier not only failed to make the argument in his opening brief, he explicitly
relinquished it. See Aplt. Opening Br. at 8. The argument that the 12-month sentence
should not be consecutive is therefore waived.
        The “general rule that appellate courts will not entertain issues raised for the first
time on appeal in an appellant’s reply brief” stems from “reasons . . . [that] are plain.”
Anderson v. United States Dep’t of Labor, 422 F.3d 1155, 1174-75 (10th Cir. 2005)
(quotations omitted).

              It robs the appellee of the opportunity to demonstrate that the
              record does not support an appellant’s factual assertions and
              to present an analysis of the pertinent legal precedent that
              may compel a contrary result. The rule also protects this
              court from publishing an erroneous opinion because we did
              not have the benefit of the appellee’s response.

Stump v. Gates, 211 F.3d 527, 533 (10th Cir. 2000) (citation omitted). These concerns
are especially acute when, as here, an appellant has explicitly indicated he will not be
pursuing a certain argument, and then abruptly changes course when the government has
no more opportunity to respond. None of the potential exceptions to this “general rule”
                                                                              Continued . . .
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       Mr. Onofre-Javier “must do more than show that his preferred sentence was a

reasonable one. . . . To obtain relief he must show that the actual sentence imposed was

outside the range of reasonableness.” McBride, 633 F.3d at 1232. Given Mr. Onofre-

Javier’s repeated offenses, the district court may have reasonably concluded a 12-month

sentence was necessary to provide adequate deterrence. See 18 U.S.C. § 3553(a)(2)(B).

The sentence was also the minimum recommended by the Sentencing Commission for

Mr. Onofre-Javier’s violation of supervised release given his criminal history category of

IV and his “Grade B Violation.” ROA, Vol. 3 at 9-10 (noting a recommended

“imprisonment range of 12 to 18 months”). The district court was required to consider

the recommended range and may have reasonably concluded that the 12-month sentence

was necessary to avoid unwarranted sentencing disparities among similarly situated

defendants. See 18 U.S.C. § 3553 (a)(4)(B), (a)(7). The district court therefore did not

abuse its discretion in imposing the 12-month sentence.2

                                    III.    Conclusion

       Because Mr. Onofre-Javier has failed to rebut the presumption that the 12-month



apply in this case. See Anderson, 422 F.3d at 1174-75 (noting jurisdiction as one
example of such an exception).
       2
         Mr. Onofre-Javier also seems to object repeatedly to the fact that both his
conviction for illegal reentry and his violation of supervised release are based on the
same conduct. But “[t]he violation of a condition of supervised release is a breach of
trust and, while the sentencing court at revocation takes into account the seriousness of
the underlying crime, it is primarily the breach of trust that is sanctioned.” United States
v. Contreras-Martinez, 409 F.3d 1236, 1241 (10th Cir. 2005).

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sentence is substantively reasonable, we affirm.

                                         ENTERED FOR THE COURT



                                         Scott M. Matheson, Jr.
                                         Circuit Judge




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