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

                            FOR THE TENTH CIRCUIT                         March 18, 2016
                        _________________________________
                                                                       Elisabeth A. Shumaker
                                                                           Clerk of Court
UNITED STATES OF AMERICA,

     Plaintiff - Appellee,

v.                                                        No. 15-1274
                                                (D.C. No. 1:15-CR-00100-LTB-1)
MARIO ERNESTO MEJIA-MELGAR,                                 (D. Colo.)
a/k/a Mario Ernest Melgar,

     Defendant - Appellant.
                     _________________________________

                            ORDER AND JUDGMENT*
                        _________________________________

Before HARTZ, O’BRIEN, and PHILLIPS, Circuit Judges.
                   _________________________________

      Mario Ernesto Mejia-Melgar pleaded guilty to violating 8 U.S.C. § 1326(a)

and (b)(2) by reentering the United States after having already been removed from

the country following an aggravated felony conviction. The district court sentenced

him to 46 months’ imprisonment—the low end of the advisory sentencing range

under the United States Sentencing Guidelines. Mejia-Melgar appeals, arguing that

his 46-month sentence is substantively unreasonable because it is primarily driven by


      *
        After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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.
an eight-year-old offense that effectively doubled his Guidelines range. Exercising

jurisdiction under 28 U.S.C. § 1291, we affirm.

                                   BACKGROUND

      Mejia-Melgar—born on July 10, 1987, in San Salvador, El Salvador—first

entered the United States when he was five years old. In 2008, he pleaded guilty to

possession of a controlled substance (cocaine) with the intent to distribute it. After

violating the terms of his probation, he was sentenced to 90 days in jail and was

deported on November 11, 2009.

      On July 26, 2011, after having illegally returned to the United States, Mejia-

Melgar pleaded guilty to possession of a controlled substance (cocaine) and was

sentenced to one year’s imprisonment. On November 28, 2011, he was released to

immigration authorities and pleaded guilty to illegally reentering the United States

after being convicted of an aggravated felony. For this federal offense, he was

sentenced to 22 months in prison and was deported again on January 17, 2014.

      On January 8, 2015, having illegally reentered the United States yet again,

Mejia-Melgar pleaded guilty to possession of a controlled substance (cocaine) and

was sentenced to nine months in jail. On March 11, 2015, the federal government

indicted Mejia-Melgar for illegally reentering the United States after having been

previously removed for an aggravated felony conviction, to which he pleaded guilty.

This offense is the basis for the present action.

      Under the 2014 United States Sentencing Guidelines, Mejia-Melgar’s

Presentence Investigation Report (PSR) calculated his total offense level as 17. This

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total offense level had the following components: (1) a base offense level of 8,

U.S.S.G. § 2L1.2; (2) a twelve-level enhancement because Mejia-Melgar had

previously been convicted of a drug-trafficking offense carrying a sentence less than

13 months, U.S.S.G. § 2L1.2(b)(1)(B); (3) a two-level decrease for acceptance of

responsibility for his offense, U.S.S.G. § 3E1.1(a); and (4) a one-level decrease for

timely notifying authorities of his intention to enter a guilty plea, U.S.S.G.

§ 3E1.1(b). Because Mejia-Melgar had amassed ten criminal-history points, he was in

criminal-history category V. The advisory Guidelines range for a total offense level

of 17 and a criminal-history category of V was 46–57 months.

      In the district court, Mejia-Melgar filed a motion for a downward departure

from the recommended Guidelines range. Specifically, he argued for a downward

departure under U.S.S.G. § 2L1.2 Application Note 9, which, under stated

circumstances, allows for a downward departure on the basis of cultural assimilation.

Additionally, Mejia-Melgar argued for a downward departure based on his view that

his Guidelines calculation too heavily emphasized his eight-year-old conviction for

possession, with intent to distribute, a controlled substance. The district court

rejected both arguments and sentenced Mejia-Melgar to 46 months’ imprisonment.

Mejia-Melgar timely appealed.

                                   DISCUSSION

      “We review sentences for reasonableness under a deferential abuse of

discretion standard.” United States v. Haley, 529 F.3d 1308, 1311 (10th Cir. 2008).

While our review encompasses both the procedural and substantive soundness of the

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district court’s decision, see id., Mejia-Melgar challenges only the substantive

reasonableness of his sentence. “A sentence is substantively unreasonable if the

length of the sentence is unreasonable given the totality of the circumstances in light

of the 18 U.S.C. § 3553(a) factors.” Id. In other words, “[w]e find an abuse of

discretion only if the district court was ‘arbitrary, capricious, whimsical, or

manifestly unreasonable’ when it weighed ‘the permissible § 3553(a) factors in light

of the totality of the circumstances.’” United States v. Sanchez-Leon, 764 F.3d 1248,

1267 (10th Cir. 2014) (quoting United States v. Sayad, 589 F.3d 1110, 1116, 1118

(10th Cir. 2009)).

      “Sentences imposed within the correctly calculated Guidelines range . . . may

be presumed reasonable on appeal.” Haley, 529 F.3d at 1311. Here, the district court

imposed a sentence at the low end of the recommended Guidelines range, and Mejia-

Melgar does not contend that the PSR incorrectly calculated the Guidelines range.

Therefore, we presume that Mejia-Melgar’s sentence is reasonable.

      Mejia-Melgar fails to rebut the presumption of reasonableness. He fails to

show that the district court abused its discretion in weighing the § 3553(a) factors.

On appeal, Mejia-Melgar has abandoned his cultural-assimilation argument, choosing

to focus instead on his other argument that—apparently because he was 20 years old

when he committed his felony drug-trafficking crime—“the district court failed to

give due consideration to the outsized effect that Mr. Mejia’s 2007 [possession-with-

intent-to-distribute] offense had on his advisory guideline range.” Appellant’s

Opening Br. at 8. Even so, in the midst of this argument, Mejia-Melgar concedes that

                                          4
“[o]f course, this is not to say that the district court should have ignored the

[possession-with-intent-to-distribute] offense altogether.” Id. at 10. We note that

Mejia-Melgar cites no authority supporting his argument that a district court abuses

its discretion by applying the terms set by U.S.S.G. § 2L1.2(b)(1)(B) in his

circumstances.

      We also note that the district court properly considered the § 3553(a) factors

and concluded that a 46-month sentence was appropriate. Specifically, the district

court concluded that Mejia-Melgar’s offense was particularly serious because Mejia-

Melgar had essentially “been in a revolving door” of crime. R. vol. 3 at 57. As

evidenced by his criminal history, his behavior follows a well-established pattern of

violating the drug laws, being deported, illegally reentering the United States, and

violating the drug laws again. The district court acknowledged his cocaine addiction,

but noted that it did “not believe that any sentence” imposed would “deter . . .

[Mejia-Melgar] from illegally reentering this country again.” Id. The district court

concluded by noting that “[a]ll of what you tell me in arguing for a more lenient

sentence leads me to conclude that your sentence should be at the bottom of the

guideline range rather than higher.” Id. at 58. The district court was well within its

discretion to conclude as much, and we certainly cannot say it abused its discretion in

imposing a 46-month sentence in this case.




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                           CONCLUSION

For the foregoing reasons, we affirm.


                                    Entered for the Court


                                    Gregory A. Phillips
                                    Circuit Judge




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