                                                                       FILED
                                                          United States Court of Appeals
                                                                  Tenth Circuit

                                                              September 26, 2013
                    UNITED STATES COURT OF APPEALS
                                                 Elisabeth A. Shumaker
                                                                  Clerk of Court
                                 TENTH CIRCUIT



 UNITED STATES OF AMERICA,

               Plaintiff - Appellee,                    No. 13-1270
          v.                                           (D. Colorado)
 JESUS SUAREZ-GARCIA,                        (D.C. No. 1:12-CR-00405-RBJ-1)

               Defendant - Appellant.


                            ORDER AND JUDGMENT *


Before PORFILIO and ANDERSON, Circuit Judges, and BRORBY, Senior
Circuit Judge.



      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.

      Defendant and appellant, Jesus Suarez-Garcia, was convicted of illegally

reentering the United States, following a removal after a conviction for an



      *
       This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 32.1.
aggravated felony, in violation of 18 U.S.C. § 1326(a) and (b)(2). He was

sentenced to seventy-two months’ imprisonment. Arguing that his sentence is

substantively unreasonable, Mr. Suarez-Garcia appeals that sentence, which we

affirm.



                                 BACKGROUND

      Mr. Suarez-Garcia pled guilty, pursuant to a plea agreement, to having

illegally reentered the United States following a prior removal after the

commission of an aggravated felony. His prior criminal history included a 2007

felony conviction for attempted sexual assault; a 2008 felony conviction for being

an illegal alien in possession of a firearm; and a 2011 conviction for criminal

impersonation. Mr. Suarez-Garcia had previously been deported in 2008.

      Mr. Suarez-Garcia’s plea agreement estimated that his total offense level

under the United States Sentencing Commission, Guidelines Manual (“USSG”),

was 13, which, with a criminal history category of V, yielded an advisory

Guideline sentencing range of 30-37 months. 1 The presentence report (“PSR”),

prepared by the United States Probation Office in anticipation of sentencing,

disagreed with those calculations. The PSR categorized Mr. Suarez-Garcia’s


      1
       The plea agreement utilized an 8-level increase in offense level on the
ground that Mr. Suarez-Garcia had been previously deported following a
conviction for an aggravated felony. This was subsequently determined to be
incorrect, and a 16-level increase was utilized.

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conviction for attempted sexual assault as a crime of violence, which led to a total

offense level of 21 (rather than 13) which, in turn, yielded an advisory sentencing

range of 70-87 months. This calculation included the 16-level increase in offense

level on the ground that Mr. Suarez-Garcia had previously been deported after a

conviction for a felony crime of violence. See USSG § 2L1.2(b)(1)(A). The PSR

recommended a sentence of seventy months.

      Mr. Suarez-Garcia objected and moved for a variant sentence of twenty-

seven months. The probation officer remained committed to his calculations and

the recommendation in the PSR. The government agreed that the PSR’s

calculations were correct. At Mr. Suarez-Garcia’s sentencing hearing, the

government suggested a sentence between thirty-seven and seventy months.

Mr. Suarez-Garcia persisted in his request for a variant sentence below the

advisory Guidelines range.

      The court ultimately sentenced Mr. Suarez-Garcia to seventy-two months’

imprisonment. Both parties presented vigorous and extensive argument at

sentencing. Mr. Suarez-Garcia’s counsel argued for a twenty-seven month

sentence, stating

      I think 27 months kind of hits a sweet spot because it is almost
      double the 15 months and exactly one year longer than the last prior
      sentence. So it does provide some additional deterrence at least.

            With respect generally to the 3553 factors, I believe with
      respect to a general parsimony and just punishment argument, I
      would refer the Court generally to what I’ve argued as to [USSG §]

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       2L1.2(b)(1)(A) [the 16-level enhancement for previous deportation
       following conviction for a felony crime of violence] and to the
       evolution of this Guideline. It double-counts, it results in a tripling
       of the offense level; and depending upon whether an enhancement for
       felony, aggravated felony, or no other enhancement, anywhere from a
       two to three to ten times sentencing increase while at the same time
       counting twice prior convictions for both criminal-history and also
       offense-level purposes it lacks empirical support, and generally it
       would be my position that a sentence of 70 months is just simply, for
       this type of crime, in almost any circumstances, and particularly this
       one, far greater than necessary to achieve the goals of sentencing or a
       just sentence.

Tr. of Sentencing Hr’g at 3-4, Attach. 1 at 13-14.

       The government argued for a sentence within the range calculated by the

PSR:

               I do not believe a 27-month sentence in any way satisfies the
       objectives of 3553. . . . I . . . would ask that the Court . . . fashion a
       sentence that is somewhere between the 37 months and 70 months
       that is being requested by probation. . . . . [T]he logic is based on
       the factors of 3553(a) taking into consideration this subject’s
       background. He . . . illegally entered the United States in 2005, he
       commits several violations. He’s deported in 2008. He immediately
       comes back and commits another felony violation. This is his fourth
       felony that he has on his record at this point. . . . 70 months was
       definitely an appropriate sentence, given the defendant’s history,
       characteristics, and what your Honor has gone over with this being
       his fourth felony conviction and the seriousness of the sex offense.

Id. at 18-22.

       The district court noted the seriousness of Mr. Suarez-Garcia’s prior sex

offense conviction, observing that, “the [state] court found him to be a sexually

violent offender. Believe me when I tell you not every sex offender, not every

felony sex offender, is a sexually violent predator. There are specific

                                           -4-
requirements for that, and it’s a relatively uncommon finding by a state court.”

Id. at 8. Nonetheless, after reminding all parties that the court “ha[s] to be a little

careful not to sentence [the defendant] for the sex offense,” the court stated,

“what I’m deciding my sentence decision on today, really is the factors under 18

U.S.C. 3553, for the most part.” Id. at 17, 27. The court then carefully

considered the nature and circumstances of the offense, 2 the history and

characteristics of Mr. Suarez-Garcia, deterrence, the promotion of respect for the

law, community safety and rehabilitation. The resulting sentence of seventy-two

months was, in the court’s view, a “fair, just, necessary and appropriate

sentence.” Id. at 30.

      Mr. Suarez-Garcia appeals that sentence, arguing it is substantively

unreasonable because it (1) places excessive weight on Mr. Suarez-Garcia’s prior

sex offense conviction; (2) fails to fully take into account Mr. Suarez-Garcia’s

personal history and characteristics; and (3) is far longer than necessary.



                                    DISCUSSION

      We review sentences for substantive and procedural reasonableness under

an abuse of discretion standard. United States v. Lopez-Macias, 661 F.3d 485,

488-89 (10th Cir. 2011). Mr. Suarez-Garcia only challenges the substantive

      2
       In considering the nature and circumstances of the offense, the court stated
that Mr. Suarez-Garcia’s case presented a case “above and beyond the typical
reentry case.” Tr. of Sentencing Hr’g at 28, Attach. 1 at 38.

                                           -5-
reasonableness of his sentence. “[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. Damato,

672 F.3d 832, 838 (10th Cir. 2012) (internal quotation marks omitted). “We

review substantive reasonableness claims for abuse of discretion,” id.,

“afford[ing] substantial deference to [the] district court[].” United States v.

Smart, 518 F.3d 800, 806 (10th Cir. 2008). A sentence within the properly-

calculated Guidelines range is presumed on appeal to be reasonable. United

States v. Alvarez-Bernabe, 626 F.3d 1161, 1167 (10th Cir. 2010).

      As the above excerpts indicate, the district court did not place excessive

weight on Mr. Suarez-Garcia’s prior conviction. Rather, the court appropriately

noted its seriousness, but then went on, in some detail, to consider the 18 U.S.C.

§ 3553 sentencing factors. The court also considered Mr. Suarez-Garcia’s

personal history and characteristics and reached a sentence that, while lengthy, is

within the properly-calculated advisory Guidelines sentencing range and is

therefore presumptively reasonable. Mr. Suarez-Garcia has not rebutted that

presumption of reasonableness. To the extent he attempts to raise a policy

objection to the 16-level increase contained in the Guidelines and utilized in

calculating Mr. Suarez-Garcia’s sentence, we have explicitly rejected that

argument. See Alvarez-Bernabe, 626 F.3d 1161.




                                          -6-
                        CONCLUSION

For the foregoing reasons, we AFFIRM the sentence imposed.

                                     ENTERED FOR THE COURT


                                     Stephen H. Anderson
                                     Circuit Judge




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