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

                           FOR THE TENTH CIRCUIT                        August 29, 2012

                                                                     Elisabeth A. Shumaker
                                                                         Clerk of Court
UNITED STATES OF AMERICA,

             Plaintiff-Appellee,

v.                                                         No. 11-1546
                                                (D.C. No. 1:11-CR-00110-WYD-1)
SERGIO DE LUCIO-OLVERA,                                     (D. Colo.)

             Defendant-Appellant.


                            ORDER AND JUDGMENT*


Before GORSUCH, Circuit Judge, BRORBY, Senior Circuit Judge, and HOLMES,
Circuit Judge.


      Sergio De Lucio-Olvera appeals the sentence imposed following his guilty

plea to illegal re-entry after deportation subsequent to an aggravated felony

conviction, in violation of 8 U.S.C. § 1326(a) & (b)(2). The district court sentenced

him to 30 months in prison, within the range indicated by the United States




*
      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). 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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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.
Sentencing Guidelines (“Guidelines” or “U.S.S.G.”). Our jurisdiction arises from

28 U.S.C. § 1291 and 18 U.S.C. § 3742(a). We affirm.

                                     Background

      Mr. De Lucio-Olvera, a native of Mexico, has entered the United States

illegally three times and has been deported twice. After he was deported the first

time, he was convicted in Colorado state court in 2007 of felony theft and sentenced

to 24 months’ imprisonment. R. Vol. 3 at 14. He served approximately 17 months of

that sentence, including credit for pretrial confinement. See id. After again being

deported in April 2008, he illegally re-entered the United States in March 2009. In

May 2009, he was charged in Colorado state court with sexual contact--peeping tom,

theft--under $500, and false reporting, and was ultimately convicted of those charges.

Id. at 15. In June 2009, he came to the attention of Immigration and Customs

Enforcement officials and was charged with the offense at issue here.

      In addition to the sexual-contact and felony-theft convictions,

Mr. De Lucio-Olvera has sustained six convictions, including three for theft and three

for fraud, as well as numerous alcohol-related driving offenses, and several failures

to appear. See id. at 8-15. In addition, he has used numerous aliases, false dates of

birth, and fraudulent social security numbers. See id. at 22.

      The United States Probation Office prepared a presentence report (“PSR”) that

calculated Mr. De Lucio-Olvera’s sentence pursuant to the Guidelines. According to

the PSR, the Guidelines provided for a base offense level of 8. The felony-theft


                                         -2-
conviction was a prior aggravated felony that added another 8 levels. See 8 U.S.C.

§ 1101(a)(43); U.S.S.G. § 2L1.2(b)(1)(C). Mr. De Lucio-Olvera received a 3-level

reduction for acceptance of responsibility, resulting in a total offense level of 13. His

criminal history category was IV. Accordingly, the advisory Guidelines sentencing

range was 24 to 30 months. R. Vol. 3 at 20. The PSR recommended a sentence of

30 months. Id. at 25.

      The district court sentenced Mr. De Lucio-Olvera to 30 months in prison,

noting that shortly after his return to the United States in March 2009, he committed

a sex crime in May 2009. See id. Vol. 2 at 29. In addition, the court reviewed

Mr. De Lucio-Olvera’s criminal record, as well as his use of numerous false names,

dates of birth, and social security numbers. Id. at 21. The court found no categorical

impropriety in increasing the offense level based on a felony-theft conviction, and

acknowledged that individualized consideration was required. Id. at 22. The court

observed that Mr. De Lucio-Olvera was “stuck with the record he earned,” which

supported the recommended sentence. Id. at 30.

      Mr. De Lucio-Olvera appeals his sentence, claiming that the sentence is

substantively unreasonable because the district court weighted too heavily his prior

felony-theft conviction.

                                      Discussion

      “We employ an abuse of discretion standard in reviewing a criminal

defendant’s sentence for substantive reasonableness.” United States v. Martinez,


                                          -3-
610 F.3d 1216, 1227 (10th Cir. 2010). “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.” United States v. Haley, 529 F.3d 1308,

1311 (10th Cir. 2008). “Because substantive reasonableness contemplates a range,

not a point, in this arena we recognize a range of rationally available choices that the

facts and law at issue can fairly support.” Martinez, 610 F.3d at 1227 (citation

omitted) (internal quotation marks omitted).

       Mr. De Lucio-Olvera argues that the district court abused its discretion in

sentencing him at the top of the advisory Guidelines range. Although he concedes

that his felony-theft conviction falls within the definition of “aggravated felony” that

warranted an increase of 8 levels, he contends that it did not justify being considered

aggravated when compared with other felonies. He further argues that if the

felony-theft conviction were considered independently, rather than as a prior

aggravated felony, the Guidelines would yield a low offense level, thus

demonstrating that the felony-theft conviction was accorded too much weight in the

selection of his sentence. Finally, Mr. De Lucio-Olvera contends that the severity of

his re-entry offense did not warrant a 30-month sentence in light of the § 3553(a)

factors.

       “Sentences imposed within the correctly calculated Guidelines range, such as

the sentence at issue here, may be presumed reasonable on appeal.” Haley, 529 F.3d

at 1311. Although Mr. De Lucio-Olvera may rebut that presumption if he


                                          -4-
demonstrates that the § 3553(a) factors warrant a lower sentence, this court will find

an abuse of discretion only if the district court “renders a judgment that is arbitrary,

capricious, whimsical, or manifestly unreasonable.” Id. (internal quotation marks

omitted).

       Mr. De Lucio-Olvera contends that the district court gave too much weight to

his felony-theft conviction. But this court “may not examine the weight a district

court assigns to various § 3553(a) factors”; rather, we “give due deference to the

district court’s decision that the § 3353(a) factors, on a whole, justify the sentence

imposed.” United States v. Lewis, 625 F.3d 1224, 1233 (10th Cir. 2010) (internal

quotation marks and brackets omitted), cert. denied, 131 S. Ct. 1790 (2011). In light

of all of the evidence in the record, including Mr. De Lucio-Olvera’s repeated illegal

re-entry into the United States, his criminal history, his commission of a serious

crime shortly after his 2009 illegal re-entry, and the fact that his felony-theft

conviction qualified as an aggravated felony, we cannot say that

Mr. De Lucio-Olvera has rebutted the presumption that the within-Guidelines

sentence was procedurally reasonable. We conclude that the district court did not

abuse its discretion in imposing a sentence of 30 months.




                                           -5-
                            Conclusion

For the foregoing reasons, we AFFIRM Mr. De Lucio-Olvera’s sentence.


                                     Entered for the Court


                                     Jerome A. Holmes
                                     Circuit Judge




                               -6-
