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

                            FOR THE TENTH CIRCUIT                           June 24, 2020
                        _________________________________
                                                                        Christopher M. Wolpert
                                                                            Clerk of Court
 UNITED STATES OF AMERICA,

       Plaintiff - Appellee,
                                                             No. 19-1351
 v.                                               (D.C. No. 1:18-CR-00555-PAB-2)
                                                            (D. Colorado)
 JOSE EDUARDO TRUJILLO,

       Defendant - Appellant.
                      _________________________________

                            ORDER AND JUDGMENT*
                        _________________________________

Before PHILLIPS, MURPHY, and McHUGH, Circuit Judges.
                   _________________________________


      Jose Eduardo Trujillo pleaded guilty to one count of unlawful manufacture of

unregistered firearms and one count of possession of a machinegun.1 The district

court sentenced Mr. Trujillo to 87 months’ imprisonment. Mr. Trujillo appeals his




      *
        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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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.
      1
       We use the one-word spelling of machinegun to be consistent with 18 U.S.C.
§ 922(o), the statute under which Mr. Trujillo was charged.
sentence as substantively unreasonable. Exercising our jurisdiction under 28 U.S.C.

§ 1291 and 18 U.S.C. § 3742(a), we affirm.

                                 I.     BACKGROUND

       In June 2018, special agents with the Bureau of Alcohol, Tobacco, Firearms

and Explosives (“ATF”) began investigating Mr. Trujillo’s co-defendant, Andres

Luna, who they suspected of trafficking drugs and firearms. A confidential informant

introduced undercover ATF agents to Mr. Luna as potential customers. Mr. Luna

began selling firearms to the agents, and he told the agents that his source was

willing to lower the prices if the agents purchased larger quantities of firearms, ten to

fifteen at a time.

       On July 11, 2018, Mr. Luna sold the agents three firearms. The firearms were

custom built and had no serial numbers or manufacturer markings. Mr. Luna showed

the agents photographs of other custom-built firearms, and the agents arranged a

meeting with Mr. Luna and Mr. Trujillo to place a large order of customized

firearms.

       The agents met with Mr. Luna and Mr. Trujillo on July 25, 2018.

Mr. Trujillo’s stepson was present for this transaction. Mr. Trujillo sold the agents an

AR-15 type rifle, an AR-15 type pistol, and two silencers. Mr. Trujillo connected one

of the silencers to the AR-15 type pistol, explaining to the agents that it would

“fully” function with “subsonic ammunition.” ROA, Vol. I at 28–29. He reassured

the agents that he had tested the silencer in his basement and “they couldn’t hear [it]

upstairs.” ROA, Vol. I at 29. Mr. Trujillo then connected the other silencer to the

                                            2
AR-15 type pistol and dry-fired the pistol to demonstrate how “smooth” it

functioned. ROA, Vol. I at 29. He described the AR-15 type rifle as a “ghost gun,”

and told the agents that the “best part” of the firearms was their lack of serial

numbers. ROA, Vol. II at 29. Mr. Trujillo explained to the agents that the firearms

were legal if the agents claimed to have built the firearms themselves. He further

explained that the silencers were illegal to own, and if the agents wanted to make

them legal, they would have to “pay the $200 tax stamp.” ROA, Vol. I at 29. He told

the agents that he kept the silencers separated from the firearms in case he was

“pulled over” because they were illegal to own. ROA, Vol. I at 29.

      Agents continued purchasing firearms from Mr. Luna and Mr. Trujillo. During

their interactions, the agents told Mr. Luna they were willing to purchase the firearms

in bulk so the firearms could be transported to Mexico. Mr. Trujillo understood the

agents planned to transport the firearms to Mexico.

      At a meeting with Mr. Luna and Mr. Trujillo on October 30, 2018, the agents

purchased four firearms, three of which did not have serial numbers or manufacturer

markings. The fourth firearm was a Glock that had been converted to a machinegun.

Mr. Trujillo told the agents they could sell all the firearms with the option of being

“full-auto” by installing devices he referred to as “Lightning Links.” ROA, Vol. I at

29. Mr. Trujillo demonstrated how to convert a semi-automatic rifle to fully

automatic by inserting a Lightning Link into the lower receiver of one of the rifles

and function testing the rifle by charging it and pressing the trigger. This enabled the

agents to hear the firing pin fall forward on an empty chamber. Mr. Trujillo told the

                                            3
agents that most of the Lightning Links were matched to a specific gun and that he

would “fine tune” them. ROA, Vol. I at 29–30.

      Mr. Trujillo made and sold to the agents nine silencers and four Lightning

Links. Of the firearms and silencers purchased, some of the firearms, but none of the

silencers, had serial numbers. None of the silencers or machineguns were registered

to Mr. Trujillo through the National Firearms Registration and Transfer Record.

      On November 28, 2018, an ATF agent interviewed Mr. Trujillo. Mr. Trujillo

initially denied making the firearms and claimed he only assembled them. He also

denied knowing that the Glock was a machinegun. But Mr. Trujillo later admitted he

made everything and was selling firearms to make “ends meet.” ROA, Vol. II at 48.

Mr. Trujillo also confessed to assembling ten firearms for and giving a couple of

firearms to Mr. Luna, who Mr. Trujillo knew was a convicted felon.

      A grand jury returned a twenty-one-count indictment that charged Mr. Trujillo

in six of the counts with various firearm offenses. On June 21, 2019, Mr. Trujillo

pleaded guilty to Counts Five and Fourteen of the indictment. Count Five charged

Mr. Trujillo with unlawful manufacture of unregistered firearms in violation of 26

U.S.C. § 5861(f). Count Fourteen charged Mr. Trujillo with possession of a

machinegun in violation of 18 U.S.C. 922(o).

      In the Presentence Investigation Report (“PSR”), the United States Probation

Office recommended a total offense level of 33. This total included a 6-level

enhancement for the offense involving three or more firearms; a 4-level enhancement

for the offense involving a firearm with an obliterated serial number; a 4-level

                                           4
enhancement for trafficking firearms; a 4-level enhancement for transferring firearms

with reason to believe they would be transported out of the United States; and a

3-level reduction for acceptance of responsibility. Mr. Trujillo had no prior criminal

convictions, resulting in a criminal history category of I. The PSR calculated

Mr. Trujillo’s Guidelines range as 135 to 168 months’ imprisonment.

      Mr. Trujillo objected to both the 4-level enhancement for the offense involving

a firearm with an obliterated serial number and the 4-level enhancement for

transferring firearms with reason to believe they would be transported out of the

United States. The district court sustained the former objection but overruled the

latter. Accordingly, Mr. Trujillo’s revised total offense level was 29, resulting in a

Guidelines range of 87 to 108 months’ imprisonment.

      Prior to sentencing, Mr. Trujillo filed a Sentencing Memorandum in Support of

Variant Sentence, requesting a sentence of probation. At the sentencing hearing, Mr.

Trujillo’s counsel argued for a sentence of probation or, alternatively, a below-

Guidelines sentence of imprisonment. The United States argued for a within-

Guidelines sentence of 96 months’ imprisonment. The district court then considered

these arguments and the 18 U.S.C. § 3553(a) factors before imposing a sentence of

87 months’ imprisonment.

      Mr. Trujillo now appeals, claiming his sentence is substantively unreasonable.

We affirm.




                                            5
                            II.    STANDARD OF REVIEW

       “[T]he weight the district court places on certain [sentencing] factors is

reviewed for substantive unreasonableness.” United States v. Pinson, 542 F.3d 822,

835–36 (10th Cir. 2008). We review the substantive reasonableness of a sentence for

abuse of discretion. Gall v. United States, 552 U.S. 38, 51 (2007). We “will reverse

only if the sentence imposed was arbitrary, capricious, whimsical, or manifestly

unreasonable.” United States v. DeRusse, 859 F.3d 1232, 1236 (10th Cir. 2017)

(internal quotation marks omitted). That is, “we will reverse a determination only if

the court exceeded the bounds of permissible choice, given the facts and the

applicable law in the case at hand.” Id. (quotation marks omitted).

      “[W]e presume a sentence is reasonable if it is within the properly calculated

guideline range.” United States v. Chavez, 723 F.3d 1226, 1233 (10th Cir. 2013).

“The defendant may rebut this presumption by showing that his sentence is

unreasonable in light of the sentencing factors delineated in 18 U.S.C. § 3553(a).”

United States v. Alapizco-Valenzuela, 546 F.3d 1208, 1215 (10th Cir. 2008). “We do

not reweigh the sentencing factors but instead ask whether the sentence fell within

the range of rationally available choices that facts and the law at issue can fairly

support.” United States v. Blair, 933 F.3d 1271, 1274 (10th Cir. 2019) (internal

quotation marks omitted). Thus, our analysis “examine[s] 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).” Chavez, 723 F.3d at 1233 (internal quotation marks

omitted).

                                            6
                                     III.   ANALYSIS

      We presume that Mr. Trujillo’s 87-month, within-Guidelines sentence is

reasonable. See id. Mr. Trujillo may rebut this presumption by demonstrating that the

length of his sentence is unreasonable under the § 3553(a) factors. See Alapizco-

Valenzuela, 546 F.3d at 1215. Mr. Trujillo’s appeal challenges the district court’s

consideration of the need for the sentence imposed to generally deter similar criminal

conduct and the weight the district court gave to that particular § 3553(a) factor. See

18 U.S.C. § 3553(a)(2)(B) (requiring the court to consider “the need for the sentence

imposed . . . to afford adequate deterrence to criminal conduct”) As Mr. Trujillo

explains, “The district court identified what was needed for general deterrence: a

sentence that would not be seen as really light or very light.” Aplt. Reply Br. at 5.

And Mr. Trujillo contends that a below-Guidelines sentence could have accomplished

that need, and thus the bottom-of-the-Guidelines sentence that the district court

imposed was substantively unreasonable.

      Mr. Trujillo claims the district court’s sentencing explanation implies that its

refusal to impose a below-Guidelines sentence was based on general deterrence

alone: “The nature of the offense conduct . . . was subordinate to the interest in

general deterrence. It was the interest in general deterrence, and not what the district

court had earlier said about the offense conduct, that the district court cited as a

reason for not giving ‘some substantially reduced sentence.’” Aplt. Br. at 17 (quoting

ROA, Vol. III at 70); see also Aplt. Br. at 18–19 (“[T]he district court’s remarks

about the offense conduct cannot be read as a reason why it adhered to a guideline

                                            7
sentence and declined to vary downward given the lack of any interest in protecting

the public from future crimes by Mr. Trujillo.”). But upon examination of the district

court’s complete rationale for imposing an 87-month sentence, it is clear the district

court found that another factor—the need for just punishment—not only counseled

against imposing a substantially reduced sentence, but also supported imposing a

within-Guidelines sentence.

      The district court began its sentencing explanation by noting the Guidelines

range and its discretion to impose a sentence outside that range. The court then

reviewed Mr. Trujillo’s arguments for a below-Guidelines sentence:

      One is because given the fact that he doesn’t really have any criminal
      history, there is not even a traffic ticket cited anywhere in the Presentence
      Investigation Report, that Mr. Trujillo is unlikely to recidivate. There is
      really no need for any further deterrence; that Mr. Trujillo does not pose a
      threat to society; that deterrence generally is a somewhat shaky concept,
      particularly in this case because it is unlikely that additional time would
      deter Mr. Trujillo additionally; and that even with the concept of general
      deterrence, that that would not in this particular case justify some type of
      sentence of imprisonment.

ROA, Vol. III at 65.

      The district court also noted that it had considered the § 3553(a) factors, and it

specifically discussed several of those factors. With respect to the nature and

circumstances of the offense, see § 3553(a)(1), the district court indicated the

transactions underlying the counts of conviction involved selling weapons to law

enforcement officers. And the court considered Mr. Trujillo’s representations that he

was not trying to earn a profit selling weapons but had simply gotten carried away

with his hobby of making guns. As for Mr. Trujillo’s history and characteristics, see

                                            8
id., the district court noted Mr. Trujillo’s lack of criminal history and the supportive

letters he submitted to the court from his family.

      The district court then weighed these mitigating facts against less favorable

ones. The court was troubled that Mr. Trujillo had involved his stepson in one of the

transactions underlying the counts of conviction. The district court was also

concerned that Mr. Trujillo tested weapons in the basement of his home:

“[H]obbyists don’t do that, shooting a few rounds down in the

basement. . . . That’s . . . dangerous[,] irresponsible behavior.” ROA, Vol. III at 66.

From the court’s perspective, Mr. Trujillo’s interest in firearms “way crossed the

line” when he “t[oo]k the extra step and convert[ed receivers] to make something

automatic.” ROA, Vol. III at 67. And Mr. Trujillo was not only selling the items he

was making, but he was also “taking an extra step in selling them for specific illegal

purposes, particularly having knowledge these are going to go down to Mexico and

essentially be used by cartels to fight wars against the Mexican federal police.” ROA,

Vol. III at 67. Although Mr. Trujillo’s conduct at issue did not involve violence, “he

was aware of what the intent of the would-be buyers w[as,] and that didn’t stop him

at all.” ROA, Vol. III at 69.

      The district court further reasoned that Mr. Trujillo’s lack of a criminal history

was outweighed by the fact that Mr. Trujillo knew his conduct was illegal:

             So the fact that he doesn’t have any criminal history doesn’t make
      any difference to me because, you know, the evidence that each one of
      these guns would take him about a day to make, it’s deliberate behavior
      over a period of time. He is choosing to do it and he made a really serious
      mistake. You know, it’s no excuse that Mr. Trujillo was just one of these

                                            9
      guys, like super good at gunsmithing, that he just got carried away. If
      you’re a really good printer, does that give you an excuse to counterfeit
      money? No. If you’re a really good painter, does that give you an excuse to
      create counterfeits which you sell? No. And anyone who took that step,
      which, of course, they would also know is highly illegal, would expect that
      if caught, they were going to get in trouble.
              Mr. Trujillo knew that too, which is one of the reasons he was so
      deceitful once he got caught. And that distinguishes him from, say, Al
      Capone’s bookkeeper or something like that, some low-level functionary
      who was involved with the bad guy but maybe didn’t put two and two
      together. Mr. Trujillo actually had dealings with these customers and was
      telling the customers how to use them, how to avoid criminal liability if
      they were caught. You know, he was right up there up front in terms of the
      steps that were necessary to put them out on the street, namely the sale of
      them.
ROA, Vol. III at 68–69; see also ROA, Vol. III at 67 (“He [wa]s trafficking in

silencers which he knows are highly illegal.”).

      The district court thought that “Mr. Trujillo ha[d] learned his lesson,” and that

“Mr. Trujillo is not the type of person who is likely to recidivate.” ROA, Vol. III at

70. But the district court did not think that the consequent lack of a need for the

sentence imposed to deter Mr. Trujillo from future criminal conduct and protect the

public from future crimes of Mr. Trujillo “would justify some type of non-prison

sentence,” or even “justify some substantially reduced sentence.” ROA, Vol. III at

70. Rather, the district court reasoned that the need for the sentence imposed to

generally deter similar criminal conduct outweighed the lack of need for specific

deterrence and protecting the public from further crimes of Mr. Trujillo:

      If Mr. Trujillo who has no criminal history and has an aptitude for weapons
      manufactur[ing] gets a really light sentence, I don't think that sends a very
      good message to people because we know there is a lot of these 80 percent
      conversion cases out there floating around waiting for people who have the
      aptitude to drill a couple holes to convert guns into automatic use, that type
                                           10
      of thing. I don’t think it’s a good thing that someone could think that you're
      just going to get a very light sentence; maybe prohibit you from owning
      firearms again, but after all if you're converting something into an
      automatic weapon, you may not be too deterred, you know, by that
      prospect.
ROA, Vol. III at 70-71.

      And importantly, the district court made it clear that its decision to impose a

within-Guidelines term of imprisonment was based not only on the need for general

deterrence, but also on “the need for the sentence imposed . . . to reflect the

seriousness of the offense . . . and to provide just punishment for the offense.” 18

U.S.C. § 3553(a)(2)(A). The district court explained, “I think that some type of a

punitive sanction, by that, prison in this particular case, is appropriate and necessary

both to punish Mr. Trujillo for a very serious misjudgment on his part, but also for

general deterrence purposes.” ROA, Vol. III at 71 (emphasis added).

      Thus, contrary to Mr. Trujillo’s contentions, the district court’s interest in

general deterrence was not the primary reason it imposed a within-Guidelines

sentence. The district court specifically stated that the sentence it imposed was based

both on the need for just punishment and the need for general deterrence. See 18

U.S.C. § 3553(a)(2)(A)–(B). This clear statement of the district court’s reasoning can

only be read as providing two § 3553(a) factors as bases for imposing the 87-month

sentence. The district court was permitted to weigh the § 3553(a) factors in this

manner and conclude that an 87-month sentence was appropriate.

      There is nothing in the district court’s thorough sentencing explanation that

demonstrates its weighing of the § 3553(a) factors and the sentence imposed were

                                           11
“arbitrary, capricious, whimsical, or manifestly unreasonable” or “exceeded the

bounds of permissible choice, given the facts and the applicable law in the case at

hand.” DeRusse, 859 F.3d at 1236 (quotation marks omitted). Accordingly, the

district court did not abuse its discretion when it imposed an 87-month,

bottom-of-the-Guidelines sentence, based on the need for just punishment and

general deterrence.

                                 IV.    CONCLUSION

      We AFFIRM the district court’s judgment.

                                           Entered for the Court


                                           Carolyn B. McHugh
                                           Circuit Judge




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