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

                            FOR THE TENTH CIRCUIT                              March 1, 2019
                        _________________________________
                                                                            Elisabeth A. Shumaker
                                                                                Clerk of Court
 UNITED STATES OF AMERICA,

       Plaintiff - Appellee,

 v.                                                     Nos. 18-2034 & 18-2035
                                                   (D.C. Nos. 2:13-CR-02537-RB-1 &
 MOISES NATANAEL SOTO-CRUZ,                              2:16-CR-04079-RB-1)
                                                               (D. N.M.)
       Defendant - Appellant.
                      _________________________________

                                     ORDER
                        _________________________________

Before MATHESON, MURPHY, and CARSON, Circuit Judges.
                 _________________________________

      These matters are before the court to correct a clerical error in the Order &

Judgment filed on February 20, 2019. Due to a clerical error, the decision caption only

included appeal number 18-2034. The decision applies and should be filed, however, in

both numbers 18-2034 and 18-2035. Therefore, the Clerk is directed to refile the Order &

Judgment, with the proper appeal numbers, nunc pro tunc to the original filing date of

February 20, 2019.


                                             Entered for the Court



                                             ELISABETH A. SHUMAKER, Clerk
                                                                 FILED
                                                     United States Court of Appeals
                       UNITED STATES COURT OF APPEALS        Tenth Circuit

                             FOR THE TENTH CIRCUIT                     February 20, 2019
                         _________________________________
                                                                      Elisabeth A. Shumaker
                                                                          Clerk of Court
 UNITED STATES OF AMERICA,

       Plaintiff - Appellee,

 v.                                                    Nos. 18-2034 & 18-2035
                                                  (D.C. Nos. 2:13-CR-02537-RB-1 &
 MOISES NATANAEL SOTO-CRUZ,                             1:16-CR-04079-RB-1)
                                                              (D. N.M.)
       Defendant - Appellant.
                      _________________________________

                             ORDER AND JUDGMENT*
                         _________________________________

Before MATHESON, MURPHY, and CARSON, Circuit Judges.**
                 _________________________________

      Moises Natanael Soto-Cruz appeals his concurrent 70-month sentence for drug

and illegal reentry convictions and violation of the terms of his supervised release

from previous convictions. Mr. Soto1 contends the sentence—which is within the

U.S. Sentencing Guidelines range—is substantively unreasonable. He argues the



      *
         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 Federal Rule of Appellate Procedure 32.1 and
Tenth Circuit Rule 32.1.
      **
        After examining the briefs and appellate record, this panel has determined
unanimously to honor the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
submitted without oral argument.
      1
          We refer to the surname Mr. Soto uses in his brief.
district court did not give sufficient weight to his medical condition. Exercising

jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a), we affirm.

                                  I. BACKGROUND

      Mr. Soto was indicted on three counts: (1) conspiracy to distribute marijuana,

in violation of 21 U.S.C. § 846; (2) possession of marijuana with intent to distribute,

in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(D); and (3) and reentry into the

United States after being “denied admission, excluded, deported, or removed,” in

violation of 8 U.S.C. § 1326(a) and (b). The Government also sought revocation of

Mr. Soto’s supervised release arising from previous violations of 21 U.S.C.

§ 841(a)(1) and 8 U.S.C. § 1362(a)(1) and (2). Mr. Soto pled guilty to Counts 2 and

3, and the government moved to dismiss Count 1. Mr. Soto also admitted to

violating the conditions of his supervised release.

      Before sentencing, the U.S. Probation Office prepared a Presentence

Investigation Report (“PSR”). The PSR calculated an offense level of 20 and a

criminal history category of VI, leading to an advisory Guidelines range of 70 to 87

months.2

      At his sentencing hearing, Mr. Soto urged the court to consider his medical

condition. Through counsel, Mr. Soto explained he suffered from a rare tumor in his

groin. During his pre-sentence detention, doctors removed one testicle to treat the

tumor. The surgery and difficulties in managing his care in prison caused stress.


      2
       Mr. Soto filed five objections to the PSR. The court overruled each, and Mr.
Soto does not appeal these rulings.
                                           2
      Mr. Soto also stated that a doctor in Mexico told him that treatment of his

condition would be expensive. Mr. Soto implied that he trafficked drugs to obtain

money to pay for treatment. He requested either a variance or a downward departure

from the Guidelines range.3

      The Government reported that over a 12-year period, Mr. Soto had been

apprehended four times carrying marijuana across the border. It pointed to Mr.

Soto’s prior sentences—including an 18-month suspended sentence in 2009, a

46-month sentence in 2009, and a 37-month sentence in 2013.4 The prosecutor said

that “[o]ther than a total of six months’ release, [Mr. Soto] has been incarcerated in

American jails since October 2009 for backpacking marijuana. Other than six

months, he’s been in prison for eight years for doing this repeatedly, but those

sentences have not deterred him.” ROA, Vol. IV at 33.

      The district court remarked on Mr. Soto’s medical condition: “I think that we

can all agree that Mr. Soto ought to be housed at a medical facility that can

immediately and responsibly treat this very serious medical condition.” Id. at 39.

The court then said that the sentence it was about to impose was “driven not by [Mr.

Soto’s] physical condition, but by [his] criminal history that predates that . . . medical


      3
        A departure is based on application of Chapters Four or Five of the
Guidelines. A variance is based on application of the factors in 18 U.S.C. § 3553(a).
United States v. McComb, 519 F.3d 1049, 1051 n.1 (10th Cir. 2007). On appeal, Mr.
Soto urges only a variance. See Aplt. Br. at 6 (referring to “statutory sentencing
factors”).
      4
        The Government did not mention Mr. Soto’s first 180-day sentence for
carrying drugs across the border in 2006.
                                            3
condition. And it’s a sad thing that the medical condition has to come on the heels of

all of that criminal history, but it does.” Id. The court said that “the punishment has

to reflect [Mr. Soto’s] history of repeat behavior that has not been deterred by the

sentence[s] that we’ve tried up till now.” Id. at 40.

      The district court imposed a sentence of 60 months on Count 2 and 70 months

on Count 3. It also sentenced Mr. Soto to 24 months for violating the conditions of

supervised release from his prior sentence. All three sentences were to run

concurrently. The court recommended that the Bureau of Prisons incarcerate Mr.

Soto at a Federal Medical Center. Mr. Soto timely appealed.

                                   II. DISCUSSION

                                A. Standard of Review

      “[C]ourts of appeals must review all sentences . . . under a deferential

abuse-of-discretion standard,” Gall v. United States, 552 U.S. 38, 41 (2007),

including review for substantive reasonableness, United States v. Vasquez-Alcarez,

647 F.3d 973, 976 (10th Cir. 2011). We will reverse for substantive

unreasonableness only if the district court “exceeded the bounds of permissible

choice.” United States v. McComb, 519 F.3d 1049, 1053 (10th Cir. 2007) (quotations

omitted).




                                            4
                                  B. Legal Background

1. District Court Sentencing

         “[A] district court should begin all sentencing proceedings by correctly

calculating the applicable Guidelines range.” Gall, 552 U.S. at 49. But the parties

may argue for “whatever sentence they deem appropriate.” Id. And “the district

judge should then consider all of the § 3553(a) factors to determine whether they

support the sentence requested by a party.” Id. at 49-50. “In so doing,” the district

court “may not presume that the Guidelines range is reasonable.” Id. at 50. Rather,

it “must make an individualized assessment based on the facts presented.” Id.

Finally, the district court “must adequately explain the chosen sentence to allow for

meaningful appellate review and to promote the perception of fair sentencing.” Id.

         Section 3553(a) lists seven factors. The first two are most relevant to this

case:5

               (1) the nature and circumstances of the offense and the
               history and characteristics of the defendant;

               (2) the need for the sentence imposed—

                      (A) to reflect the seriousness of the offense, to
                      promote respect for the law, and to provide just
                      punishment for the offense;

                      (B) to afford adequate deterrence to criminal
                      conduct;


         5
       The other factors are the sentences that are legally available, the Sentencing
Guidelines, the Sentencing Commission’s policy statements, the need to avoid
unwarranted sentence disparities, and the need for restitution. See 18 U.S.C.
§ 3553(a)(3)-(7); United States v. Barnes, 890 F.3d 910, 915 (10th Cir. 2018).
                                             5
                     (C) to protect the public from further crimes of the
                     defendant; and

                     (D) to provide the defendant with needed
                     educational or vocational training, medical care, or
                     other correctional treatment in the most effective
                     manner . . . .

18 U.S.C. § 3553(a)(1)-(2). The factors “do not necessarily bear equal weight, and the

district court b[ears] the delicate task of balancing these factors.” United States v.

Walker, 844 F.3d 1253, 1259 (10th Cir. 2017).

2. Appellate Review for Substantive Reasonableness

       A defendant may challenge a sentence on procedural and substantive

unreasonableness grounds. See Gall, 552 U.S. at 49. Mr. Soto challenges only the

substantive unreasonableness of his sentence. “Substantive reasonableness involves

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. Craig,

808 F.3d 1249, 1261 (10th Cir. 2015); see also Gall, 552 U.S. at 51.

       “The Supreme Court ‘permit[s] courts of appeals to adopt a presumption of

reasonableness’ when the district court sentenced a defendant within the Guidelines

range.” Vasquez-Alcarez, 647 F.3d at 977 (quoting Rita v. United States, 551 U.S.

338, 354 (2007)); see also Rita, 551 U.S. at 341. In this circumstance, “both the

sentencing judge and the Sentencing Commission will have reached the same

conclusion as to the proper sentence in the particular case.” Rita, 551 U.S. at 347.

We may apply this presumption even when the defendant argues his physical

condition warrants a variance. See id. at 345.

                                              6
          “Our role is not to second guess the district court’s treatment of the § 3553(a)

factors. ‘The sentencing judge is in a superior position to find facts and judge their

import under § 3553(a) in the individual case.’” Vasquez-Alcarez, 647 F.3d at 978

(quoting Gall, 552 U.S. at 51). “[A]s long as the balance struck by the district court

among the factors set out in § 3553(a) is not arbitrary, capricious, or manifestly

unreasonable, we must defer to that decision even if we would not have struck the

same balance in the first instance.” United States v. Sells, 541 F.3d 1227, 1239 (10th

Cir. 2008). Indeed, we reverse the district court’s sentence as unreasonable only if

the court was “arbitrary, capricious, whimsical, or manifestly unreasonable when it

weighed the permissible § 3553(a) factors.” Craig, 808 F.3d at 1263 (quotations

omitted).

                                         C. Analysis

          Mr. Soto challenges the substantive reasonableness of his 70-month sentence.

His arguments cannot rebut the presumptive reasonableness of his within-Guidelines-

range sentence. See Sells, 541 F.3d at 1237. His sole argument is that the district

judge did not give sufficient weight to his medical condition under the first § 3553(a)

factor.

          Mr. Soto must demonstrate that his sentence was unreasonably long “given all

the circumstances of the case in light of the factors set forth in 18 U.S.C. § 3553(a).”

Craig, 808 F.3d at 1261. The district court considered his medical condition along

with other factors, including the need to “afford adequate deterrence to criminal



                                              7
conduct” and “protect the public from further crimes of the defendant.” 18 U.S.C.

§ 3553(a)(2)(B)-(C).

       We have denied a request “simply to look with more favor on the facts

surrounding [a defendant’s] medical condition than the district court did.” McComb,

519 F.3d at 1057 (referring to a stroke, the severity of which the district court

doubted); see also Rita, 551 U.S. at 359-60 (affirming a sentence despite the

defendant’s health condition). A district court acts within its discretion in failing to

grant a variance to a defendant who “[d]espite increasingly severe sentences . . .

for . . . successive convictions, . . . continued to engage in the distribution of

controlled substances.” Sells, 541 F.3d at 1238.

       Mr. Soto was sentenced to a suspended 18-month sentence in 2009, six months

in 2009, and 46 months in 2013—all for backpacking drugs from Mexico into the

United States. The district court considered this history alongside Mr. Soto’s

medical condition. It commented on his medical condition and recommended that

Mr. Soto be incarcerated at a Federal Medical Center, explicitly taking his “health into

account by seeking assurance that the Bureau of Prisons will provide appropriate

treatment.” See Rita, 551 U.S. at 360. The court did not “exceed[] the bounds of

permissible choice,” McComb, 519 F.3d at 1053, when it sentenced Mr. Soto within the

Guidelines range.

                                  III. CONCLUSION

       The district court did not abuse its discretion in weighing Mr. Soto’s criminal

history—which concerns the need to provide deterrence and protect the public—

                                             8
relative to his medical condition in sentencing him to 70 months in prison. We

uphold the sentence and affirm the district court’s judgment.


                                           Entered for the Court


                                           SCOTT MATHESON, JR.
                                           Circuit Judge




                                          9
