                                                                       FILED
                                                          United States Court of Appeals
                                                                  Tenth Circuit

                    UNITED STATES COURT OF APPEALSFebruary 7, 2012
                                                              Elisabeth A. Shumaker
                                 TENTH CIRCUIT                    Clerk of Court



 UNITED STATES OF AMERICA,

               Plaintiff - Appellee,                    No. 11-1356
          v.                                           (D. Colorado)
 MARLON JAVIER VARGAS-                      (D.C. No. 1:10-CR-00370-MSK-1)
 MEDINA, a/k/a Carlos Caria, a/k/a
 Marlo Vargas-Reyna, a/k/a Marlon
 Acosta-Vargas, a/k/a Norlan J. Vargas,

               Defendant - Appellant.


                            ORDER AND JUDGMENT *


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



      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       This order and judgment is not binding precedent, except under the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. 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. 36.3.
       Defendant and appellant Marlon Javier Vargas-Medina pled guilty to one

count of illegally reentering the country following deportation after a felony

conviction, in violation of 8 U.S.C. § 1326(a) and (b)(2). He was sentenced to

fifty-seven months’ imprisonment. Arguing that his sentence is procedurally and

substantively unreasonable, Mr. Vargas-Medina appeals that sentence, which we

affirm.



                                 BACKGROUND

       Mr. Vargas-Medina is a citizen of Honduras. Beginning in the mid-1990s,

Mr. Vargas-Medina moved repeatedly between the United States and Honduras.

While records reveal three prior deportations, Mr. Vargas-Medina claimed he had

been deported at least eight or nine times. In January 2011, federal agents

discovered Mr. Vargas-Medina in the Aurora, Colorado, jail following his arrest

for a traffic violation.

       As indicated, Mr. Vargas-Medina pled guilty pursuant to an agreement

where the government agreed to recommend that he receive full credit for

accepting responsibility. In preparation for sentencing under the advisory United

States Sentencing Commission, Guidelines Manual (“USSG”) (2010), the United

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

calculated an advisory Guidelines sentencing range of seventy to eighty-seven




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months’ imprisonment, based upon a total offense level of 21 and a criminal

history category V.

      Mr. Vargas-Medina objected to his criminal history category classification,

arguing that a 2005 California state court conviction included in his criminal

history rested upon insufficient documentation. Specifically, he argued that there

were no records of the California conviction. Without this conviction, he argues

his criminal history category would be IV.

      Additionally, Mr. Vargas-Medina asked the court to provide a downward

variance from the advisory Guidelines range, arguing that the Guideline provision

providing for a 16-level increase in his base offense level because he was

deported following a prior conviction for a felony (a 2008 conviction for

attempted distribution of heroin) was unfair and unnecessary. He also argued that

his own history and characteristics mandated that the 16-level increase not be

applied. In particular, he stated that he left his family in Honduras when he was

just a teenager, that he was poorly educated, and that he spent much of his time

figuring out how he could get to the United States.

      The district court agreed with Mr. Vargas-Medina that the government had

failed to carry its burden to prove that the challenged 2005 California conviction

was actually attributable to Mr. Vargas-Medina. This lowered his criminal

history to category IV, with the result that the advisory Guidelines range was

fifty-seven to seventy-one months. The district court then rejected Mr. Vargas-

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Medina’s motion for a variance, and ultimately sentenced him to fifty-seven

months’ imprisonment, at the low end of the applicable advisory Guidelines

range.

         Mr. Vargas-Medina argues his sentence is procedurally and substantively

unreasonable, primarily because he objects to the 16-level increase in his offense

level based upon his prior deportation following a felony conviction:

         The 16-level bump the Guidelines assigned to Vargas-Medina’s drug
         conviction raised his total offense level from 6 to 21, and raised his
         Guideline range from 6-12 months to 57-71 months. When viewed
         against the other factors set out in § 3553(a), particularly the nature
         of the offense, the unreasonableness of his sentence becomes
         apparent, for those other factors played little or no role in fixing his
         punishment.

Appellant’s Op. Br. at 9.



                                      DISCUSSION

         We review the reasonableness of a sentence under the “familiar abuse-of-

discretion standard of review.” Gall v. United States, 552 U.S. 38, 46 (2007).

“Reasonableness review has a procedural and substantive component.” United

States v. Martinez, 610 F.3d 1216, 1223 (10th Cir. 2010). “Procedural

reasonableness addresses whether the district court incorrectly calculated or failed

to calculate the Guidelines sentence, treated the Guidelines as mandatory, failed

to consider the § 3553(a) factors, relied on clearly erroneous facts, or failed to

adequately explain the sentence.” United States v. Huckins, 529 F.3d 1312, 1317

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(10th Cir. 2008). “[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).” Id. Furthermore, “[w]e apply a

rebuttable presumption of reasonableness for sentences imposed within the

correctly calculated advisory guideline range.” United States v. Perez-Jiminez,

654 F.3d 1136, 1146 (10th Cir. 2011) (further quotation omitted).

      Mr. Vargas-Medina’s procedural reasonableness argument amounts to an

attack on the 16-level enhancement contained in the Guidelines and applicable to

individuals, like himself, who illegally reentered the United States after being

previously deported following an aggravated felony conviction. He argues the

enhancement “was not the product of a rational, empirically based exercise of the

Sentencing Commission’s institutional role, namely, the provision of expert and

data-driven insight into the sentencing process.” Appellant’s Op. Br. at 11. He

further argues that the district court failed to acknowledge that it had the ability

to vary from the advisory Guidelines sentencing range because it disagreed with

the Guidelines as a policy matter. See Spears v. United States, 555 U.S. 261, ___,

129 S. Ct. 840, 842-43 (2009) (per curiam) (holding a district court has discretion

to vary from the Guidelines based solely on a policy disagreement with the 100:1

ratio for crack and powder cocaine offenses); Kimbrough v. United States, 552

U.S. 85, 91 (2007) (holding district courts have authority to consider the disparity




                                          -5-
between the Guidelines’ treatment of crack and powder cocaine offenses when

choosing an appropriate sentence).

      It is clear from the transcript of the sentencing hearing that the district

court did not believe it lacked the authority to depart from the advisory

Guidelines range, based on a policy disagreement with the Guidelines. Rather,

the court simply chose not to exercise its authority to vary from the advisory

Guidelines sentencing range. As the court explained:

      To find that the Sentencing Commission has not performed its
      obligations would require me to know precisely what they have done
      in an evidentiary context with regard to the determination of
      particular facets in the guidelines. And although I generally take that
      into account in the 3553 analysis, I am reluctant on simply an
      argument to find that there is a problem in the guideline calculation
      or guideline structure that is caused by some deficiency, oversight, or
      usurpation of authority by the Sentencing Commission.

            I therefore take that argument into account under 3553(a) in a
      general context with regard to this particular defendant, but I make
      no findings as to the appropriateness of the offense increase.

Tr. of Sentencing Hr’g at 20, R. Vol. 2 at 52 (emphasis added). Thus, the court

understood that it could vary, but, in essence, determined that it would not do so

in this particular case, based merely on Mr. Vargas-Medina’s argument to do so,

with no specific information on why the 16-level enhancement was inappropriate

in this case. The court then considered the argument in the context of examining

all the 18 U.S.C. § 3553(a) sentencing factors, but rejected it as a basis for

varying from the Guidelines range.


                                          -6-
      Additionally, we have already rejected a very similar, if not identical,

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

the defendant made the argument that “the application of the 16-level

enhancement works some sort of injustice on [him].” Id. at 1164. We responded

that “the Sentencing Commission was merely following Congressional policy to

impose more severe statutory penalties on previously deported aliens with a

criminal record, who illegally return to the United States. Thus, Mr. Alvarez’s

arguments really should be directed at Congress, not the Sentencing

Commission.” Id. at 1166. We also noted that a number of courts have

“explicitly rejected this same argument.” Id. (citing cases). The district court

accordingly committed no procedural error when it calculated Mr. Vargas-

Medina’s sentence and imposed the 16-level enhancement contained in the

Guidelines.

      Mr. Vargas-Medina also argues his sentence is substantively unreasonable.

As we stated above, a substantive reasonableness inquiry requires us to consider

whether the sentence is reasonable in light of all the sentencing factors contained

in 18 U.S.C. § 3553(a). He claims that “[w]hen viewed against the other factors

set out in § 3553(a), particularly the nature of the offense, the unreasonableness

of his sentence becomes apparent, for those other factors played little or no role

in fixing his punishment.” Appellant’s Op. Br. at 9. Once again, Mr. Vargas-

Medina’s argument really amounts to an attack on the 16-level enhancement the

                                         -7-
Guidelines provide for illegal aliens reentering the country following a

deportation after an aggravated felony conviction. This wholesale attack is

unavailing.

      Moreover, the district court explicitly stated that it had reviewed all the

sentencing factors in § 3553(a). And, considering all those factors, nothing

convinces us that Mr. Vargas-Medina has rebutted the presumption of

reasonableness attaching to the district court’s within-Guidelines sentence.



                                  CONCLUSION

      For the foregoing reasons, we AFFIRM the sentence imposed in this case.

                                               ENTERED FOR THE COURT


                                               Stephen H. Anderson
                                               Circuit Judge




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