                                                                       FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                   UNITED STATES COURT OF APPEALS August 24, 2015
                                                               Elisabeth A. Shumaker
                         FOR THE TENTH CIRCUIT                     Clerk of Court
                     _________________________________

UNITED STATES OF AMERICA,

      Plaintiff-Appellee,

v.                                                       No. 15-2027
                                               (D.C. No. 2:14-CR-02443-KG-1)
ALEJANDRO SOTO-ROBLEDO,                               (D. New Mexico)

      Defendant-Appellant.
                  _________________________________

                         ORDER AND JUDGMENT *
                     _________________________________

Before GORSUCH, O’BRIEN, and BACHARACH, Circuit Judges.
                _________________________________


      Mr. Alejandro Soto-Robledo was convicted of illegal reentry into the

United States and sentenced to 57 months in prison, which represented the bottom

of the guideline range. Mr. Soto-Robledo appeals this sentence on the ground that

it is substantively unreasonable. We disagree and affirm.




*
       The parties have not requested oral argument, and the Court concludes that
oral argument would not materially aid our consideration of the appeal. See Fed. R.
App. P. 34(a)(2)(C); 10th Cir. R. 34.1(G). Thus, we have decided the appeal based on
the briefs.

       Our order and judgment does not constitute binding precedent except under the
doctrines of law of the case, res judicata, and collateral estoppel. Fed. R. App. P.
32.1(a); 10th Cir. R. 32.1(A).
      In reviewing the substantive reasonableness of the sentence, we apply the

abuse-of-discretion standard. United States v. Martinez-Barragan, 545 F.3d 894,

905 (10th Cir. 2008). The district court has the discretion to impose a sentence

unless it is arbitrary, capricious, whimsical, or manifestly unreasonable. United

States v. Haley, 529 F.3d 1308, 1311 (10th Cir. 2008). In our view, the 57-month

sentence was not arbitrary, capricious, whimsical, or manifestly unreasonable.

      We presume the sentence is reasonable because it fell within the guideline

range. See United States v. Gambino-Zavala, 539 F.3d 1221, 1232 (10th Cir.

2008). In attempting to overcome this presumption, Mr. Soto-Robledo argues that

the district court (1) unreasonably inflated the guideline range 16 levels based on

a prior drug conviction and (2) gave inadequate consideration to mitigating

factors, such as Mr. Soto-Robledo’s assimilation into U.S. culture. We reject

these arguments.

      “We have consistently observed that reentry of an ex-felon is a serious

offense.” Martinez-Barragan, 545 F.3d at 905. Thus, we have rejected similar

challenges to the guidelines’ 16-level enhancement for previous drug convictions.

E.g., United States v. Alvarez-Bernabe, 626 F.3d 1161, 1165-66 (10th Cir. 2010);

see also United States v. Torres-Duenas, 461 F.3d 1178, 1180-83 (10th Cir. 2006)

(upholding a 41-month sentence for illegal reentry based in part on a 16-level

enhancement for a prior conviction). Based on this precedent, the district court




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could reasonably rely on the 16-level enhancement to arrive at an appropriate

sentence.

       Mr. Soto-Robledo relies not only on the alleged unfairness of the 16-level

enhancement, but also on the alleged failure to adequately consider mitigating

factors. According to Mr. Soto-Robledo, these factors deserved greater weight.

But the district court has the discretion to balance mitigating factors, such as

cultural assimilation. See United States v. Galarza-Payan, 441 F.3d 885, 889-90

(10th Cir. 2006) (holding that a 57-month sentence for illegal reentry was

substantively reasonable, rejecting the defendant’s effort to rebut the presumption

of reasonableness based on evidence of cultural assimilation); see also Alvarez-

Bernabe, 626 F.3d at 1167 (holding that a 57-month sentence for illegal reentry

was substantively reasonable). In our view, the district court did not act

arbitrarily, capriciously, whimsically, or unreasonably by balancing the mitigating

factors as it did.

       Accordingly, we affirm.


                                        Entered for the Court



                                        Robert E. Bacharach
                                        Circuit Judge




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