                                                                            FILED
                                                                United States Court of Appeals
                                                                        Tenth Circuit

                                                                        April 2, 2013
                        UNITED STATES COURT OF APPEALSElisabeth A. Shumaker
                                                                         Clerk of Court
                                       TENTH CIRCUIT


 UNITED STATES OF AMERICA,
                 Plaintiff–Appellee,                          No. 12-3216
           v.                                      (D.C. No. 2:11-CR-20033-CM-1)
 JUAN DEDIOS FIGUEROA-MIJARES,                                  (D. Kan.)
                 Defendant–Appellant.


                               ORDER AND JUDGMENT*


Before LUCERO, McKAY, and MURPHY, Circuit Judges.



       After examining the briefs and the 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). This case is therefore ordered submitted without

oral argument.

       Defendant Juan Figueroa-Mijares pled guilty to conspiracy to distribute more than

fifty grams of methamphetamine, possession with the intent to distribute more than fifty

grams of methamphetamine, and illegal reentry subsequent to removal for an aggravated

felony. Defendant was sentenced to 97 months’ imprisonment, the middle of what



       *
         This order and judgment is not binding precedent, except under the doctrines of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.
Defendant concedes was the appropriate guideline range of 87 to 108 months. He now

appeals, arguing the sentence imposed by the district court was substantively

unreasonable.

         “‘When evaluating the substantive reasonableness of a sentence, we afford

substantial deference to the district court, and determine 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. Balbin-Mesa, 643 F.3d 783, 788 (10th

Cir. 2011) (quoting United States v. Alvarez-Bernabe, 626 F.3d 1161, 1167 (10th Cir.

2010)). If the sentence is within the correctly calculated guideline range, it “is entitled to

a rebuttable presumption of reasonableness on appeal.” Id. (internal quotation marks

omitted). “This is a deferential standard that either the defendant or the government may

rebut by demonstrating that the sentence is unreasonable when viewed against the other

factors delineated in § 3553(a).” United States v. Kristl, 437 F.3d 1050, 1054 (10th Cir.

2006).

         Defendant challenges the substantive reasonableness of his sentence on two

grounds. First, he argues the district court gave improper consideration to the purity of

the methamphetamine, which was already figured into the guideline calculation, and

failed to consider his positive characteristics, resulting in a substantively unreasonable

sentence. Second, he argues the 97-month sentence did not follow the parsimony

principle because “[a] sentence of 87 months instead of 97 months is, certainly, just”;

“there is nothing to indicate that a 97 month sentence would provide more specific

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deterrence . . . than a[n] 87 month sentence”; and “the utility of a 97 month sentence as

opposed to an 87 month sentence for purposes of protecting the public is lessened” by the

five-year term of supervised release imposed by the court. (Appellant’s Opening Br. at

14, 15.)

       After a thorough review of the record, we conclude Defendant’s sentence is not

substantively unreasonable. The district court noted it was “required to impose a sentence

that is sufficient but not greater than necessary to comply with the purposes of

sentencing.” (R. Vol. II at 90.) The district court then considered Defendant’s “reasons

why he believes [an 87-month sentence] is appropriate,” as well as the fact that

“defendant was a seller of extremely pure methamphetamine,” “has a prior felony

conviction for illegal entry in the United States,” and “has illegally reentered the country”

a “number of times.” (Id. at 90-91.) Taking these circumstances and the § 3553(a)

factors into account, the district court concluded a sentence of 97 months “reflects the

seriousness of the offense, promotes respect for the law, . . . provides just punishment,”

and “should afford adequate deterrence and protect the public from further crimes of the

defendant.” (Id. at 91-92.) Although, as Defendant argues, an 87-month sentence might

also have been reasonable, we see nothing in the district court’s determination that would

constitute an abuse of discretion. See United States v. Yellowbear, 382 F. App’x 715, 722

(10th Cir. 2012) (“While the district court must employ the ‘sufficient, but not greater

than necessary,’ parsimony principle in crafting a sentence, we review the sentence only

for reasonableness.”).

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For the foregoing reasons, the judgment of the district court is AFFIRMED.

                                         Entered for the Court



                                         Monroe G. McKay
                                         Circuit Judge




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