                                                                         FILED
                                                             United States Court of Appeals
                                                                     Tenth Circuit
                   UNITED STATES COURT OF APPEALS
                                                                    April 30, 2010
                                TENTH CIRCUIT                    Elisabeth A. Shumaker
                                                                     Clerk of Court

 UNITED STATES OF AMERICA,

              Plaintiff - Appellee,                     No. 09-2285
 v.                                                   (D. New Mexico)
 DAVID VELASQUEZ-ESPINOSA,                    (D.C. No. 1:09-CR-01276-JEC-1)

              Defendant - Appellant.


                           ORDER AND JUDGMENT *


Before HARTZ, ANDERSON, and TYMKOVICH, Circuit Judges.


      David Velasquez-Espinosa pleaded guilty to re-entry of a removed alien,

see 8 U.S.C. § 1326(a), and was sentenced to imprisonment for 57 months, which

was at the bottom of the guidelines range. On appeal he challenges only the

substantive reasonableness of his sentence, contending that the district court

should have granted him a downward variance. See Aplt. Br. at 7 (“Mr.

Velasquez-Espinosa does not challenge the procedural component of the sentence,


      *
       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
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 This order and judgment is not binding
precedent except under the doctrines of law of the case, res judicata, and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.
but does challenge the substantive reasonableness . . . .”). We have jurisdiction

under 28 U.S.C. § 1291.

      Because Mr. Velasquez-Espinosa’s sentence was within the advisory

guidelines range, we must reject his claim of substantive unreasonableness unless

he can overcome the presumption that the sentence was reasonable. See United

States v. Kristl, 437 F.3d 1050, 1055 (10th Cir. 2006). He has failed to do so.

His principal argument is that his criminal-history category overstated his

criminal past because he has straightened up his life since he got married and had

children. He also raises the rather common argument that he is closely attached

to his children. The district court could reasonably decide that the sentence

imposed was proper, particularly in light of Mr. Velasquez-Espinosa’s conviction

of aggravated driving while intoxicated only a few months before he entered his

plea in this case.

      We AFFIRM the judgment and sentence below.

                                       ENTERED FOR THE COURT


                                       Harris L Hartz
                                       Circuit Judge




                                         -2-
