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

                                   TENTH CIRCUIT                             June 2, 2011
                                                                         Elisabeth A. Shumaker
                                                                             Clerk of Court

 UNITED STATES OF AMERICA,

        Plaintiff-Appellee,                                  No. 10-2250
                                                   (D.C. No. 2:10-CR-00049-WJ-1)
 v.                                                           (D.N.M.)

 MARIO OCHOA-OLIVAS,

        Defendant-Appellant.


                              ORDER AND JUDGMENT *


Before LUCERO, EBEL and GORSUCH, Circuit Judges.


       On the morning trial was set to commence, Mario Ochoa-Olivas pled guilty to one

count of illegal reentry, in violation of 8 U.S.C. § 1326(a) and (b). Using the 2009

United States Sentencing Guidelines, the district court calculated an advisory guideline

imprisonment range of ninety-two to one hundred and fifteen months. Then, the district

court varied to impose a sentence below that range: eighty months’ imprisonment.


       *After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties= request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f) and 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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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.
Ochoa-Olivas now appeals, arguing that the district court clearly erred by not granting

him a two-level reduction for acceptance of responsibility under United States Sentencing

Guideline § 3E1.1. Ochoa-Olivas also argues that the sentence imposed by the district

court is both procedurally and substantively unreasonable. Exercising jurisdiction under

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

                                  I. BACKGROUND

      On October 27, 2009, U.S. border patrol agents encountered Ochoa-Olivas in

Luna County, New Mexico. Ochoa-Olivas admitted to the agents that he was a Mexican

citizen and that he had no immigration documents that permitted him to be in the United

States legally. Immigration records revealed that Ochoa-Olivas had been deported

previously on December 5, 1988, following a felony conviction for selling marijuana for

which he received eighty-four months’ imprisonment.

      A grand jury indicted Ochoa-Olivas with one count of illegal reentry, in violation

of 8 U.S.C. § 1326(a) and (b). A trial was scheduled to begin on May 3, 2010. On that

morning, the district court assembled the jury venire, but they were dismissed when

Ochoa-Olivas announced that he wanted to plead guilty. After that announcement, the

district court conducted a change-of-plea hearing, and Ochoa-Olivas pled guilty to the

one count charged against him.

      In preparation for sentencing, a probation officer prepared a presentence report

(PSR), in which she calculated an advisory guideline range of seventy-seven to ninety-six

months’ imprisonment, based on an offense level of twenty-two and a criminal history
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category of V. The probation officer calculated the offense level in the PSR as follows:

The base offense level was eight. See U.S.S.G. § 2L1.2(a) (2009). Then, the probation

officer added a sixteen-level enhancement because Ochoa-Olivas was previously

deported after a conviction for a felony drug trafficking offense for which the sentence

imposed exceeded thirteen months. See U.S.S.G. § 2L1.2(b)(1)(A)(i). Finally, the

probation officer applied a two-level reduction for acceptance of responsibility. See

U.S.S.G. § 3E1.1. The probation officer noted that Ochoa-Olivas did not qualify for a

three-level reduction for acceptance of responsibility because he “did not notify

authorities of his intention to enter a plea of guilty in a timely manner; thereby causing

the government to prepare for trial and the court to allocate resources.” (Aplt. App., vol.

II at 8.) Thus, the total offense level was twenty-two. The probation officer determined

that Ochoa-Olivas’s criminal history category was V, and Ochoa-Olivas does not

challenge that calculation on appeal.

       The United States objected to the probation officer’s recommendation of a two-

level reduction for acceptance of responsibility. The United States argued that it

expended resources in preparing for trial and in providing travel and lodging for

witnesses to attend the trial. Therefore, it argued that Ochoa-Olivas should not be

entitled to any reduction for acceptance of responsibility.

       The district court agreed and sustained the Government’s objection. It concluded

that “a two-level reduction for acceptance of responsibility is not appropriate because the

Defendant waited until the morning of trial to plead guilty.” (Aplt. App., vol. I at 35.)
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Therefore, the district court applied an offense level of twenty-four and a criminal history

category of V, which yields an advisory guideline imprisonment range of ninety-two to

one hundred and fifteen months. But at sentencing, the district court varied below that

range and imposed eighty months’ imprisonment.

                                    II. DISCUSSION

               A. Downward Adjustment for Acceptance of Responsibility

       We review a district court’s determination not to grant a reduction for acceptance

of responsibility for clear error. United States v. Hutchinson, 573 F.3d 1011, 1032 (10th

Cir. 2009). “The sentencing judge is in a unique position to evaluate a defendant’s

acceptance of responsibility.” U.S.S.G. § 3E1.1 cmt. n.5 (2009). “For this reason, the

determination of the sentencing judge is entitled to great deference on review.” Id.

       Ochoa-Olivas contends that the district court clearly erred because it should have

granted a two-level downward adjustment as he met the criteria for acceptance of

responsibility. The Government counters that the “timing of the decision to plead guilty

is important precisely because the adjustment was meant to expedite resolution of cases,

and thereby to prevent prosecutive and judicial resources from being expended

needlessly.” (Aple. B. at 9.) Therefore, the district court did not clearly err by denying

Ochoa-Olivas this downward adjustment.

       Having carefully reviewed the record, we conclude that the district court did not

clearly err by refusing to grant the two-level downward adjustment for acceptance of

responsibility. The Sentencing Guidelines explicitly allow the district court to consider
                                             4
the timeliness of a defendant’s guilty plea. U.S.S.G. § 3E1.1 cmt. n.1(h). We caution

that a late decision to plead guilty does not necessarily disqualify a defendant from

receiving a downward adjustment for acceptance of responsibility. But a defendant who

pleads guilty does not necessarily qualify for a downward adjustment for acceptance of

responsibility either. See id. § 3E1.1 cmt. n.3. It is up to the district court to determine

whether a defendant qualifies for this downward adjustment using the appropriate

considerations. In this case, the district court did just that, and therefore we cannot say

that the district court committed clear error.

                            B. Reasonableness of the Sentence

       We review a district court’s sentence for procedural and substantive

reasonableness under a deferential abuse of discretion standard. United States v. Smart,

518 F.3d 800, 802 (10th Cir. 2008).

                              1. Procedural Reasonableness

       “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 (10th Cir. 2008).

       Ochoa-Olivas argues that the district court miscalculated the advisory guideline

imprisonment range because it failed to apply a two-level downward adjustment for

acceptance of responsibility. That argument lacks merit. We concluded that the district
                                                 5
court did not clearly err by refusing to grant a two-level downward adjustment for

acceptance of responsibility, and we need not revisit our reasoning for that conclusion

here. The district court properly calculated both Ochoa-Olivas’s offense level and

criminal history category. Based on those calculations the district court correctly

concluded that the advisory guideline imprisonment range in this case was ninety-two to

one hundred and fifteen months. Therefore, the district court did not impose a

procedurally unreasonable sentence.

                              2. Substantive Reasonableness

       “[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).” Huckins, 529 F.3d at 1317 (internal quotation marks omitted). “[I]n

many cases there will be a range of possible outcomes the facts and law at issue can fairly

support; rather than pick and choose among them ourselves, we will defer to the district

court’s judgment so long as it falls within the realm of these rationally available choices.”

United States v. McComb, 519 F.3d 1049, 1053 (10th Cir. 2007). On appeal we presume

a sentence within the properly calculated guideline range to be substantively reasonable.

United States v. Kristl, 437 F.3d 1050, 1055 (10th Cir. 2006). “The defendant may rebut

this presumption by demonstrating that the sentence is unreasonable in light of the other

sentencing factors laid out in § 3553(a).” Id.

       Ochoa-Olivas argues that “[d]ouble counting a single twenty-two year old

marijuana conviction is overly punitive and substantially over-represents Mr. Ochoa-
                                              6
Olivas’s criminal history because double-counting his prior marijuana conviction caused

both a 16-level enhancement to his offense level and a three-point addition in

determining his criminal-history category.” (Aplt. B. at 9.) The Sentencing Guidelines,

however, indicate that a conviction taken into account for the purposes of calculating a

defendant’s offense level “is not excluded from consideration of whether that conviction

receives criminal history points.” U.S.S.G. § 2L1.2 cmt. n.6. And this Court previously

held that “double counting” of a conviction to calculate both the offense level and the

criminal history category is permissible. United States v. Ruiz-Terraza, 477 F.3d 1196,

1204 (10th Cir. 2007). We are bound by that precedent and cannot say that the district

court abused its discretion by following that precedent. Thus, the district court did not

impose a substantively unreasonable sentence.

                                   III. CONCLUSION

       For the foregoing reasons, we AFFIRM Ochoa-Olivas’s sentence.



                                          ENTERED FOR THE COURT



                                          David M. Ebel
                                          Circuit Judge




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