                                                                      FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                                                                  March 3, 2010
                    UNITED STATES COURT OF APPEALS
                                                 Elisabeth A. Shumaker
                                                                   Clerk of Court
                                 TENTH CIRCUIT



 UNITED STATES OF AMERICA,

               Plaintiff - Appellee,                    No. 09-2248
          v.                                          (D. New Mexico)
 BENIGNO LINAREZ-FLORES,                      (D.C. No. 2:09-CR-01697-JAP-1)

               Defendant - Appellant.


                            ORDER AND JUDGMENT *


Before HARTZ, ANDERSON, and TYMKOVICH, Circuit Judges.


      Mr. Linarez-Flores pleaded guilty to the charge of re-entry of a deported

alien, contrary to 8 U.S.C. § 1326. Because he had committed a felony crime of

violence (a vicious attack on his pregnant wife) before his deportation, his

adjusted offense level was 24 under the United States Sentencing Guidelines.

After adjustments for acceptance of responsibility, his total offense level was 21.

With a criminal-history category of I, his advisory guidelines range was 37-46


      *
       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 This order and judgment is not binding
precedent except under the doctrines of law of the case, res judicata, and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.
months’ imprisonment. The district court varied downward from the advisory

range and imposed a term of imprisonment of 24 months. The court also

recommended that “Immigration and Customs Enforcement begin removal

proceedings during service of sentence.” R., Vol. 1 at 18.

      On appeal Mr. Linarez-Flores contends that the district court abused its

discretion by not varying downward even further. We construe this contention as

a claim that the sentence was substantively unreasonable. We have jurisdiction

under 28 U.S.C. § 1291 and reject the claim.

      Under our decision in United States v. Kristl, 437 F.3d 1050, 1054 (10th

Cir. 2006), we would presume that a sentence of Mr. Linarez-Flores within the

advisory guideline range of 37-46 months was substantively reasonable—that is,

neither unreasonably harsh nor unreasonably lenient. Thus, he has an even

greater burden to overcome the presumption that the more-lenient sentence of 24

months was unreasonably harsh. Yet his sole argument on appeal to distinguish

him from others who committed his offense and have his criminal history is that

when he was arrested he was being driven to his home of El Salvador. In our

view, that argument does not suffice to overcome the presumption.




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We AFFIRM the judgment and sentence below.


                            ENTERED FOR THE COURT


                            Harris L Hartz
                            Circuit Judge




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