                                                                         FILED
                                                             United States Court of Appeals
                                                                     Tenth Circuit

                      UNITED STATES COURT OF APPEALS November 6, 2019
                                                                 Elisabeth A. Shumaker
                                   TENTH CIRCUIT                     Clerk of Court



 UNITED STATES OF AMERICA,

          Plaintiff - Appellee,

 v.                                                     No. 19-2104
                                              (D.C. No. 2:19-CR-00892-JTM-1)
 BENEDICTO CUELLAR-                                       (D. N.M.)
 DOMINGUEZ,

          Defendant - Appellant.


                             ORDER AND JUDGMENT *


Before CARSON, BALDOCK, and MURPHY, Circuit Judges.



      After examining the briefs and appellate record, this court has determined

unanimously that oral argument would not materially assist the determination of

this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). Accordingly, we

grant the parties’ requests and order the case 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        This order and judgment is not binding precedent except under the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.
      Benedicto Cuellar-Dominguez pleaded guilty to a single count of illegally

reentering the United States after removal, in violation of 8 U.S.C. § 1326(a).

The district court sentenced Cuellar-Dominguez to a twenty-one-month term of

imprisonment, a term at the bottom of the advisory guidelines range of twenty-one

to twenty-seven months. Cuellar-Dominguez appeals, asserting his sentence is

too long in light of the sentencing factors set out in 18 U.S.C. 3553(a). This court

exercises jurisdiction pursuant to 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291, and

affirms the sentence imposed by the district court.

      In preparation for sentencing, the United States Probation Office disclosed

Cuellar-Dominguez’s Presentence Investigation Report (“PSR”). Because of a

conviction for driving under the influence and five convictions for illegal entry or

reentry, Cuellar-Dominguez had eleven criminal history points. The result was a

criminal history category of V. This criminal history category, when combined

with Cuellar-Dominguez’s offense level of ten, resulted in an advisory guidelines

range of twenty-one to twenty-seven months’ imprisonment.

      When Cuellar-Dominguez appeared before the district court for sentencing,

he stated he did not have any “objections or corrections” to the PSR. He did,

however, ask for a nine-month downward variance from the bottom of the

advisory guidelines range, to a sentence of twelve months and one day. Cuellar-

Dominguez argued his criminal history category was overstated because it


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consisted of a 2010 conviction for driving under the influence 1 and “non-victim

immigration crimes.” He also noted he has four minor children, with “another

one on the way.” Finally, he asserted he no longer consumed alcohol, having quit

in 2017. In his allocution, Cuellar-Dominguez stated: “I just want to say that I

am really sorry, your Honor. This is the last time I come to the United States.

My family needs me. I have children to support. And that’s all I wanted to say.

Thank you.”

      The district court then pronounced sentence. It noted Cuellar-Dominguez

had “five illegal entry or reentry convictions since 2010 and in addition, . . . [had]

been removed nine other times.” In light of this history, the district court

remarked as follows: “[I]f you did not have that extensive a reentry record, I

probably would be a little more sympathetic toward you.” The district court

rejected the assertion Cuellar-Dominguez’s criminal history category was

overrepresented. In light of his reentry convictions and his multiple removals

from the United States, the court was hard pressed “to think that things [were]

going to be any different” moving forward. 2 The district court sentenced


      1
       Cuellar-Dominguez described this conviction as occurring “many, many
years ago.”
      2
       Indeed, given this history, the district court noted as follows: “I typically
would be more inclined to give a shorter sentence, 12 months and a day maybe.
You’ve served 114 days. But I just don't see that here. I think a 21-month
sentence with credit for time served is appropriate in your case.”

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Cuellar-Dominguez to twenty-one months’ imprisonment, the low end of the

advisory guidelines range, with no supervised release to follow.

       After the district court pronounced sentence, Cuellar-Dominguez’s counsel

expressed surprise the court imposed a sentence of twenty-one months when

Cuellar-Dominguez’s previous illegal-reentry sentence had been only eight

months. In response, the district court pointed out that despite numerous

convictions, Cuellar-Dominguez continued to reenter the United States illegally.

The district court explained that “the long and the short of it is I’ve seen no

indication at all that this is the end and perhaps spending more time than a few

months will drive the point home.” Cuellar-Dominguez, thereafter, timely filed

his notice of appeal, asserting his sentence is substantively unreasonable because

it is too long.

       “After the Supreme Court’s decision in United States v. Booker, 543 U.S.

220 (2005), this court reviews sentences for reasonableness.” United States v.

Friedman, 554 F.3d 1301, 1307 (10th Cir. 2009). “Reasonableness review is a

two-step process comprising a procedural and a substantive component.” Id.

(quotation omitted). Cuellar-Dominguez limits his appellate challenge to the

substantive reasonableness of the sentence imposed by the district court. “Review

for substantive reasonableness focuses on whether the length of the sentence is

reasonable given all the circumstances of the case in light of the factors set forth


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in 18 U.S.C. § 3553(a).” Id. (quotation omitted). This court reviews the

substantive reasonableness of a sentence under an abuse-of-discretion standard.

United States v. Sells, 541 F.3d 1227, 1237 (10th Cir. 2008). A sentence is

substantively unreasonable only if the district court “exceeded the bounds of

permissible choice, given the facts and the applicable law in the case at hand.”

United States v. McComb, 519 F.3d 1049, 1053 (10th Cir. 2007) (quotation

omitted). That is, a “district court abuses [its] discretion when it renders a

judgment that is arbitrary, capricious, whimsical, or manifestly unreasonable.”

United States v. Haley, 529 F.3d 1308, 1311 (10th Cir. 2008) (quotation omitted).

      [G]iven the district court’s institutional advantage over [this court’s]
      ability to determine whether the facts of an individual case justify a
      variance pursuant to § 3553(a) (given that the sentencing judge, for
      example, sees and hears the evidence, makes credibility
      determinations, and actually crafts Guidelines sentences day after
      day), we generally defer to its decision to grant, or not grant, a
      variance based upon its balancing of the § 3553(a) factors.

Id. Where, as here, the sentence imposed by the district court is within the

properly calculated guideline range, there is a presumption of reasonableness. Id.

This presumption can be rebutted if the defendant shows the sentence imposed is

unreasonable in light of the factors set forth at 18 U.S.C. § 3553(a). Id.

      Cuellar-Dominguez complains, quite simply, that his sentence is too long.

In summary, he argues his sentence is “unreasonably long and greater than

necessary because it was twice as long as [his] prior sentence.” He fails to


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demonstrate, however, how his twenty-one-month sentence, which is at the

bottom of the advisory guidelines range, is substantively unreasonable under the

circumstances. Instead, he simply asserts the district court gave too much

emphasis to his history of immigration violations. This court’s precedents make

clear, however, that “[w]e may not examine the weight a district court assigns to

various § 3553(a) factors, and its ultimate assessment of the balance between

them.” United States v. Smart, 518 F.3d 800, 808 (10th Cir. 2008). Furthermore,

a district court does not abuse its discretion substantively as long as it chooses a

sentence “within the realm of . . . rationally available” sentencing choices.

United States v. McComb, 519 F.3d 1049, 1053 (10th Cir. 2007). Thus, even if

another judge might, in the first instance, have imposed a different sentence, that

does not render the district court’s sentencing decision unreasonable. See United

States v. Mumma, 509 F.3d 1239, 1245 (10th Cir. 2007)

      Cuellar-Dominguez has failed to rebut the presumption the district court

chose a reasonable sentence. He admits that the sentence is within the correctly

calculated advisory guidelines range, but argues that, because the court focused

on his “multiple illegal entries and five convictions,” it “did not consider whether

a lesser sentence that was still longer than the prior eight-month sentence would

be sufficient.” The record demonstrates the district court considered

Cuellar-Dominguez’s request for a sentence of twelve months and one day, but


                                          -6-
determined, in light of his prior immigration convictions and numerous removals,

a low-end guidelines sentence was fitting. The district court made clear that it

considered Cuellar-Dominguez’s long history of immigration offenses to be the

weightiest factor at sentencing. This history quite correctly informs several of the

§ 3553(a) factors. See 18 U.S.C. § 3553(a)(1), (a)(2)(A), (a)(2)(B). This court

has approved a district court’s consideration of a “[d]efendant’s past illegal

reentries,” in the imposition of a within-guidelines sentence. United States v.

Chavez-Suarez, 597 F.3d 1137, 1139 (10th Cir. 2010). Cuellar-Dominguez has

failed to provide any reason to rebut the presumption that his sentence is

reasonable. He does not contend, nor could he, that there is one precise multiplier

a district court must apply to a prior reentry sentence to achieve adequate

deterrence to a defendant with fourteen prior immigration offenses or removals.

      For those reasons set out above, the sentence imposed by the United States

District Court for the District of New Mexico is hereby AFFIRMED.

                                           ENTERED FOR THE COURT


                                           Michael R. Murphy
                                           Circuit Judge




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