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

                                     TENTH CIRCUIT                        March 25, 2015

                                                                      Elisabeth A. Shumaker
                                                                          Clerk of Court
UNITED STATES OF AMERICA,
             Plaintiff – Appellee,
                                                            No. 14-2185
v.                                                (D.C. No. 2:13-CR-04019-RB-1)
AGUSTIN SANCHEZ-FRAGOSO,                                     (D.N.M.)

             Defendant – Appellant.


                                 ORDER & JUDGMENT*


Before MATHESON, MURPHY, and PHILLIPS, Circuit Judges.


     Agustin Sanchez-Fragoso pleaded guilty to one count of reentering the United States

as a removed alien. The district court sentenced him to forty-one months’ imprisonment.

Sanchez-Fragoso appeals and argues that his sentence is unreasonable. Exercising

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


                                      BACKGROUND

     In September 2013, border patrol agents encountered Sanchez-Fragoso in Hidalgo

County, New Mexico. The agents questioned Sanchez-Fragoso about his citizenship, and

     *
    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); 10th Cir. R. 34.1(G). The case is therefore ordered
submitted without oral argument. This order is not binding precedent except under the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 Federal Rule of Appellate Procedure
32.1 and Tenth Circuit Court Rule 32.1.
he responded that he was a citizen of Mexico and illegally present in the United States.

Sanchez-Fragoso’s illegal presence stemmed from his July 2013 removal, which came

after Sanchez-Fragoso served most of a four-year prison term after his conviction for

possessing cocaine with intent to distribute it.

   After filing a complaint, the government offered Sanchez-Fragoso the opportunity to

plead guilty and take advantage of a fast-track program, where defendants plead guilty

early in the prosecution and waive their rights to file certain motions and to appeal, in

exchange for shorter sentences. See United States v. Morales-Chaires, 430 F.3d 1124,

1127 (10th Cir. 2005) (describing the fast-track sentencing program). Sanchez-Fragoso

refused that opportunity, hoping to argue for an even shorter sentence.

   A grand jury indicted Sanchez-Fragoso on one count of reentry of a removed alien, in

violation of 8 U.S.C. §§ 1326(a) and (b). Sanchez-Fragoso ultimately pleaded guilty to

that charge without the benefit of a plea agreement. Before sentencing, the probation

officer completed a presentence report (PSR). The PSR set Sanchez-Fragoso’s base

offense level under the Sentencing Guidelines at eight. See U.S.S.G. § 2L1.2. The PSR

then added sixteen levels because Sanchez-Fragoso had been previously convicted of

possessing cocaine with intent to distribute, an offense for which the sentence imposed

exceeded thirteen months. See U.S.S.G. § 2L1.2(b)(1)(A). Sanchez-Fragoso’s total

offense level was twenty-one, after the PSR credited his acceptance of responsibility.

U.S.S.G. § 3E1.1(a)–(b). Sanchez-Fragoso’s criminal history category was II because of

his earlier felony drug conviction. Accordingly, the PSR provided an advisory Guidelines

imprisonment range of forty-one to fifty-one months.

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   Before sentencing, Sanchez-Fragoso sought a downward variance from the applicable

Guidelines range. He argued that the sixteen-level increase under § 2L1.2(b)(1)(A) was

too severe, and he relied on cases where judges criticized the enhancement. Sanchez-

Fragoso also contended that, based on the sentencing factors that district judges must

consider under 18 U.S.C. § 3553(a), a sentence of forty-one months—the low end of the

Guidelines range—would be “far greater than necessary to achieve the stated [§ 3553(a)]

objectives.” R. vol. I at 13. Rather, he argued that a twenty-month sentence would be

appropriate. The government opposed Sanchez-Fragoso’s request for a downward

variance.

   At sentencing, the district court reviewed the PSR and factual findings and considered

the § 3553(a) factors. It then imposed a sentence of forty-one months, concluding that

nothing justified a variance from the Guidelines range. The court noted Sanchez-

Fragoso’s previous felony conviction and deportation as reasons for denying a downward

variance. The district court decided that Sanchez-Fragoso’s asserted circumstances for

reentry—his desire to see his family—did not warrant “some exceptional treatment.” R.

vol. III at 11. Sanchez-Fragoso did not object after the district court announced the

sentence. Sanchez-Fragoso has timely appealed.


                                    DISCUSSION
   On appeal, Sanchez-Fragoso challenges his sentence as unreasonable. He advances

two arguments. First, he contends that the district court did not adequately explain its

sentencing decision in light of Sanchez-Fragoso’s familial ties and his argument


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regarding the severity of the sixteen-level increase. Second, Sanchez-Fragoso asserts that

the district court imposed a substantively unreasonable sentence by focusing too heavily

on Sanchez-Fragoso’s previous drug trafficking crime and mentioning that Sanchez-

Fragoso had acted unwisely if he had refused to plead guilty and take advantage of the

fast-track option.

   Sanchez-Fragoso’s first argument focuses on the procedural reasonableness of the

sentence. See United States v. Romero, 491 F.3d 1173, 1175–76 (10th Cir. 2007)

(addressing a sentence’s procedural reasonableness when the defendant argued that his

sentence was unreasonable because the district court failed to explain its reason for

rejecting a cultural assimilation argument for a below-Guidelines sentence). Generally,

we review the procedural reasonableness of a sentence for an abuse of discretion. United

States v. Sanchez-Leon, 764 F.3d 1248, 1262 (10th Cir. 2014). But at sentencing,

Sanchez-Fragoso did not object to the district court’s explanation of its sentence.

Therefore, we only review this argument for plain error. See Romero, 491 F.3d at 1178

(reviewing only for plain error because the defendant did not object on procedural

grounds after the district court imposed sentence).

   We find plain error only when there is (1) error, (2) that is plain, (3) which affects

substantial rights, and (4) which seriously affects the fairness, integrity, or public

reputation of judicial proceedings. United States v. Lopez-Flores, 444 F.3d 1218, 1222

(10th Cir. 2006). After reviewing the record, we conclude that the district court did not

commit plain error. The district court considered Sanchez-Fragoso’s arguments against

the application of § 2L1.2(b)(1)(A) and rejected them. The district court noted Sanchez-

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Fragoso’s felony drug conviction and his multiple attempts to reenter the United States

despite the earlier removal. Before it imposed sentence, the district court not only

explicitly denied Sanchez-Fragoso’s request for a downward variance, but also stated that

it had reviewed the PSR and considered the § 3553(a) factors. The district court simply

disagreed with Sanchez-Fragoso. We find no error with the procedural reasonableness of

the sentence.

   Sanchez-Fragoso’s second argument regarding the application of the sixteen-level

increase under U.S.S.G. § 2L1.2(b)(1)(A) is an attack on the substantive reasonableness

of his sentence. We review this challenge for an abuse of discretion. United States v.

Montgomery, 550 F.3d 1229, 1233 (10th Cir. 2008). We give substantial deference to the

district court because it has “an unquestionable institutional advantage over an appellate

court to consider whether the facts of an individual case justify a variance under

§ 3553(a).” United States v. Sayad, 589 F.3d 1110, 1116 (10th Cir. 2009) (quoting United

States v. Huckins, 529 F.3d 1312, 1317 (10th Cir. 2008)). Because the district court

imposed a within-Guidelines sentence, we presume that the sentence is reasonable.

Sanchez-Fragoso must rebut this presumption by demonstrating that the sentence is

unreasonable when viewed against the other § 3553(a) factors. United States v. Kristl,

437 F.3d 1050, 1054 (10th Cir. 2006).

   This Sanchez-Fragoso does not do. He first contends that § 2L1.2 is unjust and points

us to various district court cases criticizing the sixteen-level increase. See, e.g., United

States v. Zapata-Trevino, 378 F. Supp. 2d 1321, 1324–28 (D.N.M. 2005). Whatever merit

Sanchez-Fragoso’s argument may have, we will not invalidate a sentence simply because

                                           -5-
a defendant disagrees with the policies behind the Guidelines. See United States v.

Wilken, 498 F.3d 1160, 1172–73 (10th Cir. 2007) (rejecting defendant’s policy argument

against counting earlier drug convictions in determining that he was a career offender);

see also United States v. McCullough, 457 F.3d 1150, 1171 (10th Cir. 2006), cert. denied,

549 U.S. 1136 (2007) (stating that a sentence is not rendered unreasonable merely

because a district court refuses to deviate from the advisory guideline range on policy

grounds).

   Next, Sanchez-Fragoso argues that his forty-one month sentence is unreasonable

because the district court substantially overstated some of the § 3553(a) factors, although

he does not specify which ones. He argues that the district court should not have relied so

heavily on his previous felony drug conviction (his only felony conviction) and instead

should have focused on the number of relatives who live in the United States and are

citizens. Ultimately, Sanchez-Fragoso argues that a reentering the country as a removed

alien is not severe enough to merit this sentence.

   We are unconvinced. The district court noted Sanchez-Fragoso’s earlier drug

trafficking conviction—one for possessing cocaine with the intent to distribute it.

Sanchez-Fragoso conceded at sentencing that he reentered the country only two months

after completing his prison term and being deported. Sanchez-Fragoso argues that his

sentence is unnecessary for deterrence, rehabilitation, or educational opportunities. We

disagree. Sanchez-Fragoso’s quick reentry soon after his deportation concerned the

district court enough that it denied his variance request. And we also note that the

“reentry of an ex-felon is a serious offense.” United States v. Martinez-Barragan, 545

                                            -6-
F.3d 894, 905 (10th Cir. 2008). Additionally, contrary to Sanchez-Fragoso’s assertions,

the district court did consider his acculturation and his family circumstances (all of his

children are U.S. citizens). The district court simply rejected those arguments, concluding

that, with his criminal history and with his circumstances, Sanchez-Fragoso had not

demonstrated that he deserved “some exceptional treatment.” R. vol. III at 11. We agree.

A district court may grant a downward variance based on the defendant’s family

circumstances, but it should do so only in extraordinary circumstances. See U.S.S.G.

§ 5H1.6. Sanchez-Fragoso has not pointed us to any extraordinary circumstances that the

district court overlooked. Sanchez-Fragoso has not overcome the presumption of

reasonableness of his within-Guidelines sentence. His substantive reasonableness claim

fails.


                                    CONCLUSION

    We affirm Sanchez-Fragoso’s sentence.


                                              Entered for the Court



                                              Gregory A. Phillips
                                              Circuit Judge




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