                                                                        FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                                                                  October 27, 2009
                    UNITED STATES COURT OF APPEALS
                                                 Elisabeth A. Shumaker
                                                                    Clerk of Court
                                TENTH CIRCUIT


 UNITED STATES OF AMERICA,
               Plaintiff–Appellee,                        No. 09-8024
          v.                                   (D.C. No. 08–CR–00185–CAB–1)
 JUAN ROBLERO-RUIZ, also known                             (D. Wyo.)
 as Juan Maldonado,
               Defendant–Appellant.


                           ORDER AND JUDGMENT *


Before LUCERO, McKAY, and MURPHY, Circuit Judges.


      After examining the briefs and the 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).

      Defendant pled guilty to one count of conspiracy to unlawfully transfer

identification documents, two counts of unlawfully transferring identification

documents, and one count of distribution of cocaine. The district court agreed

with the presentence report’s calculation of a total offense level of thirteen.

Combined with Defendant’s criminal history category of I, this resulted in an


      *
        This order and judgment is not binding precedent, except under the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.
advisory sentencing guideline range of twelve to eighteen months’ imprisonment.

However, the district court followed the PSR’s recommendation of an upward

variance and thus imposed a sentence of twenty-four months.

         On appeal, Defendant does not object to the district court’s calculation of

the applicable guideline range. Rather, he argues that the court committed

procedural error by varying upward from this range based on speculation about

unproven past crimes and Defendant’s propensity for future criminal conduct. He

argues that the court did not satisfy Rule 32's requirement of making specific

findings about disputed information regarding his work history, possible past

crimes, and propensity for future crimes. He further suggests that the court did

not adequately explain the reasons for the upward variance. Finally, Defendant

argues that the sentence imposed was substantively unreasonable because it

involved a significant and unwarranted degree of variance from the guidelines

range.

         In considering the district court’s application of the sentencing guidelines,

we review the court’s factual findings for clear error and its legal determinations

de novo. See United States v. Kristl, 437 F.3d 1050, 1055 (10th Cir. 2006). We

review the substantive reasonableness of a defendant’s sentence under an abuse-

of-discretion standard. See United States v. Alapizco-Valenzuela, 546 F.3d 1208,

1216 (10th Cir. 2008).

         At the sentencing hearing, the district court discussed pertinent information

                                            -2-
contained in the PSR and then stated:

      Every indication reveals that this defendant was in the process of
      organizing his business to acquire customers for fraudulent
      documents, did have the means to produce numbers of fraudulent
      documents for a price, and was I would say sampling the waters as to
      the drug business, all terrible decisions and decisions that I feel
      under 3553 reflect serious conduct on his part in that it encourages a
      serious violation of the law, that is, the continued coming to this
      country illegally and the serious consequences that follow from that,
      as well as the beginnings of a drug trade which is and deserves great
      censure by this Court. It is not something that this Court would take
      lightly in any respect and it seems to me that on that basis alone, if
      not others, would justify a variance upward in this case.

(Doc. 36 at 21-22.) The court then held that an upward variance was warranted

by “the defendant’s full-time activities or what may be full-time activities at least

during the pertinent period of this offense in counterfeiting identification

documents, Social Security documents, and one instance of controlled substance

delivery” as well as his “willingness to deliver additional quantities” of cocaine to

the informant. (Id. at 23-24.)

      After thoroughly reviewing the record on appeal, we conclude that the

district court did not clearly err in concluding that Defendant was in the business

of providing false documentation to other individuals and was looking to expand

into the narcotics trade as well, and we are not persuaded that the court’s decision

was based on impermissible speculation or unsupported findings. We also

conclude that the court sufficiently explained its findings and its reasons for

imposing the sentence selected. Finally, we hold that the district court did not


                                          -3-
abuse its discretion by concluding that Defendant’s involvement in the business of

selling false documents and controlled substances warranted an upward variance

of six months from the top of the advisory guideline range under the

circumstances of this case. We therefore AFFIRM Defendant’s conviction and

sentence.

                                              Entered for the Court



                                              Monroe G. McKay
                                              Circuit Judge




                                        -4-
