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

                            FOR THE TENTH CIRCUIT                          January 7, 2020
                        _________________________________
                                                                        Christopher M. Wolpert
                                                                            Clerk of Court
 UNITED STATES OF AMERICA,

       Plaintiff - Appellee,
                                                             No. 19-2113
 v.                                                (D.C. No. 2:19-CR-00482-KG-1)
                                                               (D.N.M.)
 JOSE FLORES-DE LA ROSA,

       Defendant - Appellant.
                      _________________________________

                            ORDER AND JUDGMENT*
                        _________________________________

Before CARSON, BALDOCK, and MURPHY, Circuit Judges.**
                  _________________________________

      On April 9, 2019, Defendant-Appellant Jose Flores-De La Rosa pled guilty to a

one-count indictment charging him with illegal reentry into the United States in

violation of 8 U.S.C. § 1326(a). In preparation for sentencing, the United States

Probation Office (“Probation”) prepared a Presentence Investigation Report. Therein,

Probation assigned Defendant six criminal history points based on a prior felony

conviction for cocaine distribution and a prior felony conviction for illegal reentry,


      *
         This order and judgment is not binding precedent, except under the doctrines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.
      **
        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
submitted without oral argument.
resulting in a criminal history category of III. Probation calculated Defendant’s base

offense level at eight. Defendant received an eight-point increase for his prior cocaine

distribution conviction and an additional four-point increase for his prior illegal reentry

conviction. After a three-point reduction for acceptance of responsibility, Probation

calculated Defendant’s offense level at 17. With a criminal history category of III and

an offense level of 17, Defendant’s guideline range under the United States Sentencing

Guidelines (“U.S.S.G.”) was 30 to 37 months’ imprisonment.

       Thereafter, Defendant filed a sentencing memorandum wherein he requested a

downward departure of one criminal history category under U.S.S.G. § 4A1.2(b)(1)

and a downward departure of four offense levels under U.S.S.G. § 2L1.2, cmt. (n.6).

Taken together, these departures would have provided for a sentencing guideline range

of 15 to 21 months. Based on this adjusted guideline range, Defendant requested a

sentence of 15 months’ imprisonment. Defendant also argued the sentencing factors

under 18 U.S.C. § 3553(a) would support such a variance. The Government filed a

response in opposition to Defendant’s sentencing memorandum and requested a 37-

month sentence pursuant to the original guideline calculation.

       Defendant appeared before the district court for sentencing on July 9, 2019. He

again argued that a departure or variance was warranted and requested a sentence of

15 months’ imprisonment. Upon consideration, the district court denied Defendant’s

request and sentenced Defendant to a low-end guideline sentence of 30 months’

imprisonment. Now, Defendant argues: (1) the district court erred by declining to



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depart; and (2) the district court erred by imposing a substantively unreasonable

sentence. Exercising jurisdiction pursuant to 28 U.S.C. § 1291, we affirm.

                                          ***

      First, Defendant argues the district court erred by denying Defendant’s request

for a downward departure pursuant to U.S.S.G. § 4A1.3(b)(1) and U.S.S.G. § 2L1.2,

cmt. (n.6). For the following reasons, we lack jurisdiction to address this claim.

      Pursuant to 18 U.S.C. §.3742(a), we have jurisdiction to review a defendant’s

appeal of a sentence that was (1) “imposed in violation of law,” (2) “imposed as a result

of an incorrect application of the sentencing guidelines,” (3) imposed as a result of an

upward departure, or (4) “imposed for an offense for which there is no sentencing

guidelines and is plainly unreasonable.” 18 U.S.C. § 3742(a). We have no jurisdiction,

however, “to review a district court’s discretionary decision to deny a motion for

downward departure on the ground that a defendant’s circumstances do not warrant the

departure.” United States v. Sierra-Castillo, 405 F.3d 932, 936 (10th Cir. 2005); see

also United States v. Penuelas-Gutierrez, 774 F. App’x 493, 495 (10th Cir. 2019)

(unpublished); United States v. Davis, 900 F.2d 1524, 1530 (10th Cir. 1990).

      There is only one exception to this general rule. We may review the district

court’s decision not to depart downward in the rare circumstance where the district

court erroneously believed it had no discretion to downwardly depart. United States

v. Castillo, 140 F.3d 874, 887 (10th Cir. 1998). A district court is presumed to

understand it has the discretion to depart downward unless it clearly states it lacks such

discretion.   Sierra-Castillo, 405 F.3d at 936.     If the district court’s language is

                                            3
ambiguous, we assume “the judge was aware of his or her legal authority to depart but

chose instead, in an exercise of discretion, not to depart.” Id. (citing United States v.

Fortier, 180 F.3d 1217, 1231 (10th Cir. 1999)).

       In this case, the district court did not unambiguously state it lacked the authority

to depart downward, nor does Defendant make such an argument. The district court

considered Defendant’s “history . . . characteristics . . . [and] criminal history,” as well

as the parties’ arguments and briefs before concluding a departure was unwarranted.

Because the district court appears and is presumed to have exercised its discretion, we

lack jurisdiction to address Defendant’s claim that the district court erred in declining

to depart downward.

                                           ***

       Next, Defendant argues the district court imposed a substantively unreasonable

sentence. We review the substantive reasonableness of a sentence for an abuse of

discretion and will deem a sentence unreasonable only if it is “arbitrary, capricious,

whimsical, or manifestly unreasonable.” United States v. Gantt, 679 F.3d 1240, 1249

(10th Cir. 2012). A sentence within the properly calculated guidelines is entitled to a

rebuttable presumption of reasonableness. United States v. Kristl, 437 F.3d 1050, 1054

(10th Cir. 2006). A defendant may rebut this presumption by demonstrating that the

sentence is unreasonable when viewed against the factors described in § 3553(a). Id.

These factors include but are not limited to: (1) the nature and circumstances of the

offense, (2) the history and characteristics of the defendant, and (3) the need to punish

the defendant and deter future misconduct. See 18 U.S.C. § 3553(a).

                                             4
      In this case, Defendant maintains his sentence is substantively unreasonable for

the following reasons. First, Defendant argues he is a dedicated partner and father.

Defendant avers he faced a difficult childhood and “worked hard in a series of

demanding jobs” to support his family.        Defendant suggests his motivation for

reentering the United States was to “help protect his family, as they were being forced

to leave their home state due to robbery and extortion, and [Defendant] hoped to earn

money to finance that transition.” According to Defendant, this background warrants

consideration for a downward departure.

      Defendant further contends his prior conviction for cocaine distribution

occurred ten years prior to the instant offense during a time when Defendant was

struggling with an addiction he has since addressed. Due to the passage of time and

Defendant’s recovery from his drug addiction, Defendant argues the increase in the

guideline range resulting from this prior conviction is overstated.      Additionally,

Defendant states that, during his incarceration, he took advantage of educational

opportunities and earned his secundaria certificate, which is similar to a high school

diploma. Defendant suggests this academic achievement improves his employment

prospects and makes him less likely to reoffend.

      Ultimately, Defendant argues his sentence was greater than necessary to comply

with the purposes of criminal punishment. See United States v. Martinez-Barragan,

545 F.3d 894, 904 (10th Cir. 2008) (explaining a sentence should be sufficient, but not

greater than necessary, to comply with the purposes of criminal punishment). Based



                                          5
on his background and the circumstances underlying the instant offense, Defendant

argues he was entitled to a downward variance from the guideline range.

       Given Defendant’s personal history and characteristics, the district court may

well have sentenced Defendant to lesser time. But “a range of reasonable sentences

may exist in any given case” and, therefore, “the reasonableness of one sentence does

not . . . necessarily render a different sentence unreasonable by comparison.” United

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

uphold guideline sentences where defendants present similar mitigating factors. See,

e.g., United States v. Gallegos-Castro, 318 F. App’x 641, 643 (10th Cir. 2009)

(unpublished) (affirming the substantive reasonableness of the sentence even though

defendant’s prior convictions were old); Martinez-Barragan, 545 F.3d at 905 (holding

the guideline sentence was substantively reasonable despite defendant’s argument that

his criminal history was overstated and that he only entered the United States to provide

for his children); United States v. Melendez-Dones, 274 F. App’x 726, 728 (10th Cir.

2008) (unpublished) (rejecting substantive reasonableness challenge where defendant

argued the seriousness of his criminal history was over-represented); United States v.

Enriquez–Bojorquez, 231 F. App’x 824, 825–26, 828 (10th Cir. 2007) (unpublished)

(affirming guideline sentence over defendant’s objection that he reentered the country

for economic reasons and his prior aggravated assault conviction was fourteen or

fifteen years old).

       Thus, while the district court may have varied below the guideline range, it was

not required to do so. Even if Defendant’s personal history and characteristics weighed

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in favor of a variance, the district court was not required to find those factors

outweighed the factors supporting a higher sentence. In deciding not to vary below the

guideline range, the district court emphasized that Defendant has illegally entered the

United States three times and that his prior 46-month sentence did not deter him from

committing the instant offense. The district court stressed that any sentence imposed

is “supposed to be enough to persuade [Defendant] not to return to the United States.”

Thus, after considering Defendant’s personal history and characteristics, his prior

felony convictions, and the need to deter future misconduct, the district court found a

low-end guideline sentence of 30 months was reasonable.

      Upon review, we conclude the mitigating factors cited by Defendant are

insufficient to overcome the presumption of reasonableness attached to his guideline

sentence. We cannot say the district court abused its discretion by imposing a low-end

guideline sentence where Defendant had prior felony convictions for cocaine

distribution and illegal reentry, and where his previous 46-month sentence did not deter

him from committing the instant offense.

                                         ***

      For the reasons provided herein, Defendant’s sentence is AFFIRMED.


                                            Entered for the Court


                                            Bobby R. Baldock
                                            Circuit Judge




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