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

                                   TENTH CIRCUIT                            June 13, 2012

                                                                        Elisabeth A. Shumaker
                                                                            Clerk of Court

 UNITED STATES OF AMERICA,

        Plaintiff - Appellee,                                No. 11-2249
                                                   (D.C. No. 2:09-CR-02844 JEC-1)
 v.                                                          (D. N. Mex.)

 GREGORIO RIVERA-RIVERA,

        Defendant - Appellant.


                                ORDER AND JUDGMENT*


Before LUCERO, O’BRIEN, and MATHESON, Circuit Judges.


      Gregorio Rivera-Rivera challenges his eight-month sentence for violation of

supervised release to be served consecutively to his 15-month sentence for illegal reentry

as procedurally and substantively unreasonable. Exercising jurisdiction under 28 U.S.C.


      *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) and 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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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.
§ 1291 and 18 U.S.C. § 3742(a), we affirm.

                                   I.     BACKGROUND

       On May 25, 2011, a border patrol agent encountered Mr. Rivera-Rivera in Hatch,

New Mexico. After learning that Mr. Rivera-Rivera was not a United States citizen and

had been previously deported, the agent arrested him. Mr. Rivera-Rivera was later

charged with one count of reentry of a removed alien under 8 U.S.C. § 1326(a) and (b).

       Mr. Rivera-Rivera had three prior convictions for illegal reentry. He was

previously convicted on September 10, 2008, March 19, 2009, and July 11, 2009, and

served a sentence of 28 days, 111 days, and 8 months, respectively. He was deported

after each conviction.

       At the time of his arrest, Mr. Rivera-Rivera was serving a three-year term of

supervised release imposed after his July 11, 2009 conviction. As a special condition of

his supervised release, Mr. Rivera-Rivera was prohibited from reentering the United

States without legal authorization. The Government submitted a petition for revocation

of Mr. Rivera-Rivera’s supervised release on June 14, 2011.

       Mr. Rivera-Rivera pled guilty to one count of reentry of a removed alien in

violation of 8 U.S.C. §1326(a) and (b). As a condition of the plea agreement, Mr.

Rivera-Rivera waived his right to appeal his conviction and any within-guideline

sentence imposed by the district court.

       The Government prepared a Presentence Investigation Report recommending an

offense level of nine and a criminal history category of IV, resulting in a guidelines range
                                             -2-
of 12 to 18 months. Mr. Rivera-Rivera filed a motion requesting a downward departure

and a variance. He requested a term of 12 months and one day on his illegal reentry

charge and a concurrent sentence for violation of supervised release. In response, the

Government requested that the court impose a mid-range sentence and that such a

sentence should run consecutively to his sentence for violation of supervised release.

       On December 14, 2011, the district court held a combined hearing for sentencing

on the illegal reentry conviction and revocation of supervised release. Mr.

Rivera-Rivera’s counsel reiterated his request that the court sentence Mr. Rivera-Rivera

to a sentence of 12 months and one day to run concurrently with his sentence for

violation of supervised release. The district court imposed a mid-range sentence of 15

months for the illegal reentry conviction.

       The district court then proceeded to address Mr. Rivera-Rivera’s violation of the

special condition of his supervised release. Mr. Rivera-Rivera admitted the violation.

The district court stated that it “[r]eviewed the violation report and the factors set forth in

18 [U.S.C. §] 3553(a)(1) through (7)” and would “proceed to sentencing.” ROA, Vol. 3,

at 5-6. It then determined that under section 7.B1.1 of the Guidelines, Mr. Rivera-Rivera

committed a Grade B violation and that his criminal history category was III, leading to a

sentencing range of 8 to 14 months. After explaining that it considered the Guidelines

advisory, the district court sentenced Mr. Rivera-Rivera to eight months in prison to be

served consecutively to his 15-month sentence for illegal reentry. Mr. Rivera-Rivera

made no objection to the sentence at the hearing.
                                              -3-
       Mr. Rivera-Rivera filed a timely notice of appeal.

                                    II.    DISCUSSION

       Mr. Rivera-Rivera challenges his eight-month sentence for violation of supervised

release, to be served consecutively to his 15-month sentence for illegal reentry, as

procedurally and substantively unreasonable.

       A. Procedural Reasonableness

       Mr. Rivera-Rivera argues that his sentence is procedurally unreasonable because

the district court did not fully consider the factors from 18 U.S.C. § 3553(a) and did not

explain its reasoning in arriving at the eight-month consecutive sentence.

       “When a party challenges a sentence for procedural reasonableness, our standard

of review is ordinarily abuse of discretion, under which we review de novo the district

court’s legal conclusions regarding the guidelines and review its factual findings for clear

error.” United States v. Gantt, 2012 WL 1942085, —F.3d—, *4 (10th Cir. 2012). “If,

however, [the] [d]efendant did not preserve the procedural challenge below, we review

only for plain error.” Id.

       The parties disagree as to whether Mr. Rivera-Rivera preserved this argument at

the district court, and thus whether we should review for an abuse of discretion or for

plain error. Mr. Rivera-Rivera argues that he preserved this argument by submitting a

motion for downward departure or variance and by making oral arguments at the district

court. We disagree.

       We considered a similar situation in United States v. Gantt, —F.3d.—, 2012 WL
                                            -4-
1942085 (10th Cir. 2012). In Gantt, the district court imposed a sentence with an upward

departure from the Guidelines. Although the defendant submitted a motion to the district

court arguing against a departure, he argued on appeal, “not that the court rejected his

arguments but that the court did not adequately explain why it acted as it did.” Id. at *5.

We explained that “[t]o preserve that complaint for appeal, [the] [d]efendant needed to

alert the court that its explanation was inadequate, which ordinarily would require an

objection after the court had rendered sentence. The court could then cure any error by

offering the necessary explanation.” Id. We thus reviewed the defendant’s claims of

procedural unreasonableness for plain error. Id.

       As in Gantt, Mr. Rivera-Rivera is challenging only the district court’s failure to

consider the 18 U.S.C. § 3553(a) factors and to explain the sentence it imposed. To

preserve this argument, he must have made an objection after the district court imposed

the sentence, which he did not do.1 We thus review Mr. Rivera-Rivera’s claim of

procedural unreasonableness for plain error.

       To establish plain error, Mr. Rivera-Rivera must show that the district court (1)


       1
        Mr. Rivera-Rivera asks us to rely on United States v. Sanchez-Juarez, 446 F.3d
1109 (10th Cir. 2006). But Sanchez-Juarez did not involve the question of whether the
defendant preserved his challenge to procedural reasonableness at the district court.
       In Sanchez-Juarez, we faulted the district court for not mentioning the § 3553(a)
factors at all. Id. at 1115-16. Here, the district court stated that it had considered the
§ 3553(a) factors, explained the grade of violation and criminal history category, and the
corresponding guidelines range, and ensured that he understood the guidelines were only
advisory. Thus, the facts of this case are different than those in Sanchez-Juarez. See
United States v. Algarate-Valencia, 550 F.3d 1238, 1243-44 (10th Cir. 2008).

                                            -5-
erred, (2) the error was plain, and (3) the error affected his substantial rights. United

States v. Ventura-Perez, 666 F.3d 670, 674 (10th Cir. 2012). “If all these conditions are

met, a court reviewing the error may exercise discretion to correct it if (4) the error

seriously affects the fairness, integrity, or public reputation of the judicial proceedings.”

Id. (quotations omitted).

       Apart from the first two plain error factors, Mr. Rivera-Rivera has not satisfied the

third factor because he has not shown that he was prejudiced by the district court’s failure

to consider the § 3553(a) factors or explain his sentence. Generally, “to have the

requisite [effect] on substantial rights, an error must be ‘prejudicial’ which means that

there must be a reasonable probability that the error affected the outcome of the trial.”

United States v. Bader, —F.3d—, 2012 WL 1548579, at *5 (10th Cir. 2012) (quotations

omitted). Because Mr. Rivera-Rivera is essentially challenging the length of his

sentence, he “must demonstrate that, but for the claimed error, his sentence would have

been different.” United States v. Begaye, 635 F.3d 456, 471 (10th Cir. 2011) (quotations

omitted).

       We agree with the Government that Mr. Rivera-Rivera has not shown (or

attempted to argue) that, if the judge had explained his consideration of the 18 U.S.C.

§ 3553(a) sentencing factors, there is a reasonable probability that the judge would have

chosen a shorter or concurrent sentence. Thus, Mr. Rivera-Rivera has failed to show his

substantial rights were affected. He has not demonstrated plain error, and his procedural

reasonableness claim fails.
                                              -6-
       B. Substantive Reasonableness

       Mr. Rivera-Rivera argues that his eight-month sentence for violation of supervised

release, along with his 15-month sentence for illegal reentry, equals a term of 23 months

in prison and is substantively unreasonable. He contends that his sentence does not

effectuate the goals of 18 U.S.C. § 3553(a)(2).

       Substantive reasonableness addresses “whether the length of the sentence is

reasonable given all the circumstances of the case in light of the factors set forth in 18

U.S.C. § 3553(a).” United States v. Verdin-Garcia, 516 F.3d 884, 895 (10th Cir. 2008)

(quotations omitted). We “review[] a sentence for substantive reasonableness under the

abuse-of-discretion standard and give[] substantial deference to district courts.” United

States v. Sayad, 589 F.3d 1110, 1116 (10th Cir. 2009) (quotations omitted); see also Gall

v. United States, 552 U.S. 38, 51 (2007). “[A] district court’s sentence is substantively

unreasonable only if it is arbitrary, capricious, whimsical, or manifestly unreasonable.”

Sayad, 589 F.3d at 1116. (quotations omitted). “A sentence within the correctly

calculated Guidelines range is presumed to be reasonable, [and] the burden is on the

appellant to rebut the presumption.” Verdin-Garcia, 516 F.3d at 898 (citation omitted);

see also United States v. McBride, 633 F.3d 1229, 1233 (10th Cir. 2011) (explaining that

the presumption of reasonableness also applies in reviewing revocation-of-supervised-

release sentences).

       In determining the reasonableness of a sentence for violation of supervised release,

we are guided by the § 3553(a) factors, which include: “the nature of the offense and
                                             -7-
characteristics of the defendant, as well as the need for the sentence to reflect the

seriousness of the crime, to provide adequate deterrence, to protect the public, and to

provide the defendant with needed training or treatment.” United States v.

Martinez-Barragan, 545 F.3d 894, 905 (10th Cir. 2008) (quotations omitted); see also 18

U.S.C. § 3584(b) (“[I]n determining whether the terms imposed are to be ordered to run

concurrently or consecutively, [the court] shall consider . . . the factors set forth in section

3553(a).”). We must also consider the policy statements in Chapter 7 of the Guidelines.

United States v. Cordova, 461 F.3d 1184, 1188 (10th Cir. 2006).

       Based on Mr. Rivera-Rivera’s Grade B violation of his supervised release and his

criminal history category of III, which he does not challenge, the guideline range was

8-14 months. And, under section 7B1.3(f) of the Guidelines,

       Any term of imprisonment imposed upon the revocation of . . . supervised
       release shall be ordered to be served consecutively to any sentence of
       imprisonment that the defendant is serving, whether or not the sentence of
       imprisonment being served resulted from the conduct that is the basis of the
       revocation of . . . supervised release.

(Emphasis added); see also U.S.S.G. Ch. 7, pt. B, introductory cmt. (“It is the policy of

the Commission that the sanction imposed upon revocation is to be served consecutively

to any other term of imprisonment imposed for any criminal conduct that is the basis of

the revocation.”). Thus, Mr. Rivera-Rivera’s eight-month consecutive sentence is within

the Guidelines range, and we presume that it is reasonable.

       Nevertheless, Mr. Rivera-Rivera argues that his sentence would not further

§ 3553(a)’s goals because his most recent illegal reentry and his previous crimes—all
                                              -8-
illegal reentries—are nonviolent crimes and did not involve drugs or firearms. He also

argues that, because he is an agricultural worker and entered the United States to work on

the chili harvest, he is furthering the economic interests of New Mexico and the United

States. Finally, he argues that he is a family man and that his family depends on his

income.2

       Mr. Rivera-Rivera’s arguments do not overcome the presumption that the

consecutive sentence is substantively reasonable.

       The “reentry of an ex-felon is a serious offense.” Martinez-Barragan, 545 F.3d at

905. Its seriousness does not depend on whether it involved drugs, firearms, or violence.

Because this is Mr. Rivera-Rivera’s fourth conviction for illegal reentry, his prior shorter

sentences have clearly not provided adequate deterrence. See United States v. Mumma,

509 F.3d 1239, 1245-46 (10th Cir. 2007) (justifying sentence by explaining that the

defendant had not been deterred by her past criminal convictions).

       As to providing for his family, a district court may exercise its discretion and grant

a downward variance based on the defendant’s family circumstances, but it should only

       2
        We note that Mr. Rivera-Rivera is essentially challenging his combined sentence
for violation of supervised release and his most recent illegal reentry. See Aplt. Br. at 13
(“[A] 23 month term of incarceration fails to meet the goals of sentencing under
§ 3553(a)(2), and constitutes a sentence which is substantively unreasonable.”). By
challenging the combined sentence, Mr. Rivera-Rivera may in part be challenging his
sentence for illegal reentry, which in turn may violate the waiver of appeal provision in
his plea agreement. The Government has not moved to enforce the waiver of appeal in
the plea agreement or made any argument about the waiver, and we reject Mr. Rivera-
Rivera’s substantive unreasonableness argument on the merits.


                                             -9-
do so in extraordinary circumstances. See U.S.S.G. § 5H1.6. And while we have

affirmed cases where the district court has chosen to do so, we cannot say that the district

court abused its discretion in imposing a consecutive sentence in this case. See Martinez

Barragan, 545 F.3d at 905 (rejecting argument that sentence was substantively

unreasonable because defendant returned to the United States to provide for his children).

       Finally, the fact that Mr. Rivera-Rivera entered the United States to work in New

Mexico’s chili harvesting industry does not affect the reasonableness of the sentence.

       Mr. Rivera-Rivera has failed to overcome the presumption of reasonableness of

his within-Guidelines sentence. Thus, his claim that his sentence is substantively

unreasonable also fails.

                                   III.   CONCLUSION

       For the foregoing reasons, we affirm.

                                          ENTERED FOR THE COURT



                                          Scott M. Matheson, Jr.
                                          Circuit Judge




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