                                                                       FILED
                                                          United States Court of Appeals
                                                                  Tenth Circuit

                                                                August 25, 2011
                    UNITED STATES COURT OF APPEALS
                                                Elisabeth A. Shumaker
                                                                  Clerk of Court
                                 TENTH CIRCUIT



 UNITED STATES OF AMERICA,

               Plaintiff - Appellee,                    No. 11-1049
          v.                                           (D. Colorado)
 JUAN JOSE MONTOYA-RUIZ, a/k/a               (D.C. No. 1:10-CR-00248-MSK-1)
 Miguel Rios,

               Defendant - Appellant.


                            ORDER AND JUDGMENT *


Before KELLY, HARTZ, and HOLMES, Circuit Judges.


      Defendant Juan Jose Montoya-Ruiz appeals his 46-month sentence for

unlawful reentry of an alien who had previously been deported after commission

of an aggravated felony. See 8 U.S.C. § 1326(a) and (b)(2). On appeal,

Defendant challenges the substantive reasonableness of his sentence. Exercising

jurisdiction under 28 U.S.C. § 1291, we affirm.



      *
       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
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 This order and judgment is not binding
precedent except under the doctrines of law of the case, res judicata, and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.
      Defendant, a native and citizen of Mexico, was sentenced in California on

November 14, 1994, for possession of a controlled substance for sale (an

aggravated felony) and was thereafter deported. On April 2, 2010, he was found

within the State of Colorado and indicted for illegally reentering the United

States. His presentence investigation report calculated that under the United

States Sentencing Guidelines his base offense level was 8, with a 16-level

enhancement for his prior felony, and a 3-level reduction for acceptance of

responsibility, yielding a total offense level of 21. It also calculated a criminal-

history category of III, producing an advisory guidelines range of 46-57 months.

The probation office recommended a 50-month sentence.

      Before the sentencing hearing, Defendant moved for a downward variance.

The district court, recognizing that it had the discretion to vary from the

guidelines range, considered the factors under 18 U.S.C. § 3553(a). But it

rejected Defendant’s argument and imposed a sentence of 46 months’

incarceration––at the bottom of the guidelines range.

      We review a claim of substantive unreasonableness for abuse of discretion.

See United States v. Lewis, 594 F.3d 1270, 1277 (10th Cir. 2010). “A district

court abuses its discretion when it renders a judgment that is arbitrary, capricious,

whimsical, or manifestly unreasonable.” Id. (internal quotation marks omitted).

“Because [Defendant’s] sentence was within the properly calculated guidelines

range, it is presumed reasonable.” Id. “The defendant may rebut the

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presumption, however, by demonstrating that the sentence is unreasonable when

viewed against the other factors delineated in § 3553(a).” Id. (internal quotation

marks omitted).

      Defendant argues that his sentence is substantively unreasonable because

(1) the 16-level enhancement “does not exemplify the Sentencing Commission’s

exercise of its characteristic institutional role[,] is not based upon empirical

evidence,” and was enacted without the Commission’s “articulating any

justification”; and (2) the “enhancement creates unwarranted sentencing

disparities.” Aplt. Br. at 10. But, as Defendant concedes, our precedent

forecloses these arguments. See United States v. Alvarez-Bernabe, 626 F.3d

1161, 1166–67 (10th Cir. 2010).

      The judgment of the district court is AFFIRMED.

                                        ENTERED FOR THE COURT


                                        Harris L Hartz
                                        Circuit Judge




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