                                                                        FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                                                                 December 8, 2009
                    UNITED STATES COURT OF APPEALS
                                                 Elisabeth A. Shumaker
                                                                    Clerk of Court
                                 TENTH CIRCUIT



 UNITED STATES OF AMERICA,

               Plaintiff - Appellee,                     No. 08-3294
          v.                                              (D. Kansas)
 SANTOS ORELLANA-ALEMAN,                      (D.C. No.6:08-CR-10119-WEB-1)
 also known as Jose Antonio Guzman-
 Monge,

               Defendant - Appellant.


                            ORDER AND JUDGMENT *


Before MURPHY, BALDOCK, and HARTZ, Circuit Judges.



      Santos Orellana-Aleman pleaded guilty to one count of illegal reentry by a

previously removed alien. 8 U.S.C. § 1326(a). The district court varied upward

from the one-to-seven-month advisory Guidelines range, imposing upon Orellana-

Aleman a term of imprisonment of twenty-four months. Orellana-Aleman

appeals, contending the sentence imposed by the district court is both

procedurally and substantively unreasonable. Exercising jurisdiction pursuant to


      *
        This order and judgment is not binding precedent except under the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.
18 U.S.C. § 3742(a) and 28 U.S.C. § 1291, this court affirms the district court’s

sentence.

      Following Orellana-Aleman’s guilty plea, the United States Probation

Office prepared a Presentence Investigation Report (“PSR”). See generally Fed.

R. Crim. P. 32(d). The PSR calculated an offense level of six 1 and a criminal

history category of II, 2 resulting in an advisory guideline range of one to seven

months. U.S.S.G. ch. 5, pt. A. The PSR set forth the following factor potentially

warranting an upward variance 3:

      [Orellana-Aleman] has a history of illegal entry and re-entry to the
      United States. As noted in the [PSR], [Orellana-Aleman] has a total
      of 12 prior illegal entries. [Orellana-Aleman] was prosecuted on his
      second illegal entry in October 1996 and sentenced to 30 days
      custody. Since 1996[,] [Orellana-Aleman] has illegally entered the
      United States 10 times and been subjected to no prosecution.
      Therefore, to promote respect for the law and afford adequate
      deterrence to criminal conduct, a sentencing variance above the
      advisory guideline may be warranted.



      1
       U.S.S.G. § 2L1.2(a) (setting base offense level at eight for violations of
§ 1326(a)); id. § 3E1.1(a) (providing for two level decrease to offense level “[i]f
the defendant clearly demonstrates acceptance of responsibility for his offense”).
      2
       Orellana-Aleman’s three criminal history points placed him in criminal
history category II. U.S.S.G. ch. 5, pt. A.
      3
       A variance occurs when a court deviates from the sentencing range set out
in the Guidelines upon consideration of the factors set out in 18 U.S.C. § 3553(a).
United States v. Atencio, 476 F.3d 1099, 1101 n.1 (10th Cir. 2007), overruled in
part on other grounds by Irizarry v. United States, 128 S. Ct. 2198, 2201 n.1
(2008). In contrast, a departure occurs “when a court reaches a sentence above or
below the recommended Guidelines range through application of Chapters Four or
Five of the Sentencing Guidelines.” Id.

                                         -2-
Neither Orellana-Aleman nor the government filed objections to the PSR.

Specifically, Orellana-Aleman did not file any written objections to the factual

history of his numerous entries into the United States over the previous decade.

      Orellana-Aleman did, however, file a sentencing memorandum, requesting

a sentence within the advisory Guidelines range. In that memorandum, Orellana-

Aleman recognized he had “returned to the United States and been deported”

“many times.” He nevertheless argued the Guidelines range appropriately

reflected the nature and circumstances of the offense and his history and

characteristics. He asserted he was a simple person with minimal understanding

of the criminal justice system, his criminal history involved minor crimes (i.e.,

two separate thefts of bicycles), and he worked hard at menial jobs for minimum

wage. He further argued that because the Guidelines did not contemplate, in

arriving at an advisory sentencing range, unprosecuted prior entries into the

United States, varying upward on such a basis would generate unwarranted

sentencing disparities.

      After the issuance of the PSR, the district court issued an order notifying

the parties it was contemplating an upward variance. At the sentencing hearing,

the district announced a tentative sentence of twenty-four months imprisonment,

the statutory maximum, based upon (1) a consideration of the 18 U.S.C. § 3553(a)

factors; (2) Orellana-Aleman’s history of illegal entries into the United States,

including twelve illegal reentries and eleven removals without prosecution;

                                         -3-
(3) respect for the seriousness of the offense and for the law; and (4) adequate

deterrence. In response, Orellana-Aleman asserted such a sentence would be both

procedurally and substantively unreasonable. He further argued, however, that he

had not been afforded sufficient time to develop his objections. To allow

Orellana-Aleman to fully develop his objections, the district court continued the

sentencing hearing for two weeks.

      Prior to the resumption of the sentencing hearing, Orellana-Aleman filed an

objection to the district court’s proposed upward variance. He argued it was

procedurally improper for the district court to rely on his history of unprosecuted

illegal reentries for three reasons: (1) the unique structure of § 2L1.2, which ties a

defendant’s offense level directly to his prior convictions, renders prior conduct

not resulting in a conviction legally irrelevant; (2) the executive branch’s decision

not to prosecute him for his previous entries demonstrated those acts were not

serious; and (3) punishing him more harshly on the basis of his previous entries,

given that the government had declined to prosecute those acts, would improperly

invade the province of the executive branch. Orellana-Aleman further argued a

twenty-four-month sentence, a 340% increase from the high end of the applicable

advisory Guidelines range, was not substantively reasonable.

      When the sentencing hearing resumed, the district court recognized and

summarized Orellana-Aleman’s arguments in favor of a within-Guidelines

sentence and asked the parties whether they had any further arguments. The

                                          -4-
government urged the district court to impose a sentence of twenty-four months’

imprisonment based on Orellana-Aleman’s “complete disdain for the laws of this

country.” The government noted that on many occasions, Orellana-Aleman

reentered the United States within a month of a previous removal. Reiterating

and amplifying the arguments set out in both his sentencing memorandum and his

objection to upward variance, Orellana-Aleman requested that the district court

impose a sentence within the advisory Guidelines range.

      The district court rejected Orellana-Aleman’s request for a sentence within

the advisory Guidelines range and imposed a sentence of twenty-four months’

imprisonment. In explaining why a substantial upward variance was appropriate,

the district court first recounted Orellana-Aleman’s extensive contacts with

immigration officials. 4 In particular, the district court noted Orellana-Aleman had

      4
       The district court summarized those contacts as follows:
             The defendant was convicted of illegal entry in 1996. He was
      convicted under the name of [Jose Antonio-Guzman]. He was
      arrested one other time in 1996 for illegal entry. In that case he did
      not tell the law enforcement his correct name . . . [or country of
      origin].
             Twice in 2000 he was found in the United States. Both times
      he gave . . . law enforcement an incorrect name. Both times he told
      officials he was a national of Mexico. The defendant is not a
      national of Mexico. He’s a national of El Salvador. He returned to
      Mexico on both occasions.
             Three times in 2002 the defendant was found in the United
      States. He gave two different names. He also gave a different date
      of birth the third time he was arrested. He told officials he was a
      national of Mexico and was allowed to voluntarily return to Mexico.
             In 2003 the defendant was arrested under the name of Jose
                                                                       (continued...)

                                        -5-
been arrested for illegally entering the United States numerous times, resulting in

one conviction under § 1326(a) and eleven removals from the United States. The

district court further noted Orellana-Aleman frequently misled law enforcement

officers as to his true name, date of birth, and country of origin. With this

background in mind, the district court concluded the factors set out in 18 U.S.C.

§ 3553(a) called for an upward variance from the range set out in the advisory

Sentencing Guidelines:

             As we know[,] the Court shall impose a sentence that is
      sufficient but not greater than necessary to comply with the purposes
      of 3553(a).
             The defendant’s been removed from this country on numerous
      occasions. He’s lied to . . . law enforcement regarding his correct
      legal name, correct legal birth date and the country in which he is a
      national.

      4
       (...continued)
      Guzman for illegal entry. He said he was a national of Mexico. He
      was allowed to voluntarily return to Mexico.
             In 2004 the defendant was arrested twice for illegal entry. He
      [gave] different names both times he was arrested. He said he was a
      national of Mexico. He was allowed to voluntarily return to Mexico
      on the first occasion. He was deported to Mexico on the second
      occasion.
             In 2005 the defendant was charged twice for illegal entry after
      deportation. The defendant gave an incorrect name both times. He
      also gave different dates of birth on each occasion. He was deported
      to El Salvador on both occasions.
             In 2006 the defendant was arrested one time under [a] false
      name for illegal entry [after] deportation. He said he was a national
      of Mexico. He was deported to El Salvador.
             In the case at hand the defendant was arrested under the name
      of Jose Antonio Guzman-Monge. It was not until the time of the plea
      he notified the Court that his correct name was Santos Orellana-
      Aleman.

                                         -6-
             The defendant’s argument that he is a simple, uneducated man
      and does not understand the criminal justice system is not supported
      by the facts. He understands the system enough to lie to the law
      enforcement authorities about his name, date of birth and even his
      country to which he belonged. This proves he knew he would be
      [removed], knows that his identification was incorrect, and by giving
      a different identification and allowed to return to Mexico where it
      would be easier to reenter this country.
             The defendant’s argument that a [variance] is impermissible
      simply because there’s no commentary under [§ 2L1.2 regarding
      departures] is incorrect. Courts should consider the factors under [18
      U.S.C. § 3553(a)] in every sentencing. . . . [A]s a matter of fact[,]
      the Court’s never seen a case in which there were 11 reentries due to
      the lying by the defendant of his birth date, his country and his name.
             After considering the nature and circumstances of this offense
      and the history of the defendant, the kinds of sentences in the
      sentencing range under the guidelines . . . , it’s my determination that
      a sentence of 24 months [will foster] respect [for] the law and afford
      an adequate deterrence from further criminal behavior.

      Orellana-Aleman appeals the district court’s sentence, contending the

sentence is both procedurally and substantively unreasonable. As to the question

of procedural reasonableness, Orellana-Aleman raises the following general

assertions: (1) it was improper for the district court to rely on Orellana-Aleman’s

history of illegal entries because the Sentencing Commission eliminated

departures on that ground when it overhauled U.S.S.G. § 2L1.2, the Guideline

applicable to unlawfully entering or remaining in the United States; and (2) the

district court’s use of Orellana-Aleman’s unprosecuted entries into the United

States invaded the prerogative of the executive branch. As to the question of

substantive reasonableness, Orellana-Aleman asserts the twenty-four-month




                                         -7-
sentence imposed by the district court is simply too severe given the nature of his

crime.

         After the Supreme Court’s decision in United States v. Booker, 543 U.S.

220 (2005), this court reviews the reasonableness of a sentence imposed by the

district court under a deferential abuse-of-discretion standard. Gall v. United

States, 552 U.S. 38, 41 (2007). This is true whether the district court’s chosen

sentence is “inside, just outside, or significantly outside the Guidelines range.”

Id. “A district court abuses its discretion when it renders a judgment that is

arbitrary, capricious, whimsical, or manifestly unreasonable.” United States v.

Munoz-Nava, 524 F.3d 1137, 1146 (10th Cir. 2008) (quotations omitted).

         Reasonableness review encompasses both a procedural and a substantive

component. United States v. Verdin-Garcia, 516 F.3d 884, 895 (10th Cir. 2008).

The procedural component addresses whether the district court miscalculated or

failed to calculate the Guidelines range, treated the Guidelines as mandatory,

failed to consider the factors set out in 18 U.S.C. § 3553(a), relied on clearly

erroneous facts, or failed to adequately explain the sentence. Gall, 552 U.S. at

51. The substantive component addresses “whether the length of the sentence is

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

in [§ 3553(a)].” Verdin-Garcia, 516 F.3d at 895 (quotations omitted). When a

district court varies from the range set out in the Guidelines, this court

“consider[s] the extent of the deviation” as part of its analysis of substantive

                                          -8-
reasonableness. Gall, 552 U.S. at 51. Nevertheless, we must give “due deference

to the district court’s decision that the § 3553(a) factors, on a whole, justify the

extent of the variance.” Id. That is, this court “may not examine the weight a

district court assigns to various § 3553(a) factors, and its ultimate assessment of

the balance between them, as a legal conclusion to be reviewed de novo.” United

States v. Smart, 518 F.3d 800, 808 (10th Cir. 2008). Although sentences within a

correctly calculated Guidelines range may be presumed reasonable on appeal,

sentences outside the Guidelines range may not be presumed unreasonable. Id.

         Having set out the background and governing legal standards, Orellana-

Aleman’s sentencing appeal can be resolved in short order. Orellana-Aleman

asserts the district court committed procedural sentencing error when it relied on

Orellana-Aleman’s history of unprosecuted illegal entries into the United States to

support an upward variance from the advisory Guidelines range. Orellana-

Aleman asserts the district court’s reliance on those unprosecuted entries into the

United States is procedurally improper because such reliance: (1) is inconsistent

with the sentencing scheme set out in the Guidelines; and (2) improperly invades

the province of the executive branch. These contentions are entirely without

merit.

         Orellana-Aleman asserts it was improper for the district court to consider

his history of unprosecuted entries into the United States because § 2L1.2

narrowly focuses on prior convictions in arriving at an appropriate offense level.

                                           -9-
Orellana-Aleman further notes that when the Sentencing Commission

substantially revised § 2L1.2 in 2001 to focus on specified types of pre-

deportation convictions, it specifically rewrote the commentary to § 2L1.2 to

delete any references to departures. See U.S.S.G. amend. 632 (setting out revised

commentary and reasons for rewriting § 2L1.2). Thus, according to Orellana-

Aleman, a prior history of unprosecuted entries into the United States is simply

irrelevant for purposes of arriving at a Guidelines sentence. Finally, Orellana-

Aleman asserts that in imposing a sentence significantly above the range set out

in the Guidelines by reference to matters not contemplated by the Guideline, the

district court simply abandoned any consideration of § 2L1.2. 5

      Orellana-Aleman’s argument is inconsistent with this court’s precedents. It

is absolutely clear that in arriving at an appropriate sentence in this particular

case, the district court correctly calculated and considered Orellana-Aleman’s

advisory Guidelines range. The mere fact the district court chose to vary from

that range does not mean it ignored the Guidelines. United States v. Smart, 518

      5
        For the first time on appeal, Orellana-Aleman asserts the district court
failed to adequately explain the method it employed in settling on a sentence
significantly above the range set out in the Guidelines. Because Orellana-Aleman
did not raise this procedural-reasonableness challenge before the district court, it
is forfeited. Gall v. United States, 552 U.S. 38, 51 (2007) (holding that a claim
the district court failed to “adequately explain the sentence” is a challenge to the
procedural reasonableness of the sentence); United States v. Romero, 491 F.3d
1173, 1177-78 (10th Cir. 2007) (this court reviews forfeited challenges to the
procedural reasonableness of a sentence only for plain error). Because Orellana-
Aleman fails to address whether this forfeited “error” is plain, we do not consider
the issue further.

                                         -10-
F.3d 800, 809 (10th Cir. 2008) (“We may not conclude that simply by diverging

from the Guidelines, a district court has disregarded the policy considerations

which led the Commission to create a particular Guideline.”). Instead, the district

court correctly recognized that in arriving at an appropriate sentence under

§ 3553(a), it is free to consider a broad range of “individual characteristics, like

age, employment, and criminal history . . . , even when disfavored under the

Guidelines or already accounted for in another part of the calculation.” United

States v. Jarvi, 537 F.3d 1256, 1263 (10th Cir. 2008). Appellate courts have

uniformly held that a history of illegally entering or reentering the United States

is a relevant sentencing characteristic district courts can consider in arriving at an

appropriate sentence under § 3553(a). See, e.g., United States v. Herrera-Zuniga,

571 F.3d 568, 590 (6th Cir. 2009) (holding defendant’s history of illegally

reentering the United States “provide[d] a reasonable basis for imposing a harsher

sentence”); United States v. Ruvalcava-Perez, 561 F.3d 883, 886 (8th Cir. 2009)

(same); United States v. Lopez-Velasquez, 526 F.3d 804, 807 (5th Cir. 2008)

(same); see also United States v. Valtierra-Rojas, 468 F.3d 1235, 1241 (10th Cir.

2006) (noting in dicta that a demonstrated propensity, through multiple illegal

reentries, to return to the United States would justify greater punishment).

      Orellana-Aleman attempts to distinguish his case by asserting the record

reveals he was merely “arrested” on immigration charges, not that he was actually

guilty of being in the United States illegally. The record does not bear out this

                                          -11-
assertion. The PSR indicates that in addition to a single conviction for illegally

entering the United States, Orellana-Aleman either voluntarily departed or was

deported from the United States on eleven instances. As to the four entries

resulting in deportation, the civil adjudicative process attendant to deportation

determinations conclusively establishes Orellana-Aleman was in the United States

illegally. United States v. Monjaraz-Reyes, 285 F. App’x 146, 147 (5th Cir.

2008) (unpublished). Under the particular facts of this case, it was likewise

appropriate for the district court to consider the seven post-1996 entries into the

United States identified in the PSR that resulted in a voluntary departure on the

part of Orellana-Aleman. The use of a signature modus operandi by Orellana-

Aleman in his interactions with immigration authorities (i.e., false names, birth

dates, and nationality), together with his history of deportations, reliably indicates

that during each of Orellana-Aleman’s arrests he was in the United States

illegally. Lopez-Velasquez, 526 F.3d at 807 (“[Defendant’s] eleven prior arrests

by immigration officials do not ‘stand alone’—here they are corroborated by more

than half a dozen deportations. These arrests are sufficiently ‘supported by

evidence’ to constitute reliable grounds for a variance in this case.”). Thus, the

uncontested facts set out in the PSR demonstrate much more than that Orellana-

Aleman was “arrested” for illegally reentering the United States; they

demonstrate Orellana-Aleman is, in fact, an unrepentant violator of the

immigration laws of the United States.

                                         -12-
      Orellana-Aleman asserts the district court’s reliance on his prior

unprosecuted entries into the United States invades the province of the Executive

Branch. He asserts that because the Attorney General declined to prosecute him

for the past entries, and because the decision whether to prosecute is within the

sole discretion of the Executive Branch, the district court’s consideration of that

conduct usurped the role of the prosecutor. A necessary predicate of this

allegation of error, however, is that consideration of those unprosecuted entries

amounts to the district court punishing him for that conduct. The Supreme Court

has made clear, however, that “consideration of information about the defendant’s

character and conduct at sentencing does not result in ‘punishment’ for any

offense other than the one of which the defendant was convicted.” Witte v.

United States, 515 U.S. 389, 401 (1995) (approving consideration of uncharged

criminal conduct in arriving at appropriate offense level under the Guidelines).

The district court did not punish Orellana-Aleman for his unprosecuted entries

into the United States, but instead merely considered them as part of Orellana-

Aleman’s history and characteristics for purposes of arriving at a proper sentence

for the instant crime under § 3553(a). Thus, the district court did not invade the

province of the Executive Branch and did not commit procedural error in

considering Orellana-Aleman’s prior entries in arriving at a sentence in this case. 6

      6
       Orellana-Aleman likewise asserts that the district court’s consideration of
his unprosecuted entries violates the Equal Protection Clause of the Fifth
                                                                      (continued...)

                                         -13-
      Finally, Orellana-Aleman asserts that the twenty-four month sentence

imposed by the district court is substantively unreasonable. In that regard, he

notes the sentence is more than three times greater than the top of the advisory

Guidelines range. He argues such a lengthy sentence is longer than necessary to

comply with the purposes of § 3553(a)(2), especially given his limited criminal

history.

      The district court’s chosen sentence is not arbitrary, capricious, or

manifestly unreasonable. Munoz-Nava, 524 F.3d at 1146. Orellana-Aleman’s

history of illegally reentering the United States is extensive. More importantly,

Orellana-Aleman’s use of aliases and false birth dates, especially when

accompanied by falsification of his country of origin, demonstrates a

sophisticated understanding of this country’s immigration laws and a dogged

determination to disregard those laws and continue returning to the United States

in violation of law. The district court’s determination that only a particularly

lengthy sentence had the potential to dissuade Orellana-Aleman from further

attempts to enter the country illegally is strongly supported by the record. This

weighty justification is more than sufficient to justify the substantial upward


      6
        (...continued)
Amendment. As was true of his separation-of-powers claim, this claim is
dependent on Orellana-Aleman’s erroneous assertion that consideration of his
unprosecuted conduct amounts to punishing him for that conduct. Accordingly,
for the same reason set out above in rejecting Orellana-Aleman’s separation-of-
powers claim, this claim also fails.

                                         -14-
variance adopted by the district court in this case. Gall, 552 U.S. at 50 (“We find

it uncontroversial that a major departure should be supported by a more

significant justification than a minor one.”).

      For those reasons set out above, the sentence imposed by the United States

District Court for the District of Kansas is hereby AFFIRMED.



                                                 ENTERED FOR THE COURT


                                                 Michael R. Murphy
                                                 Circuit Judge




                                         -15-
