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

                                   TENTH CIRCUIT                            March 20, 2013

                                                                         Elisabeth A. Shumaker
                                                                             Clerk of Court

 UNITED STATES OF AMERICA,

        Plaintiff - Appellee,                                No. 12-1332
                                                   (D.C. No. 1:12-CR-00207-PAB-1)
 v.                                                            (D. Colo.)

 NELSON GUTIERREZ-SIERRA, a/k/a
 Nelson Gutierrez-Sina,

        Defendant - Appellant.


                                ORDER AND JUDGMENT*


Before KELLY, HOLMES, and MATHESON, Circuit Judges.


       In 2011, Nelson Gutierrez-Sierra was charged with illegal reentry and violation of

the terms of his supervised release. Mr. Gutierrez-Sierra was sentenced to 30 months of

imprisonment for the illegal reentry charge and 6 months of imprisonment for violating

the terms of his supervised release, to be served consecutively. In this direct appeal, Mr.

        * After examining Appellant’s brief and the appellate record, this panel has
determined unanimously that oral argument would not materially assist the determination
of this appeal. See Fed. R. App. P. 34(a)(2) 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 This order and judgment is not
binding precedent, except under the doctrines of law of the case, res judicata, and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.
Gutierrez-Sierra appeals the consecutive nature of his sentences.

          Exercising jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a), we

affirm.

                                     I. BACKGROUND

          In 2009, Mr. Gutierrez-Sierra pled guilty to a felony charge of transporting illegal

aliens for financial gain in the federal district court. Mr. Gutierrez-Sierra was sentenced

to eight months of incarceration and three years of supervised release. He was deported

to Mexico on September 22, 2009, after serving his sentence. Shortly after he returned to

Mexico, his nephew was kidnapped and ransomed. Because he was worried about his

family’s safety in Mexico, he decided to illegally reenter the United States.

          In October 2011, Mr. Gutierrez-Sierra was stopped for a traffic violation in

Colorado, pled guilty, and was sentenced to 25 days in jail. He pled guilty to illegal

reentry after deportation subsequent to an aggravated felony conviction. The advisory

United States Sentencing Guidelines (the “Guidelines”) range was imprisonment for 46

to 57 months, but the district court granted his motion for a variance and ordered that Mr.

Gutierrez-Sierra be imprisoned for 30 months.

          The Government, upon learning that Mr. Gutierrez-Sierra had reentered the United

States, filed a petition to revoke his supervised release. The Guidelines range for

violating supervised release was 6 to 12 months of incarceration. The district court

sentenced him to six months of imprisonment and determined that the two sentences


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should be served consecutively because the violation of supervised release was a serious

and separate crime worthy of a separate sanction.

       On August 27, 2012, Mr. Gutierrez-Sierra filed a timely notice of appeal.

                                    II. DISCUSSION

       Mr. Gutierrez-Sierra challenges the district court’s order that his 30-month

sentence and six-month sentence be served consecutively, not concurrently. He argues

that the consecutive nature of his sentences renders them substantively unreasonable.

                                 A. Standard of Review

       District courts have the discretion to impose either concurrent or consecutive

sentences. 18 U.S.C. § 3584(a). When making this determination, the district court

“shall consider, as to each offense for which a term of imprisonment is being imposed,

the factors set forth in section 3553(a).” Id. § 3584(b). We review the substantive

reasonableness of a sentence for abuse of discretion. United States v. Cornelius, 696 F.3d

1307, 1326 (10th Cir. 2012). This includes the decision whether to impose consecutive

or concurrent sentences. United States v. Rodriguez-Quintanilla, 442 F.3d 1254 (10th

Cir. 2006). We find no abuse of discretion “unless [the sentence] is arbitrary, capricious,

whimsical, or manifestly unreasonable.” United States v. Munoz-Nava, 524 F.3d 1137,

1146 (10th Cir. 2008).

       When a defendant is sentenced within a properly calculated Guidelines range, the

sentence “is entitled to a rebuttable presumption of reasonableness.” United States v.

Kristl, 437 F.3d 1050, 1054 (10th Cir. 2006) (quotations omitted). Mr. Gutierrez-Sierra
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has provided no support for his assertion that this presumption applies only to the length

of a sentence and not whether sentences are consecutive or concurrent. Moreover, even

without the presumption of reasonableness, Mr. Gutierrez-Sierra has not demonstrated

that the district court abused its discretion.

       Although we generally review the consecutive nature of sentences for abuse of

discretion, we have reviewed consecutive sentences imposed for immigration and

supervised release violations under the “plainly unreasonable” standard. Rodriguez-

Quintanilla, 442 F.3d at 1256-57. Abuse of discretion and plainly unreasonable are

“quite similar” standards of review. Id. at 1256. Under either standard, we affirm.

                             B. Substantive Unreasonableness

       Mr. Gutierrez-Sierra alleges that the consecutive sentence in this case is

substantively unreasonable because the district judge “fail[ed] to account for the manifold

factors that support concurrent sentencing.” Aplt. Br. at 12. Mr. Gutierrez-Sierra does

not argue that the district court failed to consider § 3553(a) factors, which would be a

procedural unreasonableness challenge. Instead, he argues that the district court weighed

the factors incorrectly and came to the wrong conclusion, a substantive unreasonableness

challenge. He contends that the court put too much weight on the serious nature of the

reentry charge and too little weight on the fact that he fled Mexico after his nephew was

abducted.

       Although a district court is required to consider the factors set forth in § 3553(a),

we defer to and do not second-guess determinations of weight given to § 3553(a) factors.
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See United States v. Smart, 518 F.3d 800, 808 (10th Cir. 2008). As long as the district

court considered the factors set forth in § 3553(a), “sentencing a defendant to consecutive

sentences following the revocation of supervised release is not unreasonable.”

Rodriguez-Quintanilla, 442 F.3d at 1257.

       The district court’s weighing of the factors appears entirely appropriate and within

“the realm of . . . rationally available choices.” United States v. McComb, 519 F.3d 1049,

1053 (10th Cir. 2007). “[A]s a matter of policy, the Guidelines discourage courts from

considering family ties and responsibilities in sentencing decisions.” United States v.

Hildreth, 485 F.3d 1120, 1129 (10th Cir. 2007). Therefore, although the court did not

articulate all of the family circumstances that may have spurred Mr. Gutierrez-Sierra to

violate his supervised release, it was not an abuse of discretion. Section 3553(a) requires

courts to consider the need for the sentence “to reflect the seriousness of the offense.” 18

U.S.C. §3553(a)(2). The record reflects that the district court did just that, stating in the

hearing that the violation of supervised release was “a serious crime.” ROA, Vol. II at

15.

       Mr. Gutierrez-Sierra next argues that the district court should have considered that

the Guidelines now counsel against the imposition of supervised release where the

defendant will be deported after imprisonment. However, at the time Mr. Gutierrez-

Sierra was sentenced to supervised release, the Guidelines had not been amended to

include that provision. Even if his previous supervised release sentence were contrary to

the Guideline recommendations, this still would not support the claim that his sentence
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for violating his release is substantively unreasonable. Mr. Gutierrez-Sierra’s 2009

supervised release was valid and binding, and the district court was acting well within the

bounds of its discretion when it chose to sanction Mr. Gutierrez-Sierra’s violation of that

release.

       Mr. Gutierrez-Sierra has failed to demonstrate that the district court’s weighing of

the § 3553(a) factors falls outside the realm of rationally available choices and was

“arbitrary, capricious, whimsical, or manifestly unreasonable.” Munoz-Nava, 524 F.3d at

1146 (quotations omitted). We therefore see no reason to disturb the district court’s order

that Mr. Gutierrez-Sierra’s sentences be served consecutively.

                                   III. CONCLUSION

       For the foregoing reasons, we affirm the district court’s order that Mr. Gutierrez-

Sierra’s sentences be served consecutively. We grant the Government’s and Mr.

Gutierrez-Sierra’s motions to supplement the record on appeal.

                                          ENTERED FOR THE COURT



                                          Scott M. Matheson, Jr.
                                          Circuit Judge




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