                                                                          FILED
                                                              United States Court of Appeals
                                                                      Tenth Circuit
                   UNITED STATES COURT OF APPEALS
                                                                     March 16, 2015
                                TENTH CIRCUIT
                                                                  Elisabeth A. Shumaker
                                                                      Clerk of Court

 UNITED STATES OF AMERICA,

              Plaintiff - Appellee,

                                                         No. 14-5026
 v.                                           (D.C. No. 4:13-CR-00213-GKF-1)
                                                      (N.D. Oklahoma)
 ALVARO OMAR CUEVAS-BRAVO,
 a/k/a Joel Alcala, also known as
 Avarado Omar Cuevas,

              Defendant - Appellant.


                           ORDER AND JUDGMENT *


Before GORSUCH, MURPHY, and HOLMES, Circuit Judges.



      After examining the briefs and appellate record, this court has determined

unanimously that oral argument would not materially assist the determination of

this appeal. See Fed. R. App. P. 34(a)(2)(C); 10th Cir. R. 34.1(G). Accordingly,

we grant the parties’ requests and order the case 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        This order and judgment is not binding precedent except under the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.
       Alvaro Cuevas-Bravo pleaded guilty to being a previously deported alien

illegally found in the United States, in violation of 8 U.S.C. § 1326(a). The

district court sentenced Cuevas-Bravo to forty-six months’ imprisonment, a term

eleven months below the bottom of the advisory range set out in the United States

Sentencing Guidelines. Cuevas-Bravo appeals, asserting the sentence imposed by

the district court is unreasonable. This court exercises jurisdiction pursuant to

18 U.S.C. § 3742(a) and 28 U.S.C. § 1291, and affirms the sentence imposed by

the district court.

       Cuevas-Bravo is a citizen of Mexico. In 2002 he pleaded guilty to burglary

of a habitation, in violation of Texas Penal Code Ann. § 30.02. After serving a

sentence of incarceration, Cuevas-Bravo was deported to Mexico in June of 2004.

He was found in the United States in October of 2004 and was, again, deported to

Mexico. Cuevas-Bravo reentered the United States in late 2004 and remained for

nearly a decade. In September of 2013 he was arrested in Tulsa, Oklahoma, and

charged with unlawful possession of a controlled drug with intent to distribute. 1

       On November 5, 2013, a federal grand jury handed down an indictment

charging Cuevas-Bravo with being illegally present in the United States, in

violation of § 1326(a). Cuevas-Bravo entered a guilty plea to the charge. At a

hearing on his petition to enter a guilty plea, Cuevas-Bravo’s attorney


       1
      He eventually pleaded guilty to this charge and was sentenced to a
suspended two-year term of imprisonment.

                                         -2-
affirmatively acknowledged that, at the forthcoming sentencing hearing, Cuevas-

Bravo’s 2002 Texas burglary conviction would result in a sixteen-level increase

to his offense level, pursuant to the terms of U.S.S.G. § 2L1.2(b)(1)(A)(ii). R.

Vol. II, at 12 (“I know that [the burglary conviction] qualifies for the 16-level

enhancement under the guidelines . . . .”).

      The United States Probation Office prepared a Presentence Investigation

Report (“PSR”). The PSR concluded Cuevas-Bravo’s base offense level was

eight. U.S.S.G. § 2L1.2(a). Consistent with the discussions at the change-of-plea

hearing, the PSR concluded Cuevas-Bravo’s 2002 Texas conviction for burglary

of a habitation qualified as a crime of violence, requiring a sixteen-level increase

to Cuevas-Bravo’s offense level. Id. § 2L1.2(b)(1)(A)(ii). After a three-level

downward adjustment for acceptance of responsibility, id. § 3E1.1, Cuevas-

Bravo’s total offense level was twenty-one. When that offense level was

combined with his category IV criminal history, the resulting advisory guideline

range was fifty-seven to seventy-one months’ imprisonment. Cuevas-Bravo did

not object to the PSR.

      Prior to sentencing, Cuevas-Bravo moved for a downward departure and/or

a downward variance. 2 He noted that but for his 2002 burglary conviction he


      2
      “[W]hen a court reaches a sentence above or below the recommended
Guidelines range through application of Chapters Four or Five of the Sentencing
Guidelines, the resulting increase or decrease is referred to as a departure. When
                                                                       (continued...)

                                         -3-
would not have received a sixteen-level increase in his offense level and,

additionally, would have been eligible for the fast-track program. He maintained

that although his burglary conviction was legally defined as a violent act, it was,

as a matter of fact, a property crime. R. Vol. I, at 21 (“The thing that

differentiates this defendant from others is a decade-old charge for burglary of a

habitation, which is unfortunately specifically defined as being a violent act

regardless of whether any violence was in fact used. The defendant would submit

in his case the burglary was a property crime, not a crime of violence, which

would have made him eligible for a rapid removal rather than incarceration.”).

Thus, he asked that the district court depart and/or vary downward and impose a

sentence without regard to the sixteen-level increase set out in

§ 2L1.2(b)(1)(A)(ii).

      At the sentencing hearing, Cuevas-Bravo again focused on the effect his

burglary conviction had on his advisory guidelines range, particularly on the fact

the conviction prevented him from qualifying for fast-track sentencing. 3 He also

      2
       (...continued)
a court enhances or detracts from the recommended range through application of
[18 U.S.C.] § 3553(a) factors, however, the increase or decrease is called a
variance.” United States v. A.B., 529 F.3d 1275, 1278 n.3 (10th Cir. 2008)
(quotations omitted).
      3
          In this regard, Cuevas-Bravo argued as follows:

            The U.S. government, at least in the Northern District, has a
      policy of capturing and exporting as quickly as possible people that
                                                                     (continued...)

                                          -4-
asserted his time as a productive, albeit illegal, member of American society

supported a departure or variance. Thus, he requested that the court grant his

motion and sentence him as if the sixteen-level adjustment set out in

§ 2L1.2(b)(1)(A)(ii) was not applicable. The government opposed any deviation

from the properly calculated advisory sentencing range set out in the PSR. After

hearing the parties’ arguments, the district court ruled as follows:

      The court notes for the record that neither the government nor the
      defendant has filed an objection to the [PSR]. The court has
      reviewed defendant’s motion for a downward variance and/or
      downward departure . . . and the government’s response . . . in
      opposition. . . .

             In defendant’s motion for downward variance and/or
      downward departure . . . , the defendant requests a variance or
      departure to a base level of 8[, with a further reduction of three
      levels for acceptance of responsibility]. As grounds for the request,
      defendant cites that he would have been eligible for the fast-track
      program but for his conviction of burglary of a habitation in 2001,
      and that his conviction in that case resulted in a 16-level increase to
      his guideline calculations.

            The court finds that the defendant’s criminal history is not
      overrepresented in this case, as his previous convictions are for


      3
       (...continued)
      are detained in something called a fast-track program, which is
      normally available to nonviolent persons that are arrested, they get a
      large downward departure such that they would be eligible for almost
      immediate deportation.

            That does not affect my client, though, because he has a
      burglary of a residence charge that was approximately ten years ago
      which is a thing that disqualifies him for that which necessitates my
      request for downward departure.

                                         -5-
      serious offenses, including burglary of a habitation and unlawful
      possession of a controlled drug with intent to distribute. Therefore,
      the 16-level increase to the defendant’s base offense level because
      the defendant committed a crime of violence is both accurate and
      appropriate.

             However, the defendant has maintained stable employment
      throughout his adult life and has provided support for his two
      daughters who reside with their mother in Texas. Following the
      second of his 2004 deportations, the defendant has had no contact
      with law enforcement until his arrest in September 2013 which
      predicated the instant indictment.

             Therefore, the court finds that there are factors present in this
      case that separate this defendant from the mine run of similarly
      situated defendants who have been found guilty of similar conduct.
      And accordingly, defendant’s motion for downward variance and/or
      downward departure . . . is granted in part, [4] and the court will vary
      downward two levels to a total offense level of 19. Combined with
      the defendant’s departure criminal history category of IV, the
      resulting variance guideline range is 46 to 57 months.

R. Vol. II, at 40-42.

      Cuevas-Bravo appeals the downward-variant sentenced imposed by the

district court. Unfortunately, the exact basis of his appeal is far from clear. That

is, it is difficult to tell from Cuevas-Bravo’s brief whether he is challenging the

procedural reasonableness of his sentence, the substantive reasonableness of his

sentence, or both. For its part, the government asserts Cuevas-Bravo waived any

challenge to the procedural reasonableness of his sentence by repeatedly


      4
        To be clear, as it specifically stated later in the sentencing hearing, the
district court denied in its entirety Cuevas-Bravo’s request for a downward
departure. It granted in part and denied in part Cuevas-Bravo’s request for a
downward variance.

                                          -6-
indicating in the district court that his burglary conviction qualified as a crime of

violence within the terms of § 2L1.2(b)(1)(A)(ii). It further argues Cuevas-Bravo

waived any argument as to the substantive reasonableness of his sentence through

inadequate appellate briefing. This court need not resolve the proper standard of

review because Cuevas-Bravo’s appellate arguments fail whether they are waived,

forfeited, or preserved.

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

220 (2005), this court reviews sentences for reasonableness.” United States v.

Friedman, 554 F.3d 1301, 1307 (10th Cir. 2009). “Reasonableness review is a

two-step process comprising a procedural and a substantive component.” Id.

(quotation omitted). Procedural reasonableness “relates to the manner in which

the district court calculated and explained the sentence.” United States v. A.B.,

529 F.3d 1275, 1278 (10th Cir. 2008). In determining whether the district court

correctly calculated the advisory sentencing range through application of the

guidelines, this court reviews the district court’s legal conclusions de novo and

reviews any factual findings for clear error, giving due deference to the district

court’s application of the guidelines to the facts. United States v. Kristl, 437 F.3d

1050, 1054 (10th Cir. 2006) (per curiam). Substantive reasonableness review

“focuses on 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).”

Friedman, 554 F.3d at 1307 (quotation omitted). We review the substantive

                                          -7-
reasonableness of a sentence under an abuse-of-discretion standard. United States

v. Sells, 541 F.3d 1227, 1237 (10th Cir. 2008). A sentence is substantively

unreasonable only if the district court “exceeded the bounds of permissible

choice, given the facts and the applicable law in the case at hand.” United States

v. McComb, 519 F.3d 1049, 1053 (10th Cir. 2007) (quotation omitted). That is, a

“district court abuses [its] discretion when it renders a judgment that is arbitrary,

capricious, whimsical, or manifestly unreasonable.” United States v. Haley, 529

F.3d 1308, 1311 (10th Cir. 2008) (quotation omitted). Where the sentence

imposed by the district court is below the properly calculated advisory guidelines

range, there is a presumption of reasonableness. United States v. Trent, 767 F.3d

1046, 1051 (10th Cir. 2014).

      Giving it a generous interpretation, this court can perceive three potential

procedural-reasonableness challenges lurking in Cuevas-Bravo’s appellate brief.

First, Cuevas-Bravo appears to argue his Texas burglary conviction does not fall

within the ambit of § 2L1.2(b)(1)(A)(ii) because it was not a burglary of a

dwelling. See U.S.S.G. § 2L1.2 cmt. n. 1(B)(iii) (defining “crime of violence” to

include “burglary of a dwelling”); United States v. Ventura-Perez, 666 F.3d 670,

673-77 (10th Cir. 2012) (assuming, without deciding, that the Texas Penal Code

includes in its definition of “habitation” buildings that would not qualify as

dwellings). The problem for Cuevas-Bravo is that the PSR specifically notes, as a

matter of fact, that Cuevas-Bravo burglarized a dwelling. Not only did Cuevas-

                                          -8-
Bravo not object to this factual assertion, he specifically stated to the district

court, in both his motion for a downward departure/variance and at the sentencing

hearing, that the burglary in this case was of a dwelling or residence. Thus, the

record clearly establishes the district court was correct in calculating Cuevas-

Bravo’s offense level by reference to § 2L1.2(b)(1)(A)(ii).

      Second, Cuevas-Bravo appears to assert that because the burglary he

committed did not actually involve any violence, it was improper to apply the

enhancement set out in § 2L1.2(b)(1)(A)(ii). This argument is frivolous.

      The main risk of burglary arises not from the simple physical act of
      wrongfully entering onto another’s property, but rather from the
      possibility of a face-to-face confrontation between the burglar and a
      third party—whether an occupant, a police officer, or a
      bystander—who comes to investigate. That is, the risk arises not
      from the completion of the burglary, but from the possibility that an
      innocent person might appear while the crime is in progress.

See James v. United States, 550 U.S. 192, 203 (2007) (discussing the Armed

Career Criminal Act). There is no requirement in the guidelines that a burglary

actually result in violence before § 2L1.2(b)(1)(A)(ii) is applicable.

      Third, Cuevas-Bravo’s brief could be read to assert the district court erred

when it concluded the application of § 2L1.2(b)(1)(A)(ii) did not lead to a

sentence that overrepresented Cuevas-Bravo’s criminal history and, accordingly,

Cuevas-Bravo was not entitled to a downward departure.

             Even after Booker, this court has no jurisdiction 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

                                          -9-
      warrant the departure. This court may review a denial of a
      downward departure only if the denial is based on the sentencing
      court’s interpretation of the Guidelines as depriving it of the legal
      authority to grant the departure. In making this determination, the
      district court is presumed to recognize its discretion, unless it
      unambiguously states it lacks discretion to grant the departure.
      Ambiguous statements are treated as though the judge was aware of
      his or her legal authority to depart but chose instead, in an exercise
      of discretion, not to depart. While this court now has jurisdiction to
      review a defendant’s final sentence for reasonableness, it
      nevertheless continues to lack jurisdiction to review the discretionary
      denial of a downward departure.

United States v. Fonseca, 473 F.3d 1109, 1112 (10th Cir. 2007) (quotations,

citations, and alterations omitted). Because the record in this case makes clear

the district court was fully aware of its discretion to depart and denied Cuevas-

Bravo a departure because it concluded his circumstances did not warrant such

relief, this court lacks jurisdiction to review the determination.

      It is also possible to glean from Cuevas-Bravo’s appellate brief a challenge

to the substantive reasonableness of his sentence. Cuevas-Bravo has not,

however, come close to overcoming the presumption of reasonableness that

attached to the district court’s downward-variant sentence. Given his history of

serious offenses, the district court quite reasonably concluded the advisory

guidelines range did not overstate the seriousness of Cuevas-Bravo’s criminal

history. Furthermore, in contrast to Cuevas-Bravo’s assertions, reentry by an

alien whose previous removal was preceded by the commission of an aggravated

felony is a serious crime. This is easily demonstrated by the twenty-year


                                         -10-
maximum term of incarceration established by Congress for this offense.

8 U.S.C. § 1326(a), (b)(2). Nevertheless, considering the positive aspects of his

character (a caring father who was consistently employed, consistently provided

for his daughters, and went long stretches of time without any contact with law

enforcement), the district court granted Cuevas-Bravo a significant variance,

amounting to eleven months below the bottom of the properly calculated advisory

guidelines range. The sentence imposed by the district court is fully supported by

the factors set out in § 3553(a).

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

District Court for the Northern District of Oklahoma is hereby AFFIRMED.

                                          ENTERED FOR THE COURT


                                          Michael R. Murphy
                                          Circuit Judge




                                        -11-
