                                                                         FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                                                                  October 30, 2009
                    UNITED STATES COURT OF APPEALS Elisabeth A. Shumaker
                                                                      Clerk of Court
                                 TENTH CIRCUIT



 UNITED STATES OF AMERICA,

               Plaintiff - Appellee,                    No. 09-1047
          v.                                           (D. Colorado)
 MARCOS UBALDO GUILLEN                      (D.C. No. 1:08-CR-00370-WYD-1)
 ACOSTA,

               Defendant - Appellant.


                            ORDER AND JUDGMENT *


Before HENRY, Chief Circuit Judge, HARTZ, and O’BRIEN, Circuit Judges.


      Marcos Guillen Acosta challenges the district court’s rejection of his

request for a downward variance from his advisory sentencing range under the

United States Sentencing Guidelines (USSG). He argued to the court that his

probated sentence for an aggravated felony indicated that his crime was

significantly less egregious than the typical aggravated felony. On appeal he



      *
       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 This order and judgment is not binding
precedent except under the doctrines of law of the case, res judicata, and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.
argues that his sentence was procedurally unreasonable because the district court

refused to consider that a crime’s seriousness can be inferred from the sentence

imposed. We have jurisdiction under 18 U.S.C. § 3742(a) and affirm.

      In October 2002 Mr. Guillen Acosta, a Mexican national, was convicted of

sexual assault in a Texas court. The jury sentenced him to two years’

confinement but probated the sentence. The judge set the term of probation at

four years. He was deported to Mexico shortly thereafter, but in 2008 he returned

to the United States. A few months later he was detained by immigration agents.

Because his sexual-assault conviction is an aggravated felony, see 8 U.S.C.

§ 1101(a)(43)(F); 18 U.S.C. § 16, Mr. Guillen Acosta was charged in the United

States District Court for the District of Colorado with illegal reentry after

deportation following conviction for commission of an aggravated felony. See

8 U.S.C. §§ 1326(a), (b)(2). He pleaded guilty.

      Under the 2008 edition of the Sentencing Guidelines, Mr. Guillen Acosta’s

base offense level of 8, see USSG § 2L1.2(a), was increased by 16 because of his

sexual-assault conviction, see id. § 2L1.2(b)(1)(A)(ii), and reduced by 3 for his

acceptance of responsibility, see id. § 3E1.1. Given his criminal-history category

of II, his guidelines sentencing range was 41 to 51 months’ imprisonment. See id.

ch. 5, pt. A. Mr. Guillen Acosta requested a variance under 18 U.S.C. § 3553(a),

pointing out that the prior conviction had resulted in only a lenient sentence of

probation. He contended that the sentencing court could infer from the probation

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that his sexual assault was less serious than conduct contemplated by USSG

§ 2L1.2(b)(1)(A), and thus the 16-level enhancement should be reduced. The

government responded that no such inference could be drawn because Mr. Guillen

Acosta could have received probation for reasons unrelated to the severity of his

offense—for instance, the prospect of postconviction deportation could have

motivated the jury to choose probation over imprisonment.

      During the sentencing hearing the district court asked whether there was

any record from the Texas court explaining why the sentence was probation.

Mr. Guillen Acosta’s counsel said that no such record existed because the

sentence had been recommended by the jury. The district court voiced its

concern:

      I don’t have accurate information to understand what evidence was
      presented to the jury, what the jury could have considered. And so
      for me to draw any inference is really, I think, inappropriate on this
      record. I just don’t have enough information. I can’t draw an
      inference that taking into account the 3553(a) factors, just because a
      jury sentenced him to 2 years and then ordered that his sentence be
      served through probation, and the judge then made that period of 4
      years, that means that there was something about this that means that
      this is less serious than if he had gone to jail for 10 years. I just
      don’t know. And so I am unwilling to draw that inference.


R. Vol. 2 at 17–18. The court then denied the variance request and sentenced

Mr. Guillen Acosta to 41 months’ imprisonment followed by three years’

supervised release.




                                        -3-
      On appeal Mr. Guillen Acosta argues that the district court committed legal

error by rejecting the premise that the seriousness of an offense can be inferred

from the sentence imposed, and that this error makes his sentence procedurally

unreasonable. We discern no error here. Contrary to Mr. Guillen Acosta’s

contention, the district court did not state that it was prohibited from inferring the

seriousness of an offense from the length of the sentence imposed. It simply said

that it lacked sufficient information to make the inference desired by Mr. Guillen

Acosta in this case. Given the absence of any record explaining the state-court

sentence, the district court reasonably declined to draw an inference. We

therefore reject Mr. Guillen Acosta’s claim.

      We AFFIRM Mr. Guillen Acosta’s sentence.

                                        ENTERED FOR THE COURT


                                        Harris L Hartz
                                        Circuit Judge




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