                                                                            FILED
                                                             United States Court of Appeals
                                                                     Tenth Circuit

                                                                       March 27, 2009
                      UNITED STATES COURT OF APPEALS
                                                                 Elisabeth A. Shumaker
                                  TENTH CIRCUIT                      Clerk of Court



 UNITED STATES OF AMERICA,
                 Plaintiff–Appellee,                      No. 08-3214
            v.                                 (D.C. No. 08–CR–10039–MLB–1)
 RAFAEL MARQUEZ-PINEDA,                                     (D. Kan.)
                 Defendant–Appellant.


                             ORDER AND JUDGMENT *


Before TACHA, McKAY, and ANDERSON, Circuit Judges.


        Defendant pled guilty to illegal re-entry subsequent to a felony conviction

for possession of cocaine. Despite the prosecution’s recommendation for a

sentence within the twenty-four to thirty-month Guidelines range, the trial court

departed upward to a sixty-month sentence. In support of its decision the court

said:

        [D]efendant has illegally re-entered the United States eight times.
        Defendant has used over thirty aliases, including one on his Kansas
        driver’s license, sixteen different dates of birth and five different
        social security numbers. Any or all of these factors justify an
        upward variance. After all, a defendant with only one prior felony


        *
        This order and judgment is not binding precedent, except       under the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.
      This case was ordered submitted on the briefs on March 2,        2009.
      conviction who has not tried to hide his identity and who has
      illegally re-entered the country only once can be convicted of
      violating 8 U.S.C. § 1326(a) and (b)(1). This case clearly “stands
      out” from the offense conduct generally even without considering
      defendant’s eight DUI convictions and at least six DUI arrests.

(R. Vol. I, Doc. 15 at 3.)

      On appeal, Defendant raises three claims of error. He claims (1) the court

violated the relatedness principle by considering the DUI convictions and arrests,

(2) the court erroneously double-counted the DUI convictions, and (3) the

sentence created an unwarranted disparity between defendants committing the

crime of illegal re-entry.

      We “review all sentences—whether inside, just outside, or significantly

outside the Guidelines range—under a deferential abuse-of-discretion standard.”

Gall v. United States, 128 S. Ct. 586, 591 (2007). First, we assess whether the

district court committed any “significant procedural error, such as . . . failing to

consider the § 3553(a) factors, selecting a sentence based on clearly erroneous

facts, or failing to adequately explain the chosen sentence.” Id. at 597. If the

sentence is “procedurally sound,” we assess whether it is substantively

reasonable, considering “the totality of the circumstances, including the extent of

any variance from the Guidelines range,” and giving “due deference to the district

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

variance.” Id.

      Defendant’s challenge based on the relatedness principle relies primarily on

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his interpretation of United States v. Allen, 488 F.3d 1244 (10th Cir. 2007).

However, we conclude that Allen does not preclude the district court’s use of

unrelated criminal activity to decide on a reasonable sentence under § 3553. We

find no abuse of discretion in the court’s consideration of Defendant’s unrelated

criminal conduct in deciding to vary upward from the Guidelines.

      We also conclude that the trial court did not abuse its discretion when it

used the DUI convictions both to calculate Defendant’s criminal history and in

support of the upward variance. We have held that sentencing courts have

discretion when considering a variance under § 3553 to consider facts already

accounted for in the advisory Guidelines range. See United States v. Alapizco-

Valenzuela, 546 F.3d 1208, 1222 (10th Cir. 2008); United States v. Smart, 518

F.3d 800, 808-09 (10th Cir. 2008). Moreover, the court here did not rely

exclusively on the DUI convictions to support the upward variance but also relied

on Defendant’s repeated re-entry convictions and his demonstrated failure to be

reformed by his prior sentences, as well as his use of aliases and false identifying

information.

      We conclude that the sentence in the case does not violate concerns

regarding unwarranted disparity in sentencing. While the Guidelines give the

district court “a measure of national practice,” “the district court will have

‘greater familiarity with the individual case and the individual defendant before

him than the Commission.’” Smart, 518 F.3d at 808 (quoting Kimbrough v.

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United States, 128 S. Ct. 558, 574 (2007)). In this case, the court properly used

the Guidelines as a starting point to avoid disparity, then adjusted the sentence to

reflect the facts of the case and Defendant’s individual history and characteristics.

Any disparity is justified by the record facts: Defendant’s use of aliases and false

identifying information, his numerous DUI arrests and convictions, and his

repeated illegal re-entries.

      AFFIRMED.

                                               Entered for the Court



                                               Monroe G. McKay
                                               Circuit Judge




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