                                                                       FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                                                                 December 7, 2010
                    UNITED STATES COURT OF APPEALS
                                                 Elisabeth A. Shumaker
                                                                    Clerk of Court
                                 TENTH CIRCUIT



 UNITED STATES OF AMERICA,

               Plaintiff - Appellee,                     No. 10-6006
          v.                                           (W.D. Oklahoma)
 PEDRO PEREZ-CRUZ,                               (D.C. No. 09-CR-00178-F-1)

               Defendant - Appellant.


                            ORDER AND JUDGMENT *


Before ANDERSON, BALDOCK, and BRORBY, Circuit Judges.



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

unanimously that oral argument would not materially assist in the determination

of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.

      Defendant and appellant, Pedro Perez-Cruz, pled guilty to unlawfully

reentering the United States, after having previously been deported following a

conviction for an aggravated felony. He was sentenced to fifty-seven months’


      *
        This order and judgment is not binding precedent except under the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.
imprisonment. Despite the fact that Mr. Perez-Cruz’s counsel affirmatively

requested and acquiesced in that sentence, Mr. Perez-Cruz seeks to avoid the

impact of that apparent waiver and appeal his sentence as substantively

unreasonable. We conclude that he has waived the opportunity to make such an

argument and we dismiss this appeal.



                                 BACKGROUND

      Following Mr. Perez-Cruz’s guilty plea, the United States Probation Office

prepared a presentence report (“PSR”) in preparation for sentencing under the

advisory United States Sentencing Commission, Guidelines Manual (“USSG”).

Mr. Perez-Cruz’s total offense level under the guidelines was 21, which included

the requisite 16-level increase for his prior deportation following conviction for

an aggravated felony. See USSG § 2L1.2(b)(1)(A)(I). The prior conviction

which increased Mr. Perez-Cruz’s offense level was a sixteen-year-old conviction

for possession of a controlled substance for sale. With a criminal history

category of IV, the PSR calculated an advisory sentencing range under the

guidelines of fifty-seven to seventy-one months’ imprisonment.

      At Mr. Perez-Cruz’s sentencing hearing, the district court heard argument

from both parties. It further adopted the factual findings of the PSR. The

government conceded that Mr. Perez-Cruz’s case was somewhat unusual in that

virtually all of the crimes counted towards his criminal history category of IV had

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occurred many years ago (from eleven to twenty-one years prior). It accordingly

recommended a sentence at the low end of the advisory guidelines sentencing

range:

         [T]hese convictions are much older than the ones that we have seen
         previously, and with that being said, the government recognizes that
         it always asks for a guideline sentence, and in this case, if a
         guideline sentence were to be imposed, we could ask for the low end
         of the guidelines.

Tr. of Sentencing at 14, R. Vol. 3 at 14. Mr. Perez-Cruz’s counsel then

responded:

         I would pretty much adopt what the government has already said.
         You’ve seen plenty of illegal re-entry cases, from the low end to the
         high end, if you will, people who have been deported once and came
         back eight times and people who have been deported once and came
         back just one time, as Mr. Pedro Cruz is charged with. It’s a
         criminal history category IV; it is what it is. As the government
         pointed out, a lot of those were older convictions. . . . I think on the
         big scheme of things, as far as illegal re-entry cases, his is a little
         less egregious than most of them that the Court has seen and I’ve
         seen.

                Sum it all up, Judge, we would just ask, as the government has,
         for the bottom of the guideline range of 57 months.

Id. at 14-15.

         The court imposed the fifty-seven month sentence, explaining that it was:

         quite concerned . . . with the nature of some of [Mr. Perez-Cruz’s]
         previous criminal conduct in the United States, some of it has
         involved weapons, some of it has involved narcotic substances,
         cocaine, on more than one occasion. So your criminal history has
         involved more than just alcohol, but with respect to alcohol, you
         have more than one driving-under-the-influence-of-liquor conviction.
         And it is probably by the grace of God that you are not doing 10 or

                                            -3-
      20 years of incarceration as a result of a serious accident while
      driving under the influence.

Id. at 16. Following the imposition of sentence, the district court specifically

asked Mr. Perez-Cruz whether he had “any procedural objection to these

sentencing proceedings,” id. at 18, to which defense counsel responded, “No, sir.”

Id.

      Arguing that his fifty-seven month sentence is substantively unreasonable,

Mr. Perez-Cruz endeavors to appeal that sentence.



                                   DISCUSSION

      We review all federal sentences under a deferential abuse-of-discretion

standard, assessing whether the sentence was procedurally and substantively

reasonable. Mr. Perez-Cruz claims only that his sentence is substantively

unreasonable. “[S]ubstantive reasonableness addresses 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).” United States v. Huckins, 529 F.3d

1312, 1317 (10th Cir. 2008) (internal quotation marks omitted). On appeal, we

presume a sentence within the properly calculated guideline range to be

reasonable. United States v. Kristl, 437 F.3d 1050, 1055 (10th Cir. 2006) (per

curiam).




                                         -4-
      Mr. Perez-Cruz concedes that any challenge to his sentence as substantively

unreasonable is barred by the invited-error rule of United States v. Mancera-

Perez, 505 F.3d 1054 (10th Cir. 2007). In that case, we held:

      When the appellate argument for a lower sentence was not raised at
      any time before the district court, and when, to the contrary, the
      defendant affirmatively endorses the appropriateness of the length of
      the sentence before the district court, we conclude that, if there was
      error, it was invited and waived.

Id. at 1059. That is precisely what happened in this case. Mr. Perez-Cruz does

not argue to the contrary. Accordingly, since the argument Mr. Perez-Cruz seeks

to make was waived, we dismiss this appeal.



                                 CONCLUSION

      For the foregoing reasons, we DISMISS this appeal.

                                              ENTERED FOR THE COURT


                                              Stephen H. Anderson
                                              Circuit Judge




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