                                                                         FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                                                                 February 16, 2011
                    UNITED STATES COURT OF APPEALS
                                                 Elisabeth A. Shumaker
                                                                    Clerk of Court
                                 TENTH CIRCUIT



 UNITED STATES OF AMERICA,

               Plaintiff - Appellee,                     No. 10-1289
          v.                                             (D. Colorado)
 DOMINGO FREDDIE VILLASENOR,                  (D.C. No. 1:10-CR-00037-PAB-1)

               Defendant - Appellant.


                            ORDER AND JUDGMENT *


Before LUCERO, ANDERSON, and GORSUCH, 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); 10 th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.

      Appellant Domingo Freddie Villasenor pled guilty to one count of being a

felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1), and one

count of possession of methamphetamine with intent to distribute, in violation of



      *
        This order and judgment is not binding precedent except under the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.
21 U.S.C. § 841(a)(1) and (b)(1)(C). He was sentenced to thirty-two months’

imprisonment. Arguing that his thirty-two month sentence is substantively

unreasonable, Mr. Villasenor appeals his sentence, which we affirm.



                                 BACKGROUND

      The plea agreement between the government and Mr. Villasenor stipulated

to the following relevant facts: On January 6, 2010, Pueblo, Colorado police

were patrolling the area around a bar known as Sammy’s Lounge, when a police

officer observed suspicious activity around a car. As the officer approached the

car, several people walked from the car into Sammy’s Lounge. Mr. Villasenor

remained inside the car, however, crouched down behind the front seat. When the

officer arrived at the car, Mr. Villasenor climbed over the front seat of the car,

exited through the front door and began walking away.

      When the officer caught up to Mr. Villasenor, the officer could smell a

strong odor of alcohol on Mr. Villasenor’s breath and noticed that he was acting

nervous. When the police officer asked Mr. Villasenor whether he had any drugs

or weapons with him, Mr. Villasenor responded, “No.” He did, however, permit

the officer to check his pockets, where the officer discovered 2.2 grams of

methamphetamine in a front pants pocket and a handgun holster in the pocket of

his coat. Another police officer looked into the car and saw a 9mm Keltee




                                         -2-
handgun in plain view on the backseat floor. Officers subsequently determined

that the gun was loaded.

      Mr. Villasenor was charged, as indicated, with possession of

methamphetamine with intent to distribute and possession of a firearm as a

previously convicted felon. His guilty plea followed.

      In preparation for sentencing under the advisory United States Sentencing

Commission, Guidelines Manual (“USSG”) (2009), the United States Probation

Officer prepared a presentence report (“PSR”). The PSR calculated Mr.

Villasenor’s base offense level as 14, and then added 4 levels as a “specific

offense characteristic” under USSG § 2K2.1(b)(6), for a total of 18. With a 3-

level reduction for acceptance of responsibility, Mr. Villasenor’s total adjusted

offense level was 15. Applying a criminal history category of IV, the PSR

calculated an advisory Guidelines sentencing range of thirty to thirty-seven

months’ imprisonment.

      The PSR recommended a thirty-month sentence for each count, to be served

concurrently. It noted, however, several factors which could warrant a non-

Guidelines sentence under 18 U.S.C. § 3553(a): while the offense of conviction

was “relatively simple in nature,” it was “troubling because [it was] the second

occasion where the defendant was arrested with methamphetamine and a firearm




                                         -3-
in his possession”; 1 Mr. Villasenor was appearing “before the Court at age 30 for

sentencing on his 15th adult conviction [and his prior convictions and sentences]

appear to have had no impact on the defendant’s behavior”; Mr. Villasenor’s

background and childhood were “disconcerting,” in that he witnessed drug use

and crimes and experienced “physical abuse and little stability” in his home; and

Mr. Villasenor “could benefit from substance abuse treatment, additional

education and/or vocational training.” PSR at ¶¶ 128-131, R. Vol. 1 at 22-23.

      Mr. Villasenor filed a motion for a downward departure and/or a variance

from the advisory Guidelines range. He argued that he was entitled to a departure

because, pursuant to USSG § 4A1.3(b)(1), his criminal history category IV over-

represented the seriousness of his actual prior record. Mr. Villasenor’s argument

here was that, with the exception of his prior felony possession of

methamphetamine offense that was very similar to the instant offense, the vast

majority of his prior offenses were minor. He claimed, alternatively, that he was

entitled to a downward variance in view of the sentencing factors of 18 U.S.C.

§ 3553(a). The government opposed the motion, and the probation department

disagreed with Mr. Villasenor’s argument for a departure based on the claim that

his criminal history was over-represented.



      1
       As discussed more fully below, Mr. Villasenor has an extensive criminal
history, including a conviction for possessing methamphetamine while also
possessing a firearm.

                                        -4-
      At sentencing, Mr. Villasenor addressed the court and made three specific

points in favor of a lower-than-Guidelines sentence. First, he informed the court

that, while incarcerated for the instant offense, he had obtained his GED. 2

Second, he told the court that, for the first time in his life, he had the support of

his family. Finally, he confessed that he was addicted to methamphetamine and

that he was ready and eager to participate in a rehabilitation program. He also

indicated that he was willing to have his tattoos removed as a part of his effort to

distance himself from his prior drug and crime-filled life.

      After adopting the factual findings of the PSR, the district court denied

Mr. Villasenor’s motion for a departure or a variance. Its explanation was as

follows:

      [T]he Court first of all finds that Category IV . . . does not
      overrepresent Mr. Villasenor’s criminal history. And that’s largely
      because of the fact that there are a lot of . . . convictions.

                                         ....

      [S]ince his becoming an adult, he has only really skipped 2008 in
      terms of receiving some type of a conviction. 2008 was a good year.
      He was paroled from his drug sentence . . . in January. His parole
      expired in September and he doesn’t have any arrests for the rest of
      that year. But otherwise his criminal history is characterized by a lot
      of different convictions, failing to appear, getting revocations of
      probation and generally not displaying a willingness to abide by
      either the law or orders of courts regarding his sentencing.



      2
       GED is the common term for a General Education Diploma, which is the
equivalent of a high school diploma.

                                          -5-
             So the Court doesn’t believe that the motion for downward
      departure is well grounded and for the exact same reasons the Court
      also doesn’t believe that a variant sentence is appropriate either
      because Mr. Villasenor, like his tattoos, can’t distance himself from
      his criminal history category.

Tr. of Sentencing at 15-16, R. Vol. 2 at 40-41.

      The court did, however, decide to sentence him “towards the bottom of the

[advisory Guidelines sentencing] range because . . . Mr. Villasenor has some

strong incentives in his life to get his act together.” Id. at 19, R. Vol. 2 at 44.

The court therefore sentenced Mr. Villasenor to thirty-two months on each count,

to be served concurrently, followed by three years of supervised release. This

appeal from his sentence followed.



                                    DISCUSSION

      Mr. Villasenor makes a single argument—that his thirty-two month

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 quotations marks

omitted). On appeal, we presume a sentence within the properly calculated

Guideline range to be reasonable. See United States v. Kristl, 437 F. 3d 1050,

1055 (10 th Cir. 2006) (per curiam). As the Supreme Court has noted, district

courts are “in a superior position to find facts and judge their import under

                                           -6-
§ 3553(a) in the individual case.” Gall v. United States, 552 U.S. 38, 51 (2007).

Accordingly, “as long as the balance struck by the district court among the factors

set out in § 3553(a) is not arbitrary, capricious, or manifestly unreasonable, we

must defer to that decision even if we would not have struck the same balance in

the first instance.” United States v. Sells, 541 F.3d 1227, 1239 (10 th Cir. 2008).

      Mr. Villasenor’s primary argument is that the court placed too much

emphasis on a negative incident in his past (his 2006 methamphetamine

conviction) and not enough emphasis on all of the positive aspects to Mr.

Villasenor’s past and his likelihood of repeating an offense. We disagree. While

the court acknowledged that many of Mr. Villasenor’s prior offenses were

misdemeanors, their negative impact was compounded by the fact that he often

missed court deadlines or failed to appear for scheduled appointments. Thus, as

the court stated, Mr. Villasenor demonstrated a persistent refusal “to abide by

either the law or orders of the court.” Tr. of Sentencing Hr’g at 16, R. Vol. 2 at

40. Furthermore, there were additional convictions in Mr. Villasenor’s past that

were not counted in calculating his criminal history. Finally, the court was

clearly troubled by Mr. Villasenor’s 2006 conviction for possession of

methamphetamine, as it was strikingly similar to the instant crime of conviction.




                                          -7-
      In sum, we cannot say that the district court’s selected sentence was

arbitrary, capricious or manifestly unreasonable, and Mr. Villasenor has failed to

overcome the presumption that the sentence is reasonable under the § 3553(a)

factors.



                                 CONCLUSION

      For the foregoing reasons, the sentence is AFFIRMED.

                                              ENTERED FOR THE COURT


                                              Stephen H. Anderson
                                              Circuit Judge




                                        -8-
