                                                                       FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                                                                September 17, 2010
                    UNITED STATES COURT OF APPEALS
                                                 Elisabeth A. Shumaker
                                                                    Clerk of Court
                                 TENTH CIRCUIT


 UNITED STATES OF AMERICA,

               Plaintiff-Appellee,

          v.                                             No. 10-3036
                                              (D.C. No. 2:09-CR-20098-KHV-1)
 JUAN PABLO SERRANO,                                      (D. Kan.)

               Defendant-Appellant.


                           ORDER AND JUDGMENT *


Before KELLY, McKAY, and LUCERO, Circuit Judges.


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

determined unanimously to grant the parties’ request for a decision on the briefs

without oral argument. See Fed. R. App. P. 34(f).

      Defendant pled guilty to one count of re-entry after deportation subsequent

to a conviction for a felony in violation of 8 U.S.C. § 1326(a) and (b)(1). The

presentence report indicated a criminal history category of VI and a total offense

level of thirteen, based in part on an eight-level enhancement because Defendant



      *
        This order and judgment is not binding precedent, except under the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.
had previously been deported after conviction for an “aggravated felony,” as

defined by 8 U.S.C. § 1101(a)(43)(A). Based on this calculation, the presentence

report established an advisory guideline range of 33 to 41 months’ imprisonment.

Defendant moved for a downward variance, arguing that, because of the age of his

prior conviction, the court should apply a four-level enhancement rather than the

full eight-level enhancement. However, after considering this motion, the district

court ultimately varied upward by imposing a term of 60 months’ imprisonment.

On appeal, Defendant challenges both the procedural and substantive

reasonableness of his sentence. “[W]e review sentences for reasonableness under

a deferential abuse-of-discretion standard.” United States v. Alapizco-Valenzuela,

546 F.3d 1208, 1214 (10th Cir. 2008).

      A court may commit procedural error in imposing a sentence by “failing to

calculate (or improperly calculating) the Guideline range, treating the Guidelines

as mandatory, failing to consider the § 3553(a) factors, selecting a sentence based

on clearly erroneous facts, or failing to adequately explain the chosen sentence.”

Gall v. United States, 552 U.S. 38, 51 (2007). Defendant argues that the district

court erred by failing “to articulate . . . why the Guideline calculation did not

adequately protect the public or deter Mr. Serrano.” (Appellant’s Br. at 10-11.)

After a careful review of the record, we are not persuaded. In imposing an above-

guidelines sentence the court remarked that “[t]his is probably one of the most

egregious cases of this kind that I have ever seen,” and then specifically

                                          -2-
referenced the § 3553(a) factors and Defendant’s numerous illegal entries, his

record of repeated violations of the conditions of supervised release, and his long

record of arrests and general disrespect for the laws of the United States. (Doc.

38 at 15.) While a district court that relies on facts “already accounted for in the

advisory Guideline range” must “articulate[] specifically the reasons that this

particular defendant’s situation is different from the ordinary situation covered by

the guidelines calculation[, t]his explanation need not be overly detailed.”

Alapizco-Valenzuela, 546 F.3d at 1222-23 (first alteration in original) (internal

quotation marks and citation omitted). In light of the district court’s stated

reasons, we conclude that Defendant’s sentence is not procedurally unreasonable.

      Defendant next attacks the substantive reasonableness of his sentence.

Specifically, Defendant argues that the district court abused its discretion by not

varying downward based on the fact that Defendant’s conviction for unlawful

deprivation of a vehicle, an “aggravated felony” resulting in an eight-level

enhancement, was fifteen years prior to the date of sentencing. See United States

v. Amezcua-Vasquez, 567 F.3d 1050, 1055-58 (9th Cir. 2009) (holding that “the

district court abused its discretion when it applied the Guidelines sentence to

Amezcua without making allowances for the staleness of the prior conviction and

his subsequent lack of any other convictions for violent crimes”). We certainly

agree with Defendant that the staleness of a conviction may under certain

circumstances warrant a variance below the guidelines, especially where there is

                                          -3-
an absence of subsequent criminal conduct following the enhancement-triggering

conviction. See United States v. Chavez-Suarez, 597 F.3d 1137, 1138 (10th Cir.

2010); see also Amezcua-Vasquez, 567 F.3d at 1055. However, in place of a

clean record indicating that his “aggravated felony” conviction was part of a

reckless past left far behind, Defendant’s presentence report demonstrates a

continuous stream of police contact subsequent to the “aggravated felony”

conviction, including at least six arrests and an additional six active warrants for

various crimes ranging from continued immigration violations to assault and drug

offenses. As the district court noted, “[if] there was a clean record up until now,

we would be looking at an entirely different scenario”; nevertheless, based on the

record before us, we agree with the district court that Defendant’s conduct

demonstrates nothing but “an attitude of contempt for the American legal

system.” (Doc. 38 at 19.) Under such circumstances, we are not persuaded that

the sentence ultimately imposed by 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) (internal

quotation marks omitted). We therefore AFFIRM Defendant’s sentence.

                                                Entered for the Court



                                                Monroe G. McKay
                                                Circuit Judge


                                          -4-
