                                                                            FILED
                                                                United States Court of Appeals
                                                                        Tenth Circuit

                                                                     February 13, 2013
                      UNITED STATES COURT OF APPEALSElisabeth A. Shumaker
                                                                        Clerk of Court
                                     TENTH CIRCUIT


 UNITED STATES OF AMERICA,

               Plaintiff-Appellee,
                                                             No. 12-2098
 v.                                                (D.C. No. 2:11-CR-03079-MV-1)
                                                              (D. N.M.)
 JOSE LUIS CARRERA-DIAZ,

               Defendant-Appellant.


                              ORDER AND JUDGMENT*


Before BRISCOE, Chief Judge, McKAY and HOLMES, Circuit Judges.



       After examining the briefs and the 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). This case is therefore ordered

submitted without oral argument.

       Defendant Jose Luis Carrera-Diaz pled guilty to reentry after deportation in

violation of 8 U.S.C. § 1326(a) and (b), and was sentenced to thirty-six months’

imprisonment. Defendant now appeals, arguing the sentence imposed by the district court



       *
         This order and judgment is not binding precedent, except under the doctrines of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.
was substantively unreasonable.

       After Defendant pled guilty, a presentence investigation report was prepared and

submitted to the district court and parties. The PSR recommended a total offense level of

21, representing a base offense level of 8 pursuant to U.S.S.G. § 2L1.2(a), a 16-level

enhancement pursuant to U.S.S.G. § 2L1.2(b)(1)(A)(ii) because Defendant had previously

been deported following a felony sexual assault conviction, and a 3-level reduction for

acceptance of responsibility pursuant to U.S.S.G. § 3E1.1(a) and (b). The PSR calculated

Defendant as having four criminal history points based on his 2004 conviction for driving

while under the influence and his 2006 convictions for sexual assault and possession of a

controlled substance. As a result, the PSR recommended a criminal history category of

III. Together, the recommended total offense level and criminal history category resulted

in a guideline range of forty-six to fifty-seven months’ imprisonment.

       Defendant did not object to the PSR or dispute the accuracy of the guideline range

calculation. He did, however, request a substantial downward variance based on his

individual circumstances and the § 3553(a) sentencing factors. Specifically, Defendant

argued such a variance was warranted in light of the fact that his prior crimes were the

product of his former substance abuse, he had since stopped using drugs and alcohol and

had developed a strong spiritual faith, and the motivation for his return to the United

States had been to reunite with and provide for his family from whom he had been

separated for more than five years. During Defendant’s sentencing hearing, the district

court adopted the PSR’s sentencing calculations. However, considering Defendant’s

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argument, it concluded a “modest downward variance” was appropriate. (R. Vol. III at

19.) The district court sentenced Defendant to thirty-six months’ imprisonment—a ten-

month downward variance from the low end of the guideline range. Defendant appeals

the substantive reasonableness of this sentence.

       “‘When evaluating the substantive reasonableness of a sentence, we afford

substantial deference to the district court, and determine 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. Balbin-Mesa, 643 F.3d 783, 788 (10th

Cir. 2011) (quoting United States v. Alvarez-Bernabe, 626 F.3d 1161, 1167 (10th Cir.

2010)). If the sentence is within or below the correctly calculated guideline range, it “is

entitled to a rebuttable presumption of reasonableness on appeal” when “challenged by

the defendant as unreasonably harsh.” Id. (internal quotation marks omitted). “This is a

deferential standard that either the defendant or the government may rebut by

demonstrating that the sentence is unreasonable when viewed against the other factors

delineated in § 3553(a).” United States v. Kristl, 437 F.3d 1050, 1054 (10th Cir. 2006).

       Defendant challenges the substantive reasonableness of his sentence on two

grounds. First, he argues the below-guideline-range sentence should not be afforded the

presumption of reasonableness this court ordinarily applies to such sentences because,

“with respect to the reentry guidelines, the Sentencing Commission has not adequately

devised the guidelines based on empirical data and research in light of the sentencing

factors of § 3353(a).” (Appellant’s Opening Br. at 15.) Second, he argues that, in light of

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his “rehabilitation” (id. at 26), the “compelling reasons for [his] reentry and his family’s

profound need for his release,” (id. at 27) his three-year sentence is substantively

unreasonable. We reject both arguments.

       As we have previously explained, Defendant’s “first argument is effectively

foreclosed by existing Tenth Circuit precedent, which has consistently afforded a

presumption of reasonableness to within- [and below-]guidelines-sentences imposed in

illegal reentry cases.” United States v. Garcia, 355 F. App’x 151, 158 (10th Cir. 2009).1

“Thus, absent en banc reconsideration or a superseding contrary decision by the Supreme

Court, we are bound by the precedent of our prior panels, and must afford a presumption

of correctness to the [below]-guidelines sentence[] imposed by the district court in this

case.” Id. (internal quotation marks and citation omitted).

       Turning to Defendant’s second argument, after a thorough review of the record, it



       1
         Furthermore, in an unpublished opinion, we previously rejected the same
argument Defendant now makes. United States v. Tapia-Cortez, 327 F. App’x 793 (10th
Cir. 2009). We explained that “our presumption of reasonableness is based on the
purpose of promoting uniformity in sentencing, and is thus equally applicable in unlawful
reentry cases as in other contexts.” Id. (citation omitted). The Fourth and Fifth Circuits
have likewise rejected the argument that a within-guideline sentence should not be
afforded a presumption of reasonableness because the sixteen-level reentry enhancement
is not based on empirical data and research. United States v. Mendoza-Mendoza, 413 F.
App’x 600, 602 (4th Cir.) (per curiam), cert denied, 131 S. Ct. 3078 (2011) (“This
argument amounts to a policy attack on the applicable enhancement provision, and we
conclude it is without merit.”); United States v. Duarte, 569 F.3d 528, 529 (5th Cir. 2009)
(rejecting defendant’s request to “remove the presumption of reasonableness as to [the
sixteen-level reentry enhancement] and other allegedly non-empirically-grounded
provisions of the Guidelines”). Defendant does not cite to any circuit that has accepted
his argument.

                                             -4-
is clear the district court considered each of the grounds Defendant argues as a basis for a

“substantial” downward variance from the guideline range. Taking these arguments and

the § 3553(a) factors into account, the district court concluded that a “modest downward

variance” of ten months would “result in a sentence that is sufficient but not greater than

necessary to achieve the purposes of sentencing.” (R. Vol. III at 19.) We see nothing in

this determination that would constitute an abuse of discretion.

       For the foregoing reasons, the judgment of the district court is AFFIRMED.

                                                  Entered for the Court



                                                  Monroe G. McKay
                                                  Circuit Judge




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