                                                           FILED
                                               United States Court of Appeals
                UNITED STATES COURT OF APPEALS         Tenth Circuit

                       FOR THE TENTH CIRCUIT                      February 19, 2016
                       _________________________________
                                                                 Elisabeth A. Shumaker
                                                                     Clerk of Court
UNITED STATES OF AMERICA,

       Plaintiff-Appellee,

v.                                                 No. 15-6063
                                           (D.C. No. 5:14-CR-00205-F-1)
RODRIGO BATREZ-BARRAZA,                            (W.D. Okla.)

       Defendant-Appellant.
                     _________________________________

                       ORDER AND JUDGMENT *
                       _________________________________

Before BACHARACH, O’BRIEN, and PHILLIPS, Circuit Judges.
                 _________________________________


      Mr. Rodrigo Batrez-Barraza pleaded guilty to illegal reentry

following removal. See 8 U.S.C. § 1326(b)(2). For this conviction, the

district court imposed a prison sentence of 77 months. Mr. Batrez-Barraza

appeals, contending that his sentence is unreasonable. We affirm.




*
      The parties have not requested oral argument, and we do not believe
it would materially aid our consideration of the appeal. See Fed. R. App. P.
34(a)(2); 10th Cir. R. 34.1(G). Thus, we have decided the appeal based on
the briefs.

      This order and judgment does not constitute binding precedent except
under the doctrines of law of the case, res judicata, and collateral estoppel.
But our order and judgment may be cited for its persuasive value under
Fed. R. App. P. 32.1(a) and 10th Cir. R. 32.1(A).
I.   Mr. Batrez-Barraza had a substantial criminal history.

     Mr. Batrez-Barraza admits that he was apprehended five times

between 2001 and 2004 for trying to illegally enter the United States.

Further attempts to illegally enter led to three orders of removal in 2008,

2010, and 2013.

     Mr. Batrez-Barraza’s criminal history includes not only illegal entry

but also convictions for leaving the scene of an accident, possession of

methamphetamine, possession of cocaine, possession of a sawed-off

shotgun, concealment of stolen property, possession of drug paraphernalia,

obstruction of a police officer, and possession of a firearm after conviction

of a felony. Based on this criminal history, the sentencing guidelines called

for a prison term ranging from 77 to 96 months.

     Mr. Batrez-Barraza asked the district court to impose a sentence

below the guideline range. The district court declined, focusing on the

need for incapacitation:

           I agree that a guideline sentence is not necessary for
     deterrence purposes, but I do conclude that a guideline
     sentence is necessary for incapacitation purposes. The fact of
     the matter is that this defendant is one of the -- certainly one of
     the more persistent illegal returners that I have had before me
     and he is one of the more persistent violators of the criminal
     law when he is in the United States.
           And for that reason, I am very wary of any suggestion
     that he will not return yet again to the United States once he is
     released. And I’m certainly very skeptical of any suggestion
     that he will not reoffend once he returns.


                                      2
            I think for deterrence purposes a sentence below the
      guidelines would be all that would be called for. But I do
      conclude, mindful of my obligation to impose a sentence that is
      sufficient but not greater than necessary to achieve the
      statutory objectives of sentencing, that the public interest in
      incapacitation compels, under the advisory guidelines and
      under all the [18 U.S.C.] Section 3553 factors that I’m required
      to consider, a sentence within the guideline range.
R. vol. 3, at 18-19. With this explanation, the court imposed a 77-month

sentence, which was at the bottom of the guideline range.

II.   The sentence was not unreasonable.

      Mr. Batrez-Barraza challenges the sentence as procedurally and

substantively unreasonable. We reject these challenges.

      A.    We apply the abuse-of-discretion standard to determine
            whether the sentence was procedurally or substantively
            unreasonable.

      We review these challenges under the abuse-of-discretion standard.

United States v. Lopez-Macias, 661 F.3d 485, 489 (10th Cir. 2011). The

sentence is procedurally unreasonable if it was not adequately explained.

Id. And the sentence is substantively unreasonable only if it is “‘arbitrary,

capricious, whimsical, or manifestly unreasonable.’” United States v.

Sayad, 589 F.3d 1110, 1116 (10th Cir. 2009) (quoting United States v.

Friedman, 554 F.3d 1301, 1307 (10th Cir. 2009)).

      B.    The sentence is not procedurally unreasonable.

      Mr. Batrez-Barraza argues that the district court inconsistently

analyzed deterrence and incapacitation. The court acknowledged that a


                                      3
sentence below the guidelines would provide adequate deterrence but

added that a guideline sentence was necessary to protect the public by

incapacitating Mr. Batrez-Barraza. On appeal, Mr. Batrez-Barraza wonders

how the public would be threatened if a sentence below the guidelines

would provide adequate deterrence.

      In our view, the perceived inconsistency would not render the

sentence procedurally unreasonable, for the district court could rationally

consider incapacitation as valuable even if a milder sentence would have

served as an effective deterrent.

      Mr. Batrez-Barraza assumes that incapacitation is necessary only if

the defendant would not otherwise be deterred. But even if a milder

sentence could serve as a deterrent, the court could reasonably perceive a

need for further protection through incapacitation. See, e.g., United States

v. Molina, 563 F.3d 676, 679 (8th Cir. 2009) (recognizing that predominant

weight may be placed on the need for incapacitation); United States v.

Tucker, 473 F.3d 556, 562 (4th Cir. 2007) (same). Thus, the court could

rationally consider a guideline sentence necessary for incapacitation even

if unnecessary for deterrence.

      Mr. Batrez-Barraza argues not only that the district court engaged in

inconsistent reasoning, but also that the court erred by considering his

convictions for possession of a sawed-off shotgun, possession of

methamphetamine, and obstruction of a police officer.

                                      4
     With respect to the sawed-off shotgun, the district court acted in its

discretion by treating the shotgun as a vicious instrument for killing

people. See United States v. Dwyer, 245 F.3d 1168, 1172 (10th Cir. 2001)

(citing cases recognizing sawed-off shotguns as “weapons deemed to be

particularly dangerous”). Mr. Batrez-Barraza argues that the district court

ignored evidence that the gun was unloaded and that he had no ammunition

when he was arrested. But the court concluded that Mr. Batrez-Barraza’s

possession of a sawed-off shotgun created a public danger even if

unequipped for immediate use.

     The district court also reasoned that Mr. Batrez-Barraza had not

learned from his past convictions, which included a conviction for

obstruction. Mr. Batrez-Barraza emphasizes that the obstruction involved

only the use of a false name. But the district court could reasonably rely on

the entirety of Mr. Batrez-Barraza’s criminal history. That history included

not only obstruction, but also two separate firearm offenses. The criminal

history provided reasonable support for a 77-month sentence.

     C.    The sentence is not substantively unreasonable.

     Mr. Batrez-Barraza contends that the sentence imposed by the district

court is substantively unreasonable. We reject this contention.

     We rarely consider a sentence excessive when it falls within the

guidelines because guideline sentences are considered presumptively

reasonable. United States v. Craig, 808 F.3d 1249, 1261 (10th Cir. 2015).

                                      5
     Mr. Batrez-Barraza rebuts this presumption with four arguments:

     1.    Illegal reentry is not considered a serious crime.

     2.    The guidelines improperly count felony convictions twice and
           lack empirical support.

     3.    Mitigating circumstances exist.

     4.    The increase in punishment, over his last illegal reentry
           conviction, is too large.

We reject these arguments.

     First, Mr. Batrez-Barraza insists the guideline range is too severe for

illegal reentry, a mere “status” offense involving no particular victim and

implicating no evil intent. But “[w]e have consistently observed that

reentry of an ex-felon is a serious offense.” United States v. Martinez-

Barragan, 545 F.3d 894, 905 (10th Cir. 2008).

     Second, Mr. Batrez-Barraza argues that prior felony convictions are

counted twice and that the guidelines’ treatment of criminal history is

lacking in empirical support. We have rejected these arguments. See United

States v. Ruiz-Terrazas, 477 F.3d 1196, 1204 (10th Cir. 2007) (double

counting); United States v. Alvarez-Bernabe, 626 F.3d 1161, 1165-66 (10th

Cir. 2010) (absence of empirical support).

     Third, Mr. Batrez-Barraza mentions circumstances he considers

mitigating, such as (1) his intent to work in a lawful occupation to support

his family in Mexico, (2) his relatively lenient 179-day sentence in 2009

for misdemeanor illegal entry, and (3) his positive qualities and abuse and

                                      6
kidnapping in his youth. 1 United States v. Martinez-Barragan, 545 F.3d

894, 905 (10th Cir. 2008). These passing comments do not suggest an

abuse of discretion.

      Fourth, Mr. Batrez-Barraza contends that the large difference

between the 179-day sentence for his earlier illegal-entry conviction and

the 77-month sentence imposed here for illegal reentry constitutes an

unreasonable escalation in punishment. We disagree because

           the court could reasonably stiffen the punishment based on Mr.
            Batrez-Barraza’s prior acts of recidivism, 2

           the first sentence involved only misdemeanor illegal entry,
            while the second involved felony illegal reentry following
            removal after a qualifying felony (firearm) conviction, and

           Mr. Batrez-Barraza was convicted of additional drug and
            firearm offenses in the interim.

Any comparison to the relatively lenient sentence for the initial illegal-

entry conviction does not render the later sentence substantively

unreasonable.




1
     Mr. Batrez-Barraza provides no record citations for these mitigating
experiences.
2
      United States v. Rodriquez, 553 U.S. 377, 385 (2008).
                                      7
III.   Disposition

       We affirm.



                     Entered for the Court



                     Robert E. Bacharach
                     Circuit Judge




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