UNITED STATES CO URT OF APPEALS TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff - Appellee,

v. DANIEL RODRIGUEZ-CASTENERA, Defendant - Appellant. No. 09-4033 (D. Utah) (D.C. No. 2:08-CR-00397-DAK-1)

ORDER AND JUDGMENT *

Before BRISCOE , Chief Circuit Judge, TACHA , and O'BRIEN , Circuit Judges.
The parties have waived oral argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). This case is submitte d for decision on the briefs. Daniel Rodriguez-Castenera pled guilty to possession of heroin with intent to distribute and was sentenced to 70 months imprisonment, at the low end of the advisory guideline range. He appeals from his sentence cl aiming it is substan tively unreasonable. We affirm.

* This order and judgment is an unpublis hed decision, not binding precedent. 10th Cir. R. 32.1(A). Citation to unpublished decisions is not prohibited. Fed. R. App. 32.1. It is appropriate as it relates to law of th e case, issue preclusion and claim preclusion. Unpublished decisions may also be cited for their persuasive value. 10th Cir. R. 32.1(A). Citation to an order and judgment must be accompanied by an appropriate parenthetical notation

B (unpublished). Id

. FILED United States Court of Appeals Tenth Circuit 

### June 28, 2010
Elisabeth A. Shumaker Clerk of Court- 2 - I. BACKGROUND In May 2008, the Drug Enfo rcement Administration (DEA) began an investigation into Rodriguez-Castenera’s ac tivities. Over the course of less than three weeks, a confidential informant assisted DEA agents in four contro lled purchases of cocaine and heroin from the organization with which Rodr iguez-Castenera was involved. On each occasion, Rodriguez-Castenera delivered the drugs to the agents. On May 29, 2008, agents arrested Rodriguez-Castenera along with another individual, seizing hundreds of balloons containing heroin and cocaine. Agen ts seized additional heroin from RodriguezCastenera’s residence. Laboratory testing re vealed 1,568 grams of heroin and 66 grams of cocaine were seized. Rodriguez-Castenera was charged with on e count of possessing with intent to distribute one kilogram or more of heroin in violation of 21 U.S.C. § 841(a)(1). 1 He pled guilty pursuant to a written pl ea agreement. During his presentence interview, he explained he had come to the United States fr om Mexico only weeks be fore his arrest and had become involved in trafficki ng drugs in order to make money. Prior to sentencing, a probation office r prepared a presentence report (PSR). 2 The probation officer determined Rodriguez-Cast enera’s total offense level was 27, after including a two-level reduction under the sa fety-valve provision, USSG §5C1.2, and a three-level reduction for acceptance of resp onsibility, USSG §3E1.1. Based on this

1 Rodriguez-Castenera was charged only w ith the heroin seized from his residence.

2 The probation officer used th e 2007 edition of the guidelines.- 3 - offense level and a criminal history categor y of I, the probation officer calculated the guideline range to be 70 to 87 months impr isonment—he received a substantially reduced sentence because he qualified for safety valve relief. 3 The probation officer did not identify factors warranting an up ward or downward departure. Rodriguez-Castenera requested a two-leve l reduction in his base offense pursuant to USSG §3B1.2(b ) because he “was less culpable th an those who had been involved in the [drug trafficking] scheme prior to his arrival, and those who organized and oversaw the scheme.” (R. Vol. I at 37.) He did not assert he was a minor participant, but claimed he “did not act independ ently at any time.” ( Id .) He also requested a four-level reduction based on aberrant conduct pursuant to USSG §5 K2.2. He claimed he was entitled to this reduction because his criminal conduct in th e United States “was a marked deviation from his life that had been, up [to] that point, law abiding.” ( Id. at 38.) Alternatively, he requested a sentence of 36 months imprisonm ent in consideration of the 18 U.S.C. § 3553(a) sentencing factors—specifically, hi s “history of stable employment and lawabiding character” and “the fact that this is his first and only criminal offense.” ( Id. at 40.) At sentencing , the judge acknowledged R odriguez-Castenera entered the United States only nineteen days prio r to his arrest, but stated: “H e still managed to get quite a bit done that ought not to ha ve been done in 19 days.” (R. Vol. III at 7.) He said

3 The statute provides for a minimum sentence of ten years imprisonment unless the defendant qualifies for safety valve relief pursuant to 18 U.S.C. § 3553(f)(1)-(5). See 21 U.S.C. § 841(b)(1)(A).- 4 - Rodriguez-Castenera “would have a better argument there if it were one or two [controlled purchases], rather than four plus.” ( Id. at 9.) The government argued Rodriguez-Castenera was not entitled to a reduc tion on account of his role in the offense or for aberrant behavior. It argued Rodrig uez-Castenera’s arguments were taken into account by the safety valve relief. Speaking on his own behalf, Rodriguez-Castenera apologized for his conduct and asked for “t he least amount of time possible.” ( Id. at 17.) The court imposed a sentence of 70 months imprisonment. The judge explained: I’m troubled by the amount of activity th at . . . occurred in 19 days, if it was just 19 days, and the volume is troubl esome as well. I think, in this instance, the safety valve is all that ’s warranted, so I’m going to give him the low end of the [guideline range]. Id. at 17-18.
II. DISCUSSION Rodriguez-Castenera raises only one issue on appeal—he contends his sentence is substantively unreasonable. We review th e substantive reasonableness of a sentence under an “abuse-of-discretion standard.” United States v. Sells , 541 F.3d 1227, 1237 (10th Cir. 2008), cert. denied , S. Ct. 139 (2009). A se ntence is substantively unreasonable “if the court exc eeded 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) (quotations omitted). Where, as here, the sentence is within the properly calculated guideline range, there is a presumption of reasonableness. See United States v. Kristl , 437 F.3d 1050, 1054 (10th Cir. 2006). This presumpti on can be rebutted if the defendant shows the sentence imposed is unreas onable in light of the factors set forth at- 5 - 18 U.S.C. § 3553(a). See id. Rodriguez-Castenera cannot overcome th is presumption. He contends the sentence imposed was “greater than was necessary” because the court “fail[ed] to factor in [his] minor participation and aberra nt conduct in committing the offense.” (Appellant’s Br. at 8.) He relies principally on United States v. Munoz-Nava , 524 F.3d 1137 (10th Cir. 2008). In Munoz-Nava , the district court sent enced the defendant to a below-guidelines sentences in considerati on of the § 3553(a) sentencing factors—in particular, the defendant’s personal history and characteristics. Id. at 1142. On appeal, the government argued “the district court pl aced undue weight on [the defendant’s] family circumstances, which were neither dramatic nor unusual.” Id. at 1148. We concluded the sentence was substantively reas onable. We explained: “While this court could conclude a different result was re asonable, it is not for us to decide de novo whether the justification for a variance is sufficient or the sentence reasonable.” Id. at 1149 (quotations omitted). The same result is warranted here. The court could, perhaps, have imposed a below-guidelines sentence based on Rodri guez-Castenera’s role in the offense and apparent lack of criminal history, but its fa ilure to do so does not mean the sentence was substantively unreasonable. The sentence the court imposed, like the sentence in MunozNava , is both “reasoned and reasonable.” See id. Our role is “not [to] examine the weight a district court assigns to various § 3553(a) factors.” United States v. Smart , 518 F.3d 800, 808 (10th Cir. 2008).- 6 - AFFIRMED

. Entered by the Court: Terrence L. O’Brien United States Circuit Judge