UNITED STATES COURT OF APPEALS TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff–Appellee,

v. HUGO NUNEZ-TOVAR, Defendant–Appellant. No. 12-6192 (D.C. No. 5:11- CR-00203-D-1) (W.D. Okla.)

ORDER AND JUDGMENT *

Before LUCERO , O’BRIEN , and MATHESON , Circuit Judges.

Hugo Nunez-Tovar appeals his within-Guidelines sentence, arguing it was substantively unreasonable. Exercising juri sdiction under 28 U.S.C. § 1291, we affirm.

I In September 2009, Nunez-Tovar pled gu ilty in Oklahoma state court to four

* After examining appellant’s brief and the appellate record, this panel has determined unanimously that oral argument wo uld not materially assi st the determination of this appeal. See Fed. R. App. P. 34(a )(2) and 10th Cir. R. 34 .1(G). The case is therefore ordered submitted without oral argu ment. This order and judgment is not binding precedent, except under the doctri nes of law of the case, res judicata, and collateral estoppel.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. FILED United States Court of Appeals Tenth Circuit 

### January 31, 2013

Elisabeth A. Shumaker Clerk of Court- 2- charges, including possession of a controlle d substance and assa ult and battery on a police officer. He was sentenced to ten y ears’ incarceration. In December 2009, immigration officials determined that Nunez- Tovar was an aggravated felon present in the United States illegally. He subsequently pled guilty to illegal reentry by a removed alien and aggravated felon, a violati on of 8 U.S.C. § 13 26(a) and (b)(2). Nunez-Tovar’s pre-sentence investigation report (“PSR”) noted that he had been

removed five times and ha d committed numerous crimes after illegally entering the United States. In some instances, Nunez-Tova r was arrested in this country less than a year after having been removed. The PSR calculated an advisory Guidelines range of seventy-seven to ninety-six months’ imprisonment. At his sentencing hearing, Nunez-Tovar requested that the court consider a belowGuidelines sentence, noting his age, his si gnificant eye problems, and the delay in bringing the illegal reentry char ge against him. The district court imposed a sentence of seventy-seven months’ imprisonment, the low end of the recommended Guidelines range. Nunez-Tovar timely appealed.

II On appeal, Nunez-Tovar does not challenge the manner in which his sentence was calculated, but contends that the sentence is substantively unreasonable. We review the

substantive reasonableness of a sentence under an abuse-of-discretion standard. See Gall v. United States, 552 U.S. 38, 51 (2007); Unite d States v. Montgome ry, 550 F.3d 1229,- 3- 1233 (10th Cir. 2008). “A district court abus es its discretion when it renders a judgment that is arbitrary, capricious, whimsical, or manifestly unreasonable.” United States v. Friedman, 554 F.3d 1301, 13 07 (10th Cir. 2009) (quotation omitted). “If the district court correctly calculates th e Guidelines range based up on the facts and imposes [a] sentence within that range, the sentence is en titled to a presumption of reasonableness.” United States v. Sutton, 520 F.3d 1259, 1262 (10th Ci r. 2008) (citation omitted). Nunez-Tovar asserts three arguments. Fi rst, he contends that one of the sentencing factors, the nature of the offens e and the history and characteristics of the offender, 18 U.S.C. § 3553(a)(1 ), supports a downward variance. In particular, he argues that illegal reentry is a “status” offense, a nd that the majority of his prior convictions occurred several decades ago. However, th is Court has consistently rejected the argument that illegal reentry is a non-serious offense meriting a reduced sentence. See

United States v. Martinez-Ba rragan, 545 F.3d 894, 905 ( 10th Cir. 2008). Nunez-Tovar also claims that the government’s delay in bringing charges shou ld have been given greater weight under § 3553(a )(1). Although a district court may consider a delay in bringing charges in varying downward, its failure to do so does not render a sentence unreasonable. Cf. United States v. Sinks, 473 F.3d 1315, 1322 (10th Cir. 2007). Second, Nunez-Tovar argues that a below- Guidelines sentence would achieve the statutory objectives of § 3553(a) because hi s age, poor health, and the time left on his state sentence are all likely deterrents to him committing fu ture crimes. He further- 4- alleges that he will not pose a danger to th e public because he will be removed after

release. Given Nunez-Tovar’s sustained, consistent record of illegal reentry and recidivism, we disagree that this sentencing factor warrants a downward variance. See United States v. Reyes-Al fonso, 653 F.3d 1137, 1145 (10th Cir. 2011). Finally, Nunez-Tovar claims that a lower se ntence is necessary to prevent sentence disparities. See § 3553(a)(6). He contends that, compared to defendants convicted of

other crimes within the same sentencing range, he will suffe r stricter circumstances of confinement because of his immigration st atus. However, the unwarranted disparities

that the statute seeks to avoid are those “amo ng defendants with sim ilar records who have been found guilty of similar conduct.” Id. Nunez-Tovar does not argue that he alone among illegal reentry offenders is subject to the discrepancies he notes. Accordingly, this argument also fails.

III

AFFIRMED

.

Entered for the Court

Carlos F. Lucero Circuit Judge