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 jurisdiction under 28 U.S.C. § 1291, we affirm.

I

 In September 2009, Nunez-Tovar pled guilty in Oklahoma state court to four 

 

* After examining appellant’s brief and the appellate record, this panel has 

determined unanimously that oral argument would not materially assist 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 argument. 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. 

FILED 

United States Court of Appeals 

Tenth Circuit 

January 31, 2013

Elisabeth A. Shumaker 

Clerk of Court
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charges, including possession of a controlled substance and assault and battery on a 

police officer. He was sentenced to ten years’ 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 violation of 8 U.S.C. § 1326(a) and (b)(2). 

 Nunez-Tovar’s pre-sentence investigation report (“PSR”) noted that he had been 

removed five times and had committed numerous crimes after illegally entering the 

United States. In some instances, Nunez-Tovar 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 significant eye problems, and the delay in 

bringing the illegal reentry charge 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); United States v. Montgomery, 550 F.3d 1229, 
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1233 (10th Cir. 2008). “A district court abuses its discretion when it renders a judgment 

that is arbitrary, capricious, whimsical, or manifestly unreasonable.” United States v. 

Friedman, 554 F.3d 1301, 1307 (10th Cir. 2009) (quotation omitted). “If the district 

court correctly calculates the Guidelines range based upon the facts and imposes [a] 

sentence within that range, the sentence is entitled to a presumption of reasonableness.” 

United States v. Sutton, 520 F.3d 1259, 1262 (10th Cir. 2008) (citation omitted). 

Nunez-Tovar asserts three arguments. First, he contends that one of the 

sentencing factors, the nature of the offense 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, and that the majority of his prior convictions 

occurred several decades ago. However, this Court has consistently rejected the 

argument that illegal reentry is a non-serious offense meriting a reduced sentence. See 

United States v. Martinez-Barragan, 545 F.3d 894, 905 (10th Cir. 2008). Nunez-Tovar 

also claims that the government’s delay in bringing charges should 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 his age, poor health, and the time left on his 

state sentence are all likely deterrents to him committing future crimes. He further 
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alleges that he will not pose a danger to the 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-Alfonso, 653 F.3d 1137, 1145 (10th Cir. 2011). 

Finally, Nunez-Tovar claims that a lower sentence 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 suffer stricter circumstances of 

confinement because of his immigration status. However, the unwarranted disparities 

that the statute seeks to avoid are those “among defendants with similar 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