UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

________________ _________________ UNITED STATES OF AMERICA, Plaintiff - Appellee,

v. PEDRO JOSE ROSALES-TRUJILLO, Defendant - Appellant.

––––––––––––––––––– –––––––––––––––– UNITED STATES OF AMERICA, Plaintiff - Appellee,

v. PEDRO ROSALES-TRUJILLO, Defendant - Appellant. No. 18-8023 (D.C. No. 1:17-CR-00256-ABJ-1) (D. Wyo.)

No. 18-8032 (D.C. No. 2:18-CR-00031-ABJ-1) (D. Wyo.)

________________ _________________ ORDER AND JUDGMENT *

________________ _________________ Before HARTZ , SEYMOUR , and HOLMES , Circuit Judges.

________________ _________________

* After examining the briefs and appellate record, this panel ha s determined unanimously to honor the parties’ request fo r a decision on the briefs with out oral argument. See Fed. R. App. P. 34(f); 10th Cir. R . 34.1(G). The case is there fore submitted without oral argument. This order and judgment is not binding precedent, ex cept under the doctrines of law of the case, res judicata , and collateral estoppel. It may be cited, however, for its persuasive value consistent w ith Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. FILED United States Court of Appeals Tenth Circuit 

### July 11, 2019
Elisabeth A. Shumaker Clerk of Court2 Defendant Pedro Jose Rosales-Tr ujillo appeals the 21-month sent ence imposed for his violation of the terms of h is supervised release. Exercisi ng jurisdiction under 28 U.S.C. § 1291, we affirm. His sentence was within the Sente ncing Guidelines policy statement, it is therefore presu med substantively reasonable, a nd Defendant has not overcome the presumption. Defendant, who was about 50 years old when sentenced, has an im pressive history of violating this na tion’s immigration laws. He was first orde red deported from the United States on July 28, 1989. S ince then, Defendant has neve r obtained, or even applied for, official consent fo r readmission to the United Sta tes. He has been deported 13 times, and in 1998, 2001, 2004, 2 010, and 2018, he was convi cted of illegal reentry after deportation. See 8 U.S.C. § 1326. F or his 2010 violation, t he United States Di strict Court for the Western District of Texas sentenced him to 77 mon ths’ imprisonment and three years’ supervised release . On July 6, 2016, Defendant’s term of supervised release commenced when he was released fro m custody and ordered deporte d from the United States. In June 2017, while still s ubject to the terms of his supervised release, Defendant was discovered in the United Stat es when he was arrested in Wyo ming for riding a train without a ticket. On January 17 , 2018, a jury in the United St ates District Court for the District of Wyoming found him g uilty of illegal reentry after d eportation. Before Defendant was sentenced, j urisdiction over his supervise d release was transferred from the Western Dist rict of Texas to the District of Wyoming. Defendant waived his right to a preliminary hearing, agreed to have the m atter disposed of at3 sentencing on his illegal-reentr y conviction, and admitted his illegal reentry in violation of the terms of his supervised release. For the illegal-reentry convicti on, the presentence report (PSR ) determined that Defendant’s total offense level was 12 and his criminal-history category was VI, which resulted in a guidelines range o f 30 to 37 months’ imprisonment . Because Defendant’s illegal reentry in 2017 was an o ffense punishable by a term of imprisonment exceeding one year, Defendant’s violation of the terms of his supervised release was a Grade B violation. See USSG § 7B1.1. Under the Unite d States Sentencing Commission sentencing policy for violation o f the terms of supervised rele ase, a Grade B violation with a criminal-history categor y of VI (at the time he was sent enced to supervised release in 2010, see USSG § 7B1.4(a)) results in a re commended imprisonment range o f 21 to 27 months. See USSG § 7B1.4. But t he maximum term for violating supervised r elease is 24 months if, as here, the origi nal conviction was for a Class C felony. See 18 U.S.C. § 3583(e)(3); id. § 3559(a)(3) (definition of Class C felony); 8 U.S.C. § 1326(b) (maximum penalties for viola tions of 8 U.S.C. § 1326(a)). At sentencing, Defendant’s couns el attempted to garner sympathy for him by arguing that the majority of his criminal history happened in t he 1990s and that in recent years his crimes were all tied to his “being ille gal and being impoverished.” R., Vol. III at 145. He requested that the district court sentence Defendan t to 7 months in prison for the supervised-release violation and a combined total sentence of 36 to 42 months. The district court declined the re quest. It recounted Defendant’s long criminal history dating back to the 1980s a nd including “convictions for possession of controlled substances,4 burglary, sale or transportation of marijuana, possession of ma rijuana for sale, unlawful taking of a vehicle, vehicle the ft, false identification to pol ice, second degree robbery, attempted burglary, illegal re-e ntry, attempted unauthorized us e of a motor vehicle, illegal re-entry and then after 2 000” a series of illegal-reent ry convictions. Id. at 151–52. The court also emphasized that Defendant had no significant rec ord of employment or apparent friends or family in the United States: Mr. Rosales blames the United St ates of America for his predica ment rather than acknowledging that he has some responsibility and is respo nsible for his situation. He does not hav e family or loved ones. And whe n in this country, probably due to his fe ar of coming to the attention of law enforcement no real direction o r purpose, other than riding the rails and moving from place to place. At so me point, the needs of the Un ited States have to be considered. Id. at 152. It concluded that in accordance with the factors enum erated in 18 U.S.C. § 3553(a), Defendant’s history “ should reflect a high-end sente nce.” Id. at 153. For the illegal reentry, the court sente nced him to 37 months’ imprison ment with no term of supervised release. In addition, it sentenced Defendant to 21 months’ imprisonment for violating his supervised release , to be served consecutively to the illegal-reentry

sentence. 1
Defendant claims that his 21-mont h revocation sentence is subst antively unreasonable. Substantive reason ableness “concerns whether the length of the sentence

1 Defendant does not contest that the district court may reason ably impose a consecutive sentence for a violation o f supervised release. See USSG § 7B1.3(f) (“Any term of imprisonment imposed upon the re vocation of probation or superv ised release shall be ordered to be served consecutive ly to any sentence of imprisonm ent that the defendant is serving . . . .”).5 is reasonable in light of the s tatutory factors under 18 U.S.C. § 3553(a).” United States v. Adams , 751 F.3d 1175, 1181 (10th Cir. 2 014). This pr oposition appli es to revocation of supervised release as well as in itial sentencing on a convictio n. See United States v. McBride , 633 F.3d 1229, 1231 (10th Cir. 2011) (“Before deciding whethe r to revoke a term of supervised release and de termining the sentence imposed after revocation, the district court must consider the factors set out in 18 U.S.C. § 3553(a)(1), (a)(2)(B), (a)(2)(C), (a)(2)(D), (a)(4), (a )(5), (a)(6), and (a)(7).” ) I n assessing a district court’s application of these factors, we apply a deferential abuse-of-d iscretion standard. See id

. at 1232. When imposing a sentence for a violation of the terms of sup ervised release, one of the statutory sentencing fact ors to be considered is “the ap plicable guidelines or policy statements issued by the Senten cing Commission.” 18 U.S.C. § 3 553(a)(4)(B). And we presume that “a revocation-of-sup ervised-release sentence withi n the range suggested by the Commission’s policy statements ” is substantively reasonable

. McBride , 633 F.3d at 1233. This presumption may be re butted “by demonstrating that the sentence is unreasonable in light of the other sentencing factors laid out in . . . § 3553(a).” Id. The presumption of reasonableness applies to Defendant’s senten ce. His sentence of 21 months’ imprisonment is a t the low end of the recommended 21–27 month range for a defendant who committed a Gr ade B offense and has a crimi nal-history category of
VI. See USSG § 7B1.4. Defendant has not rebutted the presumption of r easonableness. Indeed, given that he has been d eported 13 times and had previo usly violated a condition of supervised release prohibiting reentry into this country, on e could reasonably justify a6 sentence longer than that recommended by the policy statement. We are not persuaded by Defendant’s two arguments to the contrary. First, Defendant complains of a “disparity in punishments,” Ap lt. Br. at 17, because the Western District of T exas imposed a sentence of onl y seven months when he violated a prior condition of s upervised release by unlawfully entering the country. Cf. 18 U.S.C. § 3553 (a)(6) (court imposing sentence should consider “the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct”). We see two flaws in this argument. To begin with, substantive reasonableness can e ncompass a wide range of senten ces. As we have explained: [W] e recognize that in many cases there will be a range of possibl e outcomes the facts and law at iss ue can fairly support; rather than pick and choose among them our selves, we will defer to the dist rict court’s judgment so long as it fa lls within the realm of these rationally available choices. And there are perhaps few arenas where the range of rationally permissible choices is as large as it i s in sentencing, a task calling on a district court’s unique familia rity with the facts and circumstances of a case and its judgment in balan cing a host of incommensurate and disp arate considerations, ranging fr om the degree of the defendant's c ooperation and remorse to the ne ed for deterring potential future offenders. United States v. McComb , 519 F.3d 1049, 10 53–54 (10th Cir. 2007) (internal quotation marks omitted)) . Two sentences can both be reas onable even if one is signific antly longer than the other. Both a 7-month and a 21-mo nth sentence could b e substantively reasonable even if the circumsta nces were identical. A simple disparity in sentences, particularly when the challenge d sentence is within the range r ecommended by the sentencing commission, cannot su pport a claim of substantive un reasonableness. See7 United States v. Bartlett , 567 F.3d 901, 908 (7th Cir. 2009) (“A sentence within a properly ascertained range . . . ca nnot be treated as unreasona ble by reference to § 3553(a)(6).”). Further, we canno t accept Defendant’s assumpt ion that the Western District of Texas would decide t o impose a seven-month sentence for this second violation of the conditions of s upervised release. Just becaus e a court thinks that a particular sentence is appropriat e for disregarding the court’s first order hardly means that the same court would think the i dentical sentence is appropriat e for a second violation. Ordinarily, repeated violations are punished more harshly. Defendant’s second argument is t hat the penalty for a violation of supervised release is inappropriate becaus e the sentencing commission now recommends against imposing supervised release on t hose who will be deported after serving their sentences.
See USSG § 5D1.1(c). But the new po licy is not based on a view th at there is no need to punish recidivism by aliens. The rationale is that there is no real need for a separate proceeding to increase the puni shment by imposing a sentence fo r violating conditions of supervised release, since the c ourt can just impose a harsher s entence for the new violation itself. Cf. id. cmt. 5. Here, the district cour t simply imposed guidelines sentences for both the new offens e and the violation of supervi sed release, rather than increasing the sentence for the n ew violation because of Defend ant’s egregious recidivist history. In sum, we are not persuaded tha t Defendant has overcome the pr esumption of the reasonableness of his sentence.8 We AFFIRM Defendant’s sentence.

Entered for the Court

Harris L Hartz Circuit Judge