UNITED STATES COURT OF APPEALS 

TENTH CIRCUIT 

UNITED STATES OF AMERICA, 

 Plaintiff - Appellee, 

v. 

MIGUEL PIÑON-MEDINA, 

 Defendant - Appellant. 

No. 10-2081 

(D. N.M.) 

(D.C. No. 2:09-CR-03608-WJ-1) 

ORDER AND JUDGMENT*

Before BRISCOE, Chief Circuit Judge, TACHA, and O’BRIEN, Circuit Judges.

Miguel Piñon-Medina appeals from a 41-month sentence imposed for illegal 

reentry after removal subsequent to an aggravated felony conviction in violation of 8 

U.S.C. §§ 1326(a)(1) and (b)(2). He argues his sentence is procedurally and 

substantively unreasonable and seeks a reduction based on the 2010 amendments to the 

sentencing guidelines. We affirm.

 *

 The parties have waived oral argument. See Fed. R. App. P. 34(f); 10th Cir. R. 

34.1(G). This case is submitted for decision on the briefs. 

This order and judgment is an unpublished decision, not binding precedent. 10th 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 Citation to unpublished decisions is not prohibited.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 the 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Unpublished decisions may also be cited for their persuasive value. 10th Cir. R. 32.1(A).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notation B (unpublished).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 

November 3, 2010

Elisabeth A. Shumaker 

Clerk of Court
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I. BACKGROUND 

Piñon-Medina pled guilty to illegal reentry after removal subsequent to an 

aggravated felony conviction. The presentence investigation report (PSR) calculated 

Piñon-Medina’s total offense level to be 13, with a base offense level of 8, an 8-level 

enhancement for his aggravated felony conviction and a 3-level reduction for acceptance 

of responsibility.1

 His criminal history category was VI. The result was a guideline 

sentence range of 33 to 41 months imprisonment. 

At sentencing, Piñon-Medina accepted the PSR’s calculations but asked the 

district court to vary downward from the guideline range. Conceding his criminal history 

was “lengthy,” he asked the court to consider his substance abuse problems and the petty 

nature of most of his criminal acts. (R. Vol. 3 at 8.) In the alternative, he requested a 

sentence at the low end of the guideline range for the same reasons. The government 

argued for a sentence at the high end of the guideline range because of Piñon-Medina’s 

extensive criminal history and repeated removal from the country for immigration 

violations. The court sentenced Piñon-Medina to 41 months in prison. 

II. DISCUSSION 

Piñon-Medina complains his sentence is procedurally and substantively 

unreasonable, prompting a deferential abuse of discretion standard. United States v. 

Smart, 518 F.3d 800, 802 (10th Cir. 2008). 

A. Procedural Unreasonableness

We first determine whether the sentence was procedurally reasonable. Id. at 804. 

 1

 The PSR was based on the 2009 edition of the sentencing guidelines. 
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“Procedural reasonableness addresses whether the district court incorrectly calculated or 

failed to calculate the Guidelines sentence, treated the Guidelines as mandatory, failed to 

consider the § 3553(a) factors, relied on clearly erroneous facts, or failed to adequately 

explain the sentence.” United States v. Huckins, 529 F.3d 1312, 1317 (10th Cir. 2008). 

[W]here a defendant has raised a nonfrivolous argument that the § 3553(a) 

factors warrant a below-Guidelines sentence and has expressly requested 

such a sentence, we must be able to discern from the record that the 

sentencing judge did not rest on the guidelines alone, but considered 

whether the guidelines sentence actually conforms, in the circumstances, to 

the statutory factors. 

United States v. Sanchez-Juarez, 446 F.3d 1109, 1117 (10th Cir. 2006) (internal 

quotation marks omitted). The district court need not address each argument separately 

on the record but must provide adequate explanation for the sentence it eventually 

imposes. United States v. Jarillo-Luna, 478 F.3d 1226, 1229-30 (10th Cir. 2007). 

[W]hen a judge decides simply to apply the Guidelines to a particular case, 

doing so will not necessarily require lengthy explanation. Circumstances 

may well make clear that the judge rests his decision upon the 

Commission’s own reasoning that the Guidelines sentence is a proper 

sentence (in terms of § 3553(a) and other congressional mandates) in the 

typical case, and that the judge has found that the case before him is typical. 

United States v. Rita, 551 U.S. 338, 356-57 (2007). 

Piñon-Medina argues his sentence is procedurally unreasonable because the 

district court failed to consider the non-violent and relatively minor nature of the 

aggravated felony used to apply the 8-level enhancement to his base offense level. He 

claims the district court “failed to state adequate reasons for rejecting [his] non-frivolous 

factors for a reduction in sentence.” (Appellant’s Br. at 6.) We need not determine 

whether Piñon-Medina’s argument is frivolous because the record shows the district court 
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specifically considered the nature of the aggravated felony in reaching its sentencing 

decision. It said: 

I’ve reviewed the Presentence Report’s factual findings. I’ve considered 

the sentencing guideline applications and the sentencing factors of 18 

U.S.C. 3553(a)(1) through (7). The offense level is 13. The defendant’s 

criminal history category is VI. Under the guidelines, that’s a range of 33 

to 41 months. I note the defendant reentered the United States illegally 

subsequent to a prior aggravated felony conviction, that being burglary of a 

building. 

I looked at the defendant’s criminal history closely, because as [the 

prosecutor] knows, on some illegal reentry cases where defendants are in 

Category VI, I had rejected 11(c)(1)(C) plea agreements because the 

criminal history is off the charts. I looked closely at the defendant’s 

criminal history. He’s got, as I said earlier, felony convictions out of the 

State of Texas, New Mexico, and Colorado. I guess the State of Texas had 

enough or the judge in Harris County, because for the conviction in 

Paragraph 26, they gave him seven years’ custody in [sic] Texas 

Department of Corrections. 

I will -- I think, [defense counsel], you’re correct. There was not a crime of 

violence in there or a crime that constitutes, under the guidelines definition, 

a crime of violence. But still, oftentimes, particularly on the burglaries of a 

dwelling and the property crimes and the theft crimes, somebody’s being 

victimized. 

(R. Vol. 3 at 10-11.) 

 Piñon-Medina’s sentence is not procedurally unreasonable. 

B. Substantive Unreasonableness

Piñon-Medina also claims his sentence is substantively unreasonable. 

“[S]ubstantive reasonableness addresses whether the length of the sentence is reasonable 

given all the circumstances of the case in light of the factors set forth in 18 U.S.C. § 

3553(a).” Huckins, 529 F.3d at 1317 (internal quotation marks omitted). “[I]n many 

cases there will be a range of possible outcomes the facts and law at issue can fairly 
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support; rather than pick and choose among them ourselves, we will defer to the district 

court’s judgment so long as it falls within the realm of these rationally available choices.” 

United States v. McComb, 519 F.3d 1049, 1053 (10th Cir. 2007). On appeal we presume 

a sentence within the properly calculated guideline range to be reasonable. United States 

v. Kristl, 437 F.3d 1050, 1055 (10th Cir. 2006). 

Piñon-Medina argues his within-guideline sentence is substantively unreasonable 

because he was not engaged in criminal activity (other than illegal presence) at the time 

he was arrested, the crime used to enhance his sentence was merely the theft of a $30.00 

radio, 2 defendants with similar histories were sentenced at the low end of the calculated 

guideline ranges for their offenses and his criminal history was overrepresented by the 

guideline calculation. In support of his argument, Piñon-Medina cites a number of cases 

in which we upheld sentences at the lower end of the guideline range where the 

defendants were convicted of illegal reentry and their sentences were enhanced for prior 

aggravated felony convictions. See United States v. Torres-Leal, 365 Fed. Appx. 954, 

957 (10th Cir. 2010) (unpublished) (upholding a sentence of 46 months where the 

guideline range for the crime of illegal reentry after removal was 46-57 months); United 

States v. Mancera-Perez, 505 F.3d 1054, 1056 (10th Cir. 2007) (finding no plain error in 

a sentence of 46 months for the same offense with a calculated guideline range of 46-57 

months); and United States v. Murriega-Santos, 205 Fed. Appx. 703, 705-06 (10th Cir. 

 2

 The aggravated felony used to enhance Piñon-Medina’s sentence was a 2002 

conviction for burglary of a building in Texas. The PSR reflects that Piñon-Medina 

broke into the leasing office of an apartment complex and stole a radio valued at 

approximately $30.00. 
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2006) (unpublished) (finding reasonable a sentence of 30 months where the guideline 

range for the same offense was 30-37 months). 

Notably, two of the sentences Piñon-Medina cites for the proposition his sentence 

creates the appearance of disparity exceed the sentence in this case. Although we have 

concluded a reduction of a sentence because of the relatively minor nature of the 

aggravated felony used for enhancement was permissible, it is only one of many factors 

to be considered at sentencing and a whole range of sentences would be reasonable. In 

any event, the district court, as noted above, pointed out that Piñon-Medina’s aggravated 

felony was not as minor as he wished the court to believe and also rejected PiñonMedina’s argument that his criminal history category under the Guidelines 

overrepresented his criminal conduct. 

In fact, the transcript shows the court considered varying upward from the 

guideline range because his criminal history included ten misdemeanor convictions and 

seven felonies, some of which were not factored into his sentence calculation under the 

Guidelines: 

So I gave close consideration to sentencing above the guidelines pursuant 

to the authority that I have under Booker, but I decided that I was not going 

to do that and that I was going to impose a guideline sentence. But a 

sentence that I will find that is sufficient but not greater than necessary to 

satisfy the factors in Paragraph 2 of 18 U.S.C. 3553(a) and to achieve the 

goals of sentencing is a sentence on the high end, because, and as [the 

prosecutor] noted, four of the defendant’s felony convictions are 

Paragraphs 19, 24, 25, and 26 resulted in no criminal history points, and I 

suspect the overriding reason for that is because the conviction in 

Paragraph 26, he spent -- got seven years’ time in the Texas Department of 

Corrections. So as a result of sitting in prison in Texas for seven years, he 

timed out in terms of having any criminal history points on those 

convictions identified in Paragraphs 26, 25, and the earlier ones. 
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So I’m going to impose a sentence of 41 months’ custody in the Bureau of 

Prisons. 

(R. Vol. 3 at 11-12.) Piñon-Medina has failed to rebut the appellate presumption that his 

within-guideline sentence is reasonable. 

C. 18 U.S.C. § 3582(c)(2)

In an argument raised for the first time on appeal, Piñon-Medina asserts his 

sentence should be reduced under 18 U.S.C. § 3582(c)(2)3

 because application of the 

2010 amendments to the sentencing guidelines would result in a lower sentence. He 

argues the 2010 amendments eliminate U.S.S.G. §4A1.1(e), a provision that resulted in 

two points being added to his criminal history, and modified §5H1.4 to permit a 

downward departure based on drug or alcohol dependence. We do not decide whether 

Piñon-Medina will be eligible for a sentence reduction based on the 2010 amendments 

because those amendments are not currently in effect and will not take effect until 

November 1, 2010. See United States v. Richards, 5 F.3d 1369, 1372 n.1 (10th Cir. 

1993) (pending amendments do not affect decisions on appeal). A reduction under § 

3582(c)(2) is a matter of discretion for the district court. United States v. Ivy, 83 F.3d 

1266, 1296 (10th Cir. 1996). The proper vehicle for this challenge, once the amendments 

take effect, would be to file a motion in the district court requesting a sentence reduction 

under 18 U.S.C. § 3582(c)(2). 

 3

 18 U.S.C. § 3582(c)(2) allows a court to reduce a sentence of imprisonment if the 

sentence was based on a sentencing range that has subsequently been lowered by the 

Sentencing Commission. 
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AFFIRMED.

Entered by the Court: 

Terrence L. O’Brien 

United States Circuit Judge