UNITED STATES CO URT 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 aggr avated felony convicti on in violation of 8 U.S.C. §§ 1326(a)(1) and (b)(2). He argue s his sentence is procedurally and substantively unreasonable and seeks a re duction 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 submitte d for decision on the briefs. This order and judgment is an unpublishe d decision, not binding precedent. 10th Cir. R. 32.1(A). Citation to unpublished decisions is not prohibited.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 Unpublished decisions may also be cited for their persuasive value. 10th Cir. R. 32.1(A).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B (unpublished).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 

### November 3, 2010
Elisabeth A. Shumaker Clerk of Court- 2 - I. BACKGROUND Piñon-Medina pled guilty to illegal reentry after re moval subsequent to an aggravated felony conviction. The presentence investigation report (PSR) calculated Piñon-Medina’s total offense level to be 13, w ith a base offense level of 8, an 8-level enhancement for his aggravated felony convi ction 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-Medi na accepted the PSR’s calculations but asked the district court to vary downward from the guide line 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 th e 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 Piño n-Medina to 41 months in prison.
II. DISCUSSION Piñon-Medina complains his sentence is procedurally and substantively unreasonable, prompting a deferentia l abuse of discretion standard. United States v.
Smart , 518 F.3d 800, 802 (10th Cir. 2008).
A. Procedural Unreasonableness We first determine whether the senten ce was procedurally reasonable. Id. at 804.

1 The PSR was based on the 2009 edition of the sentencing guidelines.- 3 - “Procedural reasonableness addresses whether th e district court incorrectly calculated or failed to calculate the Guidelin es sentence, treated the Guide lines as mandatory, failed to consider the § 3553(a) factors, relied on clea rly 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 ra ised a nonfrivolous argum ent that the § 3553(a) factors warrant a below-Guidelines se ntence 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 cour t need not address each argument separately on the record but must provide adequate explanation for the se ntence it eventually imposes. United States v. Jarillo-Luna , 478 F.3d 1226, 1229-3 0 (10th Cir. 2007). [W]hen a judge decide s simply to apply the Guidelines to a particular case, doing so will not necessarily require le ngthy 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 ot her congressional mandates) in the typical case, and that the j udge 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 cons ider 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 ad equate reasons for reje cting [his] non-frivolous factors for a reduction in sentence.” (Appella nt’s Br. at 6.) We need not determine whether Piñon-Medina’s argument is frivolous b ecause the record show s the district court- 4 - specifically considered the nature of the ag gravated 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 o ffense level is 13. The defendant’s criminal history category is VI. Unde r the guidelines, that’s a range of 33 to 41 months. I note the defendant re entered 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 so me 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 Colo rado. 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 constitu tes, under the guidelines definition, a crime of violence. But still, oftentim es, particularly on the burglaries of a dwelling and the property crimes a nd 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 senten ce is substantively unreasonable. “[S]ubstantive reasonableness ad dresses whether the length of the sentence is reasonable given all the circumstances of the case in light of the factors set fo rth in 18 U.S.C. § 3553(a).” Huckins , 529 F.3d at 1317 (internal qu otation marks omitted). “[I]n many cases there will be a range of possible outco mes the facts and law at issue can fairly- 5 - support; rather than pick and choose among them ourselves, we will defer to the district court’s judgment so long as it fa lls 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 calculat ed guideline range to be reasonable. United States v. Kristl , 437 F.3d 1050, 1055 (10th Cir. 2006). Piñon-Medina argues his within-guideline se ntence is substantively unreasonable because he was not engaged in criminal activ ity (other than illegal presence) at the time he was arrested, the crime used to enhance hi s sentence was merely the theft of a $30.00 radio, 2 defendants with similar histories were se ntenced at the low end of the calculated guideline ranges for their offenses and his cr iminal history was overrepresented by the guideline calculation. In support of his argu ment, Piñon-Medina cites a number of cases in which we upheld sentences at the lo wer 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) (uphol ding 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. 20 07) (finding no plain error in a sentence of 46 months for the same offens e with a calculated guid eline 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 enhan ce 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 apar tment complex and stole a radio valued at approximately $30.00.- 6 - 2006) (unpublished) (finding reasonable a sent ence of 30 months where the guideline range for the same offense was 30-37 months). Notably, two of the sentences Piñon-Medi na cites for the proposition his sentence creates the appearance of disp arity exceed the sentence in this case. Although we have concluded a reduction of a sent ence 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 th e 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 cour t considered varying upward from the guideline range because his cr iminal history incl uded ten misdemeanor convictions and seven felonies, some of which were not fact ored into his sentence calculation under the Guidelines: So I gave close consideration to sent encing above the gu idelines 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 suffici ent 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, a nd 26 resulted in no crimin al 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.- 7 - 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 un der 18 U.S.C. § 3582(c)(2) 3 because application of the 2010 amendments to the sent encing guidelines would result in a lower sentence. He argues the 2010 amendments el iminate U.S.S.G. §4A1.1(e), a provision that resulted in two points being added to his criminal hi story, and modified §5H1.4 to permit a downward departure based on dr ug or alcohol dependence. We do not decide whether Piñon-Medina will be eligible for a sent ence reduction based on th e 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 discre tion for the district court. United States v. Ivy , 83 F.3d 1266, 1296 (10th Cir. 1996). Th e proper vehicle for this challenge, once the amendments take effect, would be to file a motion in the district cour t 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 be en lowered by the Sentencing Commission.- 8 - AFFIRMED. Entered by the Court: Terrence L. O’Brien United States Circuit Judge