UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

________________ _________________ UNITED STATES OF AMERICA, Plaintiff - Appellee,

v. JOSE RODOLFO CAMPOS-LUCAS, Defendant - Appellant. No. 15-1187 (D.C. No. 1:14-CR -00009-REB-1) (D. Colo.)

________________ _________________ ORDER AND JUDGMENT *

________________ _________________ Before HOLMES , MATHESON , and PHILLIPS , Circuit Judges.

________________ _________________ Jose Rodolfo Campos-Lucas pled guilty to illegally reentering the United States in violation of 8 U.S.C. § 1326(a). The district court sentenced him to 18 months in prison. Mr. Campos-Lucas appeals that senten ce. Exercising jurisdiction under 28 U.S.C. § 1291 and 18 U.S. C. § 3742(a), we affirm.

* After examining the briefs and appella te record, this panel has determined unanimously to honor the parties’ request for a decision on the briefs without oral argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore submitted without oral argument. This orde r and judgment is not binding precedent, except under the doctrines of law of the case, re s judicata, and collateral estoppel. It may be cited, however, for its persuasive value c onsistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. FILED United States Court of Appeals Tenth Circuit 

### December 9, 2015

Elisabeth A. Shumaker Clerk of Court- 2 - BACKGROUND I. In 2005, Mr. Campos-Lucas illegally entered the United St ates in violation of 8 U.S.C. § 1325. In 2010, he was discovered and removed. Later in 2010, Mr. CamposLucas illegally reentered the Unite d States in violation of 8 U.S.C. § 1326(a). He pled guilty and was sentenced to 90 days incarceration, to be followed by one year of supervised release. After serving hi s 90-day sentence, he was removed. In 2013, Mr. Campos-Lucas was arreste d in Colorado for driving without a license. While he was detained, Immig ration and Customs Enforcement lodged an immigration detainer against him for illegal reen try. In April 2014, in the District of Colorado, he pled guilty to illegally reentering the United St ates. He was sentenced to four months in prison a nd two years of supervised release, and was removed approximately one month after sentencing. The four-month sent ence was below the range of 8 to 14 months suggested by the U.S. Sentencing Guidelines Manual (“Guidelines”). His supervised release c onditions prohibited him from entering the United States illegally. In September 2014, Mr. Campos-Lucas wa s arrested in Arizona for illegal reentry. He pled guilty and was senten ced to 180 days incarceration. In February 2015, the U.S. Probation Office (“Probation”) petitioned to revok e his supervised releas e in the District

of Colorado based on the Arizon a conviction. In March 2 015, after serving his 180-day sentence, Mr. Campos-Lucas was arrested based upon Probation’s petition. In May 2015, the district court in Co lorado held a hearing on Probation’s petition to revoke supervised release. Before the hearing, Probati on prepared a violation report- 3 - and determined that, if Mr. Campos-Lucas ’s supervised releas e were revoked, his applicable Guidelines range would be 5 to 11 months base d on his Grade C violation of his supervised release conditio n not to enter the United States and his criminal history category of III. Probation recomm ended an 8-month sentence w ith no supervised release.

The Government recommended a sentence of 2 months, or time served, because Mr. Campos-Lucas had already served 180 days for the Arizona conviction. At the hearing, the district court revoke d Mr. Campos-Lucas’s supervised release and adopted Probation’s Guidelines calculation. The court then mentioned its April 2014 sentencing of Mr. Campos-Lucas where he promised not to return to the United States illegally and the district court imposed a sent ence below the Guidelines range. The court expressed concern that Mr. Campos -Lucas had broken his promise: This is a first in the experience of this Court to have a de fendant take such a position and make such a statement under oath only to reen ter within such a short period of time after that solemn promise and pledge. The conduct here represents and co nstitutes the ultimate expression of abject disrespect and contempt not only for our federal judicial system generally but this Cour t in particular. ROA, Vol. 5 at 17.

The court determined that M r. Campos-Lucas’s violation of the special condition not to reenter warranted a sentence above his Guidelines range: The failure of Mr. Campos to follow this simple but significant and serious Court ordered cond ition of supervised release constitutes an unwarranted and unexcused breach of trust whic h in these unique circumstances warrants severe punishment.

Id. at 18.- 4 - The district court then se ntenced Mr. Campos-Lucas to 18 months in prison— above the 5-11 month Guidelines range—and 15 months of supervised release.

DISCUSSION II. Mr. Campos-Lucas asserts his sentence is unreasonable. “[T]his Court reviews sentences for reasonableness, as informed by the 18 U.S.C. § 3553(a) sentencing factors.” United States v. Montgomery , 550 F.3d 1229, 1233 (10th Cir. 2008); see also Gall v.

United States , 552 U.S. 38, 51 (2007). This revie w can consist of two components: procedural and substa ntive reasonableness. See Montgomery , 550 F.3d at 1233

. On appeal, Mr. Campos-Lucas challenges only the substantive reasonableness of his

sentence. 1 We affirm.

We review a sentence’s substantive reas onableness for abuse of discretion, Gall , 552 U.S. at 51, assessing whether “the lengt h of the sentence is unreasonable given the totality of the circumstances,” United States v. Haley , 529 F.3d 1308, 1311 (10th Cir.

1 Mr. Campos-Lucas argues for the first time on appeal that the district court impermissibly relied at the sentencing hearing on “respect for the la w,” a factor found in 18 U.S.C. § 3553(a)(2), but which is not am ong the § 3553(a) factor s specified in 18 U.S.C. § 3583(e) for district c ourts to consider when determ ining a revocation sentence. A court’s reliance on an imperm issible sentencing factor wo uld be procedural error. See United States v. Smart , 518 F.3d 800, 80 3-04 (10th Cir. 20 08). But because Mr. CamposLucas did not specifically object on this ground in district court, he forfeited this argument; and because he does not argue for pl ain error review on app eal, he has waived it. See Richison v. Ernest Grp., Inc. , 634 F.3d 1123, 1131 (1 0th Cir. 2011) (“[T]he failure to argue for plain error and its applicat ion on appeal . . . su rely marks the end of the road for an argumen t for reversal not first presented to the district court.”).- 5 - 2008). “In many cases there will be a range of possible outcomes [that] the facts and law at issue can fairly 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 re alm of these rationally

available choices.” United States v. Reyes-Alfonso , 653 F.3d 1137, 1145 (10th Cir. 2011) (quotations and alterations omitted). After considering certain § 3553(a) factor s and the policy statements in Chapter 7 of the Sentencing Guidelines, a district court may revoke a term of supervised release and impose prison time. See U.S.C. § 3583(e)(3); United States v. Steele , 603 F.3d 803, 808 (10th Cir. 2010).

Unlike sentences that fall w ithin the recommended Guidelines range, Mr. CamposLucas’s sentence is not entitled to a presump tion of reasonableness because the 18-month

sentence exceeds the 5-11 mo nth Guidelines range. See United States v. Shaw , 471 F.3d 1136, 1140 (10th Cir. 2006) (holding because a district court’s sentencing determination “involved a nonguideline senten ce, . . . it was not entitled to such a presumption” of reasonableness). Even so, Mr. Campos-Lucas’s sentence “falls within the realm of . . . rationally available choices” and is th erefore substantively reasonable. Reyes-Alfonso , 653 F.3d at 1145 (quotations and alterations omitted). Mr. Campos-Lucas argues the district c ourt over-emphasized respect for the law and under-emphasized the applicable § 3553( a) factors, including the nature and circumstance of Mr. Campos-Lucas’s offense a nd his history and characteristics. This argument ignores the district court’s specific consideration of the § 3553(a) factors and Chapter 7’s statement, found in the introduc tion to Chapter 7, that “the court should- 6 - sanction primarily the defendant’s breach of tr ust” in determining a revocation sentence. U.S. Sentencing Guidelines Manual ch. 7, pt. A, introductory cmt. 3(b) (U.S. Sentencing Comm’n 2014). Having considered carefully the nature and circumstan ces of this violation, which I consider to be very serious, the history and characteristics of Mr. Campos as they have evolved, be ing cognizant of the need for the disposition to reflect the seriousness of the violation, to provide for just punishment, to promote respect for the law, to protect the public from further crimes of the defendant, to pr ovide adequate deterrence to both the defendant and others similarly situated and inclined, to avoid unwarranted dispositional disparities, and to sancti on, to punish, Mr. Campos for this breach of trust inherent to a violati on of supervised re lease, I conclude ultimately that I should vary upward to impose a sentence to the Bureau of Prisons of 18 months, to be followed by an additiona l term of supervised release. ROA, Vol. 5 at 20-21. The district court also noted it previo usly sentenced Mr. Campos-Lucas to a below-Guidelines sentence, which is a fact or a court may consider in determining a sentence for revocation of supervised release. See U.S.S.G. § 7B1.4 cmt. n.4 (“Where the original sentence was the result of a downward departure . . . , an upward departure may be warranted.”). Under the totality of the circumstances, including Mr. Campos-Lucas’s previous below-Guidelines sentence, the district cour t did not abuse its discretion in imposing a sentence seven months above Mr. Campos-Lucas’s Guidelines range.- 7 - CONCLUSION III. We affirm Mr. Campos-Lucas’s sentence.

ENTERED FOR THE COURT,

Scott M. Matheson, Jr. Circuit Judge