UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

________________ _________________ UNITED STATES OF AMERICA, Plaintiff - Appellee,

v. BARBARA VELASCO-MARES, Defendant - Appellant. No. 20-2179 (D.C. No. 2:20-CR-00456-WJ-1) (D. N.M.)

________________ _________________ ORDER AND JUDGMENT *

________________ _________________ Before HARTZ , McHUGH , and CARSON , Circuit Judges.

________________ _________________ Barbara Velasco-Mares appeals her 33-mo nth sentence for unlawful reentry of a previously removed alien in violation of 8 U.S.C. § 1326. She claims the district court’s denial of a downward departur e rendered her sentence substantively unreasonable. Exercising jurisdiction unde r 18 U.S.C. § 3742(a )(1) and 28 U.S.C. § 1291, we affirm.

* After examining the briefs and appella te record, this pa nel has determined unanimously that oral argument would not ma terially assist in the determination of this appeal. See Fed. R. App. P. 34(a)(2); 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 This order and judgment is not binding precedent, except under the doctr ines of law of the case, res judicata, and collateral estoppel. It may be cite d, however, for its persuasi ve value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. FILED United States Court of Appeals Tenth Circuit 

### December 14, 2021 Christopher M. Wolpert Clerk of Court Appellate Case: 20-2179 Document: 010110618771 Date Filed: 12/14/2021 Page: 12 I Velasco-Mares pleaded guilty under a plea agreement in which the parties stipulated to a within-guide lines sentence and Velasco-Ma res agreed not to seek a downward adjustment. The presentence in vestigation report (PSR) determined her offense level was 13, which reflected a two-point reduction under the federal sentencing guidelines for the ear ly disposition of her case. See U.S. Sentencing Guidelines Manual § 5K3.1 (U.S. Sentencing Comm’n 2018). The PSR also determined her criminal history category was IV due to her extens ive criminal record, which includes prior convictions for theft, delivery of mar ijuana for payment, being a felon in possession of firearms, and two previous convictions for unlawful reentry after removal. Based on an offense level of 13 and criminal history category of IV, her advisory guidelines range was 24-30 months in prison. Because the sentencing range was higher than Velasco-Mares anticipated, she moved to withdraw her guilty plea or, alternatively, to se t aside the plea agreement so she could seek a downward departure or va riance. She also filed a motion for a downward departure or varian ce, arguing that a sentence of time served, or 8 months, was appropriate because the PSR overre presented her criminal history and exaggerated the seriousness of her prior of fenses. Although Ve lasco-Mares did not object to the PSR’s factual basis for her pr ior convictions, she argued that most of Appellate Case: 20-2179 Document: 010110618771 Date Filed: 12/14/2021 Page: 23 them were more than fifteen years old a nd that the PSR failed to account for her personal characteristics, including her cu ltural assimilation, removal, and age. 1
The district court denied Velasco-Mare s’ request to withdraw her guilty plea but granted her request to set aside the plea agreement. Without the plea agreement, however, Velasco-Mares lost the 2-point re duction in her offense level under USSG § 5K3.1. With a new offense level of 15 and the same criminal history category of IV, her advisory guideline range was 30-37 mont hs. At sentencing, the district court declined to grant a downward adjustment and sentenced her to 33 months in prison followed by three years of supervised re lease. Velasco-Mare s now contends the denial of a downward adjust ment rendered her sentence substantively unreasonable. 2
II We review the substantive reasonablen ess of a sentence for an abuse of discretion. See United States v. Smart , 518 F.3d 800, 805 (10th Cir. 2008).

1 “Cultural assimilation” refe rs to a defendant’s cultura l and familial ties to the United States, which are considered among a defendant’s history and characteristics under 18 U.S.C. § 3553(a)(1). See United States v. Galarza-Payan , 441 F.3d 885, 889 (10th Cir. 2006).

2 To the extent Velasco-Mares challenge s the district court’s discretionary decision to deny a downward departure, we lack jurisdiction to consider her arguments, although we do have jurisdiction to consider the reasonableness of her sentence, and in doing so we will consider her reasons for seek ing a departure. See United States v. Chavez-Diaz , 444 F.3d 1223, 1229 (10th Ci r. 2006) (“[W]hile we do not have jurisdiction to review the distri ct court’s discretionary decision to deny a downward departure, we have jurisdiction . . . to revi ew the sentence imposed for reasonableness[,]” . . . “which . . . necessarily requires that we take into account the defendant’s asserted grou nds for departure when re viewing the sentence for reasonableness.”). Appellate Case: 20-2179 Document: 010110618771 Date Filed: 12/14/2021 Page: 34 “Substantive reasonableness involves wh ether the length of the sentence is reasonable given all the circum stances of the case in light of the factors set forth in 18 U.S.C. § 3553(a).” United States v. Conlan , 500 F.3d 1167, 1169 (10th Cir. 2007). “We do not reweigh the sentenci ng factors but instead ask whether the sentence fell within the range of rationally available choices that facts and the law at issue can fairly support.” United States v. Blair , 933 F.3d 1271, 1274 (10th Cir. 2019) (internal quotation marks omitted). A sentence within a properly calculated guideline range is presum ptively reasonable. Id. A sentence is substantively “unreasonable only if it is arbitrary, capricious, whim sical, or manifestly unreasonable.” United States v. Gantt , 679 F.3d 1240, 1249 (10th Cir. 2012) (internal quotation marks omitted). Velasco-Mares contends that her sent ence is unreasonable because the PSR overstated her criminal history. 3 She also says a lower sentence was justified by her personal characteristics, incl uding her serious health probl ems, cultural assimilation, removal, and age. These arguments are unavailing, however, because the district court considered these factor s in its § 3553(a) analysis.

3 Velasco-Mares’ theory on appeal appear s to have shifted slightly. In the district court, she principa lly argued that the PSR overs tated her criminal history because her prior convictions occurred long ago. See, e.g. , R., vol. 1 at 36 (arguing that all but one of her convictions were more than 15 years old). Now on appeal, however, she claims the PSR overstated he r criminal history because she committed only non-violent offenses for which she received relatively le nient sentences. See, e.g. , Aplt. Br. at 12; Reply Br. at 1. We generally do not cons ider new theories raised on appeal, and to the extent Velasc o-Mares pivots to a new theory, we decline to consider it. See United States v. Leffler , 942 F.3d 1192, 1196 (10th Cir. 2019). Appellate Case: 20-2179 Document: 010110618771 Date Filed: 12/14/2021 Page: 45 Indeed, the district court recognized that Velasco-Mares sought a downward adjustment based on her cultural assimilati on, removal, and age. The court also heard her claim that she contracted Covid- 19 three times while in custody. But the court observed that, with a potential stat utory maximum sentence of 20 years in prison, the crime of unlawful reentry by a previously removed alien is a serious offense, and yet this was Ve lasco-Mares’ third such co nviction, demonstrating her lack of respect for the law. The court th erefore stated that he r sentence needed to reflect the seriousness of the offense, promote respect for the law, provide for a just punishment, and deter further recidivism. See 18 U.S.C. § 3553(a)(2)(A), (B). The court acknowledged her explana tion that she was drawn to the United States to be with family, but the court noted that her inability to reside here legally was due to her own criminal conduct, which included multip le convictions and pr obation violations. See id. § 3553(a)(1). The district court was particularly c oncerned with Velasco-Mares’ conviction for being a felon in possession of a firearm. As the court reco unted, her son brought a loaded firearm to his elem entary school and after school officials contacted police, her son told the police he had additional items in his backpack, which contained a pistol and 30 rounds of ammunition. Thereafter, the police went to Velasco-Mares’ residence and recovered from a dumpster in front of her home a pillowcase containing firearms, ammunitio n, and holsters. Although she admitted to police at the time that she knew the guns were in her home and that the children were pretending to shoot each other, during allocution she attempted to deny that she Appellate Case: 20-2179 Document: 010110618771 Date Filed: 12/14/2021 Page: 56 allowed the children to play with firearms and claimed she was a victim. The district court pointed out, however, that she did not object to the factua l basis of the PSR, and thus the district court stated, “I don’t consider her a victim,” R., vol. 4 at 28. Moreover, given her criminal history a nd the danger underlying this incident, the district court indicated her sentence should reflect the need to protect the public from further crimes by Velasco-Mares. See 18 U.S.C. § 3553(a)(2)(C). Finally, the district court found nothing about this case that warranted a belowguidelines sentence. Althou gh Velasco-Mares argued that most of her convictions were old, the court noted that no criminal history points were assessed for either of her two theft convictions or her felon-in-p ossession-of-a-firearm conviction and thus a criminal history category of IV did not overrepresent her record, particularly given the severity of her offenses. The court al so recognized that the government requested a sentence at the upper end of the guidelin es—37 months—but the court noted that she had originally qualified for a lower sentencing range under her early disposition plea agreement. After weighi ng all of these considerations , the court concluded that a mid-range guideline sentence of 33 months was sufficient but not greater than necessary to achieve the goals of sentenci ng. Velasco-Mares has identified nothing to suggest that her sentence is substantively unreasonable. Accordingly, the district c ourt’s judgment is affirmed.

Entered for the Court Carolyn B. McHugh Circuit Judge Appellate Case: 20-2179 Document: 010110618771 Date Filed: 12/14/2021 Page: 6