FILED

United States Court of Appeals

Tenth Circuit

August 15, 2013

Elisabeth A. Shumaker

Clerk of Court

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

 Plaintiff - Appellee,

v.

JOSE EULOGIO MUNOZ-PENA,

 Defendant - Appellant.

No. 13-6036

(D.C. No. 5:12-CR-00201-R-1)

(W.D. Okla.)

ORDER AND JUDGMENT*

Before HARTZ, O’BRIEN, and GORSUCH, Circuit Judges.

After Jose Eulogio Munoz-Pena pleaded guilty to reentering the United

States unlawfully, in violation of 8 U.S.C. § 1326(a), the district court sentenced

him to 56 months in prison, less than the 57 to 71 months suggested by the

advisory sentencing guidelines. Before us, Mr. Munoz-Pena disputes both the

procedural and substantive reasonableness of his sentence, but his arguments are

foreclosed by precedent.

*

 After examining the briefs and appellate 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). The case is therefore ordered

submitted without oral argument. This order and judgment is not binding

precedent except under the doctrines of law of the case, res judicata, and

collateral estoppel. It may be cited, however, for its persuasive value consistent

with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
Mr. Munoz-Pena contends the district court erred procedurally by assessing

criminal history points under the guidelines for several of his prior convictions. 

The guidelines generally seek to take notice only of prior convictions when the

applicable sentence was imposed within 10 years of the defendant’s

“commencement” of his current offense. USSG § 4A1.2(e)(2). Here, Mr. MunozPena points out, some of his prior offenses were committed more than ten years

before he was found in the United States again after his illegal reentry. But this

court has explained already that the crime of illegal reentry is “first committed

when the defendant voluntarily reenters the country and continues to be

committed until the defendant is ‘found.’” United States v. Villarreal-Ortz, 553

F.3d 1326, 1330 (10th Cir. 2009) (emphases added). All of the crimes at issue

involved sentences imposed within ten years of Mr. Munoz-Pena’s voluntary and

unlawful reentry. Accordingly, the district court properly accounted for them

when calculating the appropriate advisory guidelines range. Mr. Munoz-Pena

acknowledges circuit precedent compels this conclusion. Opening Br. at 11.

Separately, Mr. Munoz-Pena contends the district court erred substantively

by failing to depart downward even more than it did from the properly calculated

advisory guidelines range. Among other things, he contends that the guidelines’

treatment of the crime of illegal reentry is unfairly harsh relative to its treatment

of other crimes. The district court considered this but ultimately disagreed. And

though a district court is free to depart from the guidelines when it disagrees with

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the policy goals the guidelines evince, see Kimbrough v. United States 552 U.S.

85, 110-11 (2007), it is also the case that “‘a sentence is not rendered

unreasonable merely because of a district court’s refusal to deviate from the

advisory guideline range’ based on disagreements with the policies underlying a

particular Guideline provision.” United States v. Wilken, 498 F.3d 1160, 1172

(10th Cir. 2007) (quoting United Sates v. McCollough, 457 F.3d 1150, 1171 (10th

Cir. 2006)); see also United States v. Alvarez-Bernabe, 626 F.3d 1161, 1166 (10th

Cir. 2010). Accordingly, this argument too is foreclosed by precedent. We note,

as well, that Congress apparently disagrees the defendant’s assessment about the

seriousness of his offense, providing for a maximum sentence of 20 years, more

than four times as long as the sentence he received. See United States v.

Javalera, 417 F. Appx. 804, 808 (10th Cir. 2011) (“the illegal re-entry of an exfelon into this country is considered a serious offense for which Congress has

imposed a statutory maximum sentence of twenty years”). 

Affirmed.

ENTERED FOR THE COURT

Neil M. Gorsuch

Circuit Judge

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