UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

________________ _________________ UNITED STATES OF AMERICA, Plaintiff - Appellee,

v. JOSE ERIBERTO MARTINEZ, Defendant - Appellant. No. 16-2071 (D.C. No. 2:15-CR-00568-JB-1) (D. N.M.)

________________ _________________ ORDER AND JUDGMENT *

________________ _________________ Before TYMKOVICH, Chief Judge , O’BRIEN , and PHILLIPS , Circuit Judges.

________________ _________________ Joseph Eriberto Martinez, an El Salva doran citizen, appeal s from a sentence imposed for illegally reentering the United St ates in violation of 8 U.S.C. § 1326. The district court rejected Martinez’s fast-track plea agreement and sentenced Martinez to twenty-four months’ imprisonme nt, the upper limit of the Guidelines sentencing range. Martinez argues that the di strict court erred by rejecting his fasttrack plea agreement and by over-emphasi zing deterrence in determining his sentence. Exercising jurisdiction unde r 28 U.S.C. § 1291, we affirm.

* After examining the briefs and appella te record, this panel 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 Ci r. R. 34.1(G). The case is therefore ordered submitted without or al argument. This order a nd judgment is not binding precedent, except under the doctr ines of law of the case, res judicata, and collateral estoppel. It may be cited, 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 

### September 13, 2016
Elisabeth A. Shumaker Clerk of Court2 BACKGROUND Border patrol agents encountered Martinez on a Greyhound bus at a checkpoint near Las Cruces, New Mexico. Mar tinez admitted that he was a citizen of El Salvador and that he did not have legal authorization to enter or remain in the United States. After border patrol agents a rrested Martinez, the government charged him with illegal reentry of a removed alie n, in violation of 8 U.S.C. § 1326. At the time of his arrest, Martinez wa s on supervised release from a prior conviction for illegal reentry. In 2011, the Western District of Texas court sentenced Martinez to twenty-four months’ imprisonmen t and three years of supervised release for illegal reentry of a removed alien. Before 2011, Martinez also had a drugtrafficking conviction in Orange County, California. Despite his prior convictions, the gove rnment and Martinez agreed to propose to the district court a fast-track plea ag reement under Fed. R. Crim. P. 11(c)(1)(C), providing Martinez a four-offense-level reduction and a two-level reduction for accepting responsibility. If the district c ourt accepted the Rule 11(c)(1)(C) plea agreement, it would be bound to a sent encing range between eight to fourteen months. Martinez pleaded guilty before a magistrate judge but reserved his right to change his plea in case the district court rejected the plea agreement. At Martinez’s first sentencing hearing, the district court expressed con cern about the plea agreement because it didn’t give the court “enough ra nge to adequately reflect some of the 3553(a) factors, particularly respect for the law and specific deterrence.” R. Vol. III at 20. Because of an issue with Mar tinez’s earlier deportation date, the Court3 continued the sentencing hearing without anno uncing its sentence to allow the Parties to correct the earlier deportation date. At the second sentencing hearing, the di strict court rejected the plea agreement and told Martinez that he could withdraw his guilty plea. The dist rict court explained that it had considered all of the § 3553(a) factors, includi ng deterrence and noted that Martinez’s previous twenty-four month se ntence hadn’t deterred him from illegally reentering the United States. The district co urt concluded that the plea agreement did not provide the district court with enough flexibility to consider all of the factors under 18 U.S.C. § 3553(a) and therefore, it rejected the fast-track plea agreement. Martinez later pleaded guilty without a plea agreement. The Guidelines sentencing range without the fast-track pl ea agreement was eight een to twenty-four months. At the final sentencing hearing, Martinez argued for a sentence below the Guidelines sentencing range of eighteen to twenty-four months. Martinez argued that if the fast-track program had been availabl e in the Western District of Texas in 2011, his sentence at that time would likely have been substantially less than the twentyfour months’ imprisonment he received. Additionally, Ma rtinez argued that economic desperation and rampant violence in El Salvador caused Mar tinez to leave the country and seek work in the United St ates. The government also argued for a sentence in accordance with the Parties’ fast-track plea agre ement. The district court rejected the Parties’ arguments and se ntenced Martinez to twenty-four months’ imprisonment.4 The district court carefully explained its decision, including the factors under § 3553. For example, the district court e xplained that it considered the nature and circumstances of the offense, including th e difficult conditions Ma rtinez faced in El Salvador. The Court explained that “while understanding the situa tion in El Salvador is not a good one, the Court’s not sure how returning him to El Salvador sooner rather than later helps him.” R. Vol. III at 73. The district court discussed Martinez’s history, including his prior c onvictions for illegal reentr y and drug trafficking. The district court expressed its discomfort with Martinez’s having killed a man in California, which Martinez claims was se lf-defense. The district court further explained that a twenty-four month sentence was necessa ry for deterrence because the previous senten ce had not deterred Martinez from illegally reentering the United States. The district court explained that the sentence was necessary “to promote respect for the law, provide a just punishme nt, afford adequate deterrence, both at a specific and a general level, ” and to protect the public. Id. at 74–75. In response to an objection from Martinez , the district court explained that it considered all of the other § 3553(a) fact ors, but that deterr ence was especially important in this case. After the third sent encing hearing, the district court issued a fifty-five page opinion caref ully analyzing the section 35 53(a) factors. The district court noted that “[b]ecause Ma rtinez returned to the United States after serving a 24 month prison sentence, the Court concludes that a sentence of 8 months, or even a sentence at or below the low end of the gui delines range of 18 to 24 months, will not be sufficient to comply with § 3553(a)'s directives.” R. Vo l. I at 49. After providing a5 detailed analysis of all the § 3553(a) fa ctors and fully considering and addressing Martinez’s arguments, the di strict court concluded th at a high-end sentence was appropriate and sentenced Mart inez to twenty-four months. On appeal, Martinez argues that the dist rict court’s sentence is substantively unreasonable. Martinez argues th at the sentence is unreasona ble because the district court focused solely on deterrence and excluded all of the other f actors under § 3553(a). STANDARD OF REVIEW We review the substantive reasonablene ss of a sentence imposed by a district court for abuse of discretion. United States v. Ruby , 706 F.3d 1221, 1225 (10th Cir. 2013). “A district court abuses its disc retion when it renders a judgment that is arbitrary, capricious, whimsical , or manifestly unreasonable.” United States v. Balbin-Mesa , 643 F.3d 783, 787 (10t h Cir. 2011) (quoting United States v. AlvarezBernabe , 626 F.3d 1161, 1165 (10th Cir. 2010)). To determine the substantive reasonableness of a sentence, we look at the totality of the circumstances. Id. DISCUSSION “When evaluating the substantive reas onableness of a sentence, we afford substantial deference to the district court, and determine whether the length of the sentence is reasonable given all the circum stances of the case and in light of the factors [provided] in 18 U.S.C. § 3553(a).” Balbin-Mesa , 643 F.3d at 788 (quoting Alvarez-Bernabe , 626 F.3d at 1167). We presume a sentence is reasonable if it is6 within the properly calculated guideline range. United States v. Chavez , 723 F.3d 1226, 1233 (10t h Cir. 2013). Martinez acknowledges that his sentence is within the properly calculated Guidelines sentencing range of eighteen to twenty-four months. The district court imposed a sentence of twenty-four months ’ imprisonment. Thus, we presume the district court’s sentence is reasonable and that the district court didn’t abuse its discretion. Martinez fails to rebut this presumption. First, Martinez claims the district court overemphasized deterrence to the exclus ion of all other the § 3553(a) factors. But the district court addr essed the § 3553(a) factor s, not just deterrence. Specifically, at sentencing, the district co urt discussed the nature and circumstances of the offense, including the difficult cond itions faced by Martin ez in El Salvador. The Court explained that “whi le understanding the situation in El Salvador is not a good one, the Court’s not sure how returning him to El Salv ador sooner rather than later helps him.” R. Vol. III at 73. The di strict court also addressed Martinez’s history and said that it found Mar tinez’s criminal history troubling. The district court followed up its sent encing discussion with a detailed fiftyfive page opinion discussi ng the 3553(a) factors. The Court explained why it found deterrence particularly im portant in this case. See R. Vol. I at p. 91 (“In a situation where the defendant has not demonstrated a ny situational differences between his last reentry and this reentry, or, as here, the r easons are even less compelling in this case, the Court has no sound reas on to conclude that a shorter sentence will deter him7 now.”). And contrary to Martinez’s claims, the district court didn’t ignore the other 3553(a) factors. See id. (“In addition to promoting deterrence, § 3553(a) directs courts to promote respect for the la w and provide for just punishment.”); id. at 92 (“Regarding the need to prot ect the public, the Court is c oncerned about Martinez['s] drug trafficking conviction, hi s prior immigration convicti on and deportation in 2012, and the fact that he killed someone in the United States.”). The district court specifically discussed Martinez ’s background and history, and the events that caused him to reenter the United States. The Court concluded that “while this fact – the dangerous situation in El Sa lvador – is sad, it does not put downward pressure on the
sentence.” Id. at 92–93. Finally, the district court explaine d that the 24-month sentence avoided unwarranted sentencing disparities. The di strict court explained that “a 24-month sentence avoids any unwarranted dispariti es among defendants with similar records who have been found guilty of similar c onduct, thereby complying with the precedent from both the Ninth and Tenth Circuits.” Id. at 94. After reviewing the district court’s analysis, the distri ct court did not abuse its discretion in sentencing Martinez to twenty-four months’ imprisonment. See BalbinMesa , 643 F.3d at 788 (twenty-eight mont h sentence for illegal reentry was not substantively unreasonable). Instead, the dist rict court properly c onsider Martinez’s arguments, considered the factors under § 35 53(a), and sentenced Martinez within the guideline range. Martinez fails to overcom e the presumption of reasonableness.8 Martinez also suggests the district court erred by rej ecting the fast-track plea agreement. But a district court is not requi red to accept a fast-track plea agreement. U.S.S.G. 5K3.1 (“the court may depart down ward not more than 4 levels pursuant to an early disposition program.”). “Rule 11 vest s district courts with the discretion to accept or reject plea agreemen ts,” and “so long as distri ct courts exercise sound judicial discretion in re jecting a tendered plea, Ru le 11 is not violated.” United States v. Robinson , 45 F.3d 1423, 1437 (10th Cir. 1995) . As we described in detail above, the district court did not abuse its discre tion when it rejected the fast-track plea agreement. Therefore, the district court’s re fusal to accept the bindi ng fast-track plea agreement is not re versible error. CONCLUSION For these reasons, we affirm the s ubstantive reasonableness of Martinez’s

sentence.

Entered for the Court
Gregory A. Phillips Circuit Judge