UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

________________ _________________ UNITED STATES OF AMERICA, Plaintiff - Appellee,

v. JULIO CASTANDEDA-RUIZ, Defendant - Appellant. No. 19-3037 (D.C. No. 6:18-CR -10115-JWB-1) (D. Kan.)

________________ _________________ ORDER AND JUDGMENT *

________________ _________________ Before LUCERO , O’BRIEN , and CARSON , Circuit Judges.

________________ _________________ Julio Castandeda-Ruiz challenges the procedural and substantive reasonableness of his sentence. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.
I Castandeda-Ruiz pled guilty to one count of felony illegal reen try of a previously removed or deported alien in violation of 8 U.S.C. § 1326(a). His

* After examining the briefs and appellate record, this panel ha s 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). Th e case is therefore submitted without oral argument. T his order and judgment is no t binding precedent, except under the doctrines of la w of the case, res judicata, an d 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. FILED United States Court of Appeals Tenth Circuit 

### October 22, 2019
Elisabeth A. Shumaker Clerk of Court2 presentence investigation repor t (“PSR”), listed a total offens e level of 6 and a criminal history category of I, r esulting in an advisory Guidel ines range of 0 to 6 months’ imprisonment . The PSR also noted Castandeda-Ruiz was c onvicted of misdemeanor illegal reentry in 2 017 and had illegally entered t he United States on eight occasions between 2005 and 2016. Neither the government nor Cas tandeda-Ruiz objected to the PSR . The district court accepted the PSR’s calcula tions as correct but advised th e parties it was considering an upward variance because Castandeda-Ruiz had “unl awfully entered the United States ten times.” B oth the government and defense counsel requested Castandeda-Ruiz, who had been i n custody for seven months, be s entenced to time served. The district court consid ered the sentencing factors u nder 18 U.S.C. § 3553(a) and announced a tentativ e sentence of 18 months’ impr isonment as follows: [The] Court’s required pursuant to [§] 3553(a) to impose a sent ence that is sufficient but not great er than necessary to comply wit h the purposes of sentencing identified in t hat statute. . . . [T]he Court ha s considered the . . . Guidelines which promote uni formity in sentencing and ass ists the Court in determining an appropria te sentence by weighing the ba sic nature of the offense, as well as aggrav ating and mitigating factors.

. . . . [The] Court . . . notes that this d efendant has at least ten se parate occurrences of being removed fro m the United States, counting t his offense, within the last 13 year s. It is this Court’s opinion that the defendant has failed to understa nd the severity of his conduct as demonstrated by his continual di sregard of the laws of the Unit ed States applicable to entering into this country. In enumerating a little more precis ely the sentencing factors u nder [§] 3553, I find that the defenda nt’s criminal history does not reflect the3 presence of these other unlawful entries. As I say, based on t he [PSR], this is the tenth time he’s come back into the United States unlawfu lly. It happens over and over, and so I a m taking that into account. I also want to reflect the seriousness of the offense, promote respect for the law, provide just punish ment, because I expect these la ws to be followed. . . . [Also,] I think I n eed a sentence that is goin g to afford adequate future deterrence, and thus far, this defendant’s expe rience with our criminal justice system and immigration system has failed t o provide sufficient deterrence. And I’m also not unaware of the n eed to avoid unwanted sentenci ng disparities. I know that . . . two of the other individuals wh o were arrested at the same time as this de fendant . . . received a time served sentence which is what is being requested here, but these individuals . . . had one prior unlawful reentry as compare d to ten with this defendant. And so to apply a time served sen tence with this person’s histo ry of violating these types of laws se ems to me to be unjust and so a fter considering all these factors , the advisory sentencing guidelin es, the nature and circumstances of the offense , the defendant’s history and characteristics, the Court intend s to vary from the applicable guideline range and sentence the defendant to a term of 18 months impriso nment. . . .

. . . . The Court believes that such a sentence is sufficient but not greater than necessary to reflect the se riousness of the offense, promo te respect for the law, and provide just punishment for the offense. Further, the sentence should afford adequate deterrenc e to criminal co nduct and prote ct the public from further crimes of the defendant. In response to the district court’ s explanation for the propose d variance, Castandeda-Ruiz’s counsel argued his client did not have a hist ory of violence or drug trafficking and only came to this country to work to help support his family. He also maintained that the taxpaye rs would save money if he were given a time-served sentence. Nonetheless, counsel said he “unders t[ood] the Court ’s reasoning behind [the] . . . sentence.” The cour t imposed the 18-month sentence . Castandeda-Ruiz timely appealed.4 II “On appeal, we review sentences f or ‘reasonableness,’ which has both procedural and substantive dime nsions.” United States v. Marti nez-Barragan, 545 F.3d 894, 898 (10th Cir. 2008) . “That is, we consider both the length of the sentence, as well as th e method by which the sentence was calcu lated.” Id. (quotation omitted).
A As to procedural reasonableness , a defendant must “contemporane ously object in the district court to the m ethod by which the district court arrived at a sentence, including arguments that the sent encing court failed to explain adequately the sentence imposed, if he or she hope s to avoid plain error revie w on appeal of any alleged procedural flaw.” Unite d States v. Wireman, 849 F.3d 9 56, 961 (10th Cir. 2017) (quotation omitted). “We will find plain error only when there is (1) error, (2) that is plain, which (3) a ffects substantial rights, and wh ich (4) seriously affects the fairness, integrity, or public reputation of judicial proce edings.” Id. at 962 (quotation omitted). The defend ant bears the burden to establi sh all four factors. See United States v. Dominguez Ben itez, 542 U.S. 74, 82 (2004). After the district court announced the tentative 18-month sente nce and the reasons for it, the c ourt asked the partie s if they objected. Castandeda-Ruiz responded with substantive argum ents regarding his sentence but did not object to the adequacy of the court’s explanat ion of the sentence. According ly, our review is for plain error. See Wireman, 849 F.3d at 961.5 Castandeda-Ruiz maintains the district court failed to adequa tely explain its substantial variance and failed to consider his material, non-f rivolous arguments. “To satisfy the third prong of p lain-error review, a defendant generally must demonstrate that an error was pr ejudicial, meaning that there i s a reasonable probability that, but for the err or claimed, the result of the proceeding would have been different.” United States v. Bustamante-Conchas, 850 F.3d 1130, 1138 (10th Cir. 2017) (en banc) (quo tation omitted). “[A] reasonabl e probability is a probability sufficient to undermin e confidence in the outcome.” Id. (quotation omitted). We conclude Castandeda -Ruiz has not shown a reasonab le probability that his arguments would have caused the district court to impose a lesser sentence. The court was required to “adequately explain the chosen sentence t o allow for meaningful appellate review and to promote the perception of fa ir sentencing,” Gall v. United States, 552 U.S. 38, 50 (2007), and did so when it ga ve a lengthy and detailed explanation of its jus tification for the sentence.
B “[W]e review the length of [a] s entence for an abuse of discret ion.” MartinezBarragan, 545 F.3d at 905 (quota tion omitted). “ Under a defere ntial abuse-ofdiscretion standard, we deem a s entence unreasonable only if it is arbitrary, capricious, whimsical, or manifes tly unreasonable.” United Sta tes v. Gantt, 679 F.3d 1240, 1249 (10th Cir. 2012) (quotation omitted). Castandeda-Ruiz argues that hi s eighteen-month sentence is subs tantively unreasonable because the district court: (1) gave too much wei ght to his criminal6 history; (2) failed to adequate ly weigh his characteristics; (3 ) placed improper weight on each of his past removals desp ite their differences; and (4) did not provide a supportable rationale f or a major variant sentence that placed him well outside national sentencing norms. We disagree. Even if a district court settles on a sentence that varies from the recommended Guidelines sentence, “we must gi ve due deference to the distric t court’s decision that the § 3553(a) factors, on a whol e, justify the extent of the va riance.” United States v. Smart, 518 F.3d 800, 808 (10th Cir. 2008) (quotation omitted). “Although a major departure should be supported by a more significant justificati on than a minor one, we no longer require that extraord inary circumstances justify a sentence outside the Guidelines range. . . .” Unite d States v. Huckins, 529 F.3d 13 12, 1317 (10th Cir. 2008) (citation and quotation omitted). And under 18 U.S.C. § 3553(a)(6), a sentencing court need only consid er “unwarranted sentence dispa rities.” Id. (emphasis added). We disagree with Castandeda-Ruiz that the upward variance was a n abuse of discretion. To the contrary, t he court noted, among other thin gs, this was the tenth time Castandeda-Ruiz had entered the United State s illegally. Although he disagrees with the manner in which the cour t weighed the § 3553(a) senten cing factors, this does not mean the sentence is s ubstantively unreasonable. “[I] t is not the job of an appellate court to review de novo the balance struck by a distr ict court among the factors set out in § 3553(a).” U nited States v. Sells, 541 F.3 d 1227, 1239 (10th Cir. 2008). Rather, “as long as the bal ance struck by the district court among the factors7 set out in § 3553(a) is not arbitr ary, capricious, or manifestl y unreasonable, we must defer to that decision even if we would not have struck the sam e balance in the first instance.” Id.
III
AFFIRMED

.

Entered for the Court

Carlos F. Lucero Circuit Judge