UNITED STATES COURT OF APPEALS TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff - Appellee,

v.VICTOR HUGO HERNANDEZGARCIA, a/k/a Victor Hugo Hernandez, a/k/a Victor Hugo Hernandez-Garcia, Defendant - Appellant. No. 14-5072 (D.C. No. 4:14-CR-00013-GKF-1) (N.D. Okla.)

ORDER AND JUDGMENT *

Before HARTZ , McKAY , and MATHESON , Circuit Judges.

Victor Hugo Hernandez-Garcia pled gu ilty to illegal reentry in violation of 8 U.S.C. § 1326(a). Because Mr. Hernand ez-Garcia’s prior convictions included aggravated felonies, he was subject to a st atutory maximum senten ce of 20 years under 8 U.S.C. § 1326(b)(2). The United States Probation Office prep ared a Presentence Investigation Report (“PSR”) that computed a total offense level of 21 and a criminal
*After examining Appellant’s brief and the appellate record, this panel has determined unanimously that oral argument wo uld not materially assi st the determination of this appeal. See Fed. R. App. P. 34(a)(2) and 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argu ment. This order and judgment is not binding precedent, except under the doctri nes of law of the case, res judicata, and collateral estoppel.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. FILED United States Court of Appeals Tenth Circuit 

### November 25, 2014
Elisabeth A. Shumaker Clerk of Court-2- history category of IV, resulting in a United St ates Sentencing Guidelines (“Guidelines”) range of 57 to 71 months of imprisonment. The district court sentenced Mr. HernandezGarcia to 30 months in pris on and one year of s upervised release afte r varying downward to a total offense level of 15 and a Guidelin es range of 30 to 37 months. Mr. HernandezGarcia appeals his sentence on the ground the variance should have been greater and only a 10-month sentence should have been imposed . Exercising jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. §3742(a), we affirm the district court.
I. STANDARD OF REVIEW AND LEGAL BA CKGROUND In imposing a sentence, a court “shall consid er” the factors in 18 U.S.C. § 3553(a), which include “the nature and circumstan ces of the offense and the history and characteristics of the defendant,” “the need for the sentence im posed to reflect the seriousness of the offense, to promote re spect for the law, and to provide just punishment,” “the need for the sentence im posed to afford adequate deterrence to criminal conduct,” and “the need for the se ntence imposed to protect the public from further crimes of the defe ndant.” 18 U.S.C. § 3553(a). Mr. Hernandez-Garcia does not challenge the procedural reasonableness of his

sentence. See Aplt. Br. at 2 & n.1. We therefore consider only substantive reasonableness. “A substantive challenge c oncerns the reasonableness of the sentence’s length and focuses on the distri ct court’s consideration of the § 3553(a) factors and the sufficiency of the justifications used to support the sentence.” United States v. Lente , 647 F.3d 1021, 1030 (10th Cir. 2011). A district court “n eed not necessarily provide extraordinary facts to justify any statut orily permissible sentencing variance.” United-3- States v. Smart , 518 F.3d 800, 807 (10th Cir. 2008 ) (quotations omitted). Though it “must adequately explain the chosen sentence to allow for meaningful appellate review and to promote the percepti on of fair sentencing.” Gall v. United States , 552 U.S. 38, 50 (2007). We review the reasonableness of senten cing decisions, “whether inside, just outside, or significantly outsid e the Guidelines range[,] under a deferential abuse-ofdiscretion standard.” Id. at 41; see also Smart , 518 F.3d at 806. A court abuses its discretion when it “renders a judgment that is arbitrary, capricious, whimsical, or manifestly unreasonable.” United States v. Huckins , 529 F.3d 1312, 1317 (10th Cir. 2008) (quotations omitted). Sentences belo w the Guidelines range are presumptively reasonable. United States v. Balbin-Mesa , 643 F.3d 783, 788 (10th Cir. 2011).
II. DISCUSSION We affirm the district court because it did not abuse its disc retion in sentencing Mr. Hernandez-Garcia to 30 months in pris on. Mr. Hernandez-Garcia has not overcome the presumption that his sentence was reasonable. The district court considered the parties’ arguments befo re imposing its sentence. The court reviewed Mr. Hernandez-Garcia’s motion for variance, which argued a 10- month sentence would address any danger to the public, a void sentencing disparities, deter the conduct at issue, promote respect for the law, and adequately reflect the seriousness of the offense. Both parties made oral arguments regarding several § 3553(a) factors. The district court also heard from Mr. Hernandez-Garcia hi mself, who explained he had emigrated from a Mexican city where th ere is “a lot of violence and people are-4- killed way too often.” ROA at 73. He said he came to the United States to “work honorably” to take care of his ill parents. Id. He asked for forgiveness, but acknowledged that he deserved to be punished. In imposing a 30-month sentence, the dist rict court agreed with Mr. HernandezGarcia that the PSR-recommended prison term would be too long and that a variance downward would be appropriate. 1
The district court considered the Guidelines and “all of the factors set forth in” § 3553(a), including “the nature of the o ffense,” “the criminal history and personal characteristics of Mr. Hernandez, ” and “sentencing disparities.” Id. at 77. Specifically, the district court considered that Mr. Hern andez-Garcia had illegally reentered the United States after having been rem oved on two occasions. It noted Mr. Hernandez-Garcia had a history of violent criminal conduct and woul d likely be deported after imprisonment. But it also considered the fact he was married and had two children, and considered his argument that a Guidelines sentence would be “greater than nece ssary to satisfy the purposes of sentencing and would result in an unreasonable sentencing disparity between himself and other similarly situated defendants.” Id. at 76. The district court concluded “a sentence of imprisonment at the low end of the variance guideline range will serve as an adequate deterrent to this defendant and to others as well as protect the public.” Id. at 77. The record demonstrates the district cour t did not abuse its discretion in imposing

1 In fact, the 30 months the court imposed was only slightly more than the “year or two” that Mr. Hernandez-Garcia ar gued would be fair. ROA at 73.-5- its sentence. It considered the parties’ ar guments and the § 3553(a) factors. The court adequately explained the chosen sentence, weighing Mr. Hernandez- Garcia’s criminal history and repeated entries into the United St ates against his famili al responsibilities and the unsafe conditions in his home town. Mr. Hernandez-Garcia’s arguments on ap peal are unavailing. He argues the district court did not give sufficient weight to the circumstances th at brought him to the United States. However, we “may not examin e the weight a district court assigns to various § 3553(a) factors, and its ultimate as sessment of the balance between them, as a legal conclusion to be reviewed de novo.” Smart , 518 F.3d at 808. Rather, we must “give due deference to the dist rict court’s decision that the § 3553(a) factors, on a whole, justify the extent of the variance.” Gall , 552 U.S. at 51. Furthe r, a district court is not required to vary in the first instance. United States v. Sells , 541 F.3d 1227, 1238 (10th Cir. 2008) (noting that while a variance based on age is permissible, a district court is not compelled to vary).
III. CONCLUSION For the foregoing reasons, we a ffirm the district court.
ENTERED FOR THE COURT

Scott M. Matheson, Jr. Circuit Judge