UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

________________ _________________ UNITED STATES OF AMERICA, Plaintiff - Appellee,

v. JOSE FLORES-DE LA ROSA, Defendant - Appellant. No. 19-2113 (D.C. No. 2:19-CR-00482-KG-1) (D.N.M.)

________________ _________________ ORDER AND JUDGMENT *

________________ _________________ Before CARSON , BALDOCK , and MURPHY , Circuit Judges. **

________________ _________________ On April 9, 2019, Defendant-Appellant Jo se Flores-De La Rosa pled guilty to a one-count indictment chargi ng him with illegal reentry in to the United States in violation of 8 U.S.C. § 1326(a). In prep aration for sentencing, the United States Probation Office (“Probation”) prepared a Pres entence Investigation Report. Therein, Probation assigned Defe ndant six criminal history poi nts based on a prior felony conviction for cocaine distribution and a pr ior felony conviction fo r illegal reentry,

* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicat a, and collateral est oppel. It may be cited, however, for its persuasive value consiste nt with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.

** After examining the briefs and appellate record, th is 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); 10th Cir. R. 34.1(G). The case is therefore submitted without oral argument. FILED United States Court of Appeals Tenth Circuit 

### January 7, 2020 Christopher M. Wolpert Clerk of Court2 resulting in a criminal history category of III. Probation calcula ted Defendant’s base offense level at eight. Defenda nt received an eight-point in crease for his prior cocaine distribution conviction and an additional four- point increase for his prior illegal reentry conviction. After a three- point reduction for acceptance of responsibility, Probation calculated Defendant’s offense le vel at 17. With a criminal history category of III and an offense level of 17, De fendant’s guideline range under the United States Sentencing Guidelines (“U.S.S.G.”) was 30 to 37 months’ imprisonment. Thereafter, Defendant file d a sentencing memorandum wherein he requested a downward departure of one criminal histor y category under U.S. S.G. § 4A1.2(b)(1) and a downward departure of four offense le vels under U.S.S.G. § 2L1.2, cmt. (n.6). Taken together, these depart ures would have provided fo r a sentencing guideline range of 15 to 21 months. Based on this adju sted guideline range, Defendant requested a sentence of 15 months’ imprisonment. Defe ndant also argued the sentencing factors under 18 U.S.C. § 3553(a) would support su ch a variance. The Government filed a response in opposition to Defendant’s se ntencing memorandum and requested a 37- month sentence pursuant to the or iginal guideline calculation. Defendant appeared before the district court for sent encing on July 9, 2019. He again argued that a departure or variance was warranted and reque sted a sentence of 15 months’ imprisonment. Upon consideration, the district court denied Defendant’s request and sentenced Defenda nt to a low-end guideline sentence of 30 months’ imprisonment. Now, Defendant argues: (1) the district court erred by declining to3 depart; and (2) the district court erre d by imposing a substa ntively unreasonable sentence. Exercising juri sdiction pursuant to 28 U.S.C. § 1291, we affirm. * * * First, Defendant argues the district court erred by denying Defendant’s request for a downward departure pursuant to U.S.S. G. § 4A1.3(b)(1) and U.S.S.G. § 2L1.2, cmt. (n.6). For the following reasons, we la ck jurisdiction to addr ess this claim. Pursuant to 18 U.S.C. §

. 3742(a), we have jurisdicti on to review a defendant’s appeal of a sentence that was (1 ) “imposed in violation of la w,” (2) “imposed as a result of an incorrect application of the sentenci ng guidelines,” (3) impose d as a result of an upward departure, or (4) “im posed for an offense for which there is no sentencing guidelines and is plainly unreas onable.” 18 U.S.C. § 3742(a). We have no jurisdiction, however, “to review a distri ct court’s discretionary d ecision to deny a motion for downward departure on the groun d that a defendant’s circum stances do not warrant the departure.” United States v. Sierra-Castillo , 405 F.3d 932, 936 ( 10th Cir. 2005); see also United States v. Penuelas-Gutierrez , 774 F. App’x 493, 495 (10th Cir. 2019) (unpublished); United States v. Davis , 900 F.2d 1524, 1530 (1 0th Cir. 1990). There is only one exception to this gene ral rule. We may review the district court’s decision not to depart downward in the rare circumstance where the district court erroneously believe d it had no discretion to downwardly depart. United States v. Castillo , 140 F.3d 874, 887 (10th Cir. 1998). A district court is presumed to understand it has the discretion to depart downward unless it cl early states it lacks such discretion. Sierra-Castillo , 405 F.3d at 936. If the district court’s language is4 ambiguous, we assume “the judg e was aware of his or her le gal authority to depart but chose instead, in an exercise of discretion, not to depart.” Id. (citing United States v. Fortier , 180 F.3d 1217, 1231 (10th Cir. 1999)). In this case, the district court did not una mbiguously state it lacked the authority to depart downward, nor does Defendant make such an ar gument. The district court considered Defendant’s “history . . . characteristics . . . [and] criminal history,” as well as the parties’ arguments and briefs befo re concluding a departure was unwarranted. Because the district court app ears and is presumed to have exercised its discretion, we lack jurisdiction to address De fendant’s claim that the distri ct court erred in declining to depart downward. * * * Next, Defendant argues the district c ourt imposed a substantively unreasonable sentence. We review the s ubstantive reasonableness of a sentence for an abuse of discretion and will deem a sentence unreasonabl e only if it is “arb itrary, capricious, whimsical, or manifestly unreasonable.” United States v. Gantt , 679 F.3d 1240, 1249 (10th Cir. 2012). A sentence within the properly calculate d guidelines is entitled to a rebuttable presumption of reasonableness. United States v. Kristl , 437 F.3d 1050, 1054 (10th Cir. 2006). A defendant may rebut this presum ption by demonstrating that the sentence is unreasonable when viewed against the factors described in § 3553(a). Id. These factors include but are not limited to : (1) the nature and circumstances of the offense, (2) the history and ch aracteristics of the defendant, and (3) the need to punish the defendant and dete r future misconduct. See 18 U.S.C. § 3553(a).5 In this case, Defendant maintains his sentence is substantiv ely unreasonable for the following reasons. First, Defendant argue s he is a dedicated partner and father. Defendant avers he faced a difficult childhood and “worke d hard in a series of demanding jobs” to support his family. Defendant suggests his motivation for reentering the United States was to “help protect his family, as they were being forced to leave their home state due to robbery and extortion, a nd [Defendant] hoped to earn money to finance that trans ition.” According to Defendant , this background warrants consideration for a down ward departure. Defendant further contends his prio r conviction for co caine distribution occurred ten years prior to the instant offense during a time when Defendant was struggling with an addiction he has since addressed. Due to the passage of time and Defendant’s recovery from hi s drug addiction, Defendant argues the increase in the guideline range resulting from this prior c onviction is overstated. Additionally, Defendant states that, during his incarcera tion, he took advantage of educational opportunities and earned his secundaria certificate, which is similar to a high school diploma. Defendant suggest s this academic achievem ent improves his employment prospects and makes him less likely to reoffend. Ultimately, Defendant argues his sentence was greater th an necessary to comply with the purposes of criminal punishment. See United States v. Martinez-Barragan , 545 F.3d 894, 904 (10th Cir. 2008) (explaining a sent ence should be sufficient, but not greater than necessary , to comply with th e purposes of criminal punishment). Based6 on his background and the circumstances un derlying the instant offense, Defendant argues he was entitled to a downwar d variance from the guideline range. Given Defendant’s personal history and characteristics , the district court may well have sentenced Defendant to lesser time. But “a ra nge of reasona ble sentences may exist in any given case” and, therefore, “the reasona bleness of one sentence does not . . . necessarily rende r a different sentence unrea sonable by comparison.” United States v. Mumma , 509 F.3d 1239, 1245 (10th Cir. 2007). Moreover, we regularly uphold guideline sentences where defendant s present similar m itigating factors. See,

e.g. , United States v. Gallegos-Castro , 318 F. App’x 641, 643 (10th Cir. 2009) (unpublished) (affirming the substantive r easonableness of the se ntence even though defendant’s prior convi ctions were old); Martinez-Barragan , 545 F.3d at 905 (holding the guideline sentence was s ubstantively reasonable despite defendant’s argument that his criminal history was oversta ted and that he only entered the United States to provide for his children); United States v. Melendez-Dones , 274 F. App’x 726, 728 (10th Cir. 2008) (unpublished) (rejecting substantive reasonableness challenge where defendant argued the seriousness of his crim inal history was over-represented); United States v. Enriquez–Bojorquez , 231 F. App’x 824, 825–26, 828 (10th Cir. 2007) (unpublished) (affirming guideline sentence ove r defendant’s objection that he reentered the country for economic reasons a nd his prior aggravated assaul t conviction was fourteen or fifteen years old). Thus, while the district c ourt may have varied below the guideline range, it was not required to do so. Even if Defendant’s personal history and ch aracteristics weighed7 in favor of a variance, the district c ourt was not required to find those factors outweighed the factors supporting a higher senten ce. In deciding not to vary below the guideline range, the district c ourt emphasized that Defendant has illegally entered the United States three times and that his prior 46-month senten ce did not deter him from committing the instant offense. The district court stress ed that any sentence imposed is “supposed to be enough to pe rsuade [Defendant] not to retu rn to the Unit ed States.” Thus, after considering Defendant’s persona l history and characteristics, his prior felony convictions, and the need to deter fu ture misconduct, the district court found a low-end guideline sentence of 30 months was reasonable. Upon review, we conclude the mitig ating factors cite d by Defendant are insufficient to overcome the presumption of reasonableness attached to his guideline sentence. We cannot say the district court abused its di scretion by imposing a low-end guideline sentence where Defendant had prior felony convictions for cocaine distribution and illegal reentry, and where hi s previous 46-month se ntence did not deter him from committing th e instant offense. * * * For the reasons provided herein, De fendant’s sentence is AFFIRMED.

Entered for the Court
Bobby R. Baldock Circuit Judge