UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

_________________________________ 

UNITED STATES OF AMERICA, 

 Plaintiff - Appellee, 

v. 

CARLOS CRUZ-ARTIAGA, a/k/a Helmer 

Isaias Calix-Arteaga, 

 Defendant - Appellant. 

No. 17-1399 

(D.C. No. 1:17-CR-00184-RM-1) 

(D. Colo.) 

_________________________________ 

ORDER AND JUDGMENT*

_________________________________ 

Before BRISCOE, MATHESON, and EID, Circuit Judges. 

_________________________________ 

Carlos Cruz-Artiaga pleaded guilty to illegally reentering the United States 

after being convicted of an aggravated felony. See 8 U.S.C. § 1326(a) and (b)(2). 

It was his fourth such conviction, and at sentencing, the district court recognized the 

need to deter Mr. Cruz-Artiaga’s conduct. Consequently, the court considered the 

sentencing factors under 18 U.S.C. § 3553(a) and varied up from the applicable 

sentencing guideline range of 33 to 41 months to sentence Mr. Cruz-Artiaga to 

 *

 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); 10th Cir. R. 34.1(G). The case is therefore 

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 This order and judgment is not binding precedent, 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. 

FILED 

United States Court of Appeals 

Tenth Circuit 

June 25, 2018

Elisabeth A. Shumaker 

Clerk of Court
2 

45 months in prison. Mr. Cruz-Artiaga now contends his sentence is substantively 

unreasonable because the district court over-emphasized the need for deterrence. 

Exercising jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a), we affirm. 

I 

 We review the district court’s sentence “for reasonableness under an 

abuse-of-discretion standard.” Peugh v. United States, 569 U.S. 530, 537 (2013). 

The court acts “within its discretion unless the sentence was arbitrary, capricious, 

whimsical, or manifestly unreasonable.” United States v. Franklin, 785 F.3d 1365, 

1370 (10th Cir. 2015) (internal quotation marks omitted). Our review for 

reasonableness involves a procedural and a substantive component. United States v. 

Alapizco-Valenzuela, 546 F.3d 1208, 1214 (10th Cir. 2008). Procedural review 

questions whether the sentence was correctly calculated and explained, while 

“[s]ubstantive review involves whether the length of the sentence is reasonable given 

all the circumstances of the case in light of the factors set forth in 18 U.S.C. 

§ 3553(a).” Id. at 1214-15 (internal quotation marks omitted). 

“Although sentences imposed within the correctly calculated [g]uidelines 

range may be presumed reasonable on appeal, sentences imposed outside the 

[g]uidelines range may not be presumed unreasonable.” United States v. Huckins, 

529 F.3d 1312, 1317 (10th Cir. 2008). When the district court deviates from the 

applicable guideline range, “we consider the extent of the deviation but give due 

deference to the district court’s decision that the § 3553(a) factors, on a whole, justify 

the extent of the variance.” Id. (internal quotation marks omitted). We are not at 
3 

liberty to reverse a sentence just because we “might reasonably have concluded that a 

different sentence was appropriate.” Gall v. United States, 552 U.S. 38, 51 (2007). 

II 

 The district court adopted the sentencing guideline range of 33 to 41 months’ 

imprisonment prescribed by the presentence investigation report. The parties filed 

competing motions to vary from range, however, with the government seeking an 

upward variance to 48 months and Mr. Cruz-Artiaga requesting a downward variance 

to 24 months. At sentencing, the government emphasized that this was 

Mr. Cruz-Artiaga’s fourth conviction for unlawfully reentering the United States. 

The government argued that an upward variance was warranted because his prior 

sentences of 15, 28, and 37 months in prison, respectively, were insufficient to deter 

him from once again reentering the United States illegally. The government also 

noted that he was detained by immigration officials in this case after he was stopped 

for driving under the influence. 

Mr. Cruz-Artiaga responded that it was inappropriate to narrowly focus on 

deterrence. He insisted that doing so would lose sight of other mitigating factors, 

namely his efforts to help another man from Honduras, stay away from drugs, hold 

legitimate jobs, and generally be a good person while in this country. He suggested 

he was “not hurting people” or “actively engaging in a criminal lifestyle” and urged 

the court to stop “ratcheting up” his sentence. R., Vol. 3 at 51-52. Moreover, he 

discouraged the court from using tax dollars to impose a more-lengthy sentence, 

noting a longer prison term could put him at greater risk of joining a prison gang. 
4 

For the most part, the district court was unpersuaded by Mr. Cruz-Artiaga’s 

arguments. The court explained it was not focusing solely on deterrence and, in 

considering and weighing the § 3553(a) factors, it was not prevented from 

emphasizing some factors over others. The court indicated its duty was to impose a 

sentence that was sufficient, but not greater than necessary, to achieve the purposes 

of § 3553(a). To that end, the court observed that, at least based on the sentences he 

received, Mr. Cruz-Artiaga’s prior non-immigration offenses were relatively modest 

and did not appear to include violent crimes or serious drug offenses. The court also 

noted there was no evidence that he was engaged in street-level drug activity since 

his second illegal-reentry conviction. Nonetheless, the court observed that this was 

the fourth time he appeared in federal court convicted of illegally reentering the 

United States and each time he sustained a greater sentence, none of which 

successfully deterred him from repeating the offense. 

Before the court announced the sentence, Mr. Cruz-Artiaga addressed the 

court, stating that he preferred to be in prison in the United States rather than return 

to Honduras. The court then indicated that it had considered the presentence 

investigation report, the parties’ material related to that report, the parties’ 

arguments, Mr. Cruz-Artiaga’s statement, and the § 3553(a) factors. In weighing 

those factors, the court noted that Mr. Cruz-Artiaga expressly admitted he would 

rather be in prison than return to Honduras. The court explained, however, that the 

“immigration laws . . . are laws of the United States, [and] they merit being 

enforced.” Id. at 62. The court further explained that Mr. Cruz-Artiaga’s presence 
5 

here was unlawful, notwithstanding whether or not he did anything else illegal while 

he was here. To the extent he was deserving of some leniency for not committing 

other crimes, the court indicated it would “dial back the government’s request . . . for 

an upward variance” and sentence him to 45 months in prison. Id. at 63. Yet the 

court made clear it was intentionally varying upwards because Mr. Cruz-Artiaga’s 

prior sentence of 37 months was insufficient, as would be a top-of-the-guidelines 

sentence of 41 months. 

 We perceive no abuse of discretion. The district court began by recognizing 

the applicable sentencing guideline range of 33 to 41 months. See 18 U.S.C. 

§ 3553(a)(4) (directing court to consider the sentencing guidelines). In announcing 

its sentence, the court repeatedly stated that it considered the § 3553(a) factors in 

fashioning an appropriate sentence. The court discussed Mr. Cruz-Artiaga’s criminal 

history and what it considered the relatively modest nature of his non-immigration 

offenses. See id. § 3553(a)(1) (directing court to consider the circumstances of the 

offense and the history and characteristics of the offender). The court also cited his 

history and characteristics on its written statement of reasons for granting the 

variance, noting that Mr. Cruz-Artiaga had a “[h]istory of incarceration and . . . 

continuing to return to the US regardless of the sentence imposed.” R., Vol. 2 at 78. 

Although the court tempered its sentence because he attempted to stay away from 

drugs and was helping another person, the court balanced those mitigating factors 

against the need to impose a sentence that reflected the seriousness of the offense and 

promoted respect for the law, see 18 U.S.C. § 3553(a)(2)(A). Because this was 
6 

Mr. Cruz-Artiaga’s fourth illegal-reentry conviction, the court sought to impose a 

sentence that deterred him from committing another illegal reentry. See 18 U.S.C. 

§ 3553(a)(2)(B). The district court’s sentence was substantively reasonable in light 

of the § 3553(a) factors. 

 Mr. Cruz-Artiaga insists, however, that the district court over-emphasized the 

need for deterrence to the exclusion of the other relevant § 3553(a) factors. He 

points out that the court stated that “[t]he one factor that seems to be deserving of 

more emphasis . . . is the deterrence of the defendant.” Id., Vol. 3 at 62. But the 

court was required to provide a “‘specific reason’” for varying upwards from the 

guidelines, Huckins, 529 F.3d at 1317 (quoting 18 U.S.C. § 3553(c)(2)), and we have 

recognized that “[t]he district court must consider . . . the need to deter the defendant 

and others,” United States v. Walker, 844 F.3d 1253, 1257 (10th Cir. 2017). Given 

Mr. Cruz-Artiaga’s history of recidivism, the district court properly put weight on the 

need to deter him from committing another unlawful reentry. To the extent 

Mr. Cruz-Artiaga suggests that in doing so the court excluded from its consideration 

other § 3553(a) factors, the foregoing discussion demonstrates it did not. 

 Finally, Mr. Cruz-Artiaga contends his sentence was unreasonable because it is 

fifty percent longer than it would have been if the court had granted his request for a 

downward variance. But the court denied his request, and in any event, “sentencing 

review may not be based on a rigid mathematical formula that uses the percentage of 

a departure as the standard for determining the strength of the justifications required 

for a specific sentence,” United States v. Smart, 518 F.3d 800, 807 (10th Cir. 2008). 
7 

Here, the district court varied only four months above the applicable guideline range 

after considering the relevant § 3553(a) factors and recognizing the need for 

deterrence. The court noted that Mr. Cruz-Artiaga’s previous sentences, including 

his most recent sentence of 37 months in prison, were insufficient to deter his 

recidivism and achieve the sentencing goals of § 3553(a). The court therefore varied 

upwards slightly from the top guideline sentence of 41 months to 45 months. This 

was less than the 48 months requested by the government in light of the mitigating 

factors identified by Mr. Cruz-Artiaga. The court sufficiently justified the variance, 

and there was nothing arbitrary, capricious, whimsical, or manifestly unreasonable 

about the sentence. Even if we disagreed with the manner in which the district court 

weighed the deterrence factor (which we do not), that would provide no basis for 

reversing the district court’s sentence. See Gall, 552 U.S. at 51. 

III 

 The judgment of the district court is affirmed. 

Entered for the Court 

Allison H. Eid 

Circuit Judge