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 convic tion, and at sentencing, the district court recognized the need to deter Mr. Cruz-Artiaga’s conduct. Consequently, the c ourt considered the sentencing factors under 18 U.S.C. § 3553( a) and varied up from the applicable sentencing guideline range of 33 to 41 mont hs to sentence Mr. Cruz-Artiaga to

* 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. This or der and judgment is not binding precedent, except under the doctrines of la w of the case, res judicata, and collateral estoppel.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 Court2 45 months in prison. Mr. Cr uz-Artiaga now contends hi s sentence is substantively unreasonable because the district court ove r-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 unles s the sentence was arbitrary, capricious, whimsical, or manifestly unreasonable.” United States v. Franklin , 785 F.3d 1365, 1370 (10th Cir. 2015) (internal quotati on 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 sent ence was correctly calculated and explained, while “[s]ubstantive review involves whether the le ngth of the sentence is reasonable given all the circumstances of the case in light of the fact ors set forth in 18 U.S.C. § 3553(a).” Id. at 1214-15 (internal quota tion marks omitted). “Although sentences imposed within the correctly calculat ed [g]uidelines range may be presumed reasonable on ap peal, sentences im posed 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 th e extent of the deviation but give due deference to the district cour t’s decision that the § 3553(a) factors, on a whole, justify the extent of the variance.” Id. (internal quotation marks om itted). We are not at3 liberty to reverse a sentence just because we “might reas onably have concluded that a different sentence was appropriate.” Gall v. United States , 552 U.S. 38, 51 (2007).
II The district court adopted the senten cing guideline range of 33 to 41 months’ imprisonment prescribed by the presentence investigation report. The parties filed competing motions to vary from range, how ever, with the government seeking an upward variance to 48 months and Mr. Cr uz-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 va riance was warranted because his prior sentences of 15, 28, and 37 mo nths in prison, respectively, were insufficient to deter him from once again reentering the United St ates illegally. Th e government also noted that he was detained by immigration officials in this cas e 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 woul d lose sight of othe r mitigating factors, namely his efforts to help another ma n from Honduras, stay away from drugs, hold legitimate jobs, and generall y be a good person while in th is country. He suggested he was “not hurting people” or “actively e ngaging in a criminal lifestyle” and urged the court to stop “ratcheting up” his senten ce. R., Vol. 3 at 51-52. Moreover, he discouraged the court from using tax dolla rs to impose a more -lengthy sentence, noting a longer prison term c ould 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 th e § 3553(a) factors, it was not prevented from emphasizing some factors over others. The court indicated its du ty 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 obser ved that, at least based on the sentences he received, Mr. Cruz-Artiaga’s prior non-immigr ation offenses were relatively modest and did not appear to include violent crimes or serious drug offenses. The court also noted there was no evidence th at he was engaged in str eet-level drug activity since his second illegal-reentry conviction. Noneth eless, the court obser ved that this was the fourth time he appeared in federal court convicted of illegally reentering the United States and each time he sustaine d a greater sentence, none of which successfully deterred him from repeating the offense. Before the court announced the senten ce, Mr. Cruz-Artiaga addressed the court, stating that he preferre d to be in prison in the Unite d States rather than return to Honduras. The court then indicated that it had considered the presentence investigation report, the par ties’ 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. Cr uz-Artiaga expressly admitted he would rather be in prison than return to Hondur as. 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 explaine d that Mr. Cruz-Ar tiaga’s presence5 here was unlawful, notwithstanding whether or not he did anything else illegal while he was here. To the extent he was dese rving of some leniency for not committing other crimes, the court indicated it would “d ial back the government ’s request . . . for an upward variance” and sentence hi m to 45 months in prison. Id. at 63. Yet the court made clear it was intentionally vary ing upwards because Mr. Cruz-Artiaga’s prior sentence of 37 months was insufficie nt, as would be a top-of-the-guidelines sentence of 41 months. We perceive no abuse of discretion. The district cour t began by recognizing the applicable sentencing guidelin e 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 repeat edly stated that it considered the § 3553(a) factors in fashioning an appropriate sentence. The c ourt discussed Mr. Cruz-Artiaga’s criminal history and what it considered the relative ly modest nature of his non-immigration offenses. See id. § 3553(a)(1) (directing court to c onsider the circumstances of the offense and the history and ch aracteristics 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 ha d 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 b ecause he attempted to stay away from drugs and was helping anothe r person, the court balanced those mitigating factors against the need to impose a sentence that reflected the se riousness of the offense and promoted respect for the law, see 18 U.S.C. § 3553(a)(2)(A ). Because this was6 Mr. Cruz-Artiaga’s fourth illegal-reentry conviction, the court sought to impose a sentence that deterred him from comm itting another illegal reentry. See 18 U.S.C. § 3553(a)(2)(B). The district court’s sent ence 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 ex clusion of the other relevant § 3553(a) factors. He points out that the court stated that “[t]he one f actor that seems to be deserving of more emphasis . . . is the de terrence of the defendant.” Id. , Vol. 3 at 62. But the court was required to provide a “‘specifi c 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 cour t properly put weight on the need to deter him from co mmitting another unlawful reentry. To the extent Mr. Cruz-Artiaga suggests th at in doing so the court ex cluded from its consideration other § 3553(a) factors, the foregoing discussion demonstrates it did not. Finally, Mr. Cruz-Artiaga contends hi s 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 hi s request, and in any event, “sentencing review may not be based on a rigid mathematic al 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 vari ed only four months above the applicable guideline range after considering the releva nt § 3553(a) factors and recognizing the need for deterrence. The court noted that Mr. Cr uz-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 sent ence 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 dist rict court is affirmed.

Entered for the Court

Allison H. Eid Circuit Judge