UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

________________ _________________ UNITED STATES OF AMERICA, Plaintiff - Appellee,

v. HIDEY DIAZ, a/k/a Silvio Manuel Amador, a/k/a Celio Alvarez-Carrasco, Defendant - Appellant. No. 20-1269 (D.C. No. 1:18-CR -00553-RBJ-1) (D. Colo.)

________________ _________________ ORDER AND JUDGMENT *

________________ _________________ Before McHUGH , MURPHY , and CARSON , Circuit Judges.

________________ _________________ Hidey Diaz 1 , a previously deported Honduran national, was arrested and charged with first-degree trespass of a dwelling in Ar apahoe County, Colorado. While he was in state custody, a federal grand jury in the Unite d States District Court for the District of Colorado indicted Mr. Diaz on a charge of illega l reentry after deportation, in violation of 8 U.S.C. § 1326(a). The Government obtained an arrest warrant for Mr. Diaz but did not

* This order and judgment is not bi nding precedent, except under the doctrines of law of the case, res judica ta, and collateral estoppel. It may be cited, however, for its persuasive value consiste nt with Federal Rule of Appellate Procedure 32.1 and Tenth Circuit Rule 32.1.

1 Mr. Diaz also goes by the name of Silvio Amador. FILED United States Court of Appeals Tenth Circuit 

### December 20, 2021 Christopher M. Wolpert Clerk of Court Appellate Case: 20-1269 Document: 010110621255 Date Filed: 12/20/2021 Page: 12 proceed on the federal charge at that time. Before the Go vernment pursued the federal prosecution, Mr. Diaz pleaded gu ilty to the state charge. Mr. Diaz made his initial appearance in federal court almost a year after the federal indictment. Mr. Diaz then pleaded guilty to the federal illegal reentry charge. The state conviction altered his United States Se ntencing Guidelines range in two ways: (1) the applicable criminal history cate gory increased from V to VI, and (2) the applicable offense level score increased by eight levels. At sentencing, Mr. Diaz moved for a vari ance, citing the Guidelines range that would have applied if the G overnment had pursued the fede ral prosecution without delay and before his state conviction. The district court denied M r. Diaz’s motion for a variance and sentenced him to 63 months’ incarcerati on. Mr. Diaz now challenges his sentence as substantively unreasonable. For the follo wing reasons, we affirm his sentence.
I. BACKGROUND
A. Factual History Mr. Diaz, a Honduran national, has a hi story of immigrati on violations. He was previously deported in 2010, 2012, and 2018, and convict ed of illegally reentering the country in 2012. On November 4, 2018, Mr. Diaz was arrested on a first-degree trespass of a dwelling charge in Arapahoe County, Colorado after he opened an unlocked window to enter a residence and “[a] fight ensued.” ROA Vol. 3 at 30. The day after his arrest, federal immigration author ities discovered Mr. Diaz in custody at the Arapahoe County Detention Fa cility. On December 4, 2018, a grand jury sitting in the District of Colorado charged Mr. Diaz with illegal reentry after deportation, in violation Appellate Case: 20-1269 Document: 010110621255 Date Filed: 12/20/2021 Page: 23 of 8 U.S.C. § 1326(a). The Government obtain ed an arrest warrant for Mr. Diaz but did not serve him at that time. On October 28, 2019, Mr. Diaz pleaded guilty to the state charge and was sentenced the same day to two years’ incarcer ation. On December 2, 2019, almost a full year after his federal indictment, Mr. Diaz app eared in federal court for the first time. He pleaded guilty to the federal charge on January 23, 2020. The plea agreement estimated the Guidelines range as 41–51 months’ inca rceration, based on an offense level of sixteen, a criminal history category of V, an d a one-level downward departure because of the “fast-track” nature of the proceedings pursuant to the United States Sentencing Commission, Guidelines Manual , §5K3.1 (2018). The Presentence Investigation Report (“PSR”) calculated the applicable Guidelines range as 70–87 months’ incarceration, with a criminal history category of VI and an offense level of twenty, accounting for the one-level downward departure for fast-track proceedings. The increase in the criminal history category from V, as contemplated by the plea agreement, to VI, was due to the three points added to Mr. Diaz’s criminal history score as a result of the state convicti on. The offense level calculation was also impacted by the stat e conviction. Under USSG §2L1.2(b)(3)(A)-(D), an increase is called for where, at any time afte r having first been deported, a defendant is convicted of a felony that is not an illegal re entry offense. The size of the increase under §2L1.2(b)(3)(A)-(D) is tied to the length of the sentence for the triggering felony. Because Mr. Diaz was sentenced to two years’ in carceration in his state case, he received an eight-level increase pursuant to US SG §2L1.2(b)(3)(B). Ultimately, the PSR Appellate Case: 20-1269 Document: 010110621255 Date Filed: 12/20/2021 Page: 34 recommended a total offense level of twen ty-one, after a reduction for acceptance of responsibility. The one-level downward departur e for fast-track proceedings then brought the offense level down to tw enty. Without the impact of the state conviction, the applicable Guidelines range wo uld have been 27–33 months. 2
B. Procedural History Prior to sentencing, Mr. Diaz moved fo r a variance, requesting a sentence of 30 months’ incarceration and citing the Guid elines range which would have applied without the state conviction. His motion largely focused on th e prejudice created by the delay in the federal prosecution. He argued a 30-month sentence was appropriate due to “the sentencing disparity and prejud ice caused by the government’s failure to transfer [Mr. Diaz] to federal custody at the time of his Indictment.” ROA Vol. 1 at 37. Without the delay in the federal prosecution, he argued a lower Guidelines range would have applied and his sentence would have been significantly lowe r. In response, the Government argued it was “within its right” to le t the state case “resolve prior to securing [Mr. Diaz’s] presence in federal court.” Id. at 51. The district court denied Mr. Diaz’s request for a variance. In imposing the sentence, the district court emphasized th e importance of deterrence given Mr. Diaz’s history of illegal reentries. The district court also cited community safety issues,

2 In the absence of the state convicti on, Mr. Diaz’s total offense level would have been twelve and his criminal history ca tegory V. This can be calculated by simply removing the three points added to Mr. Diaz ’s criminal history score due to his state conviction, as well as the eight-level offens e level increase he received under USSG §2L1.2(b)(3)(B). The resultant Guidelines range would then be 27–33 months. See USSG Chapter 5 Pt. A Sentencing Table. Appellate Case: 20-1269 Document: 010110621255 Date Filed: 12/20/2021 Page: 45 referencing the state trespassing case and M r. Diaz’s previous conviction for driving while ability impaired. The district court ultimately decided some variance from the Gu idelines range was warranted—sentencing Mr. Diaz to 63 months’ incarceration. Th e district court explained it varied for two reasons: (1) because the plea agreement contempl ated the applicable criminal history category as V; and (2) beca use it could arrive at 63 months by deducting 24 months (reflecting the stat e sentence) from the 87-month sentence warranted by the top of the Guidelines range. Mr. Diaz filed a timely notice of appeal.
II. DISCUSSION Mr. Diaz argues his senten ce is substantively unreas onable because the delay in the federal prosecution resu lted in an increas e to the applicable Guidelines range due to the intervening state conviction. For the following reasons, we affirm Mr. Diaz’s sentence. “We review the substantive reasonableness of a sentence for abuse of discretion.” United States v. Lawless , 979 F.3d 849, 855 (10th Cir. 2020). We give “substantial deference” to the district court and will only ov erturn a sentence only if it was “arbitrary, capricious, whimsical, or manifestly unreasonable.” Id. (quotation marks omitted). Mr. Diaz must therefore show that the senten ce fell “outside the realm of the rationally available sentencing choices ava ilable to the district court.” United States v. RendonAlamo , 621 F.3d 1307, 1310 n. ** (10th Cir. 2010). Indeed , “there are perhaps few arenas where the range of rationally permissible choi ces is as large as it is in sentencing.” United States v. McComb , 519 F.3d 1049, 1053 (10th Cir. 2007 ). In addition, because Mr. Diaz’s Appellate Case: 20-1269 Document: 010110621255 Date Filed: 12/20/2021 Page: 56 63-month sentence was below the computed Guid elines range of 70– 87 months, there is a presumption of reasonableness. United States v. Balbin-Mesa , 643 F.3d 783, 788 (10th Cir. 2011). Mr. Diaz argues his “guideline range was ma rkedly higher than it otherwise would have been,” because the dela y in the federal prosecution 3 allowed for the intervening state conviction that increased the applicable Guidelines rang e, resulting in a substantively unreasonable sentence. App. Br. at 13. Spec ifically, he argues he was “treated much worse than one in his situation who did not experience unjustified government delay.” Id. at 14. In support of his argument, Mr. Diaz points to 18 U.S.C. § 3553(a)(6), which requires the district court to consider “the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct,” when imposing a sentence. Mr. Diaz argues the district court should have compared his sentence to those imposed on “others similarly situated who are not subjected to such delay,” under § 3553(a)(6). Id. at 13. In particular, he claims th e district court should have compared his sentence to those available to defendants without an interven ing state conviction. However, nothing in the plain language of the statute suppor ts the comparison Mr. Diaz advances. Mr. Diaz does not argue the distri ct court’s sentence was unreasonable for someone with his record—only that his re cord would have been different if the

3 Mr. Diaz does not claim a violation of his Sixth Amendment right to speedy trial. A discussion of whether the de lay in prosecution was constitutionally appropriate is therefore unwarranted. Appellate Case: 20-1269 Document: 010110621255 Date Filed: 12/20/2021 Page: 67 Government had pursued the federal prosecuti on before his state convi ction. The statute, however, does not contemplate comparisons of defendants with different criminal records. At the time of sentencing on the fede ral offense, the district court properly considered Mr. Diaz’s record as it was, not as it might have been. We therefore reject Mr. Diaz’s argument that the sentence im posed created unwarranted disparities. Even if Mr. Diaz was correct that the dist rict court should have considered the delay under § 3553(a)(6), the need to avoid unwarranted sentencing disparities is “but one of several factors for a court to consid er in determining a reasonable sentence.” United States v. Morales-Chaires , 430 F.3d 1124, 1131 (10th Cir. 2005). The district court appropriately reviewed other factor s under 18 U.S.C. § 3553 in imposing its sentence. The district court cited deterrence as a primary considerati on, noting Mr. Diaz’s “repetitive history of illegal reentries,” and th e fact that “his previous sentences of imprisonment, including most recently 24 m onths in federal prison, have not deterred him.” ROA Vol. 4 at 37; see also 18 U.S.C. § 3553(a)(2)(B). Th e district court also considered community safety, citing “[t]he home invasion wh ere he actually got into a scuffle with one of the residents” and a prior conviction for driving while ability impaired. ROA Vol. 4 at 37; see also 18 U.S.C. § 3553(a)(2)(C)

. The district court was also influenced by Mr. Diaz’s criminal hist ory, specifically that “each time he comes back illegally he commits additional crimes,” “the nature and circumstances of the offense,” and the “particulars of his pe rsonal history.” ROA Vol. 4 at 33, 36; see also 18 U.S.C. § 3553(a)(1). Appellate Case: 20-1269 Document: 010110621255 Date Filed: 12/20/2021 Page: 78 Because the district court appropriately c onsidered a variety of factors in reaching its sentence and did not creat e unwarranted sentencing disp arities, the sentence was not “arbitrary, capricious, whimsical, or manifestly unreasonable.” Lawless , 979 F.3d at 855 (quotation marks omitted). Instea d, the sentence fell within “the realm of the rationally available sentencing choices ava ilable to the district court.” Rendon-Alamo , 621 F.3d at 1310 n. **.
III. CONCLUSION For the foregoing reasons, we AFFIRM Mr. Diaz’s sentence.

Entered for the Court
Carolyn B. McHugh Circuit Judge Appellate Case: 20-1269 Document: 010110621255 Date Filed: 12/20/2021 Page: 8