UNITED STATES COURT OF APPEALS TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff - Appellee,

v. HECTOR HERNANDEZ-CORNEJO, Defendant - Appellant. No. 11-2046 (D.C. No. 2:10-CR -03131-JEC-1) (D. N.M.)

ORDER AND JUDGMENT *

Before LUCERO , EBEL , and GORSUCH , Circuit Judges.
In this direct criminal appeal, Defe ndant-Appellant Hector Hernandez-Cornejo pleaded guilty to un authorized reentry after removal, in violation of 8 U.S.C. § 1326(a) and (b), and admitted that the reentry was in violation of the cond itions of his probation for a prior illegal reentry conviction. The di strict court sentenced Hernandez-Cornejo to

* After examining the briefs and the appe llate record, this panel has determined unanimously that oral argument would not mate rially assist the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. This orde r and judgment is not binding precedent, except under the doctrines of law of the case, re s judicata, and collateral estoppel. It may be cited, however, for its persuasive value cons istent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1 FILED United States Court of Appeals Tenth Circuit 

### January 6, 2012
Elisabeth A. Shumaker Clerk of Court2 a term of 41 months’ imprisonment for th e illegal reentry and a term of 18 months’ imprisonment for the probation violation, to be served consecutively. HernandezCornejo challenges the district court’s deci sion to order the sentences to be served consecutively. We have jurisdiction u nder 28 U.S.C. § 1291, and AFFIRM.
I. BACKGROUND
In April 2010, Hernandez-Cornejo wa s convicted in Utah state court of distribution of a controlled substance. Th e state court conviction led to a federal indictment in the District of Utah for un authorized reentry by a previously removed alien. 1 Hernandez-Cornejo pleaded guilty to the fe deral reentry charge and, in July 2010, was sentenced to 60 months’ probation. As a special condition of probation, he was prohibited from reentering the United States illegally. Hernandez-Cornejo was deported on August 5, 2010.
On September 18, 2010, He rnandez-Cornejo reentered the United States without authorization, and was apprehen ded by U.S. Border Patrol ag ents in New Mexico. Based on this September 18 reentry, Hernandez-Co rnejo was charged by information in the District of New Mexico with violating 8 U.S.C. § 1326(a )(1) and (b)(2) (unauthorized reentry by a previously removed alien, where the alien has previously been convicted of an aggravated felony). In a se parate proceeding in the District of Utah, but also based on

1 Prior to the proceedings in the Utah state and federal courts, Hernandez-Cornejo had been removed from the United States on or about Octo ber 14, 2008.3 the September 18 reentry, a petition for re vocation of probation wa s filed by the U.S. Probation Officer and granted by the distri ct court. Jurisdiction over the probation revocation case was subsequently transfe rred to the District of New Mexico. Hernandez-Cornejo pleaded guilty to the reentry ch arge. The presentence investigation report (“PSR”) calculated his offense level as 17 and his criminal history category as V, yielding an advisory range of 46 to 57 months under the Guidelines. In his plea agreement, however, which the distri ct court accepted, Hernandez-Cornejo and the Government stipulated to an offense leve l of 16, which reduced his advisory range to 41 to 51 months. The district court senten ced Hernandez-Cornejo to forty-one months for the reentry offense.
At the same sentencing hearing, Hernan dez-Cornejo admitted to violating the terms of his probation. He requested th at any sentence imposed for the probation violation run concurrently with his 41-month sentence for illega l reentry. He argued that he reentered the country only to find and help his son, who was in foster care, and that a sentence of 41 months was already many times longer than any sentence he had faced in the past. The Government did not oppose this request for a concurrent sentence but noted countervailing factors, including the need to avoid sentencing disparities and correctly to reflect Hernandez-Cornejo’s criminal history. The district court considered the factors enumerated in 18 U.S.C. § 35 53(a), calculated an advisory range of 18 to 24 months under the Guidelines, noted the advisory nature of th e Guidelines, and sentenced4 Hernandez-Cornejo to 18 months’ imprisonment fo r the probation violation. The district court ordered the sentence to run consecuti vely to the illegal reentry sentence.

II. DISCUSSION Hernandez-Cornejo does not challenge hi s 41-month sentence for illegal reentry, nor does he make any challenge to the calculation of his prob ation violation sentence. He argues only that his 18-month sentence for violating his probatio n is substantively unreasonable because imposing it consecutive to his 41-month sentence for illegal reentry was “harsher than necessary to satisfy the sentencing goals set forth under 18 U.S.C. § 3553(a).” When a defendant challenges his senten ce as substantively unreasonable, we review for an abuse of discretion. Gall v. United States, 552 U.S. 38, 51 (2007); United States v. Sells, 541 F.3d 1227, 1237 (10th Cir. 2008). Similarly, we review the district court’s decision to impose consecutive senten ces for an abuse of discretion. See United States v. Fay, 547 F.3d 1231, 1235 (10th Cir. 2008). An abuse of discretion will be found when the sentence is “arbitrary, capricious, whimsical, or manifestly unreasonable.” United States v. Muñoz-Nava, 524 F.3d 1137, 1146 (10th Cir. 2008). A sentence within the Guidelines’ advisory range is presumed reasonable. United States v. Kristl, 437 F.3d 1050, 1055 (10th Cir. 2006). A court may revoke a prob ationer’s probation and resent ence him for violating the conditions of his probation. 18 U.S.C. § 3565(a)(2). The Unite d States Sentencing5 Commission is authorized to promulgate polic y statements concerning violations of probation and supervised rele ase. See 28 U.S.C. § 994(a)(3 ). Those policy statements are in Chapter 7 of the U.S. Sentencing Guid elines Manual, and they treat violations of probation and violations of supervised release as “functi onally equivalent.” U.S. Sentencing Guidelines Manual, ch. 7, pt. B, introductory cmt. They delineate three categories of probation violations. Id. § 7B 1.1. Advisory sentence ranges for these violations are calculated base d on the category of violation and the defendant’s criminal history. Id. § 7B1.4. The policy statements further provide that [a]ny term of imprisonment imposed upon the revocation of probation or supervised release shall be ordered to be served consecutively to any sentence of imprisonment that the defend ant is serving, whether or not the sentence of imprisonment being served resulted from the conduct that is the basis of the revocation of proba tion or supervised release. Id. § 7B1.3(f) (emphasis added). A district court imposing sentence for a probation violation must consider these policy statem ents as well as the factors provided in 18 U.S.C. § 3553(a), see United St ates v. Tedford, 405 F.3d 1159, 1161 (10th Cir. 2005); however, no “magic words” are necessary to show that a dist rict court has fulfilled this duty, see id. Here, the district court determined th at Hernandez-Cornejo’s illegal reentry constituted a Grade B violation, 2 and that his criminal histor y category was V. Together

2 A Grade B violation is any federal or stat e crime that is punishable by a term of imprisonment of more than one year, but is not a crime of violen ce, a drug or weapons crime, or a crime punishable by more than 20 years in pris on. U.S.S.G. § 7B1.1(a)(1), (2).6 these yielded an advisory range of 18 to 24 months’ imprisonment for the probation violation, and the district court sentenced Hernandez-Cornejo to 18 months. The record reveals further that the district court revi ewed the PSR; it considered the necessary “factors set forth in 18 U.S.C. § 3553(a)(1) through (7)”; it specifically cited to policy statement § 7B.1.1; it calculated the advisory range in keepin g with § 7B1.4; it observed that the sentencing Guidelines were “adviso ry” only; it imposed a sentence within the range; and it imposed that sentence consec utively with another in keeping with § 7B1.3(f). The district court did not explicitly address, but was apparently unmoved by, Hernandez-Cornejo’s arguments th at he reentered the country only to find and help his son, and that he had never pr eviously been sentenced to a term longer than six months. On these facts we find nothing “arbitrary, capricious, whimsical, or manifestly unreasonable,” Muñoz-Nava, 524 F.3d at 1146 , about the district court’s decision to impose a probation violation sentence within the relevant advisory range. Further, we conclude on these facts that it was reasona ble for the district court to follow the Sentencing Commission’s recommendation that, as a matter of policy, that sentence should be ordered to be serv ed consecutively with any other sentence of imprisonment. Cf. United States v. Galarza- Payan, 441 F.3d 885, 889-90 (1 0th Cir. 2006) (upholding the reasonableness of the length of a within-Gui delines sentence despite the defendant’s arguments that his family ties were not adeq uately considered). And to the extent the district court’s decision to impose the sent ence consecutively rested implicitly on its placing greater weight on the n eed to avoid sentencing disp arities, this court does not7 question the district court’s weighing of fact ors. See United States v. Smart, 518 F.3d 800, 808 (10th Cir. 2008) (an appellate court’ s disagreement with the district court’s application of the sentencing factors does not support a holding that the district court abused its discretion). It was not an abuse of discretion for the district court to decline to impose concurrent sentences based on Hernande z-Cornejo’s family situation or relatively short prior sentences.
III. CONCLUSION For the foregoing reasons, we AFFIRM th e district court’s imposition of an 18- month sentence for Hernandez-Cornejo’s probati on violation, to be served consecutively to his 41-month illegal reentry sentence.

ENTERED FOR THE COURT

David M. Ebel Circuit Judge