UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

________________ _________________ UNITED STATES OF AMERICA, Plaintiff - Appellee,

v. MARIO CABALLERO-ANAYA, a/k/a Ernesto Martinez, a/k/a Ernesto Caballero, Defendant - Appellant. No. 19-1034 (D.C. No. 1:18-CR -00035-REB-1) (D. Colo.)

________________ _________________ ORDER AND JUDGMENT *

________________ _________________ Before LUCERO , KELLY , and PHILLIPS , Circuit Judges.

________________ _________________ Mario Caballero-Anaya appeals his convi ction and sentence for illegal reentry after removal under 8 U.S.C. § 1326(a)(1). He argues that the government has failed to establish his removal, an essential elem ent of illegal reentry, because the date on his warrant of removal was la ter than his physical remova l. He also appeals the substantive reasonableness of his sentence. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.

* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judica ta, and collateral estoppel.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 Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. FILED United States Court of Appeals Tenth Circuit 

### March 31, 2020 Christopher M. Wolpert Clerk of Court2 I Caballero-Anaya has a long history of unlawfully entering and being removed from the United States. He was first or dered removed by an immigration judge on March 5, 1999, and was physically removed six days later. Be tween 1999 and 2016, he was removed six additiona l times: three times in 2000, and once each in 2002, 2004, and 2010. 1 Prior to each removal, ICE rein stated the original 1999 order of removal pursuant to 8 C.F.R. § 241.8. 2 From 2000 to 2014, Caballero-Anaya was convicted of illegal reentry four times. After his removal in 2010, Caballero-A naya was again found in the United States on December 2, 2014. As it had six times before, ICE reinstated the original 1999 order of removal, following the proce ss required by § 241.8, and recorded the reinstatement on ICE Form I-871, “Notice of Intent/Decision to Reinstate Prior Order” (“Reinstatement Decision”). Based on the reinstated order, Caballero-Anaya was physically removed from the United States by ICE agents at the Nogales port of entry “via afoot [sic]” on or about June 16, 2016. This physical removal was recorded on the second page of ICE Form I-205, “Warrant of Removal/Deportation”

1 Before 2003, removals were executed by the Immigration and Naturalization Service (“INS”). Since 2003, they have been executed by Immigration and Customs Enforcement (“ICE”). See Homeland Secur ity Act of 2002, Pub. L. No. 107-296, § 4, 116 Stat. 2135 (2002).

2 This section authorizes the removal of an alien who has illegally reentered the United States after “havi ng been removed, or having departed voluntarily, while under an order of exclusion, deportation, or removal” by re instating the prior order. § 241.8.3 (“Warrant”). An ICE official signed the first pa ge of the Warrant on July 8, 2016, approximately 22 days after Caballero-Anaya’s physical re moval. This discrepancy lies at the heart of his appeal. After his June 2016 removal, Caballero -Anaya was again found in the United States on December 6, 2017. As a result he was indicted for illegal reentry after removal in violation of 8 U.S. C. § 1326(a). He waived hi s right to a jury trial and was tried by the district court. At trial, Caballero-Anaya stipulated to all four elements of § 1326(a): (1) that he was an alien; (2) that he had been removed from the United States on or about June 16, 2016; 3 (3) that he knowingly re-entered the United States and was found in the District of Colorado on or about December 6, 2016; and (4) that he had not received consent of the prope r legal authority to reapply for admission to the United St ates. He did not seek to withdraw his stipulations. Instead, under Federal Rule of Crimin al Procedure 29, Caballero-Anaya moved for a judgement of acquittal, arguing th at the discrepancy between the date of his removal and the date on the Warrant ne gated the government’s proof on the first element of § 1326(a)—that he had “been de nied admission, excluded, deported, or removed or has departed the United States while an order of exclusion, deportation, or removal is outstanding.” He argued that § 1326(a) requires the prior removal to

3 Before the district court, the governme nt represented that Caballero-Anaya’s removal had occurred on July 17, 2016, desp ite the I-205 form’s indication that it occurred on June 16. The government doe s not address this issue on appeal. Because any discrepancy in the removal da te does not affect the outcome of our analysis, we continue to refe r to the date of removal as “on or about June 16, 2016,” consistent with Caballero -Anaya’s stipulation.4 have been done “while an order of . . . re moval is outstanding.” Before the district court and on appeal, Caballero-Anaya conf usingly mischaracteriz es the Warrant as the relevant order of removal under § 1326(a). He also contends that an error in the Warrant voids the order of removal under § 1326(a) and otherwis e makes the removal unlawful. The district court rejected th is argument and found him guilty of illegal reentry after removal. The district court calculated the Se ntencing Guidelines range at 15 to 21 months but varied upwards because the “cal culations simply do not reflect accurately or adequately the aggravated criminal hist ory of the defendant.” The district court sentenced the defendant to 48 months’ imprisonment. This appeal focuses on the 2016 rem oval, which is the sole basis for Caballero-Anaya’s conviction. Althou gh cast as a question of statutory interpretation, Caballero-Anaya’s fundamental claim is that the date discrepancy in the Warrant invalidates the 2016 removal from serving as the “removal” required for a conviction under § 1326( a)(1). We disagree. II Caballero-Anaya challenges the district court’s interpretation of § 1326(a). Questions of statutory interp retation are reviewed de nov o. See United States v. Adame-Orozco, 607 F.3d 647, 652 (10th Cir. 2010). We also review de novo the district court’s denial of Caballero-Anaya’s motion for j udgment of acquittal and his challenge to the sufficiency of the evidence underlying hi s conviction. See United States v. Cooper, 654 F.3d 11 04, 1115 (10th Cir. 2011). In reviewing the sufficiency5 of the evidence, we determine whether “viewing the evidence in the light most favorable to the Government, any rationa l trier of fact c ould have found the defendant guilty of the crime be yond a reasonable doubt.” Id. A To convict Caballero-Anaya of a viol ation of § 1326(a), the government must prove: “(1) that the alien has been denied admission, excluded, deported, or removed or has departed the United Stat es while an order of exclus ion, deportation, or removal is outstanding; and (2) that the alien thereafter has entered, attempted to enter, or is at any time found in, the United States.” 4 Adame-Orozco, 607 F.3d at 650-51 (quotation omitted). Caballero-Anaya urges us to interpre t the first element of § 1326(a)(1) to require the relevant rem oval or deportation underpin ning the illegal reentry prosecution to have occurred while an or der of removal is outstanding. The government responds that the statute re quires an outstanding order only when the defendant is shown to have departed the Un ited States, not when he or she has been “denied admission, excluded, deported, or removed.” Resolution of this issue is unnecessary to decide this appeal. Even assuming Caballero-Ana ya’s interpretation is correct, he was removed while an or der of removal was outstanding—the 1999 order which was reinstated in 2014.

4 Caballero-Anaya challenges his conviction only with respect to the “deported or removed” element. He stipulated to the remaining elements at trial.6 At trial the government presented uncon tested evidence of reinstatement. When “an alien has reentere d the United States illegall y after having been removed or having departed voluntarily, under an order of removal, the prior order of removal is reinstated from its original date, . . . and the alien sha ll be removed under the prior order at any time after the reentry.” 8 U.S.C. § 1231(a)(5) (emphasis added). Implementing this statute, 8 C.F.R. § 241. 8 authorizes reinstatement of a prior removal order if an immigration officer dete rmines that: (1) the alien was subject to a prior removal order; (2) the alien is the same person who was removed under the prior order; and (3) the alien unlawfully re-e ntered the United States. Id. After the alien is given notice of and an opportunity to contest th e determination, “the alien shall be removed under the previous order of exclusion, deportation, or removal in accordance with section [1231] (a)(5) of the Act.” Id. On appeal, Caballero-Anaya does not challenge the 1999 removal order or the 2014 Reinstatement Decision. Moreover, he stipulated at trial to the admission of a certified copy of his “Alien” or “A” file, which record s “transactions involving an individual as he/she passes through the U.S. immigrati on and inspection process.” United States v. Lopez, 762 F.3d 852, 855 n.1 (9th Cir. 2014). Caballero-Anaya’s “A” file includes the 20 14 Reinstatement Decision. 5 This reinstatement authorized Caballero-Anaya’s removal “at any time after the reentry.” § 1231(a)(5).

5 The Reinstatement Decision shows that Caballero-Anaya did not object to the reinstatement and includes the immigration o fficer’s findings require d to reinstate the 1999 removal order.7 Caballero-Anaya conflates the order of removal referred to in § 1326(a)(1) with the Warrant. His misapprehension does not create a statutory ambiguity that requires resolution. “The pl ainness or ambiguity of stat utory language is determined by reference to the language itself, the specific context in which that language is used, and the broader context of the statute as a whole.” Robinson v. Shell Oil Co., 519 U.S. 337, 341 (1997). The Immigrati on and Nationality Act “defines ‘order of removal’ as an administrative order concluding that an alie n is removable or ordering removal.” Luna-Garcia v. Holder, 777 F.3d 1182, 1184 (10th Cir. 2015) (citing 8 U.S.C. § 1101(a)(47)(A)). 6 A reinstated removal order is a final order of removal. See id. at 1185. Further, under § 1231(a)(5), an order of removal is reinstated from its original date. The 2014 Reinstatement Decision reinstated Cabellero-Anaya’s original order of removal from its 1999 date . Because Caballero-Anaya was removed on June 16, 2016, while the reinstated rem oval order was outstanding, we do not need to determine if § 1326(a)(1) requires an outstanding order of removal only for departures. B Clinging to his argument that the date discrepancy on the Warrant nonetheless invalidates the 2016 removal, Caballero-Ana ya argues that the “material factual inconsistenc[y]” between his removal and the date on the Warrant requires us to

6 Although the “statutory defi nition refers to ‘order of deportation[,’ t]he terms ‘order of removal’ and ‘order of deporta tion’ are coterminous when interpreting the statute.” Id. at 1184 n.5 (citation omitted).8 conclude that the government has failed pr ove his prior removal—a requisite element of § 1326(a)(1). He further contends that because ICE’s implemen ting regulations require the issuance of a warra nt and its execution, the defi cient warrant in this case is insufficient to show an actual removal. His reliance on cases holding that a prior removal may be shown by an executed warrant is misplaced. Those cas es recognize that there are many ways for the government to prove the required element of a prior removal, including a warrant; they do not stand for the proposition that a warrant is necessary. See United States v. Landeros-Mendez, 206 F.3d 1354, 1357-58 ( 10th Cir. 2000) (together with testimony of INS officers who expelled the alien, warr ant is sufficient proof of prior removal); United States v. Anaya, 117 F.3d 447, 449 (10th Cir. 1997) (con viction sustained on basis of admitted warrant and testimony of agents that warrant was not signed until alien had been deported); United States v. Quezada, 754 F.2d 1190, 1193-95 (5th Cir. 1985) (warrant admissible and sufficient to satisfy the arre st requirement of the thenapplicable vers ion of § 1326); 7 cf. United States v. Lop ez, 762 F.3d 852, 865 (9th Cir. 2014) (holding that authenticated veri fication of removal by officer removing alien is sufficient to prove prior rem oval). In Landeros-Me ndez, the defendant challenged the sufficiency of the evid ence of his prior re moval because the

7 Section 1326(a)(1) was amended by th e Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA). See Pub. L. No. 104-208, 110 Stat. 3009, 3009-618 (1996). “Pursuant to th is amendment, the phrase ‘arrested and deported or excluded and deported’ was repl aced with ‘denied admission, excluded, deported, or removed.’” Lande ros-Mendez, 206 F.3d at 1358 n.4.9 government had not produced the order of removal, and instead relied on (1) a warrant, (2) its records of the defendant’s prior physical removal, and (3) testimony of two immigration agents th at the warrant was prepared after the order of removal was finalized. 206 F.3d at 1357. The c ourt held that the government was not required to introduce an order of removal to establish a violation of § 1326 and determined that the other ev idence was sufficient to sust ain the conviction. Id. at 1357-58. In this case, Caballero-Anaya contends that the fact he was removed 22 days before the Warrant was signe d invalidates his actual re moval on or about June 16, 2016—a removal conducted pursuant to th e reinstated order of removal and witnessed by the officer signing on page two of the Warrant. He claims that the date discrepancy alone results in a failure of proof of his act ual June 16, 2016 removal. Construing his “failure of proof” allegation as a challenge to the sufficiency of the evidence underlying his convicti on, we conclude that a r easonable jury could have found him guilty beyond a reasonable doubt ba sed on the evidence presented at trial. Critically, Caballero-Anaya ne glects to account for his s tipulation that he “was deported from the United States on or about June 16, 2016.” A criminal defendant may stipulate “to elemental facts” and th ereby waive the right to a trial on those elements. United States v. Mason, 85 F.3d 471, 472 (10th Cir. 1996). The “very nature of a defendant’s waiver is that it frees the government from the obligation to present any evidence regardi ng the element in question.” United States v. Smith, 47210 F.3d 752, 753 (10t h Cir. 2006) (emphasis omitted). Further, a factfinder “does not have the lawful power to reject stipul ated facts.” Mason, 85 F.3d at 473. When we consider his stipulation, we cannot conclude that no reasonable jury could find Caballero-Anaya guilty beyond a reasonabl e doubt. This elemental stipulation augmented the evidence in his “A” file, which contained the 1999 removal order, the 2014 Reinstatement Decision, a nd the Warrant recordi ng the circumstances of his 2016 removal. Based on this evidence, the di strict court found that the evidence established beyond a reasonable doubt “that pursu ant to an extant, valid, and viable order of removal, the defendant had been de ported or removed from the United States on or about June 16, 2016.” We decline to hold that an alleged clerical error on the Warrant negated th e legal effect of Caballero- Anaya’s stipulation or the overwhelming evidence of his removal in 2016. We find further support for our conclusion in United States v. MendezCasillas, 272 F.3d 1199 (9th Cir. 2001), whic h upheld a conviction for illegal reentry even though the warrant of deportation was unsigned. Id. at 1205. After determining that the arrest or warrant re quirement in the version of § 1326 in force at the time was intended to provide notice, the Ninth Circuit held that “the miss ing signature did not vitiate the ‘arrest’ element of Mendez-Casi llas’s § 1326 conviction.” Id. The court also rejected Mendez-Casilla s’ contention that “the de fective warrant effectively means that he was never validly ‘deporte d’ for § 1326 purposes,” id. at 1206, an argument similar to Caballero-Anaya’s. Interpreting United States v. MendozaLopez, 481 U.S. 828 (1987), the Ninth Circuit rejected “the view th at a deportation is11 an element of the offense defined by § 1326 onl y if it is ‘lawful.’” It held that “only if the claimed illegality of deportation rise s to the level of a due process violation— specifically, the lack of meaningful judicial review of the INS administrative proceeding—may the deportation not be used to establish an elem ent of a criminal offense.” Mendez-Casillas, 272 F.3d at 120 6 (citation and quot ation omitted). Caballero-Anaya makes no argument that th e alleged error rises to the level of a due process violation. In any event, gi ven Caballero-Anaya’s elemental stipulation and lack of challenge to the original 199 9 removal order or its 2014 reinstatement, there is no due process violation. Accord ingly, we affirm hi s conviction for illegal reentry under § 1326. III Caballero-Anaya also challenges the substantive reasonableness of his sentence. We review such cl aims for abuse of discretion. United States v. Smart, 518 F.3d 800, 805 (10th Cir. 2008). “[W]e afford substantia l deference to the district court, and determine whethe r the length of the sentence is reasonable given all the circumstances of the case in light of the factors set fort h in 18 U.S.C. § 3553(a).” United States v. Balbin-Mesa, 643 F.3d 783, 788 (10th Cir. 2011) (quotation omitted). Under this deferential sta ndard of review, “we deem a sentence unreasonable only if it is ar bitrary, capricious, whim sical, or manifestly unreasonable.” United States v. Gantt, 679 F.3d 1240, 1249 (10th Cir. 2012). Where, as in this case, th e court varies from the Senten cing Guidelines, we “consider the extent of the deviation but give due deference to the di strict court’s decision that12 the § 3553(a) factors, on a whol e, justify the extent of the variance.” United States v. Huckins, 529 F.3d 1312, 1317 (10th Cir. 2008) (quota tion omitted). At sentencing, the district court varied upward from the Guidelines range of 15 to 21 months 8 and imposed a sentence of 48 m onths’ imprisonment. CaballeroAnaya argues that his sentence is substant ively unreasonable because: the district court relied upon factors alr eady included within the Guid elines, the incarceration of unlawful immigrants for immigration viol ations unreasonably us es taxpayer dollars, and the upward variance created un warranted sentencing disparities. In imposing its sentence, the distri ct court varied upward because the “guideline calculations simply do not reflect accurately or adequa tely the aggravated criminal history of the defendant.” It focused on Caballero-Anaya’s more than 25- year “history of violating the immigration laws of this country,” coupled with his history of “numerous other c onvictions unrelated to immigr ation” while in the United States, including “not less than four convictions for dr iving under the influence and aggravated motor vehicle theft.” The court also addressed the need for deterrence, respect for the law, the danger to the community, and the characterist ics of the defendant. For the court, the need for deterrence required the upward vari ance, given Caballero-Anaya’s four prior

8 The district court sustained Caballero -Anaya’s objection to considering one prior felony conviction for purposes of increasing the offender characteristics, resulting in the corrected app licable Guidelines range of 15 to 21 months. Even after the corrected guideline calculation was esta blished, the court twice reaffirmed its sentence and articulated its ra tionale that this sentence wa s appropriate even with the reduced Guidelines range.13 federal criminal prosecutions, eight prior re movals, and one prior voluntary departure after illegal entry. The court explici tly considered the es calating periods of incarceration for each subsequent illegal re entry: 45 days, si x months, 15 months, and 21 months. It viewed this pattern, augmented by Caballero-Anaya’s immediate reentry, or reentry so quickly that he wa s still subject to cour t-imposed supervised release, as demonstrating hi s disregard for the laws of the United States and the inadequacy of the Gu idelines range. The court also considered the danger to the community posed by CaballeroAnaya’s continued pattern of illegal acts , including repeated in stances of driving under the influence. Finally, the court explicitly based its upward variance on the need “to reflect the seriousness of this offense” in context, to promote respect for the law, to deter the defendant and ‘those simila rly situated and inclined,” and to provide just punishment to the defendant. This articulation directly related to specific § 3553(a) factors: the need for dete rrence, the nature of the offense and characteristics of the defendant, the dange r to the community, and the need to provide just punishment for th e crime. See § 3553(a)(1)-(2). “District courts have broad discretion to consider particular facts in fashioning a sentence under 18 U.S.C. § 3553(a), even when those facts ar e already accounted for in the advisory Guidelin es range.” United States v. Alapizco-Valenzuela, 546 F.3d 1208, 1222 (10th Cir. 2008). We have previously determined that a propensity to return and “near-immediate” return—both of which are amply de monstrated in this14 record—support a district court’s decision to vary upwards. See United States v. Valtierra-Rojas, 468 F.3d 1235 , 1241 (10th Cir. 2006). Caballero-Anaya also contends th at the upward variance creates an unwarranted sentence disparity betw een similarly situated defendants. His focus on this factor is misplaced. “[Section] 3553(a)(6)’s consideration of unwarranted sentence disparities is but one factor that a district c ourt must balance against the other § 3553(a) factors in ar riving at an appropriate se ntence.” United States v. Martinez, 610 F.3d 1216, 1228 (10th Cir. 2010) (citation omitted). Moreover, “[d]isparate sentences are allowed where th e disparity is explicable by the facts on the record.” Id. (quotation omitted). In this case, the court considered a number of § 3553(a) factors pertaining to Caballero-Anaya’s history and characteristics and the nature and seriousness of th e offense. These factors co unterbalanced § 3553(a)(6)’s concern for sentence disparitie s. Under our deferential st andard of review, we do not review the weight a district court assigns to each of th e factors or the balance it ultimately strikes among them. See id. at 1229. Instead, giving due deference to the district court’s decision that the § 3553(a) factors, on the whole, justify the extent of the variance, we affirm “[a]s long as the balance struck by the district court among the factors set out in § 3553(a) is not arbitrary, capricious, or manifestly unreasonable.” Id. at 1229 (quot ation omitted). We conclude that the district court’s sentence was not unreasonable.15 IV Caballero-Anaya’s c onviction and sentence fo r illegal reentry are AFFIRMED

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Entered for the Court

Carlos F. Lucero Circuit Judge