UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

_________________________________ 

UNITED STATES OF AMERICA, 

 Plaintiff - Appellee, 

v. 

JOSE DE JESUS RANGEL-RANGEL, 

a/k/a Jose de Jesus Rangel, a/k/a Jose Jesus 

Rangel, a/k/a Jose D. Rangel, 

 Defendant - Appellant. 

No. 21-1287 

(D.C. No. 1:21-CR-00048-DDD-1) 

(D. Colo.) 

_________________________________ 

ORDER AND JUDGMENT*

_________________________________ 

Before TYMKOVICH, Chief Judge, BALDOCK and CARSON, Circuit Judges. 

_________________________________ 

 Jose de Jesus Rangel-Rangel appeals from the district court’s 51-month sentence 

for illegal reentry after a felony conviction. Exercising jurisdiction under 18 U.S.C. 

§ 3742(a) and 28 U.S.C. § 1291, we affirm. 

* After examining the briefs and appellate record, this panel has determined 

unanimously that oral argument would not materially assist in 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 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 

August 30, 2022

Christopher M. Wolpert 

Clerk of Court

Appellate Case: 21-1287 Document: 010110731554 Date Filed: 08/30/2022 Page: 1
2 

BACKGROUND

 Rangel-Rangel is a Mexican citizen. In 1994, at the age of seventeen, he pled 

guilty in Arizona to a charge of aggravated assault for stabbing someone over a perceived 

racial slur. He was sentenced as an adult to four years in prison and was deported to 

Mexico in January 1999. He returned to the United States, however, after only a few 

hours and eventually settled in Colorado. He obtained employment, got married, and had 

children. 

 In 2018, Rangel-Rangel again became involved in violent criminal activity. In 

August, he fired a gun into an occupied apartment, and in December, he shot a man to 

death over a debt. He pled guilty in Colorado state court to illegally discharging a 

firearm and second-degree murder, and he received three-year and twenty-year 

concurrent sentences. 

 The federal government discovered that Rangel-Rangel had re-entered the country, 

and it charged him with illegal reentry after a felony conviction (his 1994 Arizona 

aggravated assault), a violation of 8 U.S.C. § 1326(a), (b)(1). Rangel-Rangel pled guilty. 

 At sentencing, the district court applied a sentencing guideline range of 51-63 

months based on a criminal history category of III and an offense level of 22. The court 

selected a 51-month sentence and ran it consecutive to his Colorado sentences. The court 

explained that a concurrent sentence would effectively mean no federal punishment and 

that 51 months would “meet the purposes of sentencing laid out in [the] federal code.” 

R., Vol. V at 50. In doing so, the court acknowledged that Rangel-Rangel had been 

“a productive member of society” for “a long time” after his illegal reentry, id. at 51, that 

Appellate Case: 21-1287 Document: 010110731554 Date Filed: 08/30/2022 Page: 2
3 

he had suffered from substance-abuse issues, that he had been in the United States since 

he was just 40 days old, and that his inevitable removal was “itself a significant 

punishment,” id. at 50. But the court believed a lesser sentence would not “promote 

respect for the law, deter [him] and others from committing crimes of this sort in the 

future, and avoid unnecessary sentencing disparities.” Id. at 52. In particular, the district 

court noted the severity of his criminal conduct in “firing guns at other[s] or into places 

where other people were, including one that resulted in someone’s death.” Id. at 51. 

 Rangel-Rangel now appeals, arguing that his 51-month sentence is substantively 

unreasonable because the district court “put too much weight on” his violent criminal 

history and not enough weight on his mitigating factors. Aplt. Reply Br. at 2, 3. 

DISCUSSION

I. Standards of Review 

 We review the substantive reasonableness of a sentence for an abuse of discretion, 

“ask[ing] 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).”1

 United States v. 

Williams, 10 F.4th 965, 977 (10th Cir. 2021) (internal quotation marks omitted). We will 

reverse only if the sentence was “arbitrary, capricious, whimsical, or manifestly 

unreasonable,” or if the district court “exceeded the bounds of permissible choice, given 

1

 The § 3553(a) factors include: the nature and circumstances of the offense and 

the defendant’s history and characteristics; the need for a sentence to reflect the 

seriousness of the crime, deter future criminal conduct, protect the public from further 

crimes committed by the defendant, and provide rehabilitation; the sentences that are 

legally available; the Sentencing Guidelines; the Sentencing Commission’s policy 

statements; the need to avoid unwarranted sentence disparities; and the need for 

restitution. 18 U.S.C. § 3553(a). 

Appellate Case: 21-1287 Document: 010110731554 Date Filed: 08/30/2022 Page: 3
4 

the facts and the applicable law in the case at hand.” United States v. DeRusse, 859 F.3d 

1232, 1236 (10th Cir. 2017) (internal quotation marks omitted). In conducting our 

analysis, “[w]e do not reweigh the [§ 3553] sentencing factors but instead ask whether 

the sentence fell within the range of rationally available choices that facts and the law at 

issue can fairly support.” United States v. Blair, 933 F.3d 1271, 1274 (10th Cir. 2019) 

(internal quotation marks omitted). 

 Finally, “a within-guideline-range sentence that the district court properly 

calculated is entitled to a rebuttable presumption of reasonableness on appeal.” United 

States v. Wireman, 849 F.3d 956, 964 (10th Cir. 2017) (ellipsis and internal quotation 

marks omitted). 

II. Substantive Reasonableness 

 Rangel-Rangel attempts to rebut the presumption that his within-guideline 

sentence is reasonable by first arguing that the district court relied too heavily on his 

1994 conviction for aggravated assault. He reasons that the “conviction is old, minor, the 

product of his difficult childhood, and was already counted” in determining his offense 

level and criminal-history category. Aplt. Opening Br. at 9.2

 We perceive no abuse of 

discretion in the district court’s consideration of the 1994 conviction. 

2

 On appeal, Rangel-Rangel does not challenge the calculation of his 

Guidelines sentencing range. The issue is, therefore, waived. See United States v. 

Bowline, 917 F.3d 1227, 1231 (10th Cir. 2019) (“The failure to raise an issue in an 

opening brief waives that issue.” (internal quotation marks omitted)). 

Appellate Case: 21-1287 Document: 010110731554 Date Filed: 08/30/2022 Page: 4
5 

 Specifically, Rangel-Rangel has not shown that the district court’s application 

of any § 3553(a) factor to the conviction was arbitrary, capricious, whimsical, or 

manifestly unreasonable. During the sentencing hearing, when explaining the 

justification for a 51-month sentence, the court referenced the 1994 conviction as a 

“serious violent felony conviction” that prompted Rangel-Rangel’s removal from the 

United States. R., Vol. V at 51. Contrary to Rangel-Rangel’s assertion, his underlying 

criminal conduct was not “minor,” as he stabbed a person in the rib cage for yelling a 

word that Rangel-Rangel mistakenly thought was a racial slur and then fled the scene. 

And although the Arizona sentencing court may have initially been lenient in imposing 

three years of probation for the stabbing, it later revoked that sentence and imposed a 

four-year term of imprisonment. On the other hand, the district court observed that after 

serving his Arizona sentence, Rangel-Rangel overcame his “difficult childhood” to 

become “a productive member of society” for “a long time.” Id. 

 Thus, the district court balanced the serious nature of Rangel-Rangel’s offense 

against the offense’s age, his difficult childhood, and his subsequent lawful behavior. We 

must defer to a district court’s reasonable balancing of § 3553(a) factors. See United 

States v. Sells, 541 F.3d 1227, 1239 (10th Cir. 2008) (stating that if “the balance struck 

by the district court among the factors set out in § 3553(a) is not arbitrary, capricious, or 

manifestly unreasonable, we must defer to that decision even if we would not have struck 

the same balance in the first instance”). 

 Further, the fact that the 1994 conviction was relevant to Rangel-Rangel’s offense 

level and criminal-history category does not preclude its additional consideration at the 

Appellate Case: 21-1287 Document: 010110731554 Date Filed: 08/30/2022 Page: 5
6 

§ 3553(a) stage. See United States v. Barnes, 890 F.3d 910, 915 (10th Cir. 2018) (noting 

that “[w]hen determining a sentence, a court must consider the seven statutory factors set 

forth in § 3553(a),” including the defendant’s history and characteristics (emphasis 

added)); cf. United States v. Ruiz-Terrazas, 477 F.3d 1196, 1204 (10th Cir. 2007) 

(observing that this court has “routinely upheld as reasonable the use of prior convictions 

to calculate both the criminal history category and a sentence enhancement where . . . the 

Guidelines authorize it”). 

 Next, Rangel-Rangel attacks the district court’s consideration of the § 3553(a) 

factors in relation to his 2018 convictions for illegally discharging a firearm and 

second-degree murder. He argues the convictions were mitigated by his addiction to 

opioids. But the district court recognized his addiction and its negative impact on his life, 

and it commented that he would have twenty years in state prison to get his addiction 

under control. Rangel-Rangel seizes on that comment as showing his 2018 convictions 

are entitled to “diminish[ed] . . . weight” and warrant “a shorter [federal] sentence.” Aplt. 

Opening Br. at 12. But we do not reweigh sentencing factors. See Blair, 933 F.3d 

at 1274. Moreover, the likely success of addiction treatment would not obviate other 

§ 3553(a) factors weighing in favor of a 51-month federal sentence. In particular, the 

district court balanced Rangel-Rangel’s addiction against his “very serious” conduct in 

“firing guns at other[s] or into places where other people were, including one that 

resulted in someone’s death.” R., Vol. V at 51. And the court went on to explain that 

a 51-month sentence, consecutive to his Colorado sentences, would “promote respect for 

Appellate Case: 21-1287 Document: 010110731554 Date Filed: 08/30/2022 Page: 6
7 

the law, deter [Rangel-Rangel] and others from committing crimes of this sort in the 

future, and avoid unnecessary sentencing disparities.” Id. at 52. 

 That Rangel-Rangel believes his Colorado sentences and future deportation are 

sufficient in themselves to deter future criminality and protect the public is not the test. 

Rather, we “ask whether the [district court’s] sentence fell within the range of rationally 

available choices that facts and the law at issue can fairly support.” Blair, 933 F.3d 

at 1274 (internal quotation marks omitted). And we conclude that the district court’s 

51-month sentence is a rationally available choice based on the § 3553(a) factors.3

 Rangel-Rangel has not overcome the presumption that his within-guideline 

sentence was reasonable. And the district court did not abuse its discretion in sentencing 

him to 51-months’ imprisonment. 

CONCLUSION

 We affirm the district court’s sentence. 

Entered for the Court 

Timothy M. Tymkovich 

Chief Judge 

3

 Rangel-Rangel argues that he was a productive citizen for years before 

committing the 2018 crimes and that his Colorado convictions were already counted 

in setting his offense level and criminal-history category. We have already noted that 

the district court considered Rangel-Rangel’s lack of criminality following his 

Arizona conviction. And he provides no additional support for his argument that a 

district court abuses its discretion by considering during the § 3553(a) analysis 

convictions counted for guideline purposes. These arguments fail for the reasons we 

have already stated. 

Appellate Case: 21-1287 Document: 010110731554 Date Filed: 08/30/2022 Page: 7