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 fro m the district court’s 51-month sentence for illegal reentry after a felony conviction. Exercising jurisdic tion under 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291, we affirm.

* After examining the briefs and appella te record, this pa nel has determined unanimously that oral argument would not ma terially 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 This order and judgment is not binding precedent, except under the doctr ines of law of the case, res judicata, and collateral estoppel. It may be cite d, however, for its persuasi ve 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: 12 B ACKGROUND 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 so meone over a perceived racial slur. He was sentenced as an adult to four years in pris on and was deported to Mexico in January 1999. He returned to the United Stat es, 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 invo lved in violent criminal activity. In August, he fired a gun into an occupied apar tment, 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 afte r a felony conviction (his 1994 Arizona aggravated assault), a violatio n of 8 U.S.C. § 1326(a), (b)(1). Rangel-Rangel pled guilty. At sentencing, the district court app lied 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 an d ran it consecutive to his Co lorado sentences. The court explained that a concurrent sentence would effectively mean no federal punishment and that 51 months would “meet the purposes of se ntencing laid out in [the] federal code.” R., Vol. V at 50. In doing so, the cour t 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: 23 he had suffered from substance-abuse issues, th at he had been in the United States since he was just 40 days old, and that his in evitable 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 conduc t 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 e nough weight on his mitigating factor s. Aplt. Reply Br. at 2, 3.
D ISCUSSION 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 quotati on marks omitted). We will reverse only if the sentence was “arbitrar y, capricious, whimsical, or manifestly unreasonable,” or if the district court “exc eeded the bounds of permissible choice, given

1 The § 3553(a) factors include: the natu re and circumstances of the offense and the defendant’s history and characteristics; the need for a sent ence to reflect the seriousness of the crime, deter future crimin al conduct, protect the public from further crimes committed by the defendant, and prov ide rehabilitation; the sentences that are legally available; the Se ntencing 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: 34 the facts and the applicable la w in the case at hand.” United States v. DeRusse , 859 F.3d 1232, 1236 (10th Cir. 2017) (internal quot ation marks omitted). In conducting our analysis, “[w]e do not reweigh the [§ 3553] sentencing factors but instead ask whether the sentence fell within the rang e 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-guidelin e-range sentence that the district court properly calculated is entitled to a rebuttable presum ption 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 th e district court relied too heavily on his 1994 conviction for aggravated assault. He r easons that the “conviction is old, minor, the product of his difficult childhood, and was al ready counted” in determining his offense level and criminal-history categ ory. Aplt. Opening Br. at 9. 2 We perceive no abuse of discretion in the district court’s c onsideration 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: 45 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 se ntencing 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 stab bed a person in the rib cage for yelling a word that Rangel-Rangel mistak enly thought was a racial slur and then fled the scene. And although the Arizona sentencing court may have initially been le nient in imposing three years of probation for the stabbing, it later revoked that sentence and imposed a four-year term of imprisonment. On the othe r hand, the district court observed that after serving his Arizona sentence, Rangel-Range l overcame his “diffi cult childhood” to become “a productive member of society” for “a long time.” Id. Thus, the district court balanced the se rious 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 reasona ble balancing of § 3553(a) factors. See United States v. Sells , 541 F.3d 1227, 1239 (10th Cir. 2008) (s tating 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 th e 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: 56 § 3553(a) stage. See United States v. Barnes , 890 F.3d 910, 915 (10t h Cir. 2018) (noting that “[w]hen determini ng a sentence, a court must consider the seven statutory factors set forth in § 3553(a),” including the defendant’s history a nd characteristics (emphasis added)); cf. United States v. Ruiz-Terrazas , 477 F.3d 1196, 1 204 (10th Cir. 2007) (observing that this court has “routinely upheld as reasonable the use of prior convictions to calculate both the criminal history categor y 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 convicti ons were mitigated by his addiction to opioids. But the district court recognized his addiction and its negati ve 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 th at comment as showing his 2018 convictions are entitled to “diminish[ed] . . . weight” and wa rrant “a shorter [federal] sentence.” Aplt. Opening Br. at 12. But we do no t reweigh sentencing factors. See Blair , 933 F.3d at 1274. Moreover, the likely success of a ddiction treatment would not obviate other § 3553(a) factors weighing in favor of a 51-m onth federal sentence. In particular, the district court balanced Rangel-Rangel’s addi ction against his “very serious” conduct in “firing guns at other[s] or into places wh ere 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 Colo rado sentences, would “promote respect for Appellate Case: 21-1287 Document: 010110731554 Date Filed: 08/30/2022 Page: 67 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 dete r future criminality and protec t 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). An d we conclude that the district court’s 51-month sentence is a rationally availabl e choice based on the § 3553(a) factors. 3 Rangel-Rangel has not overcome the pr esumption that his within-guideline sentence was reasonable. And the district cour t did not abuse its discretion in sentencing him to 51-months’ imprisonment.
C ONCLUSION 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 Co lorado convictions were already counted in setting his offense level a nd criminal-history category. We have already noted that the district court considered Rangel-Ra ngel’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 duri ng 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