UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

_________________________________ 

UNITED STATES OF AMERICA, 

 Plaintiff - Appellee, 

v. 

JOSE MAURICIO NUÑEZ-ROSAS, 

 Defendant - Appellant. 

No. 21-2031 

(D.C. No. 2:21-CR-00019-JCH-1) 

(D. N.M.) 

_________________________________ 

ORDER AND JUDGMENT*

_________________________________ 

Before HARTZ, KELLY, and MURPHY, Circuit Judges. 

_________________________________ 

Jose Mauricio Nuñez-Rosas pled guilty to illegal reentry into the United States 

and was sentenced to 21 months’ imprisonment given an advisory guideline range of 

21–27 months. On appeal, he argues that (1) the district court should have granted a 

downward variance resulting in a six-month term of imprisonment, and (2) the 

sentence imposed is substantively unreasonable. This court has jurisdiction under 28 

U.S.C. § 1291 and 18 U.S.C. § 3742(a), and we affirm.

* This order and judgment is not binding precedent, except under the doctrines 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 

January 26, 2022

Christopher M. Wolpert 

Clerk of Court

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Background 

In 2002, Mr. Nuñez-Rosas was convicted of distributing 50 or more grams of 

methamphetamine in Oregon. He was sentenced to 70 months’ imprisonment. He 

was released from custody and deported in October 2006. 

In September 2020, Mr. Nuñez-Rosas was arrested for illegally reentering the 

United States in violation of 8 U.S.C. § 1326(a) and (b). He subsequently pled guilty 

but did not enter into a plea agreement.1

 Mr. Nuñez-Rosas’s total offense level was 

15 with a criminal history category of II, resulting in a guideline range of 21–27 

months. Had Mr. Nuñez-Rosas not received three criminal history points for his 

prior drug conviction, his total offense level would have been five with a criminal 

history category of I, resulting in a guideline range of zero to six months. 

Consequently, Mr. Nuñez-Rosas asked the court to sentence him to six months’ 

imprisonment. Instead, the court emphasized “the prior conviction, though it may be 

old, it is for a very serious offense” and sentenced him to the low end of the range. 

Discussion 

Mr. Nuñez-Rosas argues that the district court should have granted a 

downward variance because the prior drug conviction was stale and bears little 

relationship to the illegal reentry conviction. This court reviews the substantive 

1

 Mr. Nuñez-Rosas explains that he anticipated a 10-level enhancement based 

on his prior conviction and did not enter into a “fast-track” plea agreement because 

he would have been unable to argue for a reduction in his sentence. 

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unreasonableness of a sentence for an abuse of discretion. Gall v. United States, 552 

U.S. 38, 51 (2007). A sentence “is substantively unreasonable if it ‘exceed[s] the 

bounds of permissible choice, given the facts and the applicable law.’” United States 

v. Chavez, 723 F.3d 1226, 1233 (10th Cir. 2013) (quoting United States v. McComb, 

519 F.3d 1049, 1053 (10th Cir. 2007)). Additionally, a sentence within the correctly 

calculated guideline range is presumed reasonable. United States v. Blair, 933 F.3d 

1271, 1274 (10th Cir. 2019). 

This court considered a similar situation in United States v. Chavez-Suarez 

where a “[d]efendant pled guilty to illegally reentering the country following 

deportation after a conviction for a [marijuana] drug-trafficking offense.” 597 F.3d 

1137, 1137 (10th Cir. 2010). The prior drug offense resulted in a 16-level 

enhancement and a guideline range of 41–51 months. Id. at 1138. The district court 

sentenced the defendant to 41 months’ imprisonment. The defendant argued that the 

sentence was substantively unreasonable in light of the age and nature of the 

underlying conviction and his clear record before and after that conviction. Id. 

This court affirmed. Id. at 1139. While noting that “the staleness of an 

underlying conviction may, in certain instances, warrant a below-Guidelines 

sentence,” this court observed that an 11-year-old, relatively benign conviction was 

not “so stale that the district court abused its discretion by refusing to vary downward 

under the circumstances of this case.” Id. at 1138–39. 

Thereafter, this court affirmed a sentence “at the low end of the Sentencing 

Guidelines range,” where the defendant received a 12-level enhancement for a 15-

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year-old cocaine trafficking conviction. United States v. Vasquez-Alcarez, 647 F.3d 

973, 974 (10th Cir. 2011). The court calculated the guideline range at 27–33 months 

and imposed a sentence of 27 months’ imprisonment. Id. at 975. The court noted 

that although that case involved a longer period of time between convictions than 

Chavez-Suarez, the underlying conviction was also more serious. Id. at 978. 

These cases are instructive. Mr. Nuñez-Rosas was arrested approximately 14 

years after being released from prison. Mr. Nuñez-Rosas’s prior conviction for 

distribution of methamphetamine is a serious drug conviction. The district court 

clearly considered these factors when it emphasized that “the prior conviction, 

though it may be old, it is for a very serious offense.” Additionally, this court has 

“consistently observed that reentry of an ex-felon is a serious offense,” and that 

serious underlying convictions can demonstrate recklessness even if the current 

offense does not. United States v. Martinez-Barragan, 545 F.3d 894, 905 (10th Cir. 

2008). Thus, this court will “defer to the district court’s judgment as long as it falls 

within the realm of rationally available choices.” United States v. Reyes-Alfonso, 

653 F.3d 1137, 1145 (10th Cir. 2011). 

AFFIRMED. 

Entered for the Court 

Paul J. Kelly, Jr. 

Circuit Judge 

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