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’ imprisonmen t 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-mont h term of imprisonment, and (2) the sentence imposed is substantiv ely unreasonable. This cour t has jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a), and we affirm.

* This order and judgment is not bi nding 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 

### January 26, 2022 Christopher M. Wolpert Clerk of Court Appellate Case: 21-2031 Document: 010110637206 Date Filed: 01/26/2022 Page: 12 Background In 2002, Mr. Nuñez-Rosas was convicted of distributing 50 or more grams of methamphetamine in Oregon. He was sent enced to 70 months’ imprisonment. He was released from custody and deported in October 2006. In September 2020, Mr. Nuñez-Rosas was arrested for illega lly 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 to tal 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 receive d three criminal history points for his prior drug conviction, his tota l offense level would have b een five with a criminal history category of I, resulting in a guideline range of zer o to six months. Consequently, Mr. Nuñez-Rosas asked the court to sentence him to six months’ imprisonment. Instead, the court emphasize d “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 dist rict court should have granted a downward variance because the prior drug conviction was stale and bears little relationship to the illegal reentry convicti on. 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 in to a “fast-track” plea agreement because he would have been unable to argue for a reduction in his sentence. Appellate Case: 21-2031 Document: 010110637206 Date Filed: 01/26/2022 Page: 23 unreasonableness of a sentence for an abuse of discretion. Gall v. United States, 552 U.S. 38, 51 (2007). A sentence “is subs tantively unreasonable if it ‘exceed[s] the bounds of permissible choice, given the fact s and the applicable law.’” United States v. Chavez, 723 F.3d 1226, 123 3 (10th Cir. 2013) (quoting United States v. McComb, 519 F.3d 1049, 1053 (10th Cir. 2007)). Additionally, a sent ence within the correctly calculated guideline range is pr esumed reasonable. United States v. Bl air, 933 F.3d 1271, 1274 (10t h Cir. 2019). This court considered a similar situa tion in United States v. Chavez-Suarez where a “[d]efendant pled guilty to illegally reentering the country following deportation after a convi ction for a [marijuana] drug-tr afficking offens e.” 597 F.3d 1137, 1137 (10th Ci r. 2010). The prior drug o ffense 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’ impr isonment. The defendant argued that the sentence was substantively unreasonable in light of th e age and nature of the underlying conviction and his clear record before and af ter that conviction. Id. This court affirmed. Id. at 1139. Wh ile noting that “the staleness of an underlying conviction may, in certain instances, wa rrant a below-Guidelines sentence,” this court observed that an 11- year-old, relatively benign conviction was not “so stale that the distri ct court abused its discreti on by refusing to vary downward under the circumstances of th is case.” Id . at 1138–39. Thereafter, this court affi rmed a sentence “at the lo w end of the Sentencing Guidelines range,” where the defendant received a 12-level enhancement for a 15- Appellate Case: 21-2031 Document: 010110637206 Date Filed: 01/26/2022 Page: 34 year-old cocaine trafficking conviction. United States v. Vasquez-Alcarez, 647 F.3d 973, 974 (10th Cir. 2011). The court calcu lated the guideline ra nge at 27–33 months and imposed a sentence of 27 months’ impris onment. Id. at 975. The court noted that although that case involved a longer period of time between convictions than Chavez-Suarez, the underlyi ng conviction was also more serious. Id. at 978. These cases are instructiv e. 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 seri ous drug conviction. The district court clearly considered these f actors when it emphasized that “the prior conviction, though it may be old, it is for a very seri ous offense.” Additionally, this court has “consistently observed that reentry of an ex-felon is a serious offense,” and that serious underlying convictions can demonstrate recklessn ess even if the current offense does not. United States v. Martin ez-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 Appellate Case: 21-2031 Document: 010110637206 Date Filed: 01/26/2022 Page: 4