UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

________________ _________________ UNITED STATES OF AMERICA, Plaintiff - Appellee,

v. JUAN PABLO MARTINEZ-MARTINEZ, a/k/a Daniel Martinez Aguilar, a/k/a Daniel Aguila, a/k/a Armando Castro-Castro, a/k/a Antonio Penuelas-Cast ro, a/k/a RogelioRamiraz-Ramiraz, a/k/a Miguel LunaRobledo, a/k/a Carlos Monoyoqui-Lopez, a/k/a Luis Marquez-Nunez, Defendant - Appellant. No. 18-5072 (D.C. No. 4:18-CR -00054-GKF-1) (N.D. Okla.)

________________ _________________ ORDER AND JUDGMENT *

________________ _________________ Before BACHARACH , MURPHY , and MORITZ , Circuit Judges.

________________ _________________ After Juan Pablo Martinez-Mart inez pleaded guilty to illegally reentering the United States for a third time, t he district court sentenced hi m to 21 months’

* After examining the briefs and appellate record, this panel ha s determined unanimously to honor the parties ’ request for a decision on the briefs without oral argument. See Fed. R. App. P. 34(f); 10th Cir . R. 34.1(G). The case is there fore submitted without oral argument. T his order and judgment isn’t binding precedent, except under the doctrines of la w of the case, res judicata, an d collateral estoppel. But it may be cited for i ts persuasive value. See Fed. R. App. P. 32.1; 10th Cir. R. 32.1. FILED United States Court of Appeals Tenth Circuit 

### February 6, 2019
Elisabeth A. Shumaker Clerk of Court2 imprisonment. Martinez-Martinez a ppeals, arguing his sentence i s substantively unreasonable. For the reasons d iscussed below, we affirm. Martinez-Martinez is a native and citizen of Mexico who has vol untarily returned to Mexico or been rem oved from the United States on se veral occasions. Between 2000 and 2002, Martinez-Ma rtinez voluntarily returned t o Mexico seven times. In 2002, he pleaded guilty t o improper entry, and the go vernment removed him. In 2008, authorities discovere d him in the United States a nd removed him again. In 2010, he pleaded guilty to ill egal reentry; the district cou rt sentenced him to eight months’ imprisonment, and the gove rnment then removed him. In 2 012, he pleaded guilty to illegal reentry for the second time; the district cou rt sentenced him to 15 months’ imprisonment, and the go vernment removed him once more. Additionally, Martinez-Martinez i ncurred several drug- and alco hol-related convictions while in the United States. In 2005, he pleaded gui lty to possession of marijuana and public intoxicati on. In 2009, he pleaded guilty t o driving under the influence of alcohol (DUI). And in 2010, he pleaded guilty to a second DUI. In October 2017, law-enforcement officers arrested Martinez-Ma rtinez in Oklahoma. During routine booking procedures, the officers deter mined that Martinez-Martinez was unlawfully in the United States. As a res ult, MartinezMartinez again pleaded guilty to one count of illegal reentry i n violation of 8 U.S.C. § 1326(a)—his third such conviction. Based on a Guidelines range of 15 to 21 months’ imprisonment, see U.S.S.G. § 2Ll.2(a), the district court sentenced Martinez-Martinez to 2 1 months’3 imprisonment. In support, the dis trict court cited several fact ors, including MartinezMartinez’s reentry “aft er seven voluntary returns and four [rem ovals]”; his “four drug[-] or alcohol-related convic tions”; his “history of physic al[-] and mental[-] health issues”; and his most rece nt illegal-reentry sentence of 15 months’ imprisonment. R. vol. 3, 39–40. M artinez-Martinez appeals, argu ing that his 21-month sentence is subs tantively unreasonable. “We review the substantive reas onableness of a sentence for ab use of discretion.” United States v. Chavez , 723 F.3d 1226, 1233 (10t h Cir. 2013). A district court abuses its discr etion only if it imposes a sentence that “is arbitrary, capricious, whimsical, or manifestly unreasonable.” United States v. Durham , 902 F.3d 1180, 1236 (10th Cir. 2018) (quoting United States v. Munoz-Nava , 524 F.3d 1137, 1146 (10th Cir. 2008)). In reviewing Martinez-Martinez’s s entence for substantive reaso nableness, we ask “whether the length of [his] sentence is reasonable given a ll the circumstances of the case in light of” the relevan t factors under 18 U.S.C. § 35 53(a). United States v. Singer , 825 F.3d 1151, 1158 (1 0th Cir. 2016) (quoting United States v. Craig , 808 F.3d 1249, 1261 (10th Cir. 2015 )). Among other things, these fa ctors include the nature and circumstances of the offense; the history and charac teristics of the defendant; the need for the sente nce to reflect the seriousness of the offense and promote respect for law enforceme nt; the need to deter criminal conduct; and the need to protect the public from future crimes. See § 3553(a). Further, because the district court sentenced Martin ez-Martinez within the Guideline s range, we presume4 that his sentence is reasonable. United States v. McBride , 633 F.3d 1229 , 1233 (10th Cir. 2011). Seeking to overcome the presump tion of reasonableness, Martinez -Martinez asserts the district court overe mphasized the severity of his c riminal history—in particular, by focusing on his 2010 DUI conviction—when weighin g the factors listed in § 3553(a). 1 Cf. U.S.S.G. § 4A1.3(b)(1) (allowi ng for downward departure if “defendant’s crimina l[-]history ca tegory substantially over[]re presents [1] the seriousness of the defe ndant’s criminal hist ory or [2] the like lihood that the defendant will commit other crimes ”). Martinez-Martinez suggest s this conviction is “minimal,” Aplt. Br. 9, because t he state court never sentenced him for this offense. But we see no indication that, by focusing on Martinez-Martinez ’s 2010 DUI conviction, the district court improperly inflated the severity of his criminal history. Indeed, the state court never se ntenced Martinez-Martinez for t his offense because, after the state court deferred s entencing for one year, Martine z-Martinez failed to appear for his subsequent sentenc ing hearing. If anything, the circumstances of the 2010 DUI support, rather than unde rmine, the district court’s f ocus on this offense. Moreover, we note that in additi on to the 2010 DUI conviction, MartinezMartinez had a long list of othe r convictions, including two pr ior illegal-reentry convictions and three other alc ohol- and drug-related convictio ns. Further, for each

1 Martinez-Martinez doesn’t chall enge the calculation of his Gui delines range, essentially conceding that the 2010 DUI conviction was properly counted in his criminal-history category.5 of the prior illegal-reentry c onvictions, he received sentences shorter than his current sentence—8 and 15 months, respec tively. Thus, it’s clear that n either the convictions themselves nor the relatively s hort sentences Martinez-Martinez received as a result of those convictions was suffici ent to deter him from illegally reentering the country. The district court was therefore justified in imposing this lon ger sentence as a deterrent. See § 3553(a)(2)(B) (allowing distri ct court to consider need for s entence to “afford adequate deterren ce to criminal conduct”); United States v. GuardadoPanuco , 746 F. App’x 784, 785 (10th Cir. 2019) (unpublished) (finding 24-month sentence substantively reasonabl e because it would “provide the appropriate level of deterrence” where defendant had two prior illegal-reentry convi ctions). Accordingly, we see no indicati on that by focusing on Martinez- Martinez’s 2010 DUI conviction, the district court overstated the severity of his criminal history. As such, Martinez-Martinez fails to overcome the presumption th at his Guidelines sentence is substantively reasona ble, and the district court di dn’t abuse its discretion in imposing Martinez-M artinez’s sentence.

Entered for the Court
Nancy L. Moritz Circuit Judge