UNITED STATES COURT OF APPEALS 

 TENTH CIRCUIT

UNITED STATES OF AMERICA,

 Plaintiff, Appellee,

v.

ALBERTO FUENTES-MORENO,

Defendant-Appellant.

No. 10-1068

(D.C. No. 1:09-CR-00395-REB-1)

(D. Colo.)

ORDER AND JUDGMENT*

Before KELLY, EBEL and LUCERO, Circuit Judges. 

Defendant-Appellant Alberto Fuentes-Moreno pled guilty to reentering the United 

States illegally after having been previously deported subsequent to a conviction for an 

aggravated felony, in violation of 8 U.S.C. §§ 1326(a) and (b). The district court 

calculated Fuentes-Moreno’s advisory guidelines range as calling for 41 to 51 months’ 

 

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

unanimously to grant the parties= request for a decision on the briefs without oral 

argument. See Fed. R. App. P. 34(f) and 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 20, 2010

Elisabeth A. Shumaker 

Clerk of Court

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2 

imprisonment, and Feuntes-Moreno does not challenge that calculation. The district 

court imposed a sentence of 48 months’ imprisonment, which Fuentes-Moreno 

characterizes as “near the top of the guideline range.” (Aplt. Br. at 9.) Fuentes-Moreno 

now appeals his sentence, challenging only its substantive reasonableness. Exercising 

jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a), we AFFIRM. 

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

See United States v. Rojas, 531 F.3d 1203, 1209 (10th Cir. 2008). “A district court 

abuses its discretion when it renders a judgment that is arbitrary, capricious, whimsical, 

or manifestly unreasonable.” United States v. Friedman, 554 F.3d 1301, 1307 (10th Cir. 

2009) (quotation omitted). We accord a rebuttable presumption of reasonableness to a 

sentence that falls within the properly calculated guidelines range. Rojas, 531 F.3d at 

1209. 

In this case, the district court provided an ample basis for Fuentes-Moreno’s 

sentence that leads us to conclude the sentence falls within the acceptable range of 

reasonableness. As a starting point, the district court’s sentence fell within the guidelines 

range and is presumptively reasonable. Moreover, the district court explained that 

immigration authorities discovered Fuentes-Moreno because he committed other criminal 

offenses—offenses which Fuentes-Moreno now seeks to minimize as mere traffic 

offenses, though he spent several days in jail as a result of those offenses. The district 

court also emphasized that Fuentes-Moreno failed to grasp the seriousness of the offense 

because he has entered the country illegally on four known occasions and was deported 

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three times. On appeal, Fuentes-Moreno highlights that he first entered the country 

illegally as a teenager with his family, but this accounts for only one of his four illegal 

entries. All three of Fuentes-Moreno’s deportations occurred when he was an adult, and, 

after each one, he chose to reenter the United States unlawfully. Finally, the district court 

expressed serious concern with Fuentes-Moreno’s criminal record, which includes two 

felonies—one for unlawful sexual activity with a minor and one for possession of a 

forgery writing device—and several traffic offenses, including one for driving under the 

influence. Although Fuentes-Moreno again sought to minimize the traffic offenses, the 

district court reasonably explained that the offenses were serious and reflected a disregard 

for the law. And while Fuentes-Moreno also sought to minimize the seriousness of the 

sex offense as involving a consensual encounter, the district court thoughtfully 

considered and rejected that characterization of the offense. 

In sum, the district court stated that it conducted a “careful individual assessment 

of Mr. Fuentes [sic] and his unique circumstances and characteristics” (R. v.2 at 30), and 

the record reflects that to be the case. Although the arguments raised by Fuentes-Moreno 

may have justified a lower sentence, the district court engaged in a thoughtful analysis 

that yielded a reasonable sentence. Accordingly, we cannot disturb that sentence on 

appeal. 

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AFFIRMED. 

ENTERED FOR THE COURT 

David M. Ebel 

Circuit Judge 

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