UNITED STATES COURT OF APPEALS 

TENTH CIRCUIT 

UNITED STATES OF AMERICA, 

Plaintiff – Appellee, 

v. 

AGUSTIN SANCHEZ-FRAGOSO, 

 Defendant – Appellant. 

No. 14-2185 

(D.C. No. 2:13-CR-04019-RB-1) 

(D.N.M.) 

ORDER & JUDGMENT*

Before MATHESON, MURPHY, and PHILLIPS, Circuit Judges. 

Agustin Sanchez-Fragoso pleaded guilty to one count of reentering the United States 

as a removed alien. The district court sentenced him to forty-one months’ imprisonment. 

Sanchez-Fragoso appeals and argues that his sentence is unreasonable. Exercising 

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

BACKGROUND 

 In September 2013, border patrol agents encountered Sanchez-Fragoso in Hidalgo 

County, New Mexico. The agents questioned Sanchez-Fragoso about his citizenship, and 

 *

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); 10th Cir. R. 34.1(G). The case is therefore ordered 

submitted without oral argument. This order is not binding precedent except under the 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 Federal Rule of Appellate Procedure 

32.1 and Tenth Circuit Court Rule 32.1. 

FILED 

United States Court of Appeals 

Tenth Circuit 

March 25, 2015

Elisabeth A. Shumaker 

Clerk of Court

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he responded that he was a citizen of Mexico and illegally present in the United States. 

Sanchez-Fragoso’s illegal presence stemmed from his July 2013 removal, which came 

after Sanchez-Fragoso served most of a four-year prison term after his conviction for 

possessing cocaine with intent to distribute it. 

 After filing a complaint, the government offered Sanchez-Fragoso the opportunity to 

plead guilty and take advantage of a fast-track program, where defendants plead guilty 

early in the prosecution and waive their rights to file certain motions and to appeal, in 

exchange for shorter sentences. See United States v. Morales-Chaires, 430 F.3d 1124, 

1127 (10th Cir. 2005) (describing the fast-track sentencing program). Sanchez-Fragoso 

refused that opportunity, hoping to argue for an even shorter sentence. 

A grand jury indicted Sanchez-Fragoso on one count of reentry of a removed alien, in 

violation of 8 U.S.C. §§ 1326(a) and (b). Sanchez-Fragoso ultimately pleaded guilty to 

that charge without the benefit of a plea agreement. Before sentencing, the probation 

officer completed a presentence report (PSR). The PSR set Sanchez-Fragoso’s base 

offense level under the Sentencing Guidelines at eight. See U.S.S.G. § 2L1.2. The PSR 

then added sixteen levels because Sanchez-Fragoso had been previously convicted of 

possessing cocaine with intent to distribute, an offense for which the sentence imposed 

exceeded thirteen months. See U.S.S.G. § 2L1.2(b)(1)(A). Sanchez-Fragoso’s total 

offense level was twenty-one, after the PSR credited his acceptance of responsibility. 

U.S.S.G. § 3E1.1(a)–(b). Sanchez-Fragoso’s criminal history category was II because of 

his earlier felony drug conviction. Accordingly, the PSR provided an advisory Guidelines 

imprisonment range of forty-one to fifty-one months. 

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 Before sentencing, Sanchez-Fragoso sought a downward variance from the applicable 

Guidelines range. He argued that the sixteen-level increase under § 2L1.2(b)(1)(A) was 

too severe, and he relied on cases where judges criticized the enhancement. SanchezFragoso also contended that, based on the sentencing factors that district judges must 

consider under 18 U.S.C. § 3553(a), a sentence of forty-one months—the low end of the 

Guidelines range—would be “far greater than necessary to achieve the stated [§ 3553(a)] 

objectives.” R. vol. I at 13. Rather, he argued that a twenty-month sentence would be 

appropriate. The government opposed Sanchez-Fragoso’s request for a downward 

variance. 

 At sentencing, the district court reviewed the PSR and factual findings and considered 

the § 3553(a) factors. It then imposed a sentence of forty-one months, concluding that 

nothing justified a variance from the Guidelines range. The court noted SanchezFragoso’s previous felony conviction and deportation as reasons for denying a downward 

variance. The district court decided that Sanchez-Fragoso’s asserted circumstances for 

reentry—his desire to see his family—did not warrant “some exceptional treatment.” R. 

vol. III at 11. Sanchez-Fragoso did not object after the district court announced the 

sentence. Sanchez-Fragoso has timely appealed. 

DISCUSSION 

On appeal, Sanchez-Fragoso challenges his sentence as unreasonable. He advances 

two arguments. First, he contends that the district court did not adequately explain its 

sentencing decision in light of Sanchez-Fragoso’s familial ties and his argument 

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regarding the severity of the sixteen-level increase. Second, Sanchez-Fragoso asserts that 

the district court imposed a substantively unreasonable sentence by focusing too heavily 

on Sanchez-Fragoso’s previous drug trafficking crime and mentioning that SanchezFragoso had acted unwisely if he had refused to plead guilty and take advantage of the 

fast-track option. 

Sanchez-Fragoso’s first argument focuses on the procedural reasonableness of the 

sentence. See United States v. Romero, 491 F.3d 1173, 1175–76 (10th Cir. 2007) 

(addressing a sentence’s procedural reasonableness when the defendant argued that his 

sentence was unreasonable because the district court failed to explain its reason for 

rejecting a cultural assimilation argument for a below-Guidelines sentence). Generally, 

we review the procedural reasonableness of a sentence for an abuse of discretion. United 

States v. Sanchez-Leon, 764 F.3d 1248, 1262 (10th Cir. 2014). But at sentencing, 

Sanchez-Fragoso did not object to the district court’s explanation of its sentence. 

Therefore, we only review this argument for plain error. See Romero, 491 F.3d at 1178 

(reviewing only for plain error because the defendant did not object on procedural 

grounds after the district court imposed sentence). 

We find plain error only when there is (1) error, (2) that is plain, (3) which affects 

substantial rights, and (4) which seriously affects the fairness, integrity, or public 

reputation of judicial proceedings. United States v. Lopez-Flores, 444 F.3d 1218, 1222 

(10th Cir. 2006). After reviewing the record, we conclude that the district court did not 

commit plain error. The district court considered Sanchez-Fragoso’s arguments against 

the application of § 2L1.2(b)(1)(A) and rejected them. The district court noted SanchezAppellate Case: 14-2185 Document: 01019404623 Date Filed: 03/25/2015 Page: 4 
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Fragoso’s felony drug conviction and his multiple attempts to reenter the United States 

despite the earlier removal. Before it imposed sentence, the district court not only 

explicitly denied Sanchez-Fragoso’s request for a downward variance, but also stated that 

it had reviewed the PSR and considered the § 3553(a) factors. The district court simply 

disagreed with Sanchez-Fragoso. We find no error with the procedural reasonableness of 

the sentence. 

Sanchez-Fragoso’s second argument regarding the application of the sixteen-level 

increase under U.S.S.G. § 2L1.2(b)(1)(A) is an attack on the substantive reasonableness 

of his sentence. We review this challenge for an abuse of discretion. United States v. 

Montgomery, 550 F.3d 1229, 1233 (10th Cir. 2008). We give substantial deference to the 

district court because it has “an unquestionable institutional advantage over an appellate 

court to consider whether the facts of an individual case justify a variance under 

§ 3553(a).” United States v. Sayad, 589 F.3d 1110, 1116 (10th Cir. 2009) (quoting United 

States v. Huckins, 529 F.3d 1312, 1317 (10th Cir. 2008)). Because the district court 

imposed a within-Guidelines sentence, we presume that the sentence is reasonable. 

Sanchez-Fragoso must rebut this presumption by demonstrating that the sentence is 

unreasonable when viewed against the other § 3553(a) factors. United States v. Kristl, 

437 F.3d 1050, 1054 (10th Cir. 2006). 

This Sanchez-Fragoso does not do. He first contends that § 2L1.2 is unjust and points 

us to various district court cases criticizing the sixteen-level increase. See, e.g., United 

States v. Zapata-Trevino, 378 F. Supp. 2d 1321, 1324–28 (D.N.M. 2005). Whatever merit 

Sanchez-Fragoso’s argument may have, we will not invalidate a sentence simply because 

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a defendant disagrees with the policies behind the Guidelines. See United States v. 

Wilken, 498 F.3d 1160, 1172–73 (10th Cir. 2007) (rejecting defendant’s policy argument 

against counting earlier drug convictions in determining that he was a career offender); 

see also United States v. McCullough, 457 F.3d 1150, 1171 (10th Cir. 2006), cert. denied, 

549 U.S. 1136 (2007) (stating that a sentence is not rendered unreasonable merely 

because a district court refuses to deviate from the advisory guideline range on policy 

grounds). 

Next, Sanchez-Fragoso argues that his forty-one month sentence is unreasonable 

because the district court substantially overstated some of the § 3553(a) factors, although 

he does not specify which ones. He argues that the district court should not have relied so 

heavily on his previous felony drug conviction (his only felony conviction) and instead 

should have focused on the number of relatives who live in the United States and are 

citizens. Ultimately, Sanchez-Fragoso argues that a reentering the country as a removed 

alien is not severe enough to merit this sentence. 

We are unconvinced. The district court noted Sanchez-Fragoso’s earlier drug 

trafficking conviction—one for possessing cocaine with the intent to distribute it. 

Sanchez-Fragoso conceded at sentencing that he reentered the country only two months 

after completing his prison term and being deported. Sanchez-Fragoso argues that his 

sentence is unnecessary for deterrence, rehabilitation, or educational opportunities. We 

disagree. Sanchez-Fragoso’s quick reentry soon after his deportation concerned the 

district court enough that it denied his variance request. And we also note that the 

“reentry of an ex-felon is a serious offense.” United States v. Martinez-Barragan, 545 

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F.3d 894, 905 (10th Cir. 2008). Additionally, contrary to Sanchez-Fragoso’s assertions, 

the district court did consider his acculturation and his family circumstances (all of his 

children are U.S. citizens). The district court simply rejected those arguments, concluding 

that, with his criminal history and with his circumstances, Sanchez-Fragoso had not 

demonstrated that he deserved “some exceptional treatment.” R. vol. III at 11. We agree. 

A district court may grant a downward variance based on the defendant’s family 

circumstances, but it should do so only in extraordinary circumstances. See U.S.S.G. 

§ 5H1.6. Sanchez-Fragoso has not pointed us to any extraordinary circumstances that the 

district court overlooked. Sanchez-Fragoso has not overcome the presumption of 

reasonableness of his within-Guidelines sentence. His substantive reasonableness claim 

fails. 

CONCLUSION 

We affirm Sanchez-Fragoso’s sentence. 

Entered for the Court 

Gregory A. Phillips 

Circuit Judge

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