*

 This order and judgment is not binding precedent, except under the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

July 13, 2010

Elisabeth A. Shumaker

Clerk of Court

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 10-3056

CHARLES A. NUNEZ,

Defendant-Appellant.

(D.C. No. 06-CR-20102-1-CM)

(D. Kan.)

ORDER AND JUDGMENT*

Before BRISCOE, Chief Judge, TACHA, and O’BRIEN, Circuit Judges.

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

therefore, submitted without oral argument. 

Defendant-appellant Charles Nunez appeals from the imposition of an

eighteen-month term of imprisonment following the revocation of his supervised

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release. Exercising jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. §

3742(a), we affirm.

I

On April 9, 2007, Nunez pled guilty to making false statements in

connection with the acquisition of a firearm in violation of 18 U.S.C. §§ 922(a)(6)

and 924(a)(2). He was sentenced to fifteen months’ imprisonment followed by a

two-year term of supervised release.

After serving his term of imprisonment, he was released to his term of

supervised release. On November 29, 2009, following a traffic stop in Lawrence,

Kansas, Nunez was arrested for possessing with intent to distribute marijuana. 

During the search of his car, law enforcement officers found five plastic baggies

containing marijuana, $344 in cash, and cell phones with a number of text

messages regarding drug transactions.

 On January 14, 2010, the probation office petitioned the district court to

revoke Nunez’s supervised release. The petition alleged that he violated the

terms of his supervised release, including that he “shall not commit another

federal, state or local crime,” and that he “shall not unlawfully possess a

controlled substance.” ROA, Vol. I at 38. After conducting a hearing, where

Nunez did not contest the government’s proffer of evidence, the district court

found that Nunez had violated the terms of his supervised release. The district

court determined that Nunez had committed a Grade A violation; this violation,

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combined with his criminal history category of III, resulted in an advisory

Guidelines sentencing range of eighteen to twenty-four months’ imprisonment

under the policy statement in U.S.S.G. § 7B1.4(a). Nunez asked to be sentenced

to a term of one year and one day, and the government requested that he be

sentenced to twenty-four months’ imprisonment. The district court sentenced

Nunez to eighteen months’ imprisonment, which was at the bottom of the

advisory Guidelines range. In doing so, the district court stated: 

The court has considered the nature and circumstances of these

violations, characteristics of the defendant, and the sentencing

objectives required by statute. . . . Regards to your term of

imprisonment, Mr. Nunez, this is not the first time you’ve been in

front of the court. As you recall, several other occasions. I’m not

sure why you’re not able to, I guess, stop putting yourself in these

positions, but as you now know, your liberty’s at stake. People have

offered to try to help you address your substance abuse issues, but it

hasn’t worked out. . . . I’ll go ahead and find at this time, Mr. Nunez,

that it’s worth it for the court to in effect give you one last break

with this. I’ll go ahead and give you the 18 months, the low end of

that range, but your actions may have to change. . . . The court

imposes this sentence due to the serious nature of your violation.

ROA, Vol. II at 17. 

II

On appeal, Nunez contends that his sentence was greater than necessary to

accomplish the purposes of sentencing, and thus, is substantively unreasonable. 

“[W]e review sentences for reasonableness under a deferential abuse-of-discretion

standard.” United States v. Alapizco-Valenzuela, 546 F.3d 1208, 1214 (10th Cir.

2008). “Substantive review involves whether the length of the sentence is

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reasonable given all the circumstances of the case in light of the factors set forth

in 18 U.S.C. § 3553(a).” Id. at 1215 (quotation marks omitted). 

Where, as here, a district court imposes a sentence within a correctlycalculated Guidelines range, that sentence is presumptively reasonable. United

States v. Kristl, 437 F.3d 1050, 1055 (10th Cir. 2006). A defendant may rebut

“this presumption by demonstrating that the sentence is unreasonable in light of

the other sentencing factors laid out in § 3553(a).” Id.

Nunez has not rebutted this presumption of reasonableness. He contends

that the sentence does not accurately reflect the severity of the underlying

conduct. However, “‘at revocation the court should sanction primarily the

defendant’s breach of trust, while taking into account, to a limited degree, the

seriousness of the underlying violation and the criminal history of the violator.’” 

United States v. Steele, 603 F.3d 803, 809 (10th Cir. 2010) (quoting U.S.S.G. Ch.

7, Pt. A(3)(b)). And contrary to Nunez’s assertion, the sentence reflects the

severity of both the breach of trust, evidenced by his violation of the terms of his

supervised release, as well as the severity of possessing with intent to distribute a

controlled substance. As counsel for the government notes, Nunez’s violation

offense—possession with intent to distribute marijuana—is a serious crime which,

if prosecuted in federal court, would carry a statutory maximum penalty of five

years’ imprisonment for quantities less than 50 kilograms. See 21 U.S.C. §

841(a)(1), (b)(1)(D). Moreover, as the district court noted, Nunez had previously

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appeared before the court after twice testing positive for marijuana in 2008 in

violation of his supervised release. Nothing in the record indicates that the

district court abused its discretion in sentencing Nunez to the presumptively

reasonable eighteen-month term of imprisonment. 

The judgment of the district court is AFFIRMED.

Entered for the Court

Mary Beck Briscoe

Chief Judge 

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