UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

________________ _________________ UNITED STATES OF AMERICA, Plaintiff - Appellee,

v. LEONARDO CARRILLO, Defendant - Appellant. No. 23-2105 (D.C. No. 2:19-CR -00201-MIS-1) (D. N.M.)

________________ _________________ ORDER AND JUDGMENT *

________________ _________________ Before PHILLIPS , BRISCOE , and CARSON , Circuit Judges.

________________ _________________ Defendant Leonardo Carrill o challenges the substan tive reasonableness of a twenty-four month revocation sentence that was imposed by the district court after Carrillo admitted to violating the terms of his supervised releas e by using controlled substances and absconding from a residentia l reentry center. Ex ercising jurisdiction pursuant to 28 U.S.C. § 1291, we affirm the judgment of the district court.

* After examining the briefs and appella te record, this pa nel has determined unanimously that oral argument would not ma terially assist in the determination of this appeal. See Fed. R. App. P. 34(a)(2); 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 This order and judgment is not binding precedent, except under the doctr ines of law of the case, res judicata, and collateral estoppel. It may be cite d, however, for its persuasi ve value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. FILED United States Court of Appeals Tenth Circuit 

### March 1, 2024 Christopher M. Wolpert Clerk of Court Appellate Case: 23-2105 Document: 010111008045 Date Filed: 03/01/2024 Page: 12 I In 2019, Carrillo pleaded guilty to one count of conspiracy to transport an illegal alien, in violation of 8 U.S.C. § 132 4(a)(1)(A)(v)(i). Carr illo was sentenced to a term of imprisonment of twenty-four months , to be followed by a three-year term of supervised release. Carrillo completed his term of imprisonment and commenced his term of supervised rele ase on May 5, 2022. On June 14, 2022, Carrillo’s probation of ficer filed a petition for revocation of Carrillo’s supervised release. The peti tion noted that one of the conditions of Carrillo’s supervised release was that he “must refrain from any unlawful use of a controlled substance.” ROA, Vol. I at 17. The petition alleged, however, that on June 3 and 13, 2022, Carrillo submitted to random drug tests at a residential reentry center and, on both occasions, admitted to using various illegal substances. The petition further noted that Carrillo was require d, as a term of his supervised release, to “reside in a residential reentry center for a term of (up to) six months” and “must follow the rules and regula tions of the center.” Id . According to the petition, however, on the evening of June 13, 2022, th e staff at the reside ntial reentry center “discovered [Carrillo] was not on the facili ty grounds” and “[f]ur ther investigation revealed [he] jumped over the fence and left the [cen ter] without permission.” Id

. On June 17, 2022, a separate federal criminal case, No. 22-CR-1960, was filed against Carrillo in the district court ch arging him with one count of escape from custody, in violation of 18 U.S.C. § 751(a). That charge relate d to Carrillo’s escape from the residential reentry center on June 13, 2022. Appellate Case: 23-2105 Document: 010111008045 Date Filed: 03/01/2024 Page: 23 On October 19, 2022, Carri llo’s probation officer file d an amended petition for revocation of Carrillo’s supe rvised release. The ame nded petition included the same information contained in the original pe tition but added the following additional information. To begin with, the amended petition noted that the terms of Carrillo’s supervised released required him to refrai n from “commit[ting] another federal, state, or local crime.” Id . at 20. The amended petition in tu rn alleged that “[o]n June 13, 2022, a Criminal Complaint was filed” in federal district cour t “charging [Carrillo] with 18 U.S.C. § 751(a): Escape from Cust ody,” and that the case “remain[ed] pending.” Id . at 20. The amended petition also alleged that on October 8, 2022, Carrillo “was arrested by deputies with the Dona Ana County Sher iff’s Office at his mother’s residence,” and that “[a] Criminal Complaint [w as] filed in the Dona Ana County Magistrate Court ch arging [him] with Aggravated Assault of a Household Member with a Deadly Weapon, (a 4t h degree felony punish able by 18 months custody), Battery Against a Household Me mber (misdemeanor), and Concealing Identity (misdemeanor).” Id

. On December 1, 2022, Carrillo plead ed guilty to the escape from custody charge in Case No. 22-CR-1960. On May 31, 2023, Carrillo appeared befo re the district court and admitted to the violations alleged in the amended petiti on for revocation, with the exception of the allegation that Carrillo committed new criminal offenses for which he was Appellate Case: 23-2105 Document: 010111008045 Date Filed: 03/01/2024 Page: 34 charged in federal and state court. 1 In other words, Carrillo admitted that, shortly after beginning his term of supervised release, he violated the term s of his supervised release by using illegal substan ces and absconding from the resi dential reentry center. On June 28, 2023, the district cour t held a joint sentencing hearing for Carrillo’s escape from custody c onviction and his supervised release violations. The district court sentenced Carri llo to a term of imprisonmen t of thirty months for the escape from custody conviction, to be followe d by a three-year term of supervised release. As for the supervis ed release violations, the di strict court concluded that they were “Grade B violati on[s],” and that Carrillo’s cr iminal history category was V, resulting in a Guidelines sentencing ra nge of “12 to 18 months” and a “maximum term [of] 24 months.” ROA, Vol. III at 37. The district court announced that it intended “to vary” upward from the guide line range “to 24 months” due to “the nature and circumstances of the offense and the history and characteristics of the defendant.” Id . at 37–38. The district court expl ained that, regarding the nature and circumstances of the offens e, Carrillo “abscond[ed] very quickly after his placement at the halfway house.” Id . at 38. As for Carri llo’s criminal history, the district court cited: (a) Carrillo’s “2001 theft conviction”; (b) his “2013 aggravated burglary conviction, where he broke into somebody’s house,” “beat the victim,” who had been sleeping, “and demanded the victim’s prescription medicati ons”; (c) his “2015 battery against a household member c onviction”; (d) his 2018 “transporting”

1 The district court, acting pursuant to the government’s motion, dismissed the allegation regarding Carrillo co mmitting new criminal offenses. Appellate Case: 23-2105 Document: 010111008045 Date Filed: 03/01/2024 Page: 45 conviction, which involved “a high-speed chase”; (e) his “numerous writeups” and special-unit housing “while he was in the Bu reau of Prisons”; a nd (f) his “numerous other contacts with law enforcement, some resulting in charges th at were dismissed and some not, . . . span[ni ng] from 2013 to 2022.” Id . at 38–39. The district court concluded that “a Guideline sentence” would not “adequately deter” Carrillo, “given his criminal history and his behavior on s upervised release where he absconded from the halfway house in about a month.” Id . at 39. The district court further concluded that “an upward variance [w a]s needed to protect the public from the defendant.” Id

. The district court stated that the term of imprisonment imposed for the supervised release violations would “run consecutively to the sentence the Court just imposed in 22-CR-1960.” Id . at 40. The district court also st ated that no new term of supervised release would be imposed in connection w ith the sentence on the supervised release violations. Final judgment was entered in the cas e on June 28, 2023. Carrillo filed a timely notice of appeal.
II On appeal, Carrillo argues that the re vocation sentence imposed by the district court for the supervised rele ase violations “is substantively unreasonable because it is not within the range of reasonable sentence s when the relevant statutory factors are considered.” Aplt. Br. at 11. Carrillo argues in support that his “violations of supervised release are the dir ect result of his substance a buse disorder and his mental health issues.” Id . He in turn asserts that “[r]esolving [his] substance abuse problem Appellate Case: 23-2105 Document: 010111008045 Date Filed: 03/01/2024 Page: 56 by getting him into effective substance abuse treatment is key to deterring any future criminal conduct from him” and “t o the protection of the public.” Id . Carrillo asserts that “the need to provide him with substa nce abuse and mental health treatment,” as well as the “circumstances of [his] offense, his own charact eristics and history, . . . and the need to deter crimin al conduct and protect the public all suggest that his two-year prison sentence . . . is unwarrantedly harsh, especi ally for his first violation of supervised release.” Id . Lastly, Carrillo asserts th at “by imposing the maximum sentence of confinement allowed by law, the [district] court did not give [him] any credit for fully accepting res ponsibility and acknowledging his addiction and mental health issues.” Id

. “Substantive reasonableness focuses on th e length of the sentence and requires that sentences be neither too long nor too short.” United States v. Walker , 844 F.3d 1253, 1255 (10th Ci r. 2017). “When reviewing a sentence for substantive reasonableness, we focus on ‘whether the le ngth of the sentence is reasonable given all the circumstances of the case in light of the fact ors set forth in 18 U.S.C. § 3553(a).’” United States v. Cookson , 922 F.3d 1079, 1091 (10th Cir. 2019) (quoting United States v. Friedman , 554 F.3d 1301, 1307 (10th Cir. 2009)). “A sentencing decision is substantively unreas onable if it ‘excee d[s] the bounds of permissible choice, given the fact s and the applicable law.’” United States v. Chavez , 723 F.3d 1226, 1233 (10t h Cir. 2013) (quoting United States v. McComb , 519 F.3d 1049, 1053 (10t h Cir. 2007)). Appellate Case: 23-2105 Document: 010111008045 Date Filed: 03/01/2024 Page: 67 “We review substantive reasonablenes s for an abuse of discretion.” United States v. Williams , 10 F.4th 965, 977 (10th Cir. 2021). “We do not reweigh the sentencing factors but instead ask whether the sentence fell within the range of ‘rationally available choices th at facts and the law at i ssue can fairly support.’” United States v. Blair , 933 F.3d 1271, 1274 ( 10th Cir. 2019) (quoting United States v. Martinez , 610 F.3d 1216, 1227 (10th Cir. 2010)). “[W]e will defer to the district court’s judgment so long as it falls with in the realm of ... rationally available choices.” United States v. Durham , 902 F.3d 1180, 1236 ( 10th Cir. 2018) (quoting McComb , 519 F.3d at 1053). Notably, the district court in this case addressed each of the § 3553(a) factors in explaining its decision to impose a twenty -four month sentence for the supervised release violations. The dist rict court began by noting “the nature and circumstances of the offense,” in partic ular Carrillo’s “absconding very quickly after his placement at the halfway house.” ROA, Vol. III at 38. The district court in turn emphasized Carrillo’s extensive and sometimes violent cr iminal history, his ”numerous writeups” while in the custody of the Bureau of Pris ons, and his “numerous other contacts with law enforcement . . . span [ning] from 2013 to 2022.” Id . at 38–39. The district court then “consider[ed] the need for the sentence impos ed to afford adequate deterrence to criminal conduct” and conc luded that “a Guideline se ntence” would not “adequately deter . . . Carrillo, given his criminal hist ory and his behavior on supervised release where he absconded from the halfway house in about a month.” Id . at 39. The district court also “consider[e d] the need to protect the pub lic from further crimes of Appellate Case: 23-2105 Document: 010111008045 Date Filed: 03/01/2024 Page: 78 the defendant and f[ound] an upward vari ance [wa]s needed to protect the public from the defendant.” Id . The district court “consid er[ed] the need to provide” Carrillo “with treatment” and “recommend[ed ] [a] 500 hours program” while Carrillo was incarcerated and also ordered “more tr eatment [during] his supervised release” from the escape from custody conviction. Id . The district court addressed “the kinds of sentences available in this case” a nd concluded that th e presumption of reasonableness that is typically afford ed to a Guideline range sentence was “overcome by the factors in this case,” in cluding Carrillo’s “criminal history and behavior on supervised rele ase, both in state court with his probation and here in federal court.” Id . As for “the need to avoid unwarranted sentencing disparities among defendants with similar r ecords,” the district court not ed that it was “not sure there [wa]s a sentencing disparity, given . . . Carrillo’s lengthy and violent criminal history.” Id . at 39–40. The district court furt her stated that “if there [wa]s a sentencing disparity,” it was “warranted by th e facts in this case , where he absconded so quickly after placement in the halfway house.” Id . at 40. Lastly, the district court noted there was “no restitution in this case, so [it was] not considering any need for restitution.” Id

. We conclude there was no abuse of discre tion on the part of the district court in imposing the twenty-four month sentence in this case. As the Supreme Court has noted, “[t]he sentencing judge is in a superior position to find facts and judge their import under § 3553(a) in the individual case.” Gall v. United States , 552 U.S. 38, 51 (2007). And that is precisely what occurred here: the district court, after Appellate Case: 23-2105 Document: 010111008045 Date Filed: 03/01/2024 Page: 89 considering all of the releva nt statutory factors, concl uded that a twenty-four month sentence was necessary to comp ly with all of the purposes of sentencing. Nothing in the record in this case pers uades us that the district court exceeded the bounds of permissible choice in making its decision.
III The judgment of the distri ct court is AFFIRMED.

Entered for the Court

Mary Beck Briscoe Circuit Judge Appellate Case: 23-2105 Document: 010111008045 Date Filed: 03/01/2024 Page: 9