1 UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff-Appellee,

v. RAMIRO REYES-MARQUEZ, Defendant-Appellant. No. 11-1276 (D.C. No. 1:11-CR-00021-REB-1) (D. Colo.)

ORDER AND JUDGMENT *

Before LUCERO , EBEL, and MATHESON , Circuit Judges.

Mr. Ramiro Reyes-Marquez (“Reyes-Mar quez”) challenges the reasonableness of the sentence he received after being convic ted of illegal reentry after deportation subsequent to an aggravated felony conviction, in violati on of 8 U.S.C. § 1326(a) and (b)(2). Reyes-Marquez argues that the district court abused its discretion in imposing a thirty-month prison sentence—the upper bound of his unchallenged advisory sentencing

* This order and judgment is not binding precedent except under the doctrines of law of the case, res judicata and collateral esto ppel. 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 

### June 19, 2012

Elisabeth A. Shumaker Clerk of Court2 range under the Federal Sentencing Guidelines (“Guidelines”) in this case. Exercising jurisdiction under 28 U.S.C. § 1291 a nd 18 U.S.C. § 37 42(a), we AFFIRM. BACKGROUND Reyes-Marquez, 44, was born in Tijuana, Mexico, and immigrated illegally to the United States with his family when he was four years old. In 1986, he was granted

resident alien status. Prior to his arrest fo r the present offense, Reyes-Marquez lived in Westminster, Colorado, with his wife. The coupl e has four children. Prior to the present offense, Reyes-Marquez pled guilty to a range of criminal o ffenses, including two felonies. In 1996, he was convicted of posse ssion with intent to distribute marijuana, and was deported following a prison sentence. In 1998, after illegally reentering the United States, he was convicted of making a fals e statement on his passport application. Reyes-Marquez was charged with the pres ent offense on January 24, 2011, in the District of Colorado. His illegal alien status was detected by a federal agent while ReyesMarquez was in jail in Bright on, Colorado, following his a rrest for driving under the influence, resisting arrest, and obstructing a cr iminal investigation. On March 31, 2011, Reyes-Marquez pled guilty to the present offense. Reyes-Marquez’s Presentence Investigation Report (“PSR”), which has never b een disputed with re spect to either its factual content or sentencing calculations, computed Reyes-Marquez’s total offense level as 17 under the Guidelines after giving him a 3-point reduction for acceptance of responsibility. His criminal history category was calculated to be level I, since his two prior felony convictions and an earlier petty theft misdemeanor conviction were too old3 to carry criminal history points under the Gu idelines, see U.S.S.G. § 4A1.2(c) and (e).

This combination resulted in an advisory sentencing range of twenty-four to thirty months’ imprisonment. The statutor y maximum sentence was 20 years.

The Probation Office recommended a se ntence of twenty-four months. ReyesMarquez sought a downward departure base d on cultural assimilation under Application Note 8 of U.S.S.G. § 2L1.2 as well as a downward variance based on general sentencing considerations of 18 U.S.C. § 3553(a). The Government, opposin g both motions, urged a twenty-six-month sentence, arguing among ot her things that Mr. Reyes-Marquez’s criminal history category substantially unde rrepresented the seriousness of his actual criminal history. At the sentencing hearing, the district court expressly listed the applicable sentencing statutes and their factors, and acc epted the undisputed facts and calculations of the PSR. The court proceeded to deny Reyes-Marquez’s motion for downward departure based on cultural assimilation, noting that although it had discretion to grant the motion, the record as a whole did not suppor t the departure in Reyes-Marquez’s case. The court went on to make an exhaustive, individualized assessment of Reyes-Marquez’s history and circumstances and how they relate d to the sentencing factors of § 3553(a), and emphasized, among other co nclusions, that Reyes-Marquez’s criminal history was “substantially understated” by the fact that his prior felonies were not counted under the Guidelines due to their age. The court ultimately imposed a sentence of thirty months— the upper end of the advisory Guidelines ra nge. After announcing the sentence, the court4 gave Reyes-Marquez the “opportunity to st ate for the record and thus preserve any objection, procedural, substantive or otherwise . . . to the sentence im posed by the court.” Defense counsel responded that there were no objections. Reyes-Marquez timely appealed to this Court. DISCUSSION I. Standard of review Generally, this Court reviews the distri ct court’s sentences for an abuse of discretion, asking whether or not the sentence was reasonable. Gall v. United States, 552 U.S. 38, 46 (2007). Sentencing reasonablene ss contains a procedural prong as well as a substantive prong. United St ates v. Friedman, 554 F.3d 1 301, 1307 (10th Cir. 2009).

Procedural reasonableness “focuses on wh ether the district court committed any error in calculating or explaining the sentence .” Id.. To preserve a challenge to the district court’s sentencing procedure, a “p arty must specifically object to [that] procedure” at the time, United States v. Me ndoza, 543 F.3d 1186, 1191 (10th Cir. 2008), so that the sentencing judge has an opportunity to addre ss the alleged error, see United States v. Romero, 491 F.3d 1173, 1176-78 (10th Cir. 2007). If a defendant “fails to object to the method by which the sentence wa s determined,” then th is Court reviews the procedure only for plain error. Id. at 117 6-77 (internal quotation marks, citation omitted). With respect to a district court’s di scretionary refusal to grant a downward departure (such as one based on cultural assim ilation), this Court “has no jurisdiction . . .5 to review [that decision] on the ground that a defendant’s circumstances do not warrant the departure.” United States v. Sierra-Casti llo, 405 F.3d 932, 936 (10th Cir. 2005). This Court may review such denials only when the district court committed purely legal error in interpreting the Guidelin es, such as considering a prohibited factor under the Guidelines, see id. at 937, or in “in the very rare circumstance that the district court states that it does not have any authority to depart,” United States v. Cas tillo, 140 F.3d 874, 887 (10th Cir. 1998). Meanwhile, substantive reasonableness “f ocuses on ‘whether the length of the sentence is reasonable given all the circumstances of the case in light of the factors set forth in 18 U.S.C. § 3553(a ).’ ” Friedman, 554 F.3d at 1307 (citation omitted). The Court takes into account “the totality of the circumstances,” Gall, 552 U.S. at 51, but a sentence within the advisory Gu idelines range is “entitled to a rebuttable presumption of [substantive] reasonableness, ” United States v. Halliday, 665 F.3d 1219, 1224 (10th Cir. 2011). An abuse of discretion will be found in this context only where the district court has rendered “a judgment that is arbitrary, capricious, whimsical, or manifestly unreasonable.” Friedman, 554 F.3d at 1307 (internal quota tion marks, citation omitted).

II. Procedural reasonableness As an initial matter, this Court lacks ju risdiction to review the denial of ReyesMarquez’s motion for downward departur e based on cultural assimilation under Application Note 8 of U.S.S.G. § 2L1.2. See Sierra-Castillo , 405 F.3d at 936. At oral argument, Reyes-Marquez expressly abandoned the argument that reversal is warranted6 on this ground. (However, as discussed below, he maintains that the district court failed adequately to consider cultural assimila tion in its general § 3553(a) analysis.) Next, although Reyes-Marquez purports to fault the district court’s procedure, his challenges are properly construed as cl aims of substantive unreasonableness. 1 ReyesMarquez does not allege any procedural erro r, such as miscalcula tion of his advisory sentencing range or failure to consider applic able sentencing factors. See Gall, 552 U.S. at 51. Rather, his argument is that the cour t abused its discretion in weighing certain

considerations within the an alytical framework of § 35 53(a), which is a claim of

substantive unreasonableness. S ee Friedman, 554 F.3d at 1307. In attributing error to the district cour t’s conclusion that his criminal history was “substantially understated,” Reyes-Marquez do es not challenge the computation of his criminal history category, but rather simp ly challenges the degree to which the court emphasized his criminal past, which was prop erly considered unde r § 3553(a). See 18 U.S.C. § 3553(a)(1) (“The court . . . shall consider . . . the history . . . of the defendant . . . .”); id. § 3553(a)(2)(C) (ma ndating consideration of “the need for the sentence imposed . . . to protect the public from further crimes of the defendant”—a consideration to which

1 At oral argument, Reyes-Marquez suggested that the distinction be tween procedural and substantive reasonableness is an unimportant one. However, we note that the distinction is not inconsequential: the Supreme Court re peatedly has distinguished between what constitutes each type; different articulations of reasonablene ss apply to each; waiver of objection to procedural error results in plain error review on appeal; and sentences within the advisory Guidelines range are presumptiv ely reasonable with respect to substantive reasonableness.7 prior criminal history is relevant). Such a challenge is properly construed as implicating

substantive reasonableness. See Friedman, 554 F.3d at 1307. Reyes-Marquez also finds error with the court’s conclusion that a sentence of less than thirty months “would fail to protect the public from th e almost certain predictable recidivism of Mr. Reyes,” reasoning that the court committed procedural error by selecting a sentence based on a clearly errone ous fact, see Gall, 552 U.S. at 51, namely, the fact that he is likely to recidivate. However, Gall’s statement that selection of sentences based on clearly errone ous facts constitutes procedural error does not mean that all of a court’s § 3553(a) sentencing conclusi ons, which are necessarily grounded in facts, fall under the heading of procedural reasonablene ss. Rather, as a general rule, a district court’s weighing of the § 3553(a) factors— which include recidivi sm, see 18 U.S.C. § 3553(a)(2)(C)—implicates substa ntive reasonableness. See Fr iedman, 554 F.3d at 1307. In this case, the foundational facts relied upo n by the district court, including those regarding Reyes-Marquez’s criminal history, were the undisputed facts contained in Reyes-Marquez’s PSR. Finally, even if Reyes-Marquez had allege d procedural error, he failed to preserve such a challenge by failing to ob ject to any procedure below, either in responding to his PSR or at the sentencing hearing. Hence, th is Court would review the district court’s procedure only for plain error, s ee Romero, 491 F.3d at 1176-7 7, and no error (let alone plain error) occurred here.8 III. Substantive reasonableness

Like almost all sentences that fall with in the applicable a dvisory range of the Guidelines, Reyes-Marquez’s sentence was subs tantively reasonable. The district court evaluated the sentencing factors of § 3553(a) in light of the facts of this case, and then imposed a sentence within the presumptively reasonable advisory Guidelines range. See Halliday, 665 F.3d at 1224. Reyes-Marquez di sagrees with the cour t’s conclusions about the gravity of his criminal history and the likelihood that he will recidivate, among the other considerations of § 3553(a), but he c ites no analogous cases that might conceivably support the conclusion that th e court’s determination in this case was “arbitrary, capricious, whimsical, or manifestly unreason able.” See Friedman, 554 F.3d at 1307 (internal quotation marks, citation omitted). The mere fact that the Probation Office and the Government suggested sentences shorter than the one imposed by the court does not

render the court’s determination unreasonable. The record supports the court’s conclusion s regarding criminal history, recidivism, and sentencing disparities. To Reyes-Marquez’ s assertion that the court failed to give due weight under § 3553(a) to cultural assimilation, that ar gument fails in light of the fact that the court expressly took into acco unt Reyes-Marquez’s mitigating family and employment situations in the United States. Reyes-Marquez is ultimately asking this Court simply to reweigh the § 3553(a) factors and to require a shorter sentence, but “[t]he fact that the appellate cour t might reasonably have concl uded that a different sentence9 was appropriate”—and we do not suggest that we would have—“is insufficient to justify

reversal of the district cour t.” See Gall, 552 U.S. at 51.

CONCLUSION For the foregoing reasons, we AFFIRM Reyes-Marquez’s sentence.

ENTERED FOR THE COURT

David M. Ebel United States Circuit Judge