393 F. App'x 549

UNITED STATES of America, Plaintiff, Appellee, v. Alberto FUENTES-MORENO, Defendant-Appellant.

No. 10-1068.

United States Court of Appeals, Tenth Circuit.

Aug. 20, 2010.

John M. Hutchins, Office of the United States Attorney, Denver, CO, for Plaintiff-Appellee.

Vicki Mandell-King, Assistant Federal Public Defender, Office of the Federal Public Defender, Denver, CO, for Defendant-Appellant.

Before KELLY, EBEL and LUCERO, Circuit Judges.

ORDER AND JUDGMENT *

DAVID M. EBEL, Circuit Judge.

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’ imprisonment, and Fuentes-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 three times. On appeal, Fuentes-Moreno highlights that he first entered the *550country 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.

AFFIRMED.

United States v. Fuentes-Moreno
393 F. App'x 549

Case Details

Name
United States v. Fuentes-Moreno
Decision Date
Aug 20, 2010
Citations

393 F. App'x 549

Jurisdiction
United States

References

Referencing

Nothing yet... Still searching!

Referenced By

Nothing yet... Still searching!