FILED United States Court of Appeals PUBLISH Tenth Circuit UNITED STATES COURT OF APPEALS March 16, 2018 Elisabeth A. Shumaker FOR THE TENTH CIRCUIT Clerk of Court _________________________________ UNITED STATES OF AMERICA, Plaintiff - Appellee, v. No. 16-2141 DAVID ORTIZ-LAZARO, Defendant - Appellant. _________________________________ Appeal from the United States District Court for the District of New Mexico (D.C. No. 1:16-CR-02006-TM-1) _________________________________ Alonzo J. Padilla, Assistant Federal Public Defender, Albuquerque, New Mexico, for Defendant-Appellant. James R. W. Braun, Assistant United States Attorney (Damon P. Martinez, United States Attorney, with him on the brief), Albuquerque, New Mexico, for Plaintiff-Appellee. _________________________________ Before BRISCOE, SEYMOUR, and McHUGH, Circuit Judges. _________________________________ SEYMOUR, Circuit Judge. __________________________________ Defendant Ortiz-Lazaro pled guilty to illegal reentry after deportation in violation of 18 U.S.C. § 1326(a)(1) and (b)(1), and he admitted that he violated the supervised release terms of his prior illegal reentry charge. He appeals his above-guidelines sentence for the supervised release violation as procedurally and substantively unreasonable. We affirm. I. On September 4, 2015, Mr. Ortiz-Lazaro pled guilty to one count of reentry of a deported alien, in violation of 8 U.S.C. § 1326(a). He was sentenced to eight months in prison and three years of supervised release, and upon his release from prison he was deported to Mexico. One of his release conditions was that he not illegally reenter the United States. Mr. Ortiz-Lazaro disregarded that condition and on March 19, 2016, he was apprehended by U.S. Border Patrol agents in New Mexico and ultimately charged with reentry after deportation in violation of 8 U.S.C. § 1326(a)(1) and (b)(1). Mr. Ortiz-Lazaro pled guilty to the § 1326 charge pursuant to a fast track plea agreement. On June 14, 2016, he appeared before the district court for sentencing concerning his most recent illegal reentry charge, and also for a hearing on revocation of his supervised release relating to his prior illegal reentry charge. Regarding the § 1326 charge, the court noted that Mr. Ortiz-Lazaro had illegally reentered the United States a little over a month after his most recent deportation and stated, “I mean, it’s obvious to me that you don’t respect the law of the United States.” Supp. ROA vol. 1 at 12. The court sentenced him to twelve months imprisonment, the high end of the guideline range for the illegal reentry charge. 2 The district court then held a hearing on revocation of Mr. Ortiz-Lazaro’s supervised release. He admitted to violating the supervised release terms. With respect to sentencing, the court noted that the Grade B violation with a criminal history category of II equated to an advisory guideline range of six to twelve months. But the court found that several factors warranted a departure from that range, including that Mr. Ortiz- Lazaro had illegally reentered the United States barely a month after his term of supervised release commenced, had been deported twice before, had also been voluntarily returned to Mexico on three prior occasions, and had previously been convicted of serious violent offenses. The district ...
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