United States v. Cruz-Artiaga

FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit FOR THE TENTH CIRCUIT June 25, 2018 _________________________________ Elisabeth A. Shumaker Clerk of Court UNITED STATES OF AMERICA, Plaintiff - Appellee, v. No. 17-1399 (D.C. No. 1:17-CR-00184-RM-1) CARLOS CRUZ-ARTIAGA, a/k/a Helmer (D. Colo.) Isaias Calix-Arteaga, Defendant - Appellant. _________________________________ ORDER AND JUDGMENT* _________________________________ Before BRISCOE, MATHESON, and EID, Circuit Judges. _________________________________ Carlos Cruz-Artiaga pleaded guilty to illegally reentering the United States after being convicted of an aggravated felony. See 8 U.S.C. § 1326(a) and (b)(2). It was his fourth such conviction, and at sentencing, the district court recognized the need to deter Mr. Cruz-Artiaga’s conduct. Consequently, the court considered the sentencing factors under 18 U.S.C. § 3553(a) and varied up from the applicable sentencing guideline range of 33 to 41 months to sentence Mr. Cruz-Artiaga to * 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. This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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. 45 months in prison. Mr. Cruz-Artiaga now contends his sentence is substantively unreasonable because the district court over-emphasized the need for deterrence. Exercising jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a), we affirm. I We review the district court’s sentence “for reasonableness under an abuse-of-discretion standard.” Peugh v. United States, 569 U.S. 530, 537 (2013). The court acts “within its discretion unless the sentence was arbitrary, capricious, whimsical, or manifestly unreasonable.” United States v. Franklin, 785 F.3d 1365, 1370 (10th Cir. 2015) (internal quotation marks omitted). Our review for reasonableness involves a procedural and a substantive component. United States v. Alapizco-Valenzuela, 546 F.3d 1208, 1214 (10th Cir. 2008). Procedural review questions whether the sentence was correctly calculated and explained, while “[s]ubstantive review involves 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).” Id. at 1214-15 (internal quotation marks omitted). “Although sentences imposed within the correctly calculated [g]uidelines range may be presumed reasonable on appeal, sentences imposed outside the [g]uidelines range may not be presumed unreasonable.” United States v. Huckins, 529 F.3d 1312, 1317 (10th Cir. 2008). When the district court deviates from the applicable guideline range, “we consider the extent of the deviation but give due deference to the district court’s decision that the § 3553(a) factors, on a whole, justify the extent of the variance.” Id. (internal quotation marks omitted). We are not at 2 liberty to reverse a sentence just because we “might reasonably have concluded that a different sentence was appropriate.” Gall v. United States, 552 U.S. 38, 51 ...

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