FILED United States Court of Appeals Tenth Circuit UNITED STATES COURT OF APPEALS November 6, 2019 Elisabeth A. Shumaker TENTH CIRCUIT Clerk of Court UNITED STATES OF AMERICA, Plaintiff - Appellee, v. No. 19-2104 (D.C. No. 2:19-CR-00892-JTM-1) BENEDICTO CUELLAR- (D. N.M.) DOMINGUEZ, Defendant - Appellant. ORDER AND JUDGMENT * Before CARSON, BALDOCK, and MURPHY, Circuit Judges. After examining the briefs and appellate record, this court has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). Accordingly, we grant the parties’ requests and order the case 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 * This order and judgment is not binding precedent except under the doctrines of law of the case, res judicata, and collateral estoppel.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. Benedicto Cuellar-Dominguez pleaded guilty to a single count of illegally reentering the United States after removal, in violation of 8 U.S.C. § 1326(a). The district court sentenced Cuellar-Dominguez to a twenty-one-month term of imprisonment, a term at the bottom of the advisory guidelines range of twenty-one to twenty-seven months. Cuellar-Dominguez appeals, asserting his sentence is too long in light of the sentencing factors set out in 18 U.S.C. 3553(a). This court exercises jurisdiction pursuant to 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291, and affirms the sentence imposed by the district court. In preparation for sentencing, the United States Probation Office disclosed Cuellar-Dominguez’s Presentence Investigation Report (“PSR”). Because of a conviction for driving under the influence and five convictions for illegal entry or reentry, Cuellar-Dominguez had eleven criminal history points. The result was a criminal history category of V. This criminal history category, when combined with Cuellar-Dominguez’s offense level of ten, resulted in an advisory guidelines range of twenty-one to twenty-seven months’ imprisonment. When Cuellar-Dominguez appeared before the district court for sentencing, he stated he did not have any “objections or corrections” to the PSR. He did, however, ask for a nine-month downward variance from the bottom of the advisory guidelines range, to a sentence of twelve months and one day. Cuellar- Dominguez argued his criminal history category was overstated because it -2- consisted of a 2010 conviction for driving under the influence 1 and “non-victim immigration crimes.” He also noted he has four minor children, with “another one on the way.” Finally, he asserted he no longer consumed alcohol, having quit in 2017. In his allocution, Cuellar-Dominguez stated: “I just want to say that I am really sorry, your Honor. This is the last time I come to the United States. My family needs me. I have children to support. And that’s all I wanted to say. Thank you.” The district court then pronounced sentence. It noted Cuellar-Dominguez had “five illegal entry or reentry convictions since 2010 and in addition, . . . [had] been removed nine other times.” In light of this history, the district court remarked as follows: ...
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