FILED United States Court of Appeals Tenth Circuit UNITED STATES COURT OF APPEALS May 2, 2019 Elisabeth A. Shumaker TENTH CIRCUIT Clerk of Court UNITED STATES OF AMERICA, Plaintiff - Appellee, v. No. 18-2136 (D.C. No. 2:18-CR-01368-RB-1) BONIFACIO LOPEZ-URBINA, (D. N.M.) Defendant - Appellant. ORDER AND JUDGMENT * Before TYMKOVICH, Chief Judge, BALDOCK, and CARSON, Circuit Judges. Bonifacio Lopez-Urbina pleaded guilty without a plea agreement to illegal reentry after deportation in violation of 8 U.S.C. § 1326. The district court followed the recommendation of the probation officer and departed two criminal history levels downward from the United States Sentencing Guidelines (USSG). Lopez-Urbina then moved for an additional downward departure of three offense * This order and judgment is not binding precedent except under the doctrines of law of the case, res judicata and collateral estoppel.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. levels on the ground that his offense level overrepresented his actual criminal history. The district court denied Lopez-Urbina’s motion for downward departure and sentenced him to 57 months in prison, the bottom of the guideline range. Lopez-Urbina now challenges the district court’s sentencing determination—both the denial of the motion to depart downward and the substantive reasonableness of the sentence. We conclude, however, this court lacks jurisdiction to review the district court’s discretionary decision to deny Lopez-Urbina’s motion for downward departure. Our review is thus cabined to the substantive reasonableness of the imposed sentence. And we AFFIRM because the 57-month sentence is reasonable. I. Background Border patrol agents apprehended Lopez-Urbina in Santa Teresa, New Mexico, shortly after he crossed the United States-Mexico border. He was arrested for violating 8 U.S.C. §§ 1326(a)(1) and (b)(2), which prohibit a previously removed alien from reentering the United States without authorization. His extensive criminal history resulted in an offense level of 21 and a criminal history category of VI. Lopez-Urbina already had a conviction for illegal reentry (having been deported from the United States four times) and had additional felony convictions both before and after his illegal reentry conviction. -2- Lopez-Urbina’s base offense level of eight increased four levels for having a prior conviction for illegal reentry. USSG § 2L1.2(b)(1)(A). He received an additional four-level enhancement for his DWI conviction in 2011—charged as a felony because he had two previous DWI convictions. Id. § 2L1.2(b)(2)(D). And finally, Lopez-Urbina received an eight-level enhancement under USSG § 2L1.2(b)(3)(B) for a domestic-violence conviction in 2016—also charged as a felony because he had a previous conviction for domestic violence. After a three- level reduction for acceptance of responsibility, Lopez-Urbina’s total offense level was 21, with a resulting guideline range of 77 to 96 months. The probation officer recommended the district court depart downward two criminal history categories under USSG § 4A1.3(b)(1) on the ground that criminal history category VI “substantially over-represents the seriousness of the defendant’s criminal history.” The district court concurred in that assessment and varied down two levels. Lopez-Urbina then moved ...
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