FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit FOR THE TENTH CIRCUIT July 30, 2019 _________________________________ Elisabeth A. Shumaker Clerk of Court UNITED STATES OF AMERICA, Plaintiff - Appellee, v. No. 18-1318 (D.C. No. 1:18-CR-00018-MSK-GPG-1) JAVIER MARTINEZ-PALOMINO, a/k/a (D. Colo.) Jorge Domingues, a/k/a Jorge Dominguez, a/k/a Jose Gonzales, a/k/a Jose Gonzalez, a/k/a Javier G. Martinez, a/k/a Javier, a/k/a Javier Palomino, a/k/a Jose Palomino- Ramirez, a/k/a Elisio Rodriguez-Robles, a/k/a Rafael Fernando Palomino, Defendant - Appellant. _________________________________ ORDER AND JUDGMENT* _________________________________ Before HARTZ, PHILLIPS, and EID, Circuit Judges. _________________________________ Defendant Javier Martinez-Palomino appeals the sentence imposed by the United States District Court for the District of Colorado on his plea of guilty to unlawful reentry of an alien who had been deported after a felony conviction. See 8 U.S.C. § 1326(a), * After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist in the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered 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 This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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. (b)(1). He argues that the district court acted unreasonably, both procedurally and substantively, in varying upward to impose a sentence of 33 months’ imprisonment. But the district court did not abuse its discretion in selecting that sentence. Exercising jurisdiction under 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291, we affirm. I. BACKGROUND Defendant is a native and citizen of Mexico. He first entered the United States illegally in 1995 or 1996. After multiple convictions in Colorado for felony possession of a controlled substance, driving under the influence, and driving without a license or insurance, he was removed to Mexico in 2001. He soon was back in Colorado and was married there in 2002. He and his wife have two children, now aged about 9 and 14, who were born in this country; and his wife and children have apparently lived continuously in Colorado. He was again convicted of driving under the influence and driving without insurance in March 2004, and was removed again in April 2004, but he promptly returned to Colorado. In July 2004 he was charged with unlawful reentry of a deported alien after a felony conviction, and pleaded guilty. He was sentenced to 33 months of incarceration; at the conclusion of his prison term in 2007, he was once more removed to Mexico. In 2017 Defendant was again arrested in Colorado and charged with felony driving under the influence, driving without a license, and speeding. Federal prosecutors brought the present charges against him in January 2018. He pleaded guilty as part of a plea agreement, under which the government agreed to recommend that he receive credit in sentencing for acceptance of responsibility, see USSG ...
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