United States v. Tena-Arana

FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit FOR THE TENTH CIRCUIT June 22, 2018 _________________________________ Elisabeth A. Shumaker Clerk of Court UNITED STATES OF AMERICA, Plaintiff - Appellee, v. No. 17-1345 (D.C. No. 1:17-CR-00034-MSK-1) JESUS CARLOS TENA-ARANA, (D. Colo.) Defendant - Appellant. _________________________________ ORDER AND JUDGMENT* _________________________________ Before BRISCOE, KELLY, and BACHARACH, Circuit Judges. _________________________________ Jesus Carlos Tena-Arana has filed this direct appeal to challenge the district court’s denial of his motion for a variant sentence based on an appellate waiver.1 Tena-Arana argues the district court “categorically barred” consideration of his * This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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. 1 In his plea agreement, Tena-Arana agreed to “waive[ ] the right to appeal any matter in connection with this prosecution, conviction, or sentence unless it meets one of the following criteria: (1) the sentence exceeds the maximum penalty provided in the statute of conviction; (2) the sentence exceeds the advisory guideline range that applies to a total offense level of 12; or (3) the government appeals the sentence imposed.” ROA, Vol. I, at 14. The second exception triggered Tena-Arana’s right to appeal this case. The advisory guideline range applicable to an offense level of 12 is 15–21 months’ imprisonment, and the district court sentenced Tena-Arana to 30 months in prison. appellate waiver, and by excluding the waiver from 18 U.S.C. § 3553 consideration, the court committed reversible error. We exercise jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742, and AFFIRM the district court. I Tena-Arana, a native and citizen of Mexico, does not have claim to lawful immigration status in the United States. Prior to his present conviction, Tena-Arana had previously been removed from the United States four times. His fourth deportation followed a conviction of illegal re-entry after deportation subsequent to an aggravated felony conviction. For that conviction, Tena-Arana received a 24-month prison sentence and three-year term of supervised release. In November 2016, after his fourth deportation, Tena-Arana again illegally re-entered the United States. On November 28, 2016, immigration officials found Tena-Arana in Denver, Colorado, after he had been detained and charged with interfering with a police officer and providing false information. Tena-Arana admitted that he had illegally re-entered the United States about five days earlier. On May 9, 2017, Tena-Arana pleaded guilty to one count of illegal re-entry of a previously deported alien following an aggravated felony conviction under 8 U.S.C. § 1326(a), (b)(2). With a criminal history category of III and a total offense level of 13, Tena-Arana’s guideline sentencing range was 18–24 months in prison. However, as part of his guilty plea, Tena-Arana agreed to waive almost all of his appellate rights. In exchange, the government “agree[d] not to object to a variance equivalent to a one-level reduction from the guideline ...

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