FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit FOR THE TENTH CIRCUIT October 17, 2017 _________________________________ Elisabeth A. Shumaker Clerk of Court UNITED STATES OF AMERICA, Plaintiff - Appellee, v. No. 16-1331 (D.C. No. 1:15-CR-00390-REB-DW-1) CARLOS TOVILLA-MARTINEZ, a/k/a (D. Colo.) CARLOS MARTINEZ-TOVILLA, Defendant - Appellant. _________________________________ ORDER AND JUDGMENT* _________________________________ Before KELLY, McKAY, and McHUGH, Circuit Judges. _________________________________ Defendant-Appellant Carlos Tovilla-Martinez was convicted by a jury of illegal re-entry of a removed alien, 8 U.S.C. § 1326(a), and unlawful possession of a false document, 18 U.S.C. § 1546(a). He was sentenced to a term of 27 months. He now appeals contending that his sentence, at the top of the guideline range, was substantively unreasonable. Exercising jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a), we affirm. * This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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. Background On August 22, 2014, Mr. Tovilla-Martinez was arrested for disorderly conduct in Telluride, Colorado. 2 R. 32. During the booking process, a social security card was found on his person with the name “Carlos Martinez Lopez.” Id. The jail forwarded Mr. Tovilla-Martinez’s fingerprints to Immigration and Customs Enforcement (ICE), which later determined his real name. Id. ICE also determined that Mr. Tovilla-Martinez had been removed from the United States four times in the past four years. 2 R. 33. The government prepared a Presentence Investigation Report recommending an offense level of 12 and a criminal history category of IV, resulting in a guidelines range of 21–27 months.1 2 R. 35–41. Mr. Tovilla-Martinez did not object to the report, but instead moved for a non-guidelines sentence of a year and a day. 3 R. 226–31. Discussion We review a sentence claimed to be substantively unreasonable for an abuse of discretion, giving substantial deference to the district court. United States v. DeRusse, 859 F.3d 1232, 1236 (10th Cir. 2017). Substantive unreasonableness addresses “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. § 1 Because Mr. Tovilla-Martinez’s prior removal was subsequent to a felony conviction, he was subject to enhanced penalties under 8 U.S.C. § 1326(b)(1). 3 R. 56, 235. 2 3553(a).” United States v. Verdin-Garcia, 516 F.3d 884, 895 (10th Cir.2008) (quoting United States v. Conlan, 500 F.3d 1167, 1169 (10th Cir.2007)). A challenge to the substantive reasonableness of a sentence will succeed only if the sentence “is arbitrary, capricious, whimsical, or manifestly unreasonable.” United States v. Sayad, 589 F.3d 1110, 1116 (10th Cir. 2009) (quoting United States v. Friedman, 554 F.3d 1301, 1307 (10th Cir. 2009)). It is undisputed that the district court correctly calculated Mr. Tovilla- Martinez’s sentence under the guidelines and ultimately selected a sentence within the advisory guideline range. Thus, we presume that the ...
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