United States v. Tena-Arana ( 2013 )

FILED
United States Court of Appeals
Tenth Circuit
July 24, 2013
UNITED STATES COURT OF APPEALS Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee, No. 13-1113
v. (D.C. No. 1:12-CR-00219-MSK-1)
JESUS CARLOS TENA-ARANA, (D. Colorado)
Defendant - Appellant.
ORDER AND JUDGMENT *
Before HARTZ, O’BRIEN, and GORSUCH, Circuit Judges.
Defendant Jesus Carlos Tena-Arana was sentenced by the United States
District Court for the District of Colorado to 24 months’ imprisonment and three
years’ supervised release for unlawful reentry of an alien who had previously
been deported after commission of an aggravated felony. See 8 U.S.C. § 1326(a),
(b)(2). He challenges the substantive reasonableness of his sentence. Exercising
jurisdiction under 28 U.S.C. § 1291, we affirm.
*
After examining the briefs and appellate record, this panel has determined
unanimously to honor the party’s request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 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 This order and judgment is not binding
precedent except under the doctrines of law of the case, res judicata, and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.
Defendant, a native and citizen of Mexico, was sentenced by a Colorado
state court in February 1999 for felony assault and was deported from the United
States the next year. He was discovered in the United States in January 2012
when he was arrested in Colorado on drug charges. He then pleaded guilty to the
present illegal-reentry charge. With a criminal-history category of IV,
Defendant’s guideline sentencing range was 24 to 30 months’ imprisonment and
one to three years’ supervised release. Although Defendant moved for a
downward variance to a sentence of 15 months’ imprisonment, the district court
ruled that a sentence within the guidelines range was appropriate under 18 U.S.C.
§ 3553(a). It sentenced Defendant to 24 months’ imprisonment and three years’
supervised release.
On appeal Defendant first argues that his sentence of imprisonment is
substantively unreasonable because of his resolve to live permanently in Mexico
and provide for his family. But a within-guidelines sentence is presumptively
reasonable, see United States v. Lewis, 594 F.3d 1270, 1277 (10th Cir. 2010), and
Defendant’s unremarkable evidence does not overcome that presumption.
Defendant also argues that his term of supervised release is unreasonable
because the guidelines instruct that “[t]he court ordinarily should not impose a
term of supervised release in a case in which supervised release is not required by
statute and the defendant is a deportable alien who likely will be deported after
imprisonment.” USSG § 5D1.1(c) (2012). But the application notes to that
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provision state that supervised release can be appropriate to “provide an added
measure of deterrence and protection.” Id. cmt. n.5. It was precisely for such
deterrence that the district court imposed supervised release here. Imposition of
supervised release was a within-guidelines sentence and, even if not, it was
substantively reasonable.
The judgment of the district court is AFFIRMED.
ENTERED FOR THE COURT
Harris L Hartz
Circuit Judge
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