United States v. Nunez-Tovar

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
TENTH CIRCUIT January 31, 2013
Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff–Appellee, No. 12-6192
(D.C. No. 5:11-CR-00203-D-1)
v. (W.D. Okla.)
HUGO NUNEZ-TOVAR,
Defendant–Appellant.
ORDER AND JUDGMENT*
Before LUCERO, O’BRIEN, and MATHESON, Circuit Judges.
Hugo Nunez-Tovar appeals his within-Guidelines sentence, arguing it was
substantively unreasonable. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.
I
In September 2009, Nunez-Tovar pled guilty in Oklahoma state court to four
* After examining appellant’s brief and the appellate record, this panel has
determined unanimously that oral argument would not materially assist the determination
of this appeal. See Fed. R. App. P. 34(a)(2) and 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 This order and judgment is not
binding precedent, except under the doctrines of law of the case, res judicata, and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.
charges, including possession of a controlled substance and assault and battery on a
police officer. He was sentenced to ten years’ incarceration. In December 2009,
immigration officials determined that Nunez-Tovar was an aggravated felon present in
the United States illegally. He subsequently pled guilty to illegal reentry by a removed
alien and aggravated felon, a violation of 8 U.S.C. § 1326(a) and (b)(2).
Nunez-Tovar’s pre-sentence investigation report (“PSR”) noted that he had been
removed five times and had committed numerous crimes after illegally entering the
United States. In some instances, Nunez-Tovar was arrested in this country less than a
year after having been removed. The PSR calculated an advisory Guidelines range of
seventy-seven to ninety-six months’ imprisonment.
At his sentencing hearing, Nunez-Tovar requested that the court consider a below-
Guidelines sentence, noting his age, his significant eye problems, and the delay in
bringing the illegal reentry charge against him. The district court imposed a sentence of
seventy-seven months’ imprisonment, the low end of the recommended Guidelines range.
Nunez-Tovar timely appealed.
II
On appeal, Nunez-Tovar does not challenge the manner in which his sentence was
calculated, but contends that the sentence is substantively unreasonable. We review the
substantive reasonableness of a sentence under an abuse-of-discretion standard. See Gall
v. United States, 552 U.S. 38, 51 (2007); United States v. Montgomery, 550 F.3d 1229,
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1233 (10th Cir. 2008). “A district court abuses its discretion when it renders a judgment
that is arbitrary, capricious, whimsical, or manifestly unreasonable.” United States v.
Friedman, 554 F.3d 1301, 1307 (10th Cir. 2009) (quotation omitted). “If the district
court correctly calculates the Guidelines range based upon the facts and imposes [a]
sentence within that range, the sentence is entitled to a presumption of reasonableness.”
United States v. Sutton, 520 F.3d 1259, 1262 (10th Cir. 2008) (citation omitted).
Nunez-Tovar asserts three arguments. First, he contends that one of the
sentencing factors, the nature of the offense and the history and characteristics of the
offender, 18 U.S.C. § 3553(a)(1), supports a downward variance. In particular, he argues
that illegal reentry is a “status” offense, and that the majority of his prior convictions
occurred several decades ago. However, this Court has consistently rejected the
argument that illegal reentry is a non-serious offense meriting a reduced sentence. See
United States v. Martinez-Barragan, 545 F.3d 894, 905 (10th Cir. 2008). Nunez-Tovar
also claims that the government’s delay in bringing charges should have been given
greater weight under § 3553(a)(1). Although a district court may consider a delay in
bringing charges in varying downward, its failure to do so does not render a sentence
unreasonable. Cf. United States v. Sinks, 473 F.3d 1315, 1322 (10th Cir. 2007).
Second, Nunez-Tovar argues that a below-Guidelines sentence would achieve the
statutory objectives of § 3553(a) because his age, poor health, and the time left on his
state sentence are all likely deterrents to him committing future crimes. He further
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alleges that he will not pose a danger to the public because he will be removed after
release. Given Nunez-Tovar’s sustained, consistent record of illegal reentry and
recidivism, we disagree that this sentencing factor warrants a downward variance. See
United States v. Reyes-Alfonso, 653 F.3d 1137, 1145 (10th Cir. 2011).
Finally, Nunez-Tovar claims that a lower sentence is necessary to prevent sentence
disparities. See § 3553(a)(6). He contends that, compared to defendants convicted of
other crimes within the same sentencing range, he will suffer stricter circumstances of
confinement because of his immigration status. However, the unwarranted disparities
that the statute seeks to avoid are those “among defendants with similar records who have
been found guilty of similar conduct.” Id. Nunez-Tovar does not argue that he alone
among illegal reentry offenders is subject to the discrepancies he notes. Accordingly, this
argument also fails.
III
AFFIRMED.
Entered for the Court
Carlos F. Lucero
Circuit Judge
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