United States v. Portillo-Vega

F I L E D
United States Court of Appeals
Tenth Circuit
PU BL ISH
February 28, 2007
UNITED STATES CO URT O F APPEALS Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT

U N ITED STA TES O F A M ER ICA,

Plaintiff - Appellee,

v. No. 04-4194

LEONARDO PORTILLO-VEGA, also
know n as JO SE G A LV A N , also known
as LEO NARD O ALCARR AS-
G A LV A N,

Defendant - Appellant.

Appeal from the United States District Court
for the District of Utah
(D .C . N o. 2:03-C R-235-01-JTG )

Howard A. Pincus, Assistant Federal Public Defender (Raymond P. M oore,
Federal Public D efender, with him on the briefs) for D efendant - Appellant.

Dustin B. Pead, Assistant United States Attorney (Paul M . W arner, United States
Attorney, with him on the brief), Salt Lake City, Utah, for Plaintiff - Appellee.

Before BR ISC OE, Circuit Judge, A ND ER SO N, Senior Circuit Judge, and
O’BRIEN, Circuit Judge.

O’BRIEN, Circuit Judge.
 Leonardo Portillo-Vega was indicted with one count of illegal re-entry after

deportation in violation of 8 U.S.C. § 1326. He filed a notice of intent to present

a duress defense and a motion for a jury instruction to that effect. After the

district court denied his motion and granted the government’s motion in limine to

preclude the defense, Portillo-Vega proceeded to trial. He was convicted and

sentenced to seventy-seven months imprisonment. He timely appealed.

Exercising jurisdiction under 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291, we

affirm.

Background

In June 2000, Portillo-Vega was convicted of illegal re-entry after

deportation and sentenced to a term of imprisonment. He was ordered deported

and was permanently barred from re-entering the United States. In M arch 2002,

after completing his sentence, Portillo-Vega was deported through Hidalgo,

Texas. On M arch 7, 2003, officers responding to a suspicious person call found

Portillo-Vega in a Provo, Utah motel. A record check indicated he was a

“previously removed person.” (R. Vol. VI at 2, ¶7 (quotations omitted).)

Portillo-V ega was arrested and incarcerated in the Utah County Jail.

On M arch 10, 2003, Special Agent Carlos Gamarra of the United States

Immigration Customs Enforcement interviewed Portillo-Vega. Portillo-Vega

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acknowledged his previous deportations, 1 including the one in M arch 2002, and

admitted he illegally re-entered the United States through Nogales, Arizona, on

N ovem ber 27, 2002. Portillo-V ega signed a sworn statement to this effect. He

also signed a Form I-826, a notice of rights and disposition form, in which he

checked the box admitting he was in the United States illegally and stating he

wished to return to his home country. 2

On April 2, 2003, Portillo-Vega was indicted with illegal re-entry after

deportation in violation of 8 U.S.C. § 1326. Over six months later, on October

29, 2003, Portillo-Vega filed a notice of intent to raise a duress defense, a motion

for a jury instruction on the duress defense and a request for an evidentiary

hearing. The government filed a motion in limine to preclude Portillo-Vega from

introducing evidence of duress at trial. After a hearing, during which Portillo-

Vega made a proffer of evidence but called no witnesses, the district court found

Portillo-Vega had not carried his burden of establishing the elements of a duress

defense, denied his motion for a jury instruction on duress, and granted the

government’s motion to preclude Portillo-Vega from introducing any evidence of

duress.

1
Prior to his M arch 2002 deportation, Portillo-Vega had been deported five
times.
2
The form contained another box which an individual could check if he
believed he faced harm in his own country. The form indicated that if the
individual harbored such belief the matter would be referred to the immigration
court for a hearing. Portillo-Vega did not check this box.

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 Portillo-Vega and the government attempted to negotiate a conditional plea,

pursuant to which Portillo-Vega would acknowledge his guilt but reserve the right

to appeal the district court’s ruling precluding the duress defense. W hen approval

for the conditional plea could not be obtained, Portillo-Vega proceeded to a jury

trial. The government called witnesses to establish Portillo-Vega’s previous

deportations and his admission of illegal re-entry into the United States. Portillo-

Vega took the stand in his own defense. He admitted to previous deportations, his

2000 illegal re-entry conviction, and his 2002 re-entry into the U nited States.

Consistent with the district court’s order, Portillo-Vega did not attempt to justify

his re-entry as the product of duress. The jury returned a verdict of guilty.

A presentence report (PSR ) was prepared. Portillo-Vega objected to the

PSR , arguing he was entitled to a two-level reduction in his base offense level for

acceptance of responsibility. At sentencing on July 28, 2004, he orally moved for

a downward departure based on his having illegally re-entered the United States

under duress and requested a sentence at the bottom of the guideline range. The

district court granted an acceptance of responsibility reduction but denied

Portillo-Vega’s motion for downward departure. The court found the applicable

guideline range to be seventy-seven to ninety-six months and sentenced Portillo-

Vega to seventy-seven months imprisonment. 3

3
Portillo-Vega was also sentenced to eighteen months for violating his
supervised release. Nine months of that sentence was to be served concurrently
with the sentence imposed for the illegal re-entry and the remaining portion was

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Discussion

1. Duress defense

Portillo-Vega challenges the district court’s decision precluding his duress

defense. He argues his proffer w as sufficient and he is entitled to a new trial.

“W e respect the trial judge’s role as gatekeeper” and review the denial of a

duress defense for abuse of discretion. United States v. Al-Rekabi, 454 F.3d

1113, 1123 (10th Cir. 2006); see also United States v. Patton, 451 F.3d 615, 637

(10th Cir. 2006). 4 The defendant bears the burden of proving this defense by a

preponderance of the evidence. See Dixon v. United States, -- U.S. --, 126 S.Ct.

2437, 2447-48 (2006) (holding that in the usual case the defendant will bear the

burden of proving the duress defense by a preponderance of the evidence); see

also Al-Rekabi, 454 F.3d at 1122 (“[The defendant] must prove his claimed

defenses by a preponderance of the evidence. The government is not required to

disprove them.”). “While w e view the evidence favorably to [the defendant], w e

also recognize his burden of proof on the defense and his corresponding

obligation to produce evidence on each element of that defense.” Al-Rekabi, 454

F.3d at 1123.

to run consecutively. That sentence is not at issue in this appeal.
4
Al-Rekabi involved a defense of necessity. Necessity and duress are both
affirmative defenses. W hile common law historically distinguished between the
two, modern cases have “blur[red] the distinction between duress and necessity.”
United States v. Bailey, 444 U.S. 394, 409-10 (1980).

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 A duress defense “requires the establishment of three elements: (1) an

immediate threat of death or serious bodily injury, (2) a well-grounded fear that

the threat will be carried out, and (3) no reasonable opportunity to escape the

threatened harm.” United States v. M erchant, 992 F.2d 1091, 1096 (10th Cir.

1993) (citing United States v. Scott, 901 F.2d 871, 873 (10th Cir. 1990)). A

defendant must carry his burden on each of the elements; if the evidence is

insufficient on even one element, “the trial court and jury need not be burdened

with testimony supporting other elements of the defense.” Bailey, 444 U.S. at

416; see also Al-Rekabi, 454 F.3d at 1122 (“To qualify for an instruction on an

affirmative defense . . . a defendant must produce evidence of each element

sufficient to warrant its consideration by the jury.”); Scott, 901 F.2d at 873 (“If

the evidence is lacking as to any element of the coercion defense the trial court

may properly disallow the defense as a matter of law and refuse to instruct the

jury as to coercion.”).

Portillo-Vega filed a notice of intent to present a duress defense and a

motion for a jury instruction on duress. He alleged he had “sufficient credible

evidence” on each element of the defense and filed a list of proposed witnesses

and a memorandum in support of the requested jury instruction. (R. Vol. I, Doc.

24 at 1.) In each of these documents, Portillo-Vega set forth his account of events

which necessitated his illegal re-entry into the United States in November 2002.

The government filed a motion in limine asking the district court to prohibit

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Portillo-V ega from introducing any evidence related to the alleged duress defense.

The district court held a hearing on the parties’ motions. Pursuant to the parties’

agreement, no witnesses were called; instead, Portillo-Vega made a proffer of

evidence and each party argued the relevant law.

Portillo-Vega outlined the following sequence of events: 5 In 1986, Portillo-

Vega was detained by border authorities on a 1982 warrant out of W ilcox or

W ilcox County, Arizona, for failure to pay a fine. The officer who transported

Portillo-Vega to court asked him if he knew certain individuals “who picked

lettuce but who also sold drugs.” (R. Vol. I, Doc. 40 at 2.) W hen Portillo-Vega

indicated he knew the individuals, he was referred to the local office of the Drug

Enforcement Administration (DEA), where Portillo-Vega had his photograph

taken and signed paperwork agreeing to work for the DEA. The DEA provided

him a bus ticket to M esa, Arizona. Portillo-Vega traveled to M esa but ended up

in San Luis, M exico. After a few weeks, he was picked up by the DEA and taken

to its Phoenix office. Portillo-Vega signed more paperwork agreeing to work for

the DEA; the DEA agreed to pay him $3,000 for every kilo of cocaine he

purchased. A controlled buy was arranged but was botched by the obvious

presence of DEA agents at the location of the buy. Portillo-Vega was angered by

5
This chronology is compiled from Portillo-Vega’s m emorandum in
support of his motion for a jury instruction on the duress defense, the w itness list
provided to the court in support of the motion, and the statements and argument
of counsel during the hearing.

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the DEA agents’ actions. Believing he was in danger, Portillo-Vega decided to

disappear.

On M arch 1, 2002, Portillo-Vega was deported from the United States after

serving a prison term for illegal re-entry. He stayed in a hotel on the border for a

day or two, where he was picked up by the Federal M exican Police (the

Federales). The Federales took Portillo-Vega to a government building in a

different city (Torreon) and accused him of w orking with the DEA to “bust

M exicans.” (R. Vol. I, Doc. 43 at 3.) W hile there, Portillo-Vega overheard other

people “expressing their opinion that they should kill him.” (Id.) The Federales

released Portillo-Vega and he left town, first traveling to Juarez, where he

attempted to cross the border “to report to U.S. officials w hat was happening to

him.” (Id. at 4.) A customs agent threatened to arrest Portillo-Vega if he did not

return to M exico. Thus, Portillo-Vega continued on to Tijuana, arriving sometime

in mid-M arch. Portillo-Vega began working at a carwash called “Autoservicio y

Lavado Jet.” (Id.) In October 2002, the Federales located Portillo-Vega and

again accused him of working with the DEA. 6 They threatened him “with death

or serious bodily injury” if he did not leave the country. (Id.) Portillo-Vega re-

6
There was conflicting evidence as to when the Federales contacted
Portillo-Vega in Tijuana. According to Portillo-Vega’s written memoranda, the
Federales contacted him “approximately six months” after his arrival in Tijuana,
i.e., in September 2002. (R. Vol. I, Doc. 40 at 4; Doc. 43 at 4.) However, at the
proffer hearing, Portillo-Vega’s counsel stated the Federales contacted Portillo-
Vega in late October 2002.

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entered the U nited States on N ovember 27, 2002, through Nogales, Arizona. He

did not contact law enforcement upon his arrival because he feared being returned

to the Federales in M exico.

Portillo-Vega proposed to call several witnesses. M iguel Angel Sanz,

Portillo-Vega’s employer in Tijuana, would verify Portillo-Vega’s dates of

employment and testify “he was a stable and good employee who suddenly after

about six months of employment got nervous about the Federales and suddenly

left.” (R. Vol. I, Doc. 40 at 5.) Joel Sanz would testify in accordance with

M iguel Sanz’s testimony. A co-worker, Kaluchi Rodriguez, would testify that

Portillo-Vega “confided in him that the Federales were going to kill him.” (Id.)

Hector Samuel Smith Navidad, who worked at the junk yard behind the carwash

where Portillo-Vega worked, “was working when Federales came and took

[Portillo-Vega] and threatened him.” (Id.) He would testify Portillo-Vega was

“very frightened and quickly left.” (Id.)

Portillo-Vega also proposed to call his sister, Amelia Beltram, although he

had lost contact with her. Beltram would testify “the account in this pleading is

substantially similar to what [Portillo-Vega] told her when he crossed the border

and visited her.” (Id.) W ilfredo Vega, Portillo-Vega’s half brother, was

“believe[d]” to be able to corroborate Beltram’s testimony. (Id. at 6.)

Additionally, Portillo-Vega proposed to call Gustavo Vasquez, a retired DEA

agent, as an expert on the negative treatment DEA informants receive from the

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Federales. Finally, Portillo-Vega intended to testify regarding the above events. 7

At the hearing, defense counsel argued the first element of the duress

defense — an immediate threat of death or serious bodily injury — would be

proven through the testimony of Portillo-Vega, Smith Navidad, and M iguel Sanz. 8

These w itnesses would provide evidence of Portillo-Vega’s fear of the Federales,

the threats made to him and the timing of the threats, which began in M arch 2002

and continued until October or November 2002. Testimony on the second

element of the duress defense — a well-grounded fear that the threat will be

carried out — would be provided by the retired DEA officer, Vasquez. Defense

counsel did not specifically articulate which witnesses would testify about the

third element of the defense — whether Portillo-Vega had a reasonable

opportunity to escape the threatened harm — but argument on the point implied

Portillo-Vega’s testimony would be paramount. Counsel also informed the

district court he was trying to locate the border agent with whom Portillo-Vega

7
At the hearing, defense counsel admitted he had no written statements
from any of the proposed witnesses. In fact, his investigator had relied on an
interpreter regarding what the witnesses were saying.
8
On appeal, Portillo-Vega states he “would have testified that the Federales
actually beat him.” (Appellant’s Br. at 30.) This statement is not supported by
the record. The documents filed in district court state the Federales “threatened”
Portillo-Vega, but make no allegation of actual physical harm. (R. Vol. I, Doc.
40 at 4; Doc. 43 at 3-4.) During the hearing, defense counsel stated Portillo-Vega
was “threatened” and “was quite shaken up” by his encounters with the Federales.
(R. Vol. II at 15.) Counsel did comm ent “they did bodily harm” to Portillo-Vega
(id. at 16) but never indicated Portillo-Vega would testify he was actually beaten.

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spoke in Juarez to corroborate that Portillo-Vega was not permitted to enter the

United States at that time. Lastly, counsel argued Portillo-Vega’s other means of

escape (turning himself into the M exican authorities or fleeing to Guatemala)

were unreasonable.

The district court ruled Portillo-Vega failed to carry his burden on any

element of the duress defense. W ith respect to the first element, the court

acknowledged Portillo-Vega could testify about all the events he alleged

occurred. The district court noted, however, the lack of any documentary

evidence demonstrating Portillo-Vega ever worked for the DEA and the length of

time which lapsed between his alleged association with the DEA (1986), his six

subsequent deportations, and his illegal re-entry in November 2002. “It seems

like the most logical explanation for [his re-entry in November 2002] was that he

was coming back to see his family.” (R. Vol. III at 9.) The court also noted the

“amorphous” nature of the threats and that “[no specific facts were given.” (Id.)

As to the second element, the court found Portillo-Vega’s conduct after the M arch

2002 threats (going to a border town where the Federales were always present

rather than fleeing “deep into the heart of M exico” or returning to the United

States) was incongruous with having a well-grounded fear the threats would be

carried out. (Id.) It also noted Portillo-Vega’s admission that he had no fear of

returning to M exico. The district court further found as a matter of law that

Portillo-Vega had failed to carry his burden with respect to the third element. It

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reviewed the options available to Portillo-Vega to express his fear of the

Federales and his complete failure to avail himself of those opportunities. Thus,

the court denied Portillo-Vega’s motion for a jury instruction on duress and

granted the government’s motion in limine precluding the raising of the defense at

trial.

On appeal, Portillo-Vega argues he was entitled to present evidence of this

defense to the jury. He expends much effort re-arguing the proffered evidence,

contending the jury could have found certain facts to exist or could have believed

certain testimony. However, the issue is not what the jury might have believed.

The issue is whether Portillo-Vega carried his burden of establishing, by a

preponderance of the evidence, each element of a duress defense. He did not.

Portillo-Vega relies on United States v. Bailey in support of his argument

he has an absolute right to have a jury consider his defense. 444 U.S. 394 (1980).

Just as “Bailey critically informs any discussion of the necessity defense,” Al-

Rekabi, 454 F.3d at 1124, so too is it central to a discussion of the duress defense.

In Bailey, inmates charged with escape sought to raise defenses of duress or

necessity, alleging dangerous prison conditions forced them to flee. Bailey, 444

U.S. at 398. The district court refused to instruct the jury on either defense and

the inmates were convicted. Id. at 399-400. On appeal, the inmates alleged they

presented “sufficient evidence of duress or necessity to submit such a defense to

the jury.” Id. at 409. In affirming, the Supreme Court reviewed the defendant’s

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burden to present evidence on each element of the duress defense and held the

insufficiency of evidence on any one element precluded consideration by the jury

of evidence on all of the elements:

[It is essential that the testimony given or proffered meet a minimum
standard as to each element of the defense so that, if a jury finds it to
be true, it would support an affirmative defense - here that of duress or
necessity.

....

If . . . an affirmative defense consists of several elements and testimony
supporting one element is insufficient to sustain it even if believed, the
trial court and jury need not be burdened with testimony supporting
other elements of the defense.

Id. at 415-16.

The Court also concluded escape was a continuing offense:

[Escape from federal custody . . . is a continuing offense and . . . an
escapee can be held liable for failure to return to custody as well as for
his initial departure. Given the continuing threat to society posed by an
escaped prisoner, the nature of the crime involved is such that Congress
must assuredly have intended that it be treated as a continuing one.

Id. at 413 (quotations omitted). It held a defendant charged with escape who

raises a duress or necessity defense, “must proffer evidence of a bona fide effort

to surrender or return to custody as soon as the claimed duress or necessity had

lost its coercive force.” Id. at 415.

Applying these concepts to the facts here, it is clear the district court did

not abuse its discretion in rejecting Portillo-Vega’s duress defense. The district

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court carefully reviewed the proffered evidence and concluded Portillo-Vega had

failed to establish any of the elements by a preponderance of the evidence.

M oreover, applying the analysis set forth in Al-Rekabi, we conclude illegal re-

entry after deportation is a continuing offense. 454 F.3d at 1124. It occurs not

just when the previously-deported individual steps across the border without

permission to do so but continues as long as that individual remains in the United

States. 9 Thus, to successfully raise a duress defense, Portillo-Vega had to

“proffer evidence of a bona fide effort to surrender . . . as soon as the claimed

duress . . . had lost its coercive force.” Bailey, 444 U.S. at 415; see also Al-

Rekabi, 454 F.3d at 1124. This is “an indispensable element of the defense of

duress or necessity.” Bailey, 444 U.S. at 415. “Demanding a prompt and

appropriate remedial response to the claimed [duress] is a legitimate precondition

to recognizing the defense and is also a useful tool in measuring the bona fides of

a claimant.” Al-Rekabi, 454 F.3d at 1124.

The district court did not specifically address the continuing nature of the

offense as a separate element but considered it as a subset of the third element,

whether there was a reasonable opportunity to escape the threatened harm. The

court correctly noted the many opportunities Portillo-Vega had to request

assistance from the authorities and his on-going failure to do so. By his own

9
As the government noted in argument before the district court, were it
otherwise, venue for the prosecution would lie in the district where the individual
crossed the border, not where he was actually apprehended.

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admission, Portillo-Vega was in the United States illegally for over three months

before he was apprehended. He admitted he made no effort to contact law

enforcement officers, fearing they would just return him to the Federales in

M exico. 10 Portillo-Vega did not even express fear about returning to M exico

when given a direct opportunity to do so during his interview with Agent Gamarra

and his completion of the I-826 form. Instead, he checked the box admitting he

was in this country illegally and expressing his desire to be returned to his home

country.

“The district judge properly exercised [his] gate-keeping responsibilities”

by precluding the duress defense. Al-Rekabi, 454 F.3d at 1125. Even had

Portillo-Vega carried his burden on the first two elements, and we agree with the

district court he did not, he failed to carry it on the third element and this failure

alone justified a rejection of the defense.

2. Sentencing

Portillo-Vega w as sentenced on July 28, 2004, after Blakely v. Washington,

542 U.S. 296 (2004), but prior to United States v. Booker, 543 U.S. 220 (2005).

Portillo-Vega did not challenge the constitutionality of his sentence in the district

10
Portillo-Vega’s purported contact with a border agent in Juarez, shortly
after his first encounter with the Federales, does not suffice to demonstrate a bona
fide effort to seek assistance or surrender to authorities. It occurred long before
his actual re-entry, and whatever its nature, does not justify Portillo-Vega’s
failure to contact law enforcement once he was w ithin this country and well
across the border.

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court. O n appeal, Portillo-V ega acknowledges our review is for plain error. He

contends the district court committed non-constitutional Booker error by applying

the guidelines in a mandatory fashion.

“Plain error occurs when there is (1) error, (2) that is plain, which (3)

affects substantial rights, and which (4) seriously affects the fairness, integrity, or

public reputation of judicial proceedings.” United States v. Gonzalez-Huerth, 403

F.3d 727, 732 (10th Cir. 2005) (quotations omitted). Non-constitutional Booker

error satisfies the first tw o prongs of the plain-error test. Id.; United States v.

Naja, 451 F.3d 710, 721 (10th Cir.), cert. denied, 127 S.Ct. 542 (2006).

Therefore, we limit our review to the third and fourth prongs. United States v.

ResEdit-Patina, 420 F.3d 1177, 1183 (10th Cir. 2005), cert. denied, 126 S.Ct.

1098 (2006).

In order to satisfy the third prong of plain error review, Portillo-Vega must

demonstrate the error “affected the outcome of the district court proceedings.”

Gonzales-H uerth, 403 F.3d at 732-33 (quotations omitted). “To meet this burden,

[Portillo-Vega] must show a reasonable probability that, but for the error claimed,

the result of the proceeding would have been different.” Id. at 733 (quotations

omitted). W hile we “treat the third and fourth prongs [of plain error review] as

independent inquiries,” w e need not address whether Portillo-Vega has met his

burden under the third prong because he clearly has not satisfied the fourth prong.

Id. at 736.

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 “Under the fourth prong of plain-error review, . . . we will not notice a

non-constitutional Booker error . . . unless it is both particularly egregious and

our failure to notice the error would result in a miscarriage of justice.” ResEdit-

Patina, 420 F.3d at 1184 (quotations omitted). This standard is “formidable” and

in most cases involving non-constitutional Booker error, a defendant will be

unable to meet it. United States v. Trujillo-Tauruses, 405 F.3d 814, 820 (10th

Cir. 2005). W e have identified several factors that might satisfy this fourth

prong:

(a) a sentence increased substantially based on a Booker error; (b) a
showing that the district court w ould likely impose a significantly
lighter sentence on remand; (c) a substantial lack of evidence to support
the entire sentence the Guidelines required the district court to impose;
(d) a showing that objective consideration of the § 3553(a) factors
warrants a departure from the sentence suggested by the Guidelines; or
(e) other evidence peculiar to the defendant that dem onstrates a
complete breakdown in the sentencing process.

United States v. Dalian, 408 F.3d 647, 671 (10th Cir. 2005) (citations omitted).

In support of his argument that resentencing is warranted, Portillo-Vega

points to the district court’s imposition of a sentence at the bottom of the

guideline range. He also argues the court’s consideration of the 18 U.S.C. §

3553(a) factors, in particular, his family circumstances, his educational efforts

and the disparity created by the existence of “fast track” programs for illegal re-

entry defendants in some jurisdictions but not others, 11 would have led to a lesser

11
A “fast-track” program provides for reduced sentences in illegal reentry
cases where a defendant pleads guilty. United States v. Sanchez-Juarez, 446 F.3d

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sentence.

Portillo-Vega has not satisfied the demanding fourth prong. Portillo-

Vega’s sentence was “within the national norm for sentences as established by the

sentencing guidelines.” ResEdit-Patina, 420 F.3d at 1184. “[There is no

evidence in the record that would lead us to reasonably conclude the district court

would impose a sentence outside the guideline range under a post-Booker

advisory regime.” Id. That the court sentenced at the bottom of the guideline

range is not evidence it would act more leniently in a post-Booker environment.

Courts must still consult the guidelines and “take them into account when

sentencing.” Booker, 543 U.S. at 264.

The PSR provided the district court information concerning Portillo-Vega’s

family circumstances and educational efforts. Such information is not so

compelling as to “warrant[] a departure from the sentence suggested by the

Guidelines,” Dalian, 408 F.3d at 671, nor is it so “peculiar to [Portillo-Vega] that

[it] demonstrates a complete breakdown in the sentencing process.” Id.

M oreover, the court exercised its discretion in denying Portillo-Vega’s motion for

downward departure. See United States v. Lawrence, 405 F.3d 888, 908 (10th

Cir.) (finding court’s refusal to invoke its discretion to depart is evidence it

deemed sentence appropriate and would impose same sentence even under an

advisory guidelines system), cert. denied, 126 S.Ct. 468 (2005).

1109, 1112 (10th Cir. 2006).

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 Finally, this case is not like those in which the district court expressed

dissatisfaction with its choices under the guidelines or a desire for more leniency.

See, e.g., Trujillo-Tauruses, 405 F.3d at 817, 820. Nor is it one where the

sentence is egregious in light of the defendant’s offense or criminal history. Id. at

819-20 (finding relatively trivial nature of defendant’s criminal history was at

odds with both the § 3553(a) factors and the sixteen-level enhancement).

Considering Portillo-Vega’s lengthy history of multiple deportations and illegal

reentries, there is nothing that convinces us a remand w ould produce a different

result.

A FFIR ME D.

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