FILED
United States Court of Appeals
Tenth Circuit
May 20, 2009
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee, No. 08-2137
v. (D. New Mexico)
MARIO BANUELOS-ALFARO, (D.C. No. 1:07-CR-02146-JCH-1)
Defendant - Appellant.
ORDER AND JUDGMENT *
Before KELLY, BRISCOE, and HARTZ, Circuit Judges.
Mario Banuelos-Alfaro, a citizen of Mexico, pleaded guilty to illegal
reentry into the United States after deportation. See 8 U.S.C. § 1326. His sole
argument on appeal is that his sentence—which he concedes was within a
properly calculated United States Sentencing Guidelines range—was
substantively unreasonable because his placement in criminal-history category III
*
After examining the briefs and 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); 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not binding precedent except under the doctrines of law of the case, res judicata,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.
overstated the severity of his past criminal record. We have jurisdiction under
28 U.S.C. § 1291 and affirm.
I. BACKGROUND
On August 18, 2007, Mr. Banuelos-Alfaro was found entering the United
States after having been previously deported in 1999. His base offense level
under the Sentencing Guidelines was 8. See USSG § 2L1.2(a). The district court
added 16 levels because of his conviction in 1994 for a felony drug-trafficking
offense for which the sentence imposed exceeded 13 months. See id.
§ 2L1.2(b)(1)(A)(i). Mr. Banuelos-Alfaro received a three-level downward
adjustment for acceptance of responsibility, see id. § 3E1.1, resulting in a total
offense level of 21.
Mr. Banuelos-Alfaro received three criminal-history points for each of two
prior offenses. The first was a 1994 conviction for possession of cocaine with
intent to deliver, resulting in a sentence of 21 months’ imprisonment. See id.
§ 4A1.1(a). The second was a 1996 conviction for illegal reentry after
deportation (he had been deported in 1995), for which he was sentenced to 41
months’ imprisonment. See id. In 1999 he was again deported to Mexico, where
he presumably remained until the 2007 illegal-reentry offense before us.
With a total of six criminal-history points, Mr. Banuelos-Alfaro was placed
in criminal-history category III. See id. ch. 5, pt. A. His guidelines sentencing
range was 46 to 57 months. See id. The United States District Court for the
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District of New Mexico sentenced him to 46 months’ imprisonment, the bottom of
the guidelines range.
II. DISCUSSION
Mr. Banuelos-Alfaro does not challenge the district court’s guidelines
calculation but only the substantive reasonableness of his sentence. “Review for
substantive reasonableness focuses on 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. § 3553(a).” United States v. Friedman, 554 F.3d 1301, 1307 (10th
Cir. 2009) (internal quotation marks omitted). In imposing sentence, a district
court has “broad discretion . . . to consider § 3553(a) factors,” United States v.
Gambino-Zavala, 539 F.3d 1221, 1232 (10th Cir. 2008), which it abuses only if
“it renders a judgment that is arbitrary, capricious, whimsical, or manifestly
unreasonable,” Friedman, 554 F.3d at 1307 (internal quotation marks omitted).
When a sentence is within the guidelines range, as this one is, we afford it a
presumption of reasonableness. See Gambino-Zavala, 539 F.3d at 1232.
Mr. Banuelos-Alfaro’s substantive-unreasonableness challenge focuses on
his placement in criminal-history category III, which he maintains “significantly
over-represents the seriousness of his criminal history, or the likelihood that he
will commit future crimes.” Aplt. Br. at 5. In particular, he argues that (1) “the
typical Defendant with a Criminal History Category of III is likely to have more
recent criminal convictions, and is also likely to have a greater criminal history,
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including misdemeanor or felony convictions for violent offenses,” id. at 11; (2)
his 1994 and 1996 convictions are relatively old and approaching expiration as
countable offenses, see USSG § 4A1.2(e) (generally setting countability limit of
15 years since release from imprisonment); (3) he was only 20 and 22 years old at
the time of his convictions; and (4) he has not committed any criminal offenses in
the United States in the last 11 years. As a result, he argues, his “criminal history
is more like that of a defendant with a Criminal History Category of II.” Aplt.
Br. at 12.
These contentions do not rebut the presumption of reasonableness that
attaches to Mr. Banuelos-Alfaro’s within-guidelines sentence. He provides no
empirical data to support his claim that he is atypical for a category-III defendant.
His 11 years without conviction for a crime in this country does not establish a
law-abiding life, because he was either in prison or outside this country during
that time. And “[t]he fact that Defendant ultimately returned to crime . . . speaks
to the likelihood of future recidivism.” United States v. Franklin-El, 554 F.3d
903, 913 (10th Cir. 2009). Moreover, we note that Mr. Banuelos-Alfaro had two
more criminal-history points than necessary to be within category III.
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III. CONCLUSION
We AFFIRM Mr. Banuelos-Alfaro’s sentence.
ENTERED FOR THE COURT
Harris L Hartz
Circuit Judge
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