FILED
United States Court of Appeals
Tenth Circuit
October 13, 2009
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee, No. 09-1167
v. (D. Colorado)
SANTOS ZAMORA-LAINES, a/k/a (D.C. No. 1:08-CR-00464-PAB-1)
Bedolla Ramirez Macario,
Defendant - Appellant.
ORDER AND JUDGMENT *
Before HARTZ, EBEL, and SEYMOUR, Circuit Judges.
Santos Zamora-Laines pleaded guilty in the United States District Court for
the District of Colorado to illegal reentry to 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 sentencing range under the United
States Sentencing Guidelines (USSG)—was substantively unreasonable because
*
After examining the briefs and appellate record, this panel has determined
unanimously to honor the parties’ 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 This order and judgment is not binding
precedent except under the doctrines of law of the case, res judicata, and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.
too much weight was placed on his criminal history and not enough on the nature
of his offense. We have jurisdiction under 28 U.S.C. § 1291 and affirm.
I. BACKGROUND
On September 2, 2008, Mr. Zamora-Laines was found in the United States
after having been deported. He had been deported in 2000, 2001, 2002, and 2005.
His base offense level under the Sentencing Guidelines was 8. See USSG
§ 2L1.2(a). The district court added 12 levels because of his conviction in 1998
for a felony drug-trafficking offense for which the sentence imposed was less than
13 months. See id. § 2L1.2(b)(1)(B). He received a 3-level downward adjustment
for acceptance of responsibility, see id. § 3E1.1, resulting in a total offense level
of 17.
Mr. Zamora-Laines’s criminal-history level was calculated by giving him
(1) 2 points for a 1998 conviction for delivery of a controlled substance, which
ultimately resulted in a sentence of six months’ imprisonment; (2) 3 points for a
2000 conviction for possession of a controlled substance, for which he was
sentenced to six years’ imprisonment; (3) 2 points for a 2001 conviction for
possession of a controlled substance, for which he was sentenced to 90 days’
imprisonment; (4) 3 points for a 2004 conviction for eluding examination and
inspection, for which he was sentenced to 24 months’ imprisonment; (5) 1 point
for a 2007 conviction for providing false information to a police officer and
possession of marijuana under one ounce, for which he was sentenced to seven
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days’ imprisonment; and (6) 2 points because he committed the current offense
while he was serving a term of imprisonment. See id. § 4A1.1(d).
The total of 13 criminal-history points placed Mr. Zamora-Laines in
criminal-history category VI. See id. ch. 5, pt. A. His guidelines sentencing
range was 51 to 63 months. See id. The district court sentenced him to 63
months’ imprisonment.
II. DISCUSSION
Mr. Zamora-Laines does not challenge the district court’s guidelines
calculation but only the substantive reasonableness of his sentence. In reviewing
for substantive reasonableness, we focus 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). When imposing a 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 “when it renders a judgment that is arbitrary, capricious, whimsical, or
manifestly unreasonable.” United States v. Munoz-Nava, 524 F.3d 1137, 1146
(10th Cir. 2008) (internal quotation marks omitted). Because Mr. Zamora-
Laines’s sentence was properly calculated under the guidelines, it is entitled to a
presumption of reasonableness. See United States v. Kristl, 437 F.3d 1050, 1054
(10th Cir. 2006).
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Mr. Zamora-Laines has not overcome the presumption. His substantive-
unreasonableness challenge focuses on the district court’s consideration of his
criminal history of street-level drug dealing, which he maintains was given
“undue weight.” Aplt. Br. at 12. He argues that if he were being sentenced for
selling a small amount of heroin rather than for illegal reentry, the guidelines
range would be only 21 to 27 months’ imprisonment. He argues that his
63-month sentence is, therefore, manifestly unreasonable. We are not persuaded.
His record shows him to be a recidivist drug offender and further shows a history
of continuous reentry after deportation.
III. CONCLUSION
We AFFIRM Mr. Zamora-Laines’s sentence.
ENTERED FOR THE COURT
Harris L Hartz
Circuit Judge
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