FILED
United States Court of Appeals
Tenth Circuit
December 7, 2010
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee, No. 10-6006
v. (W.D. Oklahoma)
PEDRO PEREZ-CRUZ, (D.C. No. 09-CR-00178-F-1)
Defendant - Appellant.
ORDER AND JUDGMENT *
Before ANDERSON, BALDOCK, and BRORBY, Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in 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.
Defendant and appellant, Pedro Perez-Cruz, pled guilty to unlawfully
reentering the United States, after having previously been deported following a
conviction for an aggravated felony. He was sentenced to fifty-seven months’
*
This order and judgment is not binding precedent except under the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.
imprisonment. Despite the fact that Mr. Perez-Cruz’s counsel affirmatively
requested and acquiesced in that sentence, Mr. Perez-Cruz seeks to avoid the
impact of that apparent waiver and appeal his sentence as substantively
unreasonable. We conclude that he has waived the opportunity to make such an
argument and we dismiss this appeal.
BACKGROUND
Following Mr. Perez-Cruz’s guilty plea, the United States Probation Office
prepared a presentence report (“PSR”) in preparation for sentencing under the
advisory United States Sentencing Commission, Guidelines Manual (“USSG”).
Mr. Perez-Cruz’s total offense level under the guidelines was 21, which included
the requisite 16-level increase for his prior deportation following conviction for
an aggravated felony. See USSG § 2L1.2(b)(1)(A)(I). The prior conviction
which increased Mr. Perez-Cruz’s offense level was a sixteen-year-old conviction
for possession of a controlled substance for sale. With a criminal history
category of IV, the PSR calculated an advisory sentencing range under the
guidelines of fifty-seven to seventy-one months’ imprisonment.
At Mr. Perez-Cruz’s sentencing hearing, the district court heard argument
from both parties. It further adopted the factual findings of the PSR. The
government conceded that Mr. Perez-Cruz’s case was somewhat unusual in that
virtually all of the crimes counted towards his criminal history category of IV had
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occurred many years ago (from eleven to twenty-one years prior). It accordingly
recommended a sentence at the low end of the advisory guidelines sentencing
range:
[T]hese convictions are much older than the ones that we have seen
previously, and with that being said, the government recognizes that
it always asks for a guideline sentence, and in this case, if a
guideline sentence were to be imposed, we could ask for the low end
of the guidelines.
Tr. of Sentencing at 14, R. Vol. 3 at 14. Mr. Perez-Cruz’s counsel then
responded:
I would pretty much adopt what the government has already said.
You’ve seen plenty of illegal re-entry cases, from the low end to the
high end, if you will, people who have been deported once and came
back eight times and people who have been deported once and came
back just one time, as Mr. Pedro Cruz is charged with. It’s a
criminal history category IV; it is what it is. As the government
pointed out, a lot of those were older convictions. . . . I think on the
big scheme of things, as far as illegal re-entry cases, his is a little
less egregious than most of them that the Court has seen and I’ve
seen.
Sum it all up, Judge, we would just ask, as the government has,
for the bottom of the guideline range of 57 months.
Id. at 14-15.
The court imposed the fifty-seven month sentence, explaining that it was:
quite concerned . . . with the nature of some of [Mr. Perez-Cruz’s]
previous criminal conduct in the United States, some of it has
involved weapons, some of it has involved narcotic substances,
cocaine, on more than one occasion. So your criminal history has
involved more than just alcohol, but with respect to alcohol, you
have more than one driving-under-the-influence-of-liquor conviction.
And it is probably by the grace of God that you are not doing 10 or
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20 years of incarceration as a result of a serious accident while
driving under the influence.
Id. at 16. Following the imposition of sentence, the district court specifically
asked Mr. Perez-Cruz whether he had “any procedural objection to these
sentencing proceedings,” id. at 18, to which defense counsel responded, “No, sir.”
Id.
Arguing that his fifty-seven month sentence is substantively unreasonable,
Mr. Perez-Cruz endeavors to appeal that sentence.
DISCUSSION
We review all federal sentences under a deferential abuse-of-discretion
standard, assessing whether the sentence was procedurally and substantively
reasonable. Mr. Perez-Cruz claims only that his sentence is substantively
unreasonable. “[S]ubstantive reasonableness addresses 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. Huckins, 529 F.3d
1312, 1317 (10th Cir. 2008) (internal quotation marks omitted). On appeal, we
presume a sentence within the properly calculated guideline range to be
reasonable. United States v. Kristl, 437 F.3d 1050, 1055 (10th Cir. 2006) (per
curiam).
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Mr. Perez-Cruz concedes that any challenge to his sentence as substantively
unreasonable is barred by the invited-error rule of United States v. Mancera-
Perez, 505 F.3d 1054 (10th Cir. 2007). In that case, we held:
When the appellate argument for a lower sentence was not raised at
any time before the district court, and when, to the contrary, the
defendant affirmatively endorses the appropriateness of the length of
the sentence before the district court, we conclude that, if there was
error, it was invited and waived.
Id. at 1059. That is precisely what happened in this case. Mr. Perez-Cruz does
not argue to the contrary. Accordingly, since the argument Mr. Perez-Cruz seeks
to make was waived, we dismiss this appeal.
CONCLUSION
For the foregoing reasons, we DISMISS this appeal.
ENTERED FOR THE COURT
Stephen H. Anderson
Circuit Judge
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