Appellate Case: 20-2179 Document: 010110618771 Date Filed: 12/14/2021 Page: 1
FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT December 14, 2021
_________________________________
Christopher M. Wolpert
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 20-2179
(D.C. No. 2:20-CR-00456-WJ-1)
BARBARA VELASCO-MARES, (D. N.M.)
Defendant - Appellant.
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before HARTZ, McHUGH, and CARSON, Circuit Judges.
_________________________________
Barbara Velasco-Mares appeals her 33-month sentence for unlawful reentry of
a previously removed alien in violation of 8 U.S.C. § 1326. She claims the district
court’s denial of a downward departure rendered her sentence substantively
unreasonable. Exercising jurisdiction under 18 U.S.C. § 3742(a)(1) and 28 U.S.C.
§ 1291, we affirm.
*
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. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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.
Appellate Case: 20-2179 Document: 010110618771 Date Filed: 12/14/2021 Page: 2
I
Velasco-Mares pleaded guilty under a plea agreement in which the parties
stipulated to a within-guidelines sentence and Velasco-Mares agreed not to seek a
downward adjustment. The presentence investigation report (PSR) determined her
offense level was 13, which reflected a two-point reduction under the federal
sentencing guidelines for the early disposition of her case. See U.S. Sentencing
Guidelines Manual § 5K3.1 (U.S. Sentencing Comm’n 2018). The PSR also
determined her criminal history category was IV due to her extensive criminal record,
which includes prior convictions for theft, delivery of marijuana for payment, being a
felon in possession of firearms, and two previous convictions for unlawful reentry
after removal. Based on an offense level of 13 and criminal history category of IV,
her advisory guidelines range was 24-30 months in prison.
Because the sentencing range was higher than Velasco-Mares anticipated, she
moved to withdraw her guilty plea or, alternatively, to set aside the plea agreement so
she could seek a downward departure or variance. She also filed a motion for a
downward departure or variance, arguing that a sentence of time served, or 8 months,
was appropriate because the PSR overrepresented her criminal history and
exaggerated the seriousness of her prior offenses. Although Velasco-Mares did not
object to the PSR’s factual basis for her prior convictions, she argued that most of
2
Appellate Case: 20-2179 Document: 010110618771 Date Filed: 12/14/2021 Page: 3
them were more than fifteen years old and that the PSR failed to account for her
personal characteristics, including her cultural assimilation, removal, and age.1
The district court denied Velasco-Mares’ request to withdraw her guilty plea
but granted her request to set aside the plea agreement. Without the plea agreement,
however, Velasco-Mares lost the 2-point reduction in her offense level under USSG
§ 5K3.1. With a new offense level of 15 and the same criminal history category of
IV, her advisory guideline range was 30-37 months. At sentencing, the district court
declined to grant a downward adjustment and sentenced her to 33 months in prison
followed by three years of supervised release. Velasco-Mares now contends the
denial of a downward adjustment rendered her sentence substantively unreasonable.2
II
We review the substantive reasonableness of a sentence for an abuse of
discretion. See United States v. Smart, 518 F.3d 800, 805 (10th Cir. 2008).
1
“Cultural assimilation” refers to a defendant’s cultural and familial ties to the
United States, which are considered among a defendant’s history and characteristics
under 18 U.S.C. § 3553(a)(1). See United States v. Galarza-Payan, 441 F.3d 885,
889 (10th Cir. 2006).
2
To the extent Velasco-Mares challenges the district court’s discretionary
decision to deny a downward departure, we lack jurisdiction to consider her
arguments, although we do have jurisdiction to consider the reasonableness of her
sentence, and in doing so we will consider her reasons for seeking a departure. See
United States v. Chavez-Diaz, 444 F.3d 1223, 1229 (10th Cir. 2006) (“[W]hile we do
not have jurisdiction to review the district court’s discretionary decision to deny a
downward departure, we have jurisdiction . . . to review the sentence imposed for
reasonableness[,]” . . . “which . . . necessarily requires that we take into account the
defendant’s asserted grounds for departure when reviewing the sentence for
reasonableness.”).
3
Appellate Case: 20-2179 Document: 010110618771 Date Filed: 12/14/2021 Page: 4
“Substantive reasonableness involves 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. Conlan, 500 F.3d 1167, 1169 (10th Cir.
2007). “We do not reweigh the sentencing factors but instead ask whether the
sentence fell within the range of rationally available choices that facts and the law at
issue can fairly support.” United States v. Blair, 933 F.3d 1271, 1274 (10th Cir.
2019) (internal quotation marks omitted). A sentence within a properly calculated
guideline range is presumptively reasonable. Id. A sentence is substantively
“unreasonable only if it is arbitrary, capricious, whimsical, or manifestly
unreasonable.” United States v. Gantt, 679 F.3d 1240, 1249 (10th Cir. 2012)
(internal quotation marks omitted).
Velasco-Mares contends that her sentence is unreasonable because the PSR
overstated her criminal history.3 She also says a lower sentence was justified by her
personal characteristics, including her serious health problems, cultural assimilation,
removal, and age. These arguments are unavailing, however, because the district
court considered these factors in its § 3553(a) analysis.
3
Velasco-Mares’ theory on appeal appears to have shifted slightly. In the
district court, she principally argued that the PSR overstated her criminal history
because her prior convictions occurred long ago. See, e.g., R., vol. 1 at 36 (arguing
that all but one of her convictions were more than 15 years old). Now on appeal,
however, she claims the PSR overstated her criminal history because she committed
only non-violent offenses for which she received relatively lenient sentences. See,
e.g., Aplt. Br. at 12; Reply Br. at 1. We generally do not consider new theories
raised on appeal, and to the extent Velasco-Mares pivots to a new theory, we decline
to consider it. See United States v. Leffler, 942 F.3d 1192, 1196 (10th Cir. 2019).
4
Appellate Case: 20-2179 Document: 010110618771 Date Filed: 12/14/2021 Page: 5
Indeed, the district court recognized that Velasco-Mares sought a downward
adjustment based on her cultural assimilation, removal, and age. The court also
heard her claim that she contracted Covid-19 three times while in custody. But the
court observed that, with a potential statutory maximum sentence of 20 years in
prison, the crime of unlawful reentry by a previously removed alien is a serious
offense, and yet this was Velasco-Mares’ third such conviction, demonstrating her
lack of respect for the law. The court therefore stated that her sentence needed to
reflect the seriousness of the offense, promote respect for the law, provide for a just
punishment, and deter further recidivism. See 18 U.S.C. § 3553(a)(2)(A), (B). The
court acknowledged her explanation that she was drawn to the United States to be
with family, but the court noted that her inability to reside here legally was due to her
own criminal conduct, which included multiple convictions and probation violations.
See id. § 3553(a)(1).
The district court was particularly concerned with Velasco-Mares’ conviction
for being a felon in possession of a firearm. As the court recounted, her son brought
a loaded firearm to his elementary school and after school officials contacted police,
her son told the police he had additional items in his backpack, which contained a
pistol and 30 rounds of ammunition. Thereafter, the police went to Velasco-Mares’
residence and recovered from a dumpster in front of her home a pillowcase
containing firearms, ammunition, and holsters. Although she admitted to police at
the time that she knew the guns were in her home and that the children were
pretending to shoot each other, during allocution she attempted to deny that she
5
Appellate Case: 20-2179 Document: 010110618771 Date Filed: 12/14/2021 Page: 6
allowed the children to play with firearms and claimed she was a victim. The district
court pointed out, however, that she did not object to the factual basis of the PSR,
and thus the district court stated, “I don’t consider her a victim,” R., vol. 4 at 28.
Moreover, given her criminal history and the danger underlying this incident, the
district court indicated her sentence should reflect the need to protect the public from
further crimes by Velasco-Mares. See 18 U.S.C. § 3553(a)(2)(C).
Finally, the district court found nothing about this case that warranted a below-
guidelines sentence. Although Velasco-Mares argued that most of her convictions
were old, the court noted that no criminal history points were assessed for either of
her two theft convictions or her felon-in-possession-of-a-firearm conviction and thus
a criminal history category of IV did not overrepresent her record, particularly given
the severity of her offenses. The court also recognized that the government requested
a sentence at the upper end of the guidelines—37 months—but the court noted that
she had originally qualified for a lower sentencing range under her early disposition
plea agreement. After weighing all of these considerations, the court concluded that
a mid-range guideline sentence of 33 months was sufficient but not greater than
necessary to achieve the goals of sentencing. Velasco-Mares has identified nothing
to suggest that her sentence is substantively unreasonable.
Accordingly, the district court’s judgment is affirmed.
Entered for the Court
Carolyn B. McHugh
Circuit Judge
6