FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
February 8, 2012
TENTH CIRCUIT
Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff–Appellee,
No. 11-1230
v.
(D.C. No. 1:10-CR-00607-LTB-1)
(D. Colo.)
SERGIO APODACA-GARCIA, a/k/a
Sergio Cano-Garcia,
Defendant–Appellant.
ORDER AND JUDGMENT*
Before LUCERO, EBEL, and GORSUCH, Circuit Judges.
Sergio Apodaca-Garcia challenges the substantive reasonableness of his within-
Guidelines sentence. Exercising jurisdiction under 18 U.S.C. § 3742(a) and 28 U.S.C.
§ 1291, we affirm.
Apodaca-Garcia pled guilty to illegally reentering the United States following a
* The case is unanimously ordered submitted without oral argument pursuant to
Fed. R. App. P. 34(a)(2) and 10th Cir. R. 34.1(G). This order and judgment is not
binding precedent, except under the doctrines of law of the case, res judicata, and
collateral estoppel. The court generally disfavors the citation of orders and judgments;
nevertheless, an order and judgment may be cited under the terms and conditions of 10th
Cir. R. 32.1.
conviction for an aggravated felony in violation of 8 U.S.C § 1326(a) and (b)(2). His
presentence report calculated an advisory Guidelines range of 57-71 months. At his
sentencing hearing, Apodaca-Garcia requested a 57-month sentence. After considering
the sentencing factors set forth in 18 U.S.C. § 3553(a), the district court imposed a
sentence of 60 months’ imprisonment and 3 years’ supervised release. It expressed
concern about Apodaca-Garcia’s “history of violent crime” and the possibility that he
might again “be tempted” to reenter the country illegally.
On appeal, Apodaca-Garcia contends that the district court’s decision to impose a
five-year sentence was substantively unreasonable. Such claims are subject to a highly
deferential abuse of discretion standard of review. See United States v. Reyes-Alfonso,
653 F.3d 1137, 1144 (10th Cir. 2011). And because Apodaca-Garcia was sentenced
within his advisory Guidelines range, we presume his sentence is reasonable. United
States v. Kristl, 437 F.3d 1050, 1054 (10th Cir. 2006). Apodaca-Garcia may rebut this
presumption by showing that his sentence is unreasonable when viewed against the
§ 3553(a) factors. Kristl, 437 F.3d at 1054. However, “the fact that the appellate court
might reasonably have concluded that a different sentence was appropriate is insufficient
to justify reversal of the district court.” Gall v. United States, 552 U.S. 38, 51 (2007).
Apodaca-Garcia points to several factors which, he contends, warrant a lower
sentence: illegal reentry is a nonviolent offense that is harmful primarily in the
aggregate; the United States has been his home since he was a toddler; he experienced a
difficult childhood; he has a history of substance abuse and suicide attempts; and at the
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time of sentencing, he had not committed any non-misdemeanor crimes in over a decade.
Although Apodaca-Garcia is an arguably sympathetic defendant, we simply cannot say
that the district court acted unreasonably when it imposed a sentence near the low end of
his advisory Guidelines range—one a mere three months longer than the sentence
Apodaca-Garcia requested. Moreover, some of the sympathetic factors Apodaca-Garcia
highlights reinforce the court’s conclusions about his likelihood of recidivism. In any
event, a 60 month sentence was unquestionably within the realm of choices “rationally
available” to the district court. United States v. McComb, 519 F.3d 1049, 1053 (10th Cir.
2007). Accordingly, we defer to the district court’s judgment.
Apodaca-Garcia’s sentence is AFFIRMED.
Entered for the Court
Carlos F. Lucero
Circuit Judge
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