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United States v. Avalos-Estrada, 10th Cir. (2013)
United States v. Avalos-Estrada, 10th Cir. (2013)
TENTH CIRCUIT
No. 12-3274
v.
(D. Kansas)
LUIS AVALOS-ESTRADA,
Defendant - Appellant.
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, Luis Avalos-Estrada, pled guilty to illegally
reentering the United States after being deported following the commission of a
This order and judgment is not binding precedent, except under the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.
drug trafficking crime for which the sentence imposed was more than thirteen
months, in violation of 8 U.S.C. 1326. He was sentenced to fifty-seven months
imprisonment. Arguing that his sentence is unreasonable because it includes a
sixteen-level enhancement, thereby leading to a higher sentence, Mr. AvalosEstrada appeals. We affirm.
BACKGROUND
As indicated, Mr. Avalos-Estrada pled guilty on July 24, 2012, to illegal
reentry, following a prior deportation after the commission of an aggravated
felony (cocaine distribution in 2007). In preparation for sentencing under the
advisory United States Guidelines Commission, Guidelines Manual (USSG), the
United States Probation Office prepared a presentence report (PSR). The PSR
calculated Mr. Avalos-Estradas total offense level at 21, which included a 16level increase pursuant to USSG 2L1.2(b)(1)(A)(i) because he had been
previously deported following a conviction for a drug trafficking crime for which
he received a sentence in excess of thirteen months. With a criminal history
category of IV, the PSR recommended a sentencing range of 57 to 71 months.
Mr. Avalos-Estrada filed a sentencing memorandum seeking a variance
from the advisory Guidelines range, arguing that there should be a policy change
from the 16-level increase under USSG 2L1.2(b)(1)(A) and that his favorable
characteristics warranted a variance from the advisory range.
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Id. at 22. After providing that explanation, and noting the 18 U.S.C. 3553(a)
sentencing factors, the court sentenced Mr. Avalos-Estrada to 57 months
imprisonment, followed by 2 years of supervised release.
Mr. Avalos-Estrada appeals his sentence, arguing [i]t was not reasonable
for the District Court to defer to the Sentencing Commission and apply th[e] 16
level enhancement. Appellants Br. at 2.
DISCUSSION
We review sentences for reasonableness under a deferential abuse-ofdiscretion standard. See United States v. Alapizco-Valenzuela, 546 F.3d 1208,
1214 (10th Cir. 2008). Reasonableness review is a two-step process comprising
a procedural and a substantive component. Id. (quoting United States v.
Verdin-Garcia, 516 F.3d 884, 895 (10th Cir. 2008). See Gall v. United States,
552 U.S. 38, 51 (2007). Mr. Avalos-Estrada concedes that the district court
correctly calculated his sentence under the Guidelines; he therefore makes no
argument about the procedural reasonableness of the sentence. He challenges
only its substantive reasonableness.
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). Sentences which fall within a properly calculated guidelines range are
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& n.1 (10th Cir. 2013) (unpublished) (upholding validity of enhancement because
bound by precedent and rejecting argument about lacking a policy rationale);
United States v. Gomez-Alvarez, 482 Fed. Appx. 330, 334 (10th Cir. 2012)
(unpublished) (upholding validity of enhancement because bound by precedent);
United States v. Aguilar-Perez, 459 Fed. Appx. 791, 794-95 (10th Cir. 2012)
(unpublished) (rejecting argument comparing illegal re-entry sentences with
sentences for more serious crimes and upholding its validity as bound by
precedent); United States v. Gonzalez-Barreras, 434 Fed. Appx. 766, 767-68 (10th
Cir. 2011) (unpublished) (rejecting argument about lack of empirical data
supporting enhancement and upholding validity as bound by precedent); United
States v. Rincon-Torres, 439 Fed. Appx. 683, 686-87 (10th Cir. 2011)
(unpublished) (rejecting argument that enhancement unfairly double-counts);
United States v. Ochoa-Olivas, 426 Fed. Appx. 612, 615 (10th Cir. 2011)
(unpublished) (rejecting argument that enhancement unfairly double-counts);
United States v. Chacon-Orozco, 421 Fed. Appx. 810, 813-14 (10th Cir. 2010)
(unpublished) (rejecting double-counting argument). 2
We cannot, and would not wish to, rule against these multiple precedents.
Despite amendments to the Guidelines on a regular basis, the Sentencing
Commission has declined to alter the challenged enhancement. As we have stated
2
CONCLUSION
For the foregoing reasons, we AFFIRM the sentence in this case.
ENTERED FOR THE COURT
Stephen H. Anderson
Circuit Judge
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