United States v. Alvarado-Molina, 10th Cir. (2008)

FILED
United States Court of Appeals

Tenth Circuit
UNITED STATES COURT OF APPEALS

TENTH CIRCUIT
July 15, 2008

Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,

Plaintiff-Appellee,
v.
JORGE ALBERTO ALVARADOMOLINA,
No. 06-2360
(D.C. No. CR-06-1454-JP)
(D. N.M.)
Defendant-Appellant.
ORDER AND JUDGMENT *
Before BRISCOE, EBEL, and MCCONNELL, Circuit Judges.
Defendant-Appellant Jorge Alvarado-Molina (Alvarado) pled guilty to reentering the United States illegally after a previous deportation. See 8 U.S.C.
1326(a)(1)-(2), (b)(2). The district court sentenced Alvarado to a 46-month term
of imprisonment, at the bottom of the range prescribed by the U.S. Sentencing
Guidelines (Guidelines). Alvarado challenged the substantive reasonableness
After examining appellants brief and the appellate record, this panel has
determined unanimously that oral argument would not materially assist the
determination of this appeal. See Fed. R. App. P. 34(a)(2) and 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order and judgment is not binding precedent, except under the doctrines of law of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.
of his sentence on appeal and we affirmed. See United States v. AlvaradoMolina, 250 Fed. Appx. 905 (10th Cir. 2007) (unpublished). Thereafter, the
Supreme Court vacated our judgment and remanded the matter to us for further
consideration in light of Gall v. United States, 552 U.S. ___, 128 S. Ct. 586
(2007).
Gall reaffirmed that sentencing is a discretionary task; as such, the
appellate courts must review the sentence under an abuse-of-discretion
standard. Gall, 128 S. Ct. at 597. The Gall Court also reiterated that Rita v.
United States, 551 U.S. ___, 127 S Ct. 2456 (2007), authorized the appellate
courts to accord within-Guidelines sentences a presumption of reasonableness.
Gall, 128 S. Ct. at 597.
Here, the district court imposed a sentence at the bottom of Alvarados
Guidelines range. Alvarado appealed, asserting that the court failed to give
sufficient consideration to two factors that, in his estimate, warranted a belowGuidelines sentence. Having reviewed the record and Gall, we have identified
nothing that persuades us that the district court abused its discretion in imposing
the 46-month sentence. Moreover, there is nothing in the record that suggests that
the district court failed to realize the extent of its discretion in sentencing
-2-
Alvarado. As such, for the reasons set forth in our original order and judgment,
see Appendix 1, we AFFIRM Alvarados sentence.
ENTERED FOR THE COURT
David M. Ebel
Circuit Judge
-3-
FILED
United States Court of Appeals
Tenth Circuit
October 12, 2007
APPENDIX 1
Elisabeth A. Shumaker
Clerk of Court
UNITED STATES COURT OF APPEALS

TENTH CIRCUIT
UNITED STATES OF AMERICA,

Plaintiff-Appellee,
No. 06-2360
(D.C. No. CR 06-1454 JP)
(D.N.M.)
v.
JORGE ALVARADO-MOLINA,
Defendant-Appellant.
ORDER AND JUDGMENT *
Before BRISCOE, EBEL, and MCCONNELL, Circuit Judges.
Defendant-Appellant Jorge Alvarado-Molina (Alvarado) pled guilty to reentering the United States illegally after a previous deportation. See 8 U.S.C.
1326(a)(1)-(2), (b)(2). The district court sentenced Alvarado to a 46-month term
of imprisonment. Alvarado appeals, arguing that the sentence is substantively
After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f) and 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.
unreasonable. Specifically, Alvarado contends that the sentencing judge

disregarded Alvarados rationale for re-entering the United States after remaining
in Mexico for approximately five and a half years. Because we cannot say that
the sentence imposed is unreasonable, we affirm.
I.
Background
Alvarado, a Mexican citizen, originally entered the United States in 1990.
After a few prior brushes with the law, he was arrested in March 1998 with 150
pounds of marijuana in the trunk of the car he was driving. Alvarado plead guilty
to Conspiracy to Possess with Intent to Distribute Marijuana. Alvarado received
a sentence of 27 months imprisonment, served his sentence, and was deported to
Mexico in September 2000. In April 2006, U.S. Border Patrol agents
apprehended Alvarado near Santa Teresa, New Mexico. Immigration records
revealed that Alvarado had previously been deported and that he had not been
granted permission to reenter the United States. As such, he was indicted for
illegally re-entering the United States and pled guilty to the charge.
Alvarados presentencing report (PSR), prepared by the U.S. Probation
Office, factored in Alvarados previous drug trafficking offense. See U.S.S.G.
2L1.2(a) (base offense level); U.S.S.G. 2L1.2(b)(1)(A)(I) (enhancement). The
PSR also credited Alvarado for accepting responsibility for his action, see
-2-
U.S.S.G. 3.E1.1, because he had submitted a statement noting that he had

reentered only because he had learned that his father was to undergo surgery in
Phoenix. When combined with his criminal history category of III, Alvarados
offense level provided for an advisory guideline sentencing range of 46 to 57
months in prison.
At his sentencing hearing, Alvarado assented to the PSRs statement of
facts. 1 The judge decided on a 46-month sentence, stating I dont see a basis
under [18 U.S.C. 3553(a)] to vary from the guideline sentencing range. In
response, Alvarados counsel asked the judge to consider the fact that Alvarado
had not reentered the United States earlier, after having been deported over five
years beforehand. Alvarado also requested leniency, advancing his argument
regarding his fathers surgery.
II.
Discussion
We review a challenge to the sentence imposed by the district court for its
reasonableness. United States v. Booker, 543 U.S. 220, 261-62 (2005); United
States v. Kristl, 437 F.3d 1050, 1053 (10th Cir. 2006). The reasonableness
1
At sentencing, Alvarado did dispute the classification of his prior

conviction, contending that it was for simple possession of marijuana and, thus,
should not be considered a drug trafficking offense for purposes of U.S.S.G.
2L1.2(b)(1)(A)(I). Advised of this challenge at the sentencing hearing, the
district court noted that no one simply possesses 150 pounds of marijuana
without the intent to distribute it. The district court also admitted as evidence
Alvarados guilty plea for this prior felony, which confirms that the offense was
an aggravated felony.
-3-
inquiry encompasses both procedural and substantive components. United

States v. Cage, 451 F.3d 585, 591 (10th Cir. 2006). 2
A substantively reasonable sentence ultimately reflects the gravity of the
crime and the 3553(a) factors as applied to the case. United States v. Atencio,
476 F.3d 1099, 1102 (10th Cir. 2007). Accordingly, we must simply ask whether
the sentence is reasonable in light of the factors set forth in 18 U.S.C. 3553(a).
United States v. Sanchez-Juarez, 446 F.3d 1109, 1114 (10th Cir. 2006). We
presume the sentence is reasonable if it falls within the sentencing guidelines
range. Kristl, 437 F.3d at 1054. 3
Alvarado argues that his sentence is substantively unreasonable because the
district court failed to consider his reason for reentering the United States. See
18 U.S.C. 3553(a)(1) (instructing sentencing judge to consider offense and
offender characteristics). However, the sentencing transcript shows that the judge
listened to Alvarados two intertwined arguments at the hearing. More
importantly, the judge had reviewed the PSR, which also highlights Alvarados
Because Alvarado has not challenged the procedural reasonableness of the

sentence, we do not address that component of the inquiry.
3
We may do so because the sentence rests on the reasoned judgment of both

the Commissionas incorporated into the sentencing guidelinesand the
sentencing judge. See Rita v. United States, 127 S. Ct. 2456, 2463 (2007).
-4-
story regarding his fathers surgery. 4 The PSRs statement of the facts, to which
Alvarado did not object, provides ample evidence that the sentence imposed was
reasonable.
First, the PSR states that Alvarado had not had any contact with his father
since he was an adolescent. Throughout the course of this case, Alvarado offered
no evidence that would confirm his story about his fathers surgery. 5 Although
the sentencing judge did not directly address the story, he likely discounted itand
reasonably so in our view. A defendants mere say-so regarding an illness in
the family should not suffice to tilt the sentencing scales.
Alvarado also argues that the five-and-a-half-year hiatus that followed his
prior deportation demonstrates that deterrence is not a grave concern in his case.
See 18 U.S.C. 3553(a)(2) (instructing sentencing judge to consider basic aims
of sentencing). However, Alvarado has been deported twice before. Given
Alvarados apparent willingness to reenter and his criminal history, the
sentencing judges decision to abide by the guidelines was reasonable.
Alvarado detailed the circumstances of his decision to reenter the United

States as part of a submission that the Commission credited as an acceptance of
responsibility. This acceptance of responsibility resulted in a three-point
reduction in his offense level.
5
Alvarados counsel conspicuously avoided advancing this argument as
well.
-5-
III.
Conclusion
Nothing Alvarado adduced persuades us that his case is outside the
heartland of cases of similarly situated defendants. Because his sentence is not

unreasonable, we AFFIRM.
ENTERED FOR THE COURT
David M. Ebel
Circuit Judge
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FILED

United States Court of Appeals

UNITED STATES COURT OF APPEALS

July 15, 2008

UNITED STATES OF AMERICA,

ORDER AND JUDGMENT *

Before BRISCOE, EBEL, and MCCONNELL, Circuit Judges.

ENTERED FOR THE COURT

October 12, 2007

UNITED STATES COURT OF APPEALS

UNITED STATES OF AMERICA,

ORDER AND JUDGMENT *

Before BRISCOE, EBEL, and MCCONNELL, Circuit Judges.

unreasonable. Specifically, Alvarado contends that the sentencing judge

U.S.S.G. 3.E1.1, because he had submitted a statement noting that he had

At sentencing, Alvarado did dispute the classification of his prior

inquiry encompasses both procedural and substantive components. United

Because Alvarado has not challenged the procedural reasonableness of the

We may do so because the sentence rests on the reasoned judgment of both

Alvarado detailed the circumstances of his decision to reenter the United

Alvarados counsel conspicuously avoided advancing this argument as

heartland of cases of similarly situated defendants. Because his sentence is not

ENTERED FOR THE COURT

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