FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit
                   UNITED STATES COURT OF APPEALS
                                                                 October 26, 2012
                                TENTH CIRCUIT
                                                                Elisabeth A. Shumaker
                                                                    Clerk of Court

 UNITED STATES OF AMERICA,

              Plaintiff - Appellee,                      No. 12-8003
                                              (D.C. No. 1:11-CR-00075-NDF- 1)
 v.                                                      D. Wyoming
 ROBERT ALLEN RODRIGUEZ, JR.,

              Defendant - Appellant.


                           ORDER AND JUDGMENT *


Before MURPHY, ANDERSON, and HARTZ, 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.

I.    Introduction

      Appellant Robert Allen Rodriguez, Jr. pleaded guilty to one count of

possession with intent to distribute methamphetamine, in violation of 21 U.S.C.

      *
        This order and judgment is not binding precedent except under the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.
§§ 841(a)(1) and (b)(1)(C). The district court sentenced him to eighty-four

months’ imprisonment, the bottom of the advisory guidelines range. Rodriguez

appeals the sentence imposed by the district court, arguing it is substantively

unreasonable because the district court failed to properly consider the factors set

out in 18 U.S.C. § 3553(a). Exercising jurisdiction pursuant to 28 U.S.C. § 1291

and 18 U.S.C. § 3742(a), we affirm Rodriguez’s sentence.

II.   Background

      Rodriguez’s conviction arose from a 2011 traffic stop in Laramie County,

Wyoming. Two sheriff’s deputies found methamphetamine during a search of his

vehicle. He was charged in a single-count indictment with possession with intent

to distribute a mixture or substance containing a detectable amount of

methamphetamine. He pleaded guilty to the charge and entered into a written

plea agreement with the Government.

      The district court accepted Rodriguez’s plea and the United States

Probation Office prepared a Presentence Investigation Report (“PSR”). The PSR

calculated Rodriguez’s base offense level at thirty-two, concluding total relevant

conduct included 1474 kilograms of marijuana equivalency. The PSR

recommended a three-level reduction in the base offense level for acceptance of

responsibility, resulting in a total offense level of twenty-nine. See U.S.S.G.

§ 3E1.1. Rodriguez’s countable criminal history points totaled seven, which

correspond to a criminal history category of IV. The prior convictions used to

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calculate his criminal history score included a residential burglary, a battery, and

a larceny but did not include twelve other adult criminal convictions. The

recommended offense level combined with the criminal history category resulted

in an advisory guidelines range of 121 to 151 months’ imprisonment.

      Rodriguez objected to the calculation of his offense level, arguing the

PSR’s relevant conduct recommendation was erroneous. He also requested both a

departure and a variance from the advisory guidelines range. Relying on U.S.S.G.

§ 4A1.3, Rodriguez argued a category IV criminal history over-represented the

seriousness of his criminal past. He also argued a downward variance from the

advisory guidelines range was justified based on his personality disorder

diagnosis and the low scores he received on intellectual functioning tests.

      At the sentencing hearing, the district court found Rodriguez’s relevant

conduct placed him at a base offense level of twenty-eight, not thirty-two as

recommended in the PSR. The court deducted three levels for acceptance of

responsibility and applied a category IV criminal history to arrive at an advisory

guidelines range of 84-105 months’ imprisonment. The court also considered

Rodriguez’s arguments in support of his request for either a downward departure

or a downward variance. The court concluded a below-guidelines sentence was

not justified on the basis of Rodriguez’s diagnosis of personality disorder,

specifically commenting that “[m]any, if not most, individuals involved in a life

of crime have either a diagnosis or traits of antisocial personality disorder.” The

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court also rejected Rodriguez’s argument that his low level of intellectual

functioning justified a downward variance, noting the evaluator’s subjective view

that during testing, Rodriguez did not exert “the type of sustained effort that the

evaluator expected from a defendant undergoing intellectual functioning capacity

testing.” The district court sentenced Rodriguez to eighty-four months’

incarceration, the bottom of the advisory guidelines range.

III.   Discussion

       This court reviews a defendant’s challenge to the substantive

reasonableness of his sentence under a deferential abuse of discretion standard.

United States v. Alapizco-Valenzuela, 

, 1214 (10th Cir. 2008). In

his opening brief, Rodriguez disavows any appellate challenge to the procedural

reasonableness of his sentence. He does, however, challenge the substantive

reasonableness of the sentence. “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,

, 1169 (10th Cir. 2007). Sentences falling within a properly

calculated guidelines range are entitled to a rebuttable presumption of substantive

reasonableness. United States v. Parker, 

, 1322 (10th Cir. 2009).

Because Rodriguez does not challenge the calculation of the advisory guidelines

range employed by the district court, he bears the burden of demonstrating his




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sentence is outside the range of sentences the record can “fairly support.” United

States v. McComb, 

, 1053 (10th Cir. 2007).

      Repeating the arguments he presented to the district court, Rodriguez

asserts his low intellectual functioning and antisocial personality disorder entitle

him to a downward variance from the advisory guidelines range. He argues the

district court failed to consider these two personal characteristics. The district

court, however, considered Rodriguez’s arguments and fully explained its

reasoning for rejecting them. Our review of the record reveals no reversible error

in the district court’s analysis. As the Government points out, Rodriguez has

never explained why these two personality traits entitle him to a variant sentence.

      Rodriguez also argues he was entitled to a downward variance because his

criminal history category overstates the seriousness of his criminal history and his

family history includes parental alcoholism and physical abuse. After reviewing

the record and considering these arguments, we conclude Rodriguez has failed to

rebut the presumption his sentence is reasonable. The district court concluded

Rodriguez’s criminal history was not over-represented and any mitigating factors

were not outweighed by the high likelihood of recidivism. See United States v.

Algarate-Valencia, 

, 1244 (10th Cir. 2008). In sum, the district

court considered Rodriguez’s arguments, weighed the § 3553(a) factors, explained

its reasoning, and imposed a sentence at the bottom of a correctly calculated

advisory guidelines range.

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IV.   Conclusion

      Because Rodriguez has not shown the sentence imposed by the district

court is outside the range of sentences the record can fairly support, McComb,

519 F.3d at 1053, that sentence is affirmed.

                                         ENTERED FOR THE COURT


                                         Michael R. Murphy
                                         Circuit Judge




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