FILED
                                                                United States Court of Appeals
                                                                        Tenth Circuit

                                                                         June 6, 2013
                       UNITED STATES COURT OF APPEALSElisabeth A. Shumaker
                                                                        Clerk of Court
                                      TENTH CIRCUIT


 UNITED STATES OF AMERICA,
                Plaintiff-Appellee,                           No. 12-3247
           v.                                      (D.C. No. 2:10-CR-20127-JAR-1)
 OSCAR GARCIA-DELIRA,                                          (D. Kan.)
                Defendant-Appellant.


                              ORDER AND JUDGMENT*


Before LUCERO, McKAY, and MURPHY, Circuit Judges.



       After examining the briefs and the 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). This case is therefore ordered

submitted without oral argument.

       Defendant Oscar Garcia-Delira was convicted by a jury of unlawful reentry after

deportation in violation of 8 U.S.C. § 1326(a) and (b), and was sentenced to fifty-seven

months’ imprisonment. Defendant now appeals, arguing the sentence imposed by the

district court was substantively unreasonable.



       *
         This order and judgment is not binding precedent, except under the doctrines of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.
       After Defendant’s conviction, a presentence investigation report was prepared and

submitted to the district court and parties. The PSR recommended a total offense level of

24, representing a base offense level of 8 pursuant to U.S.S.G. § 2L1.2(a) and a 16-level

enhancement pursuant to U.S.S.G. § 2L1.2(b)(1)(A) because Defendant had previously

been deported following a felony conviction in 1995 for lewd molestation of a minor.

The PSR calculated Defendant as having three criminal history points based on his 1995

conviction. As a result, the PSR recommended a criminal history category of II.

Together, the recommended total offense level and criminal history category resulted in a

guideline range of fifty-seven to seventy-one months’ imprisonment.

       Defendant did not object to the PSR or dispute the accuracy of the guideline range

calculation. He did, however, request a substantial downward variance to a sentence of

time served (approximately twenty-four months) based on his individual circumstances

and the § 3553(a) sentencing factors. Specifically, Defendant argued such a variance was

warranted in light of the fact that his prior felony conviction was approximately eighteen

years old at the time of sentencing and because he suffers from physical, emotional, and

possibly cognitive impairments as a result of an electrocution accident in 2008. During

Defendant’s sentencing hearing, the district court adopted the PSR’s sentencing

calculations and declined to grant Defendant’s request for a variance. In doing so, the

court concluded that although the prior conviction was eighteen years old, “the nature of

the prior felony, lewd molestation of a minor, [in] particular a seven-year-old child,

weighs against the request for variance.” (R. Am. Vol. II at 178.) Turning to

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Defendant’s health, the court acknowledged that Defendant “suffered a very unfortunate

injury of electrocution and that it has had lasting effects on him physically and mentally.”

(Id. at 177.) However, Defendant “ha[d] been fully evaluated by the experts at the Butner

Medical Center,” who “found that he was overstating or exaggerating his symptoms and

in that respect was malingering.” (Id.) Accordingly, the court concluded that a variance

was not appropriate based on Defendant’s medical condition, particularly given “that his

medical condition can be appropriately addressed while he is in custody.” (Id. at 178.)

The court then sentenced Defendant to fifty-seven months’ imprisonment—the low end

of the guideline range. Defendant appeals the substantive reasonableness of this sentence.

         “‘When evaluating the substantive reasonableness of a sentence, we afford

substantial deference to the district court, and determine 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. Balbin-Mesa, 

, 788 (10th

Cir. 2011) (quoting United States v. Alvarez-Bernabe, 

, 1167 (10th Cir.

2010)). If the sentence is within the correctly calculated guideline range, it “is entitled to

a rebuttable presumption of reasonableness on appeal.” 

omitted). “This is a deferential standard that either the defendant or the government may

rebut by demonstrating that the sentence is unreasonable when viewed against the other

factors delineated in § 3553(a).” United States v. Kristl, 

, 1054 (10th Cir.

2006).

         Defendant challenges the substantive reasonableness of his sentence on three

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grounds. First, he argues that although deemed competent to stand trial, he lacked the

competency to help himself by pleading guilty or agreeing to a bench trial on stipulated

facts, which would have resulted in his eligibility for a three- or two-point reduction,

respectively, under U.S.S.G. § 3E1.1. Had Defendant received such a reduction, his

offense level would have been 21, with a low-end guideline range of forty-one months, or

22, with a low-end guideline range of forty-six months. Defendant argues the fact that his

cognitive impairments precluded him from receiving these lower offense levels highlights

the substantive unreasonableness of his sentence. Second, he argues that his prior

conviction is sufficiently stale to justify a variance, see United States v. Chavez-Suarez,

, 1138 (10th Cir. 2010) (“[T]he staleness of a conviction may under certain

circumstances warrant a variance below the guidelines.”), particularly given that his

“health problems . . . render him unlikely to reoffend” (Appellant’s Opening Br. at 20).

Finally, Defendant argues his physical, emotional, and cognitive impairments render his

sentence substantively unreasonable because (1) under § 3553(a)(2)(A), he has “already

received just punishment in light of his medical condition”; (2) under § 3553(a)(2)(C), he

“poses no risk of recidivism because his health problems render him effectively unable to

return to the United States”; and (3) under § 3553(a)(2)(D), he “needs continuing care

from his family, in Mexico, to assist with his cognitive, vocational, and physical

impairments.” (Appellant’s Opening Br. at 22.)

       After a thorough review of the record, it is clear the district court considered each

of the grounds Defendant argues as a basis for a downward variance from the guideline

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range.1 Taking these arguments and the § 3553(a) factors into account, the district court

concluded that “a sentence of 57 months of imprisonment, which is the low end of the

guideline range, . . . reflects the seriousness of the offense, promotes respect for the law,

and provides just punishment.” (R. Am. Vol. II at 182-83.) We see nothing in this

determination that would constitute an abuse of discretion.

       For the foregoing reasons, the judgment of the district court is AFFIRMED.

                                                    Entered for the Court



                                                    Monroe G. McKay
                                                    Circuit Judge




       1
          Defendant did not articulate his first argument regarding the missed opportunity
for a point reduction for acceptance of responsibility in the same manner that he now
does. He did, however, address the fact that there had been “a number of settings for
change of plea, a setting for a stipulated facts trial, all of which . . . ended up culminating
in a jury trial.” (R. Am. Vol. II at 163.) Defendant then explained, “The Sixth
Amendment makes [him] the captain of the ship in these circumstances. . . . And included
in the grant of authority to [him] . . . is the right to pilot that ship on the rocks, which he
has.” (Id.) He then focused the court on “[t]he question . . . for sentencing purposes”:
“why”—“What is in his head and why is it relevant for sentencing purposes?” (Id.) In
addressing Defendant’s arguments regarding the effect of his cognitive impairments, the
district court stated, “Mr. Garcia has been evaluated and has been determined to be
competent and that’s why we proceeded with this case and proceeded to trial.” (Id. at
177.)

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