FILED
                                                             United States Court of Appeals
                                                                     Tenth Circuit

                   UNITED STATES COURT OF APPEALS                    May 2, 2019
                                                                Elisabeth A. Shumaker
                                TENTH CIRCUIT                       Clerk of Court



 UNITED STATES OF AMERICA,

              Plaintiff - Appellee,

 v.                                                      No. 18-2136
                                               (D.C. No. 2:18-CR-01368-RB-1)
 BONIFACIO LOPEZ-URBINA,                                  (D. N.M.)

              Defendant - Appellant.


                           ORDER AND JUDGMENT *


Before TYMKOVICH, Chief Judge, BALDOCK, and CARSON, Circuit Judges.


      Bonifacio Lopez-Urbina pleaded guilty without a plea agreement to illegal

reentry after deportation in violation of 8 U.S.C. § 1326. The district court

followed the recommendation of the probation officer and departed two criminal

history levels downward from the United States Sentencing Guidelines (USSG).

Lopez-Urbina then moved for an additional downward departure of three offense




      *
         This order and judgment is not binding precedent except under the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.
levels on the ground that his offense level overrepresented his actual criminal

history.

      The district court denied Lopez-Urbina’s motion for downward departure

and sentenced him to 57 months in prison, the bottom of the guideline range.

Lopez-Urbina now challenges the district court’s sentencing determination—both

the denial of the motion to depart downward and the substantive reasonableness

of the sentence. We conclude, however, this court lacks jurisdiction to review the

district court’s discretionary decision to deny Lopez-Urbina’s motion for

downward departure. Our review is thus cabined to the substantive

reasonableness of the imposed sentence. And we AFFIRM because the 57-month

sentence is reasonable.

                                 I. Background

      Border patrol agents apprehended Lopez-Urbina in Santa Teresa, New

Mexico, shortly after he crossed the United States-Mexico border. He was

arrested for violating 8 U.S.C. §§ 1326(a)(1) and (b)(2), which prohibit a

previously removed alien from reentering the United States without authorization.

His extensive criminal history resulted in an offense level of 21 and a criminal

history category of VI. Lopez-Urbina already had a conviction for illegal reentry

(having been deported from the United States four times) and had additional

felony convictions both before and after his illegal reentry conviction.


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      Lopez-Urbina’s base offense level of eight increased four levels for having

a prior conviction for illegal reentry. USSG § 2L1.2(b)(1)(A). He received an

additional four-level enhancement for his DWI conviction in 2011—charged as a

felony because he had two previous DWI convictions. 

And

finally, Lopez-Urbina received an eight-level enhancement under USSG

§ 2L1.2(b)(3)(B) for a domestic-violence conviction in 2016—also charged as a

felony because he had a previous conviction for domestic violence. After a three-

level reduction for acceptance of responsibility, Lopez-Urbina’s total offense

level was 21, with a resulting guideline range of 77 to 96 months.

      The probation officer recommended the district court depart downward two

criminal history categories under USSG § 4A1.3(b)(1) on the ground that criminal

history category VI “substantially over-represents the seriousness of the

defendant’s criminal history.” The district court concurred in that assessment and

varied down two levels. Lopez-Urbina then moved for a further downward

departure under USSG § 2L1.2, Application Note 5, maintaining that “the offense

level provided by [the] enhancement . . . substantially understates or overstates

the seriousness of the conduct underlying the prior offense.” 1 Lopez-Urbina


      1
        We refer to Application Note 5 even though—after Lopez-Urbina’s
sentencing—USSG § 2L1.2, Application Note 5 was amended and redesignated as
Note 6. The Note reads:

                                                                      (continued...)

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argued he received those enhancements only because Texas’s recidivist statutes

categorize third DWI and second domestic-abuse offenses as felonies. He

contended that in many states, including New Mexico, his third DWI and second

domestic-violence incident would have been charged as misdemeanors. This

created, Lopez-Urbina argued, a disparity between the guideline range for him

and the range for similarly situated defendants in states without such strict

recidivist statutes.

       The district court concluded Lopez-Urbina’s circumstances did not warrant

a further downward departure. The guideline range therefore remained at 57 to

77 months—accounting for the downward departure of two criminal history levels

based on the probation officer’s recommendation. The district court then

sentenced the defendant to 57 months.

       Lopez-Urbina appeals that sentence.



       1
        (...continued)
       There may be cases in which the offense level provided by an
       enhancement in subsection (b)(2) or (b)(3) substantially understates or
       overstates the seriousness of the conduct underlying the prior offense,
       because (A) the length of the sentence imposed does not reflect the
       seriousness of the prior offense; (B) the prior conviction is too remote
       to receive criminal history points (see § 4A1.2(e)); or (C) the time
       actually served was substantially less than the length of the sentence
       imposed for the prior offense. In such a case, a departure may be
       warranted.

USSG § 2L1.2, Application Note 5.

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                                   II. Analysis

      Lopez-Urbina challenges two aspects of the district court’s sentencing

decision, arguing the district court erred by denying his motion for downward

departure and by imposing a substantively unreasonable sentence. We lack

jurisdiction to review the district court’s denial of a motion for downward

departure, so our review is solely of the substantive reasonableness of Lopez-

Urbina’s sentence.

      1. Motion for Downward Departure

      This court has repeatedly held “we lack ‘jurisdiction . . . to review a district

court’s discretionary decision to deny a motion for downward departure on the

ground that a defendant’s circumstances do not warrant the departure.’” United

States v. Bergman, 

, 1150 (10th Cir. 2010) (quoting United States v.

Sierra-Castillo, 

, 936 (10th Cir. 2005)). The only exception to this

rule is “if the denial is based on the sentencing court’s interpretation of the

Guidelines as depriving it of the legal authority to grant the departure.” United

States v. Fonseca, 

, 1112 (10th Cir. 2007). Since Lopez-Urbina has

not argued the district court misinterpreted USSG § 2L1.2, Application Note 5, to

deprive the court of authority to grant the departure (and it is quite clear the

district court recognized this authority), the exception does not apply.




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      Recognizing this authority, Lopez-Urbina changed direction at oral

argument, arguing not that the district court abused its discretion by denying

downward departure but that the district court failed to consider Application Note

5 at all. This argument is one of procedural reasonableness, however, and differs

significantly from the arguments Lopez-Urbina advanced in his briefing. See Gall

v. United States, 

, 51 (2007) (explaining the scope of a procedural

reasonableness challenge). Thus, this argument is waived. Fed. Ins. Co. v. Tri-

State Ins. Co., 

, 805 (10th Cir. 1998) (“Issues raised for the first time

at oral argument are considered waived.”).

      We therefore do not review the district court’s decision to deny Lopez-

Urbina’s motion for downward departure or consider the argument that the district

court failed to apply Note 5.

      2. Substantive Reasonableness

      Lopez-Urbina also challenges the substantive reasonableness of his

57-month sentence. We review the substantive reasonableness of a defendant’s

sentence under an abuse of discretion standard. United States v. Chavez, 

, 1233 (10th Cir. 2013). Under this standard, a sentence is substantively

unreasonable only “if it exceeds the bounds of permissible choice, given the

facts” and “in light of the factors set forth in 18 U.S.C. § 3553(a).” 

within the guideline range, like Lopez-Urbina’s, are presumed to be

reasonable, 

defendant carries a heavy burden.

      Lopez-Urbina primarily contends his sentence is substantively unreasonable

because he received enhancements based on conduct occurring in Texas that, had

it occurred in other states, would not have been felonious. More specifically, he

argues that had he been charged with a third DWI or second domestic-violence

offense in New Mexico (where he was charged for this latest immigration

offense), he would not have received a sentence enhancement because both prior

offenses would have been misdemeanors. In Lopez-Urbina’s view, this creates a

disparity between his sentence and those of similarly situated individuals who, for

instance, commit multiple domestic-violence offenses in states with more

forgiving recidivist statutes.

      The district court considered this argument and rejected it. The court noted

Lopez-Urbina’s “lengthy criminal history[] of putting people in our country at

risk: Driving while intoxicated multiple times, domestic violence multiple times.”

App. at 13–14. And before imposing the 57-month sentence, the bottom of the

guideline range, the court remarked, “Let’s just call it what it is. Some states

have chosen to punish, as felonious, misdemeanor conduct that puts people at

risk, misdemeanor conduct that hurts people. And that’s what happened here.”

App. at 14.


                                         -7-
      Lopez-Urbina also argues that his sentence is more than two and half times

longer than his last illegal reentry sentence of 21 months. This in his view

demonstrates that the sentence was “greater than necessary[] to comply with the

purposes” of criminal punishment. 18 U.S.C. § 3553(a).

      We disagree with both of Lopez-Urbina’s arguments. First, the district

court did not abuse its discretion in declining to credit how the sentence would

have differed if Lopez-Urbina had been driving drunk or physically assaulted his

wife in a state without a harsh recidivist statute. This is especially so because

Lopez-Urbina has identified only a minority of states—twenty—where “DWI is

never a felony, or becomes a felony after three prior convictions.” Aplt. Br. at

15. And he has identified only four states—New Mexico, Arizona, California,

and Nevada—where his second domestic-violence offense would have been a

misdemeanor. Moreover, the district court specifically mentioned that Lopez-

Urbina’s suggestion “he might be the victim at this point doesn’t help much in

terms of the argument.” App. at 14.

      Second, the district court reasonably concluded a 57-month sentence was

not “greater than necessary” in order to “reflect the seriousness of the offense, to

promote respect for the law, and to provide just punishment for the offense.” 18

U.S.C. § 3553(a). Between the ages of 25 and 39, Lopez-Urbina was convicted of

three DWI offenses, two assaults on his wife, and two criminal immigration


                                          -8-
offenses—for a total of seven convictions. He also returned to the United States

soon after being deported each of the four times, once less than a week after he

had been deported to Mexico in September 2012.

      Thus, considering Lopez-Urbina’s criminal history and the factors set forth

in 18 U.S.C. § 3553(a), we conclude that Lopez-Urbina has not rebutted the

presumption that his within-guideline sentence is substantively unreasonable.

                                III. Conclusion

      We lack jurisdiction to review the district court’s discretionary decision to

deny Lopez-Urbina’s motion for a downward departure, and we conclude the

district court’s 57-month sentence is substantively reasonable. We therefore

AFFIRM Lopez-Urbina’s sentence.

                                       ENTERED FOR THE COURT

                                       Timothy M. Tymkovich
                                       Chief Judge




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