FILED
                                                                   United States Court of Appeals
                     UNITED STATES COURT OF APPEALS                        Tenth Circuit

                            FOR THE TENTH CIRCUIT                      September 13, 2016
                        _________________________________
                                                                       Elisabeth A. Shumaker
                                                                           Clerk of Court
UNITED STATES OF AMERICA,

     Plaintiff - Appellee,

v.                                                        No. 16-2071
                                                 (D.C. No. 2:15-CR-00568-JB-1)
JOSE ERIBERTO MARTINEZ,                                     (D. N.M.)

     Defendant - Appellant.
                     _________________________________

                            ORDER AND JUDGMENT*
                        _________________________________

Before TYMKOVICH, Chief Judge, O’BRIEN, and PHILLIPS, Circuit Judges.
                 _________________________________

      Joseph Eriberto Martinez, an El Salvadoran citizen, appeals from a sentence

imposed for illegally reentering the United States in violation of 8 U.S.C. § 1326.

The district court rejected Martinez’s fast-track plea agreement and sentenced

Martinez to twenty-four months’ imprisonment, the upper limit of the Guidelines

sentencing range. Martinez argues that the district court erred by rejecting his fast-

track plea agreement and by over-emphasizing deterrence in determining his

sentence. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.

      *
        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. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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.
                                  BACKGROUND

      Border patrol agents encountered Martinez on a Greyhound bus at a

checkpoint near Las Cruces, New Mexico. Martinez admitted that he was a citizen of

El Salvador and that he did not have legal authorization to enter or remain in the

United States. After border patrol agents arrested Martinez, the government charged

him with illegal reentry of a removed alien, in violation of 8 U.S.C. § 1326.

      At the time of his arrest, Martinez was on supervised release from a prior

conviction for illegal reentry. In 2011, the Western District of Texas court sentenced

Martinez to twenty-four months’ imprisonment and three years of supervised release

for illegal reentry of a removed alien. Before 2011, Martinez also had a drug-

trafficking conviction in Orange County, California.

      Despite his prior convictions, the government and Martinez agreed to propose

to the district court a fast-track plea agreement under Fed. R. Crim. P. 11(c)(1)(C),

providing Martinez a four-offense-level reduction and a two-level reduction for

accepting responsibility. If the district court accepted the Rule 11(c)(1)(C) plea

agreement, it would be bound to a sentencing range between eight to fourteen

months. Martinez pleaded guilty before a magistrate judge but reserved his right to

change his plea in case the district court rejected the plea agreement. At Martinez’s

first sentencing hearing, the district court expressed concern about the plea agreement

because it didn’t give the court “enough range to adequately reflect some of the

3553(a) factors, particularly respect for the law and specific deterrence.” R. Vol. III

at 20. Because of an issue with Martinez’s earlier deportation date, the Court

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continued the sentencing hearing without announcing its sentence to allow the Parties

to correct the earlier deportation date.

       At the second sentencing hearing, the district court rejected the plea agreement

and told Martinez that he could withdraw his guilty plea. The district court explained

that it had considered all of the § 3553(a) factors, including deterrence and noted that

Martinez’s previous twenty-four month sentence hadn’t deterred him from illegally

reentering the United States. The district court concluded that the plea agreement did

not provide the district court with enough flexibility to consider all of the factors

under 18 U.S.C. § 3553(a) and therefore, it rejected the fast-track plea agreement.

       Martinez later pleaded guilty without a plea agreement. The Guidelines

sentencing range without the fast-track plea agreement was eighteen to twenty-four

months. At the final sentencing hearing, Martinez argued for a sentence below the

Guidelines sentencing range of eighteen to twenty-four months. Martinez argued that

if the fast-track program had been available in the Western District of Texas in 2011,

his sentence at that time would likely have been substantially less than the twenty-

four months’ imprisonment he received. Additionally, Martinez argued that economic

desperation and rampant violence in El Salvador caused Martinez to leave the

country and seek work in the United States. The government also argued for a

sentence in accordance with the Parties’ fast-track plea agreement. The district court

rejected the Parties’ arguments and sentenced Martinez to twenty-four months’

imprisonment.



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      The district court carefully explained its decision, including the factors under

§ 3553. For example, the district court explained that it considered the nature and

circumstances of the offense, including the difficult conditions Martinez faced in El

Salvador. The Court explained that “while understanding the situation in El Salvador

is not a good one, the Court’s not sure how returning him to El Salvador sooner

rather than later helps him.” R. Vol. III at 73. The district court discussed Martinez’s

history, including his prior convictions for illegal reentry and drug trafficking. The

district court expressed its discomfort with Martinez’s having killed a man in

California, which Martinez claims was self-defense. The district court further

explained that a twenty-four month sentence was necessary for deterrence because

the previous sentence had not deterred Martinez from illegally reentering the United

States. The district court explained that the sentence was necessary “to promote

respect for the law, provide a just punishment, afford adequate deterrence, both at a

specific and a general level,” and to protect the public. 

      In response to an objection from Martinez, the district court explained that it

considered all of the other § 3553(a) factors, but that deterrence was especially

important in this case. After the third sentencing hearing, the district court issued a

fifty-five page opinion carefully analyzing the section 3553(a) factors. The district

court noted that “[b]ecause Martinez returned to the United States after serving a 24

month prison sentence, the Court concludes that a sentence of 8 months, or even a

sentence at or below the low end of the guidelines range of 18 to 24 months, will not

be sufficient to comply with § 3553(a)'s directives.” R. Vol. I at 49. After providing a

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detailed analysis of all the § 3553(a) factors and fully considering and addressing

Martinez’s arguments, the district court concluded that a high-end sentence was

appropriate and sentenced Martinez to twenty-four months.

      On appeal, Martinez argues that the district court’s sentence is substantively

unreasonable. Martinez argues that the sentence is unreasonable because the district

court focused solely on deterrence and excluded all of the other factors under

§ 3553(a).

                             STANDARD OF REVIEW

      We review the substantive reasonableness of a sentence imposed by a district

court for abuse of discretion. United States v. Ruby, 

, 1225 (10th Cir.

2013). “A district court abuses its discretion when it renders a judgment that is

arbitrary, capricious, whimsical, or manifestly unreasonable.” United States v.

Balbin-Mesa, 

, 787 (10th Cir. 2011) (quoting United States v. Alvarez-

Bernabe, 

, 1165 (10th Cir. 2010)). To determine the substantive

reasonableness of a sentence, we look at the totality of the circumstances. 

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 and in light of the

factors [provided] in 18 U.S.C. § 3553(a).” 

(quoting

). We presume a sentence is reasonable if it is



                                           5
within the properly calculated guideline range. United States v. Chavez, 

, 1233 (10th Cir. 2013).

      Martinez acknowledges that his sentence is within the properly calculated

Guidelines sentencing range of eighteen to twenty-four months. The district court

imposed a sentence of twenty-four months’ imprisonment. Thus, we presume the

district court’s sentence is reasonable and that the district court didn’t abuse its

discretion.

      Martinez fails to rebut this presumption. First, Martinez claims the district

court overemphasized deterrence to the exclusion of all other the § 3553(a) factors.

But the district court addressed the § 3553(a) factors, not just deterrence.

Specifically, at sentencing, the district court discussed the nature and circumstances

of the offense, including the difficult conditions faced by Martinez in El Salvador.

The Court explained that “while understanding the situation in El Salvador is not a

good one, the Court’s not sure how returning him to El Salvador sooner rather than

later helps him.” R. Vol. III at 73. The district court also addressed Martinez’s

history and said that it found Martinez’s criminal history troubling.

      The district court followed up its sentencing discussion with a detailed fifty-

five page opinion discussing the 3553(a) factors. The Court explained why it found

deterrence particularly important in this case. See R. Vol. I at p. 91 (“In a situation

where the defendant has not demonstrated any situational differences between his last

reentry and this reentry, or, as here, the reasons are even less compelling in this case,

the Court has no sound reason to conclude that a shorter sentence will deter him

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now.”). And contrary to Martinez’s claims, the district court didn’t ignore the other

3553(a) factors. See 

to promoting deterrence, § 3553(a) directs

courts to promote respect for the law and provide for just punishment.”); 

(“Regarding the need to protect the public, the Court is concerned about Martinez['s]

drug trafficking conviction, his prior immigration conviction and deportation in 2012,

and the fact that he killed someone in the United States.”). The district court

specifically discussed Martinez’s background and history, and the events that caused

him to reenter the United States. The Court concluded that “while this fact – the

dangerous situation in El Salvador – is sad, it does not put downward pressure on the

sentence.” 

      Finally, the district court explained that the 24-month sentence avoided

unwarranted sentencing disparities. The district court explained that “a 24-month

sentence avoids any unwarranted disparities among defendants with similar records

who have been found guilty of similar conduct, thereby complying with the precedent

from both the Ninth and Tenth Circuits.” 

      After reviewing the district court’s analysis, the district court did not abuse its

discretion in sentencing Martinez to twenty-four months’ imprisonment. See Balbin-

(twenty-eight month sentence for illegal reentry was not

substantively unreasonable). Instead, the district court properly consider Martinez’s

arguments, considered the factors under § 3553(a), and sentenced Martinez within the

guideline range. Martinez fails to overcome the presumption of reasonableness.



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      Martinez also suggests the district court erred by rejecting the fast-track plea

agreement. But a district court is not required to accept a fast-track plea agreement.

U.S.S.G. 5K3.1 (“the court may depart downward not more than 4 levels pursuant to

an early disposition program.”). “Rule 11 vests district courts with the discretion to

accept or reject plea agreements,” and “so long as district courts exercise sound

judicial discretion in rejecting a tendered plea, Rule 11 is not violated.” United States

v. Robinson, 

, 1437 (10th Cir. 1995). As we described in detail above,

the district court did not abuse its discretion when it rejected the fast-track plea

agreement. Therefore, the district court’s refusal to accept the binding fast-track plea

agreement is not reversible error.

                                     CONCLUSION

      For these reasons, we affirm the substantive reasonableness of Martinez’s

sentence.


                                            Entered for the Court


                                            Gregory A. Phillips
                                            Circuit Judge




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