Filed: Jan. 07, 2019
Latest Update: Mar. 03, 2020
Summary: FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit FOR THE TENTH CIRCUIT January 7, 2019 _ Elisabeth A. Shumaker Clerk of Court UNITED STATES OF AMERICA, Plaintiff - Appellee, v. No. 18-1210 (D.C. No. 1:17-CR-00442-MSK-GPG-1) MARCOS GUARDADO-PANUCO, (D. Colo.) Defendant - Appellant. _ ORDER AND JUDGMENT* _ Before HARTZ, McKAY, and MORITZ, Circuit Judges. _ Marcos Guardado-Panuco pleaded guilty to one count of illegal reentry, in violation of 8 U.S.C. § 1326(a). He
Summary: FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit FOR THE TENTH CIRCUIT January 7, 2019 _ Elisabeth A. Shumaker Clerk of Court UNITED STATES OF AMERICA, Plaintiff - Appellee, v. No. 18-1210 (D.C. No. 1:17-CR-00442-MSK-GPG-1) MARCOS GUARDADO-PANUCO, (D. Colo.) Defendant - Appellant. _ ORDER AND JUDGMENT* _ Before HARTZ, McKAY, and MORITZ, Circuit Judges. _ Marcos Guardado-Panuco pleaded guilty to one count of illegal reentry, in violation of 8 U.S.C. § 1326(a). He a..
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FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT January 7, 2019
_________________________________
Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 18-1210
(D.C. No. 1:17-CR-00442-MSK-GPG-1)
MARCOS GUARDADO-PANUCO, (D. Colo.)
Defendant - Appellant.
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before HARTZ, McKAY, and MORITZ, Circuit Judges.
_________________________________
Marcos Guardado-Panuco pleaded guilty to one count of illegal reentry, in
violation of 8 U.S.C. § 1326(a). He appeals his 24-month prison sentence.
Exercising jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a), we affirm.
Guardado-Panuco is a native and citizen of Mexico who has been removed
from the United States on several occasions. He was previously convicted of illegal
reentry in 2010 and was removed in 2011 after a term of imprisonment. He returned
*
After examining the briefs and appellate record, this panel has determined
unanimously to honor the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
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 This order and judgment is not binding precedent,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.
to the United States, spent additional time in prison (after revocation of a term of
supervised release imposed in his first illegal reentry conviction), and was removed
again in 2012. He returned to the United States once again in 2016, after learning
that his family was experiencing financial difficulties in this country. He was
apprehended and pleaded guilty to a second charge of illegal reentry.
Guardado-Panuco’s advisory guidelines sentencing range was 18 to
24 months’ imprisonment. After denying his request for a downward variant
sentence of 12 months and one day in prison, the district court sentenced him at the
top of the guidelines range to 24 months’ imprisonment. He argues that his sentence
is substantively unreasonable.
We review the reasonableness of a sentence for an abuse of discretion. United
States v. Grigsby,
749 F.3d 908, 909 (10th Cir. 2014). “In reviewing a sentence for
substantive reasonableness, we recognize that the job of sentencing criminal
defendants is difficult. The court must individualize sentences without creating
unwarranted sentencing disparities. And the court must consider the seriousness of
crimes while recognizing the uniqueness of the individuals committing crimes.”
United States v. Walker,
844 F.3d 1253, 1255 (10th Cir. 2017). The fact that this
court might reasonably conclude that a different sentence was appropriate isn’t
sufficient to justify reversal. Gall v. United States,
552 U.S. 38, 51 (2007). Rather,
we will find that the district court acted within its discretion “unless the sentence was
arbitrary, capricious, whimsical, or manifestly unreasonable.” United States v.
Franklin,
785 F.3d 1365, 1370 (10th Cir. 2015) (internal quotation marks omitted).
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Moreover, we apply a rebuttable presumption of reasonableness to a sentence falling
within the applicable advisory guidelines range.
Id.
Guardado-Panuco doesn’t argue that the district court failed to address the
factors it must consider when imposing a sentence. See 18 U.S.C. § 3553(a). Rather,
he contends that the court over-emphasized his criminal history, while giving too
little weight to his personal mitigating circumstances, including his reason for
illegally reentering the United States: to support his family financially. But by
arguing that more weight should have been given to his personal circumstances,
Guardado-Panuco asks this court to substitute its judgment for that of the sentencing
court. This we cannot do. See
Gall, 552 U.S. at 51-52. Moreover, we see no abuse
of discretion in the sentence imposed. The district court considered all of the
required factors, but ultimately placed more weight on Guardado-Panuco’s criminal
history, in particular his pattern of repeated illegal reentries. The court held that a
longer sentence would provide the appropriate level of deterrence.
Because the district court acted within its discretion in imposing a 24-month
sentence, the judgment is affirmed.
Entered for the Court
Nancy L. Moritz
Circuit Judge
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