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

                            FOR THE TENTH CIRCUIT                          February 6, 2019
                        _________________________________
                                                                         Elisabeth A. Shumaker
                                                                             Clerk of Court
 UNITED STATES OF AMERICA,

       Plaintiff - Appellee,

 v.                                                          No. 18-5072
                                                  (D.C. No. 4:18-CR-00054-GKF-1)
 JUAN PABLO MARTINEZ-MARTINEZ,                               (N.D. Okla.)
 a/k/a Daniel Martinez Aguilar, a/k/a Daniel
 Aguila, a/k/a Armando Castro-Castro, a/k/a
 Antonio Penuelas-Castro, a/k/a Rogelio
 Ramiraz-Ramiraz, a/k/a Miguel Luna-
 Robledo, a/k/a Carlos Monoyoqui-Lopez,
 a/k/a Luis Marquez-Nunez,

       Defendant - Appellant.
                      _________________________________

                            ORDER AND JUDGMENT*
                        _________________________________

Before BACHARACH, MURPHY, and MORITZ, Circuit Judges.
                 _________________________________

      After Juan Pablo Martinez-Martinez pleaded guilty to illegally reentering the

United States for a third time, the district court sentenced him to 21 months’




      *
        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 isn’t binding precedent,
except under the doctrines of law of the case, res judicata, and collateral estoppel.
But it may be cited for its persuasive value. See Fed. R. App. P. 32.1; 10th Cir. R.
32.1.
imprisonment. Martinez-Martinez appeals, arguing his sentence is substantively

unreasonable. For the reasons discussed below, we affirm.

      Martinez-Martinez is a native and citizen of Mexico who has voluntarily

returned to Mexico or been removed from the United States on several occasions.

Between 2000 and 2002, Martinez-Martinez voluntarily returned to Mexico seven

times. In 2002, he pleaded guilty to improper entry, and the government removed

him. In 2008, authorities discovered him in the United States and removed him again.

In 2010, he pleaded guilty to illegal reentry; the district court sentenced him to eight

months’ imprisonment, and the government then removed him. In 2012, he pleaded

guilty to illegal reentry for the second time; the district court sentenced him to 15

months’ imprisonment, and the government removed him once more.

      Additionally, Martinez-Martinez incurred several drug- and alcohol-related

convictions while in the United States. In 2005, he pleaded guilty to possession of

marijuana and public intoxication. In 2009, he pleaded guilty to driving under the

influence of alcohol (DUI). And in 2010, he pleaded guilty to a second DUI.

      In October 2017, law-enforcement officers arrested Martinez-Martinez in

Oklahoma. During routine booking procedures, the officers determined that

Martinez-Martinez was unlawfully in the United States. As a result, Martinez-

Martinez again pleaded guilty to one count of illegal reentry in violation of 8 U.S.C.

§ 1326(a)—his third such conviction.

      Based on a Guidelines range of 15 to 21 months’ imprisonment, see U.S.S.G.

§ 2Ll.2(a), the district court sentenced Martinez-Martinez to 21 months’

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imprisonment. In support, the district court cited several factors, including Martinez-

Martinez’s reentry “after seven voluntary returns and four [removals]”; his “four

drug[-] or alcohol-related convictions”; his “history of physical[-] and mental[-]

health issues”; and his most recent illegal-reentry sentence of 15 months’

imprisonment. R. vol. 3, 39–40. Martinez-Martinez appeals, arguing that his

21-month sentence is substantively unreasonable.

       “We review the substantive reasonableness of a sentence for abuse of

discretion.” United States v. Chavez, 

, 1233 (10th Cir. 2013). A district

court abuses its discretion only if it imposes a sentence that “is arbitrary, capricious,

whimsical, or manifestly unreasonable.” United States v. Durham, 

,

1236 (10th Cir. 2018) (quoting United States v. Munoz-Nava, 

, 1146

(10th Cir. 2008)).

      In reviewing Martinez-Martinez’s sentence for substantive reasonableness, we

ask “whether the length of [his] sentence is reasonable given all the circumstances of

the case in light of” the relevant factors under 18 U.S.C. § 3553(a). United States v.

Singer, 

, 1158 (10th Cir. 2016) (quoting United States v. Craig, 

, 1261 (10th Cir. 2015)). Among other things, these factors include the

nature and circumstances of the offense; the history and characteristics of the

defendant; the need for the sentence to reflect the seriousness of the offense and

promote respect for law enforcement; the need to deter criminal conduct; and the

need to protect the public from future crimes. See § 3553(a). Further, because the

district court sentenced Martinez-Martinez within the Guidelines range, we presume

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that his sentence is reasonable. United States v. McBride, 

, 1233 (10th

Cir. 2011).

      Seeking to overcome the presumption of reasonableness, Martinez-Martinez

asserts the district court overemphasized the severity of his criminal history—in

particular, by focusing on his 2010 DUI conviction—when weighing the factors

listed in § 3553(a).1 Cf. U.S.S.G. § 4A1.3(b)(1) (allowing for downward departure if

“defendant’s criminal[-]history category substantially over[]represents [1] the

seriousness of the defendant’s criminal history or [2] the likelihood that the

defendant will commit other crimes”). Martinez-Martinez suggests this conviction is

“minimal,” Aplt. Br. 9, because the state court never sentenced him for this offense.

      But we see no indication that, by focusing on Martinez-Martinez’s 2010 DUI

conviction, the district court improperly inflated the severity of his criminal history.

Indeed, the state court never sentenced Martinez-Martinez for this offense because,

after the state court deferred sentencing for one year, Martinez-Martinez failed to

appear for his subsequent sentencing hearing. If anything, the circumstances of the

2010 DUI support, rather than undermine, the district court’s focus on this offense.

      Moreover, we note that in addition to the 2010 DUI conviction, Martinez-

Martinez had a long list of other convictions, including two prior illegal-reentry

convictions and three other alcohol- and drug-related convictions. Further, for each



      1
        Martinez-Martinez doesn’t challenge the calculation of his Guidelines range,
essentially conceding that the 2010 DUI conviction was properly counted in his
criminal-history category.
                                            4
of the prior illegal-reentry convictions, he received sentences shorter than his current

sentence—8 and 15 months, respectively. Thus, it’s clear that neither the convictions

themselves nor the relatively short sentences Martinez-Martinez received as a result

of those convictions was sufficient to deter him from illegally reentering the country.

The district court was therefore justified in imposing this longer sentence as a

deterrent. See § 3553(a)(2)(B) (allowing district court to consider need for sentence

to “afford adequate deterrence to criminal conduct”); United States v. Guardado-

Panuco, 746 F. App’x 784, 785 (10th Cir. 2019) (unpublished) (finding 24-month

sentence substantively reasonable because it would “provide the appropriate level of

deterrence” where defendant had two prior illegal-reentry convictions).

      Accordingly, we see no indication that by focusing on Martinez-Martinez’s

2010 DUI conviction, the district court overstated the severity of his criminal history.

As such, Martinez-Martinez fails to overcome the presumption that his Guidelines

sentence is substantively reasonable, and the district court didn’t abuse its discretion

in imposing Martinez-Martinez’s sentence.


                                            Entered for the Court


                                            Nancy L. Moritz
                                            Circuit Judge




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