FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit FOR THE TENTH CIRCUIT March 31, 2020 _________________________________ Christopher M. Wolpert Clerk of Court UNITED STATES OF AMERICA, Plaintiff - Appellee, v. No. 19-1034 (D.C. No. 1:18-CR-00035-REB-1) MARIO CABALLERO-ANAYA, a/k/a (D. Colo.) Ernesto Martinez, a/k/a Ernesto Caballero, Defendant - Appellant. _________________________________ ORDER AND JUDGMENT* _________________________________ Before LUCERO, KELLY, and PHILLIPS, Circuit Judges. _________________________________ Mario Caballero-Anaya appeals his conviction and sentence for illegal reentry after removal under 8 U.S.C. § 1326(a)(1). He argues that the government has failed to establish his removal, an essential element of illegal reentry, because the date on his warrant of removal was later than his physical removal. He also appeals the substantive reasonableness of his sentence. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm. * This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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. I Caballero-Anaya has a long history of unlawfully entering and being removed from the United States. He was first ordered removed by an immigration judge on March 5, 1999, and was physically removed six days later. Between 1999 and 2016, he was removed six additional times: three times in 2000, and once each in 2002, 2004, and 2010.1 Prior to each removal, ICE reinstated the original 1999 order of removal pursuant to 8 C.F.R. § 241.8.2 From 2000 to 2014, Caballero-Anaya was convicted of illegal reentry four times. After his removal in 2010, Caballero-Anaya was again found in the United States on December 2, 2014. As it had six times before, ICE reinstated the original 1999 order of removal, following the process required by § 241.8, and recorded the reinstatement on ICE Form I-871, “Notice of Intent/Decision to Reinstate Prior Order” (“Reinstatement Decision”). Based on the reinstated order, Caballero-Anaya was physically removed from the United States by ICE agents at the Nogales port of entry “via afoot [sic]” on or about June 16, 2016. This physical removal was recorded on the second page of ICE Form I-205, “Warrant of Removal/Deportation” 1 Before 2003, removals were executed by the Immigration and Naturalization Service (“INS”). Since 2003, they have been executed by Immigration and Customs Enforcement (“ICE”). See Homeland Security Act of 2002, Pub. L. No. 107-296, § 4, 116 Stat. 2135 (2002). 2 This section authorizes the removal of an alien who has illegally reentered the United States after “having been removed, or having departed voluntarily, while under an order of exclusion, deportation, or removal” by reinstating the prior order. § 241.8. 2 (“Warrant”). An ICE official signed the first page of the Warrant on July 8, 2016, approximately 22 days after Caballero-Anaya’s physical removal. This discrepancy lies at the heart of his appeal. After his June 2016 removal, Caballero-Anaya was again found in the United States on December 6, 2017. As a result he ...
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