FILED
United States Court of Appeals
Tenth Circuit
PUBLISH
April 3, 2006
UNITED STATES COURT OF APPEALS Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 05-2043
ROBERTO RODRIGUEZ-
QUINTANILLA,
Defendant - Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
(D. Ct. No. CR-04-1880 JC)
Brian A. Pori, Inocente, P.C., Albuquerque, New Mexico, appearing for
Appellant.
Norman Cairns, Assistant United States Attorney (David C. Iglesias, United
States Attorney, with him on the brief), Office of the United States Attorney for
the District of New Mexico, Albuquerque, New Mexico, appearing for Appellee.
Before TACHA, Chief Circuit Judge, ANDERSON, and HARTZ, Circuit Judges.
TACHA, Chief Circuit Judge.
On September 15, 2004, Defendant-Appellant Roberto Rodriguez-
Quintanilla pleaded guilty to illegal reentry subsequent to deportation for an
aggravated felony in violation of 8 U.S.C. §§ 1326(a) and (b)(2) and was
sentenced to thirty months’ imprisonment. When Mr. Rodriguez-Quintanilla
committed this reentry violation, he was already serving a period of supervised
release pursuant to a prior conviction for illegal reentry into the United States.
The most recent reentry violated the conditions of his supervised release.
Accordingly, Mr. Rodriguez-Quintanilla’s supervised release for the prior offense
was revoked and he was ordered to serve an additional fifteen months’
imprisonment for violating the terms of his supervised release, to be served
consecutively to the thirty-month term imposed for the instant illegal reentry. See
U.S.S.G. § 7B1.3(f). On appeal, Mr. Rodriguez-Quintanilla argues that the
District Court erred in imposing a consecutive, rather than concurrent, sentence
for the violation of his supervised release. We take jurisdiction under 28 U.S.C.
§ 1291 and AFFIRM.
I. BACKGROUND
In October 1999, Mr. Rodriguez-Quintanilla pleaded guilty in the Southern
District of Texas to reentering the United States after he had previously been
deported for committing an aggravated felony. See 18 U.S.C. § 1326(b)(2). Mr.
Rodriguez-Quintanilla was sentenced to fifty-seven months’ imprisonment,
followed by a three-year term of supervised release which included a provision
that he not return to the United States. After serving the prison sentence, Mr.
Rodriguez-Quintanilla was deported to Mexico on August 27, 2003, where he
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began serving his term of supervised release. 1
Less than one year later, Mr. Rodriguez-Quintanilla was arrested in New
Mexico after he was again found to be in the United States illegally. He once
again pleaded guilty to illegal reentry subsequent to deportation for an aggravated
felony, and, this time, he was sentenced to thirty months’ imprisonment by the
District of New Mexico. Thereafter, a probation officer in the Southern District
of Texas filed a petition with the District of New Mexico to revoke Mr.
Rodriguez-Quintanilla’s supervised release. The District of New Mexico assumed
jurisdiction over the petition and held a hearing on the matter. Mr. Rodriguez-
Quintanilla admitted at the hearing that he had reentered the country in violation
of the terms of his supervised release. The District Court then granted the
petition and imposed a fifteen-month sentence to run consecutively to the thirty-
month sentence for the instant reentry offense. See U.S.S.G. § 7B1.3(f). On
appeal, Mr. Rodriguez-Quintanilla argues the District Court abused its discretion
in imposing a consecutive sentence and that the consecutive sentence is
unreasonable after the Supreme Court’s decision in United States v. Booker, 543
U.S. 220 (2005).
II. DISCUSSION
Under 18 U.S.C. § 3584(a), a district court has the discretion to impose
The Government notes that this release was actually unsupervised as Mr.
1
Rodriguez-Quintanilla had been deported.
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consecutive or concurrent sentences. United States v. Russell, 905 F.2d 1450,
1457 (10th Cir. 1990). The district court’s discretion is guided by the factors
delineated by 18 U.S.C. § 3553(a), see id. (citing 18 U.S.C. § 3584(b)), which
include the characteristics of the offense and the defendant, the need for
deterrence and the protection of the public, and, in cases involving a violation of
supervised release, “the applicable guidelines or policy statements issued by the
Sentencing Commission.” 18 U.S.C. § 3553(a). Like the post-Booker Guidelines,
policy statements regarding supervised release are advisory in nature. United
States v. Contreras-Martinez, 409 F.3d 1236, 1240 (10th Cir. 2005). The
applicable policy statement contained in § 7B1.3(f) recommends that:
Any term of imprisonment imposed upon the revocation of probation
or supervised release shall be ordered to be served consecutively to
any sentence of imprisonment that the defendant is serving, whether
or not the sentence of imprisonment being served resulted from the
conduct that is the basis of the revocation of probation or supervised
release.
Therefore, the District Court’s order requiring Mr. Rodriguez’s fifteen-
month sentence to run consecutively with the thirty-month sentence is in
accordance with the advisory policy statement contained in § 7B1.3(f). In such a
case, the defendant bears the burden to demonstrate that the District Court should
exercise its discretion to impose concurrent sentences in spite of that statement.
United States v. Urcino-Sotello, 269 F.3d 1195, 1197 (10th Cir. 2001).
This Court, prior to Booker, has applied two different standards of review
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to determine whether a district court erred in fashioning a sentence for violation
of supervised release. Generally, multiple sentences imposed consecutively
should be reviewed for an abuse of discretion. See, e.g., United States v.
Williams, 46 F.3d 57, 58 (10th Cir. 1995). But a sentence imposed after a
defendant violates a term of supervised release should be reviewed under the
“plainly unreasonable” standard set forth at 18 U.S.C. § 3742(e). See United
States v. Kelley, 359 F.3d 1302, 1304 (10th Cir. 2004). 2 Because these two
scenarios may coexist, we have at times applied the “plainly unreasonable”
standard of review—rather than an abuse of discretion standard—to the
imposition of consecutive sentences for immigration and supervised release
violations. See Contreras-Martinez, 409 F.3d at 1239, 1240–41.
Despite this apparent incongruence in our precedent on the matter, the two
standards of review are quite similar. As in a review for abuse of discretion, in
determining whether a sentence imposed after revocation of a term of supervised
release is “plainly unreasonable” under § 3742(e), the district court is required to
consider the factors set forth in § 3553(a). Kelley, 359 F.3d at 1304.
Accordingly, we have held that following the policy statement set forth in
§ 7B1.3(f) and sentencing a defendant to consecutive sentences following the
revocation of supervised release is not unreasonable. Contreras-Martinez, 409
2
Under this standard of review, “we will not reverse [a sentence] if it can be
determined from the record to have been reasoned and reasonable.” Kelley, 359
F.3d at 1304 (quotations omitted).
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F.3d at 1241.
In the time after the sentences were handed down in Russell, Kelley, and
Contreras-Martinez, however, the Supreme Court in United States v. Booker
determined that the Sentencing Guidelines are unconstitutional. 543 U.S. 220,
245 (2005). In the remedial portion of Booker, the Court excised § 3742(e), as
well as the section of the Guidelines making their application mandatory. Id. at
258–262. In so doing, it announced a new standard of review—that of
“reasonableness.” Id. at 262; United States v. Kristl, 437 F.3d 1050, 1053 (10th
Cir. 2006). This standard of review, like the two standards aforementioned, also
mandates district courts to consider the § 3553(a) factors in sentencing criminal
defendants. Id. at 261. A sentence in accord with the now-discretionary
Guidelines is entitled to a rebuttable presumption of reasonableness. Kristl, 437
F.3d at 1054.
Given the excision of § 3742(e) and the similarity among all three
standards of review, it is not surprising that at least two courts of appeals have
held that Booker requires appellate courts to apply Booker’s new reasonableness
standard even in revocation of supervised release cases where the imposition of
new sentences has always been discretionary. See United States v. Edwards, 400
F.3d 591, 593 (8th Cir. 2006) (per curiam); United States v. Cotton, 399 F.3d 913,
916 (8th Cir. 2005); United States v. Fleming, 397 F.3d 95, 97–99 (2nd Cir.
2005); see also United States v. Johnson, 403 F.3d 813, 816 (6th Cir. 2005)
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(discussing the appropriate standard of review after Booker).
This Court has not heretofore discussed the effect of Booker in the present
situation. We have hinted, however, that the prior standards of review survive
Booker. For example, in a case presenting an appeal as to the length of a single
sentence imposed after the revocation of supervised release—as opposed to a case
involving whether a sentence imposed after the revocation of supervised release
should run consecutively to another sentence—this Court stated:
Although the Supreme Court’s decision in United States v. Booker
altered our standard of review for most sentencing cases, the standard
of review for cases where the defendant challenges the revocation of
her supervised release remains the same. See United States v.
Booker, [543] U.S. [220] (citing United States v. Tsosie, 376 F.3d
1210, 1218–19 (10th Cir.2004), as an example of an application of
the reasonableness standard of review). Hence, in this case, we will
follow the law as articulated by Tsosie, wherein we stated that
imposition of a sentence in excess of that recommended by the
Chapter 7 policy statements of the Sentencing Guidelines will be
upheld “if it can be determined from the record to have been
reasoned and reasonable.” Tsosie, 376 F.3d at 1218 (internal
quotation omitted).
United States v. Tedford, 405 F.3d 1159, 1161 (10th Cir. 2005). Similarly, in
Conteras-Martinez, we did not specifically apply the abuse of discretion standard
in a review of the imposition of consecutive sentences for immigration and
supervised release violation. Instead, we stated that we would affirm if the
sentence was “reasoned and reasonable.” 409 F.3d at 1241. Nevertheless, we
repeatedly referred to the district court’s discretion to impose concurrent
sentences. We stated that the district court “committed no error in exercising its
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discretion and sentencing Mr. Contreras to consecutive terms of imprisonment,”
id. (emphasis added), “[t]he district court was well within its discretion to order
Mr. Contreras’ sentence for violation of his supervised release to run
consecutively to his sentence for illegal reentry,” id. (emphasis added), “[a] court
faced with a violation of supervised release is required to ‘consider’ various
factors . . . in exercising its discretion in sentencing,” id. at 1242 (emphasis
added), and that “in exercising its discretion to impose consecutive sentences, the
district court committed no error,” id. at 1243 (emphasis added).
As it now stands, the relationship between the abuse of discretion standard,
the “plainly unreasonable” standard and the post-Booker “reasonableness”
standard is less than crystal clear. See id. at 1241 (“The district court was well
within its discretion to order Mr. Contreras’ sentence for violation of his
supervised release to run consecutively to his sentence for illegal reentry. In
other words, the court’s election to apply the Chapter 7 advisory policy statement
exactly as written was not unreasonable.”). At this time, however, we need not
establish the exact contours of our post-Booker standard of review when
reviewing a district court’s decision to impose consecutive sentences after the
revocation of supervised release pursuant to § 7B1.3(f). Given the facts of this
case, we are satisfied that the District Court neither abused its discretion in
applying Chapter 7 exactly as written, nor did it impose an unreasonable sentence
in doing so. See Contreras-Martinez, 409 F.3d at 1241 (“the court’s election to
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apply [§ 7B1.3(f)] exactly as written was not unreasonable”) (citing Tsosie, 376
F.3d at 1218); United States v. Cruz-Mendez, 86 Fed. App’x 392, 2004 WL
103559 (10th Cir. 2004) (unpublished) (holding that the district court acted “well
within its discretion” to impose consecutive sentences because § 7B1.3(f)
recommends such an approach).
Mr. Rodriguez-Quintanilla also argues that he is entitled to a remand for
resentencing because the District Court failed to adequately explain why it
declined to order his fifteen-month sentence to run concurrently with his thirty-
month sentence. See 18 U.S.C. § 3553(c). We disagree. We have emphasized
that “the sentencing court is not required to consider individually each factor
listed in § 3553(a) before issuing a sentence.” Contreras, 409 F.3d at 1242
(quotations omitted). In addition, we do not “demand that the district court
‘recite any magic words’ to show us that it fulfilled its responsibility to be
mindful of the factors that Congress has instructed it to consider.” Id. (quotation
omitted). In this case, the District Court specifically invited counsel for Mr.
Rodriguez-Quintanilla to address this issue prior to its ruling. During the
sentencing hearing, counsel pointed out that “[u]nder the policy statements of
guideline 7B1.3(f) it indicates that the Court shall impose any sentence for a
violation of [supervised release] consecutive to the term of what I will call the
underlying offense.” Counsel nonetheless argued that the § 3553(a) factors
warranted a concurrent, rather than consecutive, sentence because the thirty-
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month sentence for illegal reentry already accounted for Mr. Rodriguez-
Quintanilla’s violation of the terms of supervised release, because Mr. Rodriguez-
Quintanilla had accepted responsibility for his conduct, and because Mr.
Rodriguez-Quintanilla had promised not to return to the United States upon
release. Thereafter, the District Court stated that § 7B1 governed the case and
imposed a consecutive term. We conclude that doing so did not run afoul of
§ 3553(c)’s mandate. See id. at 1242 n.4 (finding no error under § 3553(c)
“because § 7B1.3(f) explicitly recommends consecutive sentences, and . . . the
record indicates the district court made clear it was following this
recommendation in imposing its sentences consecutively.”).
III. CONCLUSION
For the reasons stated above, we AFFIRM.
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