United States v. Rodriguez

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES CO URT O F APPEALS
March 21, 2007
TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court

U N ITED STA TES O F A M ER ICA,

Plaintiff - Appellee, No. 06-1280
v. (D. Colorado)
GILBERTO RO DR IGU EZ, (D.C. No. 95-CR -00068-DBS)

Defendant - Appellant.

OR D ER AND JUDGM ENT *

Before L UC ER O, HA RTZ, and GORSUCH, Circuit Judges.

W hen Gilberto Rodriguez violated the terms of his supervised release, the

district court imposed a sentence of six months’ imprisonment followed by a new

term of supervised release. He appeals, contending that because the probation

office, the government, and defense counsel all agreed that no new supervised-

release term should be imposed, the court’s imposition of the term was

unreasonable. W e disagree and affirm.

*
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
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 This order and judgment is not binding
precedent except under the doctrines of law of the case, res judicata, and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.
I. B ACKGR OU N D

In 1995 M r. Rodriguez pleaded guilty in the United States D istrict Court

for the District of Colorado to conspiracy to possess and distribute ephedrine in

violation of 21 U.S.C. §§ 841(d)(2) and 846. The district court sentenced him to

48 months’ imprisonment followed by three years’ supervised release. It ordered

that while on supervised release he must participate in a drug-treatment program

and refrain from using controlled substances.

M r. Rodriguez began his term of supervised release on September 11, 2000.

Because of an intervening term of imprisonment on a new state conviction during

which his federal supervised-release term was inactive, he was still on supervised

release in September 2005 when he violated its terms by using methamphetamine.

On October 27, 2005, the district court modified the conditions of his release by

requiring that he spend up to six months in a community corrections center. In

February 2006 he again violated the terms of his release by possessing and using

a controlled substance.

The district court held a revocation hearing on June 7, 2006. At the hearing

M r. Rodriguez admitted that he had (1) possessed and used marijuana in 2001; (2)

comm itted various misdemeanors; (3) possessed and used methamphetamine on

September 6, 2005; (4) possessed and used methamphetamine on September 19,

2005; and (5) possessed and used methamphetamine on February 21, 2006. The

court accepted his admissions and proceeded to sentencing.

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 The government suggested a seven-month term of imprisonment, stating

that although M r. Rodriguez had a serious drug problem, he did not steal to

support his habit and had tried treatment programs. The district court noted that

his repeated failed efforts at treatment were cause for concern, stating, “[H ]e just

doesn’t seem to get it. Either that, or the treatment isn’t taking.” R. Vol. II at 10.

The government said that the only things that had not yet been tried w ere

Narcotics Anonymous and Alcoholics Anonymous, but that “at some point, your

Honor, we all have to face the realities of . . . limited resources.” Id. at 11.

Counsel for M r. Rodriguez argued that there would “be no real utility to further

supervision,” id. at 15, so he should simply be punished for his drug use.

The district court responded that it was inclined to give M r. Rodriguez a

sentence lower than the maximum allowed and “give him another shot at

supervision.” Id. at 15. Explaining its reasoning, the court said: “I know

probation officers are overw orked. . . but I believe that’s what we have them there

for is to help people like this. And it’s almost too easy to let these folks go . . .

free and say. . . okay, you’re free to go now. No more supervision, nobody

looking over your shoulder, no chance for treatment. [But] [h]e’s not going to go

out and get treatment on his own.” Id. at 15–16.

Defense counsel continued to argue against a term of supervised release,

saying that M r. Rodriguez would “rather do the year [in prison] and be done with

this.” Id. at 19. The district court explained that it was considering what was in

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the best interests of M r. Rodriguez and society, not simply his wants. The court

continued: “I’m just a very, very strong believer in supervision for as long as

possible, and hopefully somewhere along the line maybe he might just get the hint

that what he’s doing isn’t real smart.” Id. at 21. W hen counsel argued that the

court should just “let go” of M r. Rodriguez, it responded that “I never have

operated that way, and I have no intention of starting today.” Id. at 23. After

speaking with M r. Rodriguez, the court said “I never lose hope. . . W hen you go

to hell, then you lose all hope. I don’t think he’s there, so I don’t lose hope.” Id.

at 36.

The district court found that M r. Rodriguez’s supervised-release violations

were Grade C, that his criminal history was level IV, and that the sentencing

range recommended by the United States Sentencing Guidelines policy statements

was therefore 6 to 12 months’ imprisonment. See USSG § 7B1.4. It further

found that M r. Rodriguez was in need of additional counseling, treatment, and

supervision. It sentenced him to 6 months’ imprisonment, followed by two-and-a-

half years of supervised release. M r. Rodriguez timely appealed.

II. D ISC USSIO N

“In imposing a sentence following revocation of supervised release, a

district court is required to consider both [Guidelines] Chapter 7’s policy

statements, as well as a number of the factors provided in 18 U.S.C. § 3553(a).”

United States v. Cordova, 461 F.3d 1184, 1188 (10th Cir. 2006) (citation

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omitted). Among the § 3553(a) factors that the court must consider are the nature

and circumstances of the offense, the history and characteristics of the defendant,

the need to deter the defendant from further criminal behavior and to protect the

public, and the defendant’s need for correctional treatment. See 18 U.S.C.

§ 3553(a). The district court “is not required to consider individually each factor

listed in § 3553(a) nor is it required to recite any magic w ords to show us that it

fulfilled its responsibility to be mindful of the factors that Congress has instructed

it to consider before issuing a sentence.” Cordova, 461 F.3d at 1189 (internal

quotation marks omitted). W e will uphold a sentence “if it can be determined

from the record to have been reasoned and reasonable.” United States v. Tedford,

405 F.3d 1159, 1161 (10th Cir. 2005) (internal quotation marks omitted).

M r. Rodriguez does not argue that his sentence and term of supervised

release were incorrectly calculated, or that the district court disregarded the

Sentencing Guidelines. Rather, he argues that the supervised-release term is

unreasonable because the government, the probation office, and defense counsel

urged the court not to impose it, and the court chose not to follow this advice.

B ut the court’s sentence w as both thoughtful and reasoned. The record shows

that in deciding whether to impose a supervised-release term the court considered

the § 3553(a) factors, focusing on the need to deter M r. Rodriguez from further

drug use, his need for drug-abuse treatment, and protecting society. It stated that

probation officers were there to help people like M r. Rodriguez, that having

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someone “looking over [his] shoulder” upon his release from jail might make him

get treatment, R. Vol. II at 16, and that it was a strong believer in supervised

release.

The district court adequately considered the sentencing factors; and the

sentence it imposed, including the term of supervised release, was not

unreasonable. The court was not required to give up on M r. Rodriguez simply

because the probation office, the government, and defense counsel had.

III. C ON CLU SIO N

W e A FFIR M the judgment below.

ENTERED FOR THE COURT

Harris L Hartz
Circuit Judge

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