F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES CO URT O F APPEALS
March 27, 2007
TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
U N ITED STA TES O F A M ER ICA,
Plaintiff - Appellee, No. 06-3300
v. (D. Kansas)
JO SE C RU Z M O N TER O-M O NTERO, (D.C. No. 06-CR-20019-CM )
Defendant - Appellant.
OR D ER AND JUDGM ENT *
Before BR ISC OE, HA RTZ, and GORSUCH, Circuit Judges.
On January 25, 2006, Jose Cruz M ontero-M ontero (M ontero) was indicted
in the United States District Court for the District of Kansas on one count of
unlawful reentry into the United States after deportation. See 8 U.S.C. § 1326(a)
and (b)(2). He pleaded guilty and on August 7 w as sentenced to 70 months’
imprisonment. On appeal he argues that the court improperly “double-counted”
one of his previous criminal offenses by using it in calculating both his offense
*
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 This order and judgment is not binding
precedent except under the doctrines of law of the case, res judicata, and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.
level and his criminal history. He also contends that his sentence is unreasonably
long under 18 U.S.C. § 3553(a). W e have jurisdiction under 28 U.S.C. § 1291
and affirm.
I. B ACKGR OU N D
The presentence report (PSR ) computed M r. M ontero’s offense level of 22
by starting with a base offense level of eight, see United States Sentencing
Guidelines (USSG) § 2L1.2(a), adding 16 for being previously deported after a
drug-trafficking conviction for which he received a sentence of five years’
imprisonment, see id. § 2L1.2(b)(1)(A)(I), and subtracting two for accepting
responsibility, see id. § 3E1.1(a). His criminal-history category of V was based
on three previous drug convictions and an outstanding bench warrant that issued
when he failed to complete alcohol treatment after a D UI conviction. In
particular, he received three criminal-history points for the conviction used to
increase his base offense level by 16.
M r. M ontero objected to the PSR at sentencing, contending that his prior
felony conviction was unreasonably “double-counted.” He also argued that each
of the sentencing factors in 18 U.S.C. § 3553(a) supported a below-Guidelines
sentence. The district court overruled his objection to double counting, but
further reduced M r. M ontero’s offense level by one for acceptance of
responsibility and sentenced him to 70 months’ imprisonment.
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II. D ISC USSIO N
M r. M ontero challenges the reasonableness of his sentence. See United
States v. Booker, 543 U.S. 220, 261 (2005) (reviewing sentences for
unreasonableness). “[T]he reasonableness standard of review set forth in Booker
necessarily encompasses both the reasonableness of the length of the sentence, as
well as the method by which the sentence was calculated.” United States v.
Kristl, 437 F.3d 1050, 1055 (10th Cir. 2006). “Reasonableness review is guided
by the factors set forth in 18 U.S.C. § 3553(a), which include the nature of the
offense and characteristics of the defendant, as well as the need for the sentence
to reflect the seriousness of the crime, to provide adequate deterrence, to protect
the public, and to provide the defendant with needed training or treatment.” Id. at
1053 (internal citation omitted). W e review the district court’s “factual findings
for clear error and legal determinations de novo.” Id. at 1054.
W e recently rejected a contention that a previous conviction may not be
used to calculate both an illegal reentrant’s criminal history as well as his offense
level. See United States v. Ruiz-Terrazas, No. 06-2138, 2007 W L 576034 (10th
Cir. Feb. 26, 2007). W e similarly reject M r. M ontero’s argument. W e “are
mindful of the general rule that the Sentencing Commission plainly understands
the concept of double counting, and expressly forbids it where it is not intended.”
United States v. Groves, 369 F.3d 1178, 1186 (10th Cir. 2004) (internal quotation
marks omitted). No such prohibition is present here.
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In the context of illegal-reentry crimes, not only has the Sentencing
Commission declined to forbid double counting expressly, it has expressly
approved of it. See USSG § 2L1.2 cmt. 6 (conviction used for an offense-level
enhancement under § 2L1.2(b)(1) is “not excluded from consideration of whether
that conviction receives criminal history points . . . .”); see also United States v.
Hernandez-Fierros, 453 F.3d 309, 313 (6th Cir. 2006) (“[B]ecause the
Application Note 6 explicitly allows for double counting under this Guideline,
defendant’s primary rationale for why this Guideline is unreasonable is not
persuasive.”).
W e also reject M r. M ontero’s claim that his sentence is unreasonably long.
The district court consulted the advisory Sentencing Guidelines and saw no
reason to vary from them. Although there were some extenuating factors, the
sentence was appropriate for someone who had twice been deported, had been
convicted of three drug crimes, and was wanted on an outstanding bench warrant
at the time of his arrest.
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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