F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES CO URT O F APPEALS
May 18, 2007
TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
U N ITED STA TES O F A M ER ICA,
Plaintiff - Appellee, No. 06-2207
v. (D. New M exico)
D O N A LD RA Y LU CER O, (D.C. No. CR-05-2261 JC)
Defendant - Appellant.
OR D ER AND JUDGM ENT *
Before M U RPH Y, SE YM OU R, and M cCO NNELL, Circuit Judges.
After examining the briefs and appellate record, this court has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument.
I. IN TR OD UC TIO N
Donald Ray Lucero pleaded guilty to a single count of being a felon in
possession of a firearm in violation of 18 U.S.C. § 922(g). The district court
*
This order and judgment is not binding precedent except under the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.
imposed a sentence of thirty-three months’ imprisonment, a sentence at the very
low end of the properly calculated range set out in the advisory Sentencing
Guidelines. On appeal, Lucero contends both that (1) the district court failed to
sufficiently explain its sentence by reference to the factors set out in 18 U.S.C.
§ 3553(a) (i.e., the district court’s sentence is procedurally unreasonable); and (2)
the sentence ultimately imposed by the district court was unduly harsh (i.e., the
sentence is substantively unreasonable). Upon review, this court concludes
Lucero’s arguments are without merit. Accordingly, exercising jurisdiction
pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742, this court affirm s the
sentence imposed by the district court.
II. BACKGROUND
A. Factual Background
The string of events leading to Lucero’s arrest and eventual prosecution
begin on the shoulder of a highway in Albuquerque, New M exico. A police
officer w ith the Albuquerque Police Department observed Lucero’s vehicle
parked on the shoulder of the highway; the vehicle’s w indshield was badly
damaged and a man was standing by its passenger side. Believing the vehicle had
struck something, possibly a pedestrian, the officer pulled over and called for
assistance. The man standing beside the vehicle told the officers he was
hitchhiking when he w as “flagged down” by Lucero. He further indicated Lucero
appeared to be extremely intoxicated and had open bottles of liquor in the vehicle.
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A DW I unit was dispatched to the scene. At some point thereafter, an
officer saw a gun holster on the front passenger seat and the muzzle of a handgun
sticking out between the front passenger seat and the passenger door. The
officers arrested Lucero for negligent use of a firearm. A search of Lucero’s
person revealed two rounds of ammunition. An inventory search of the vehicle
revealed a loaded nine millimeter handgun 1 with ten rounds of ammunition,
including one in the chamber; a spent casing in the back passenger floorboard; a
body armor vest; nine bottles of beer, one of which was open; an opened bottle of
cognac; and approximately two grams of methamphetamine.
During the investigation, Lucero’s pregnant girlfriend, Felicia Orona,
arrived at the scene with her parents. Orona told the officers Lucero had arrived
intoxicated at her place of employment and had caused a scene. Orona convinced
Lucero to let her drive him home. During that drive home, Lucero apparently
became upset with her and started kicking the windshield from the passenger seat,
breaking it. Fearing for her safety, Orona pulled the car over and fled on foot.
Orona further indicated the gun and methamphetamine officers found in the
vehicle belonged to Lucero.
1
A subsequent investigation revealed the w eapon found in Lucero’s
possession was stolen during a burglary. The owner of the weapon indicated to
officers that he did not know Lucero and had not given him permission to possess
the weapon.
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B. Procedural Background
After Lucero pleaded guilty to a single count of being a felon in possession
of a firearm in violation of 18 U.S.C. § 922(g), a United States Probation Officer
prepared a Presentence Investigation Report (“PSR”). The PSR set Lucero’s base
offense level at fourteen. USSG § 2K2.1(a)(6). The PSR enhanced Lucero’s
offense level by two levels because the firearm he illegally possessed was stolen.
Id. § 2K2.1(b)(4). Lucero’s adjusted offense level was then reduced by three
levels for acceptance of responsibility, id. § 3E1.1, resulting in a total offense
level of thirteen. Lucero had a total of twenty criminal history points, seven more
than necessary to place him in the most serious criminal history category, e.g.,
VI. W ith a total offense level of thirteen and a criminal history category of V I,
the PSR noted Lucero’s advisory Sentencing Guidelines range was thirty-three to
forty-one months’ imprisonment.
In response to the PSR, Lucero filed a “Request for Downward Departure
and Non-Guideline Sentence” (the “M otion”). In the M otion, Lucero
acknowledged the PSR correctly calculated his criminal history points and his
placement in criminal history category VI was “technically” correct, but argued
the criminal history category significantly over-represented the seriousness of his
criminal history and the likelihood he would commit other crimes in the future.
Lucero requested that the district court reduce his criminal history points from
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twenty to nine, resulting in a criminal history category IV and an advisory
Guidelines range of twenty-four to thirty months.
At the sentencing hearing, Lucero advanced the same arguments he had set
out in the M otion. H e again acknowledged his criminal history category of VI
was a “correct application of the guidelines.” He nevertheless argued a criminal
history category of VI overrepresented his criminal history for the following
reasons: (1) he had not been convicted of a felony crime of violence or a felony
drug trafficking crime; (2) he amassed a significant number of criminal history
points w ithin a relatively short six-week period; and (3) it was unfair to place him
in the same criminal history category as an armed career criminal or a career
offender, or one criminal history category above that of a sex offender.
The district court rejected Lucero’s requests for a downward departure or
variance and, instead, imposed a sentence of thirty-three months, a sentence at the
very bottom of the advisory Guidelines range. In so doing, the district court
stated that its sentence “reflect[ed] the seriousness of the offense, a lot of respect
for the law, and provide[d] just punishment for the offense.” The court further
noted that in arriving at a sentence of thirty-three months’ imprisonment, it had
“considered the sentencing guideline applications and the factors set forth in 18
United States Code Section 3553 (a)(1) through (7).” Finally, the district court
indicated it had intended to impose a sentence of forty-one months, the top of the
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advisory Guideline range, but had instead chosen the thirty-three-month sentence
based on the arguments presented by defense counsel.
III. D ISC USSIO N
“Under Booker, we are required to review district court sentencing
decisions for ‘reasonableness.’” United States v. Cage, 451 F.3d 585, 591 (10th
Cir. 2006). This court applies a two-step approach to review the procedural and
substantive components of sentences. United States v. Kristl, 437 F.3d 1050
(10th Cir. 2006). First, if raised on appeal, this court considers whether the
district court properly calculated the defendant’s Guidelines sentence and
considered the factors set forth in 18 U.S.C. § 3553(a). See United States v.
Chavez-Diaz, 444 F.3d 1223, 1229 (10th Cir. 2006). If the district court did not
comm it any procedural errors in arriving at a sentence, this court reviews whether
the sentence imposed is reasonable in light of the factors set forth in § 3553(a).
Kristl, 437 F.3d at 1054-55.
In this case, Lucero does not challenge the district court’s application of
the Guidelines. Instead, he argues his thirty-three-month sentence is procedurally
unreasonable because the district court failed to adequately state on the record,
with specific reference to the § 3553(a) factors, its reasons for rejecting his
request for a sentence outside of the advisory Guidelines range. Lucero’s
procedural reasonableness claim is resolved by this court’s recent decision in
United States v. Ruiz-Terrazas, 477 F.3d 1196, 1199-1203 (10th Cir. 2007).
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Ruiz-Terrazas held that “a specific discussion of Section 3553(a) factors is not
required for sentences falling within the ranges suggested by the Guidelines.” Id.
at 1202. In so doing, the Ruiz-Terrazas court specifically distinguished United
States v. Sanchez-Juarez, 446 F.3d 1109 (10th Cir. 2006), the primary case relied
upon by Lucero on appeal, harmonizing that decision with the earlier decision in
United States v. Lopez-Flores, 444 F.3d 1178 (10th Cir. 2006). 477 F.3d at 1199-
1203. As was the case in Ruiz-Terrazas, the district court here entertained
extensive arguments relating to the § 3553(a) factors, specifically noted it had
considered Lucero’s arguments for a below-Guidelines sentence, 2 indicated on the
record that it had considered the § 3553(a) factors, and ultimately imposed a
sentence within the properly calculated Guidelines range. See id. 1202-03. Thus,
the process employed by the district court in imposing Lucero’s sentence was
reasonable. See id.
For many of the same reasons he advanced before the district court in
requesting a sentence below the range set out in the advisory Guidelines, Lucero
asserts the sentence ultimately imposed by the district court is substantively
unreasonable. Because the district court imposed a sentence within the range set
out in the properly calculated advisory Guidelines range, the district court’s
2
In fact, as noted above, the district court specifically stated that based on
the arguments presented by Lucero it had decided to impose a sentence at the
bottom of the advisory Guidelines range instead of one at the top of that range.
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sentence is “entitled to a rebuttable presumption of reasonableness.” Kristl, 437
F.3d at 1054. Lucero has failed to rebut that presumption.
At their base, Lucero’s arguments both before the district court and before
this court on appeal boil down to an assertion the advisory Sentencing Guidelines
overstate the seriousness of his criminal history and the likelihood he will engage
in recidivist conduct. This contention is simply inconsistent with the record.
Lucero’s criminal history has persisted for fifteen years and is the paradigmatic
example of recidivism. Although Lucero is correct in noting that his criminal
history is void of violent felonies, the government is likewise correct in noting his
criminal history is not void of violence. Lucero has been convicted of (1)
conspiracy to commit robbery, which involved the use or threatened use of force
to take a purse from the person of another; (2) battery and assault on a household
member; and (3) assault involving the threatened use of a knife. In light of
Lucero’s extensive and nearly continuous involvem ent in criminal activity, we are
completely unconvinced by Lucero’s claim that the advisory Sentencing
Guidelines overstate the seriousness of his criminal history or his potential for
recidivism. Lucero has failed to overcome the Kristl presumption that his
sentence of thirty-three months’ imprisonment, a sentence at the very bottom of
the advisory Guidelines range, is reasonable.
As a final salvo, Lucero asserts this court’s precedents, which accord a
presumption of reasonableness to sentences within the advisory Guidelines range,
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are inconsistent with the Supreme Court’s decision in Booker. The Supreme
Court recently heard oral argument in two cases which will very likely impact the
way federal appellate courts review sentences after Booker. See United States v.
Rita, 177 F. App’x 357 (4th Cir.), cert. granted, 127 S. Ct. 551 (2006) (No.
06-5754); United States v. Claiborne, 439 F.3d 479 (8th Cir.), cert. granted, 127
S. Ct. 551 (2006) (No. 06-5168). This uncertainty is, however, of absolutely no
help to Lucero. Even completely setting aside Kristl’s presumption of
reasonableness and reviewing Lucero’s sentence anew in light of the § 3553(a)
factors, w e conclude the sentence imposed by the district court is reasonable in
light of Lucero’s extensive and unrelenting criminal history.
IV . C ON CLU SIO N
For those reasons set out above, the sentence imposed by the United States
District Court for the District of New M exico is hereby AFFIRM ED.
ENTERED FOR THE COURT
M ichael R. M urphy
Circuit Judge
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