F I L E D
United States Court of Appeals
Tenth Circuit
June 29, 2007
PUBLISH
Elisabeth A. Shumaker
UNITED STATES COURT OF APPEALS Clerk of Court
TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 06-2052
DANIEL ROMERO,
Defendant-Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
(D.C. No. CR-O5-1664-JC)
Leon Schydlower, El Paso, Texas, for Defendant-Appellant.
David N. Williams, Assistant United States Attorney, Albuquerque, New Mexico, (David
C. Iglesias, United States Attorney, Albuquerque, New Mexico; Terri J. Abernathy,
Assistant United States Attorney, Las Cruces, New Mexico, with him on the brief), for
Plaintiff-Appellee.
Before BRISCOE, EBEL, and TYMKOVICH, Circuit Judges.
EBEL, Circuit Judge.
Defendant Daniel Romero appeals the fifty-seven month sentence imposed by the
district court following his plea of guilty to one count of reentry of a deported alien
previously convicted of an aggravated felony, in violation of 8 U.S.C. §§ 1326(a)(1),
(a)(2) and (b)(2). Romero argues that the district court erred in failing to address his
request for a below-Guidelines sentence based on cultural assimilation and in failing
adequately to ascertain that he, as well as his attorney, had been provided an opportunity
to review the presentence investigation report. We exercise jurisdiction pursuant to 18
U.S.C. § 3742 and 28 U.S.C. § 1291 and affirm Romero’s sentence.
I. BACKGROUND
On July 2, 2001, Romero, a Mexican national, pled guilty in New Mexico state
court to the offenses of armed robbery and conspiracy to commit armed robbery. Romero
was subsequently deported to Mexico on July 24, 2003. On April 27, 2005, Romero was
taken into custody by United States Border Patrol agents in or near Hobbs, New Mexico.
During processing, Romero admitted that he had illegally reentered the United States near
Nogales, Arizona, on or about January 27, 2004.
Romero was subsequently indicted by a federal grand jury on one count of illegal
reentry of a deported alien previously convicted of an aggravated felony, in violation of 8
U.S.C. §§ 1326(a)(1), (a)(2) and (b)(2). Romero pled guilty to the charge, and a
presentence investigation report (PSR) was prepared and disclosed to the parties. The
PSR calculated a total offense level of twenty-one, arrived at by imposing a base offense
level of eight pursuant to U.S.S.G. § 2L1.2(a), adding sixteen levels pursuant to U.S.S.G.
§ 2L1.2(b)(1)(A)(ii) because Romero was previously deported following a conviction for
a crime of violence, and subtracting three levels pursuant to U.S.S.G. § 3E1.1 for
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acceptance of responsibility. Combining this total offense level with Romero’s criminal
history category of IV, the PSR recommended a guideline range of 57 to 71 months’
imprisonment. Romero did not file any objections to the PSR.
At the sentencing hearing, the district court first asked defense counsel whether he
“had an opportunity to review the presentence report with [his] client,” to which defense
counsel responded “Yes, we have, Your Honor.” ROA, Vol. IV at 2. The court then
asked if there was anything defense counsel wanted to say on Romero’s behalf. Defense
counsel stated in response:
Your Honor, a year and a half ago I would have filed a motion for a
downward departure on cultural assimilation for this client, fully cognizant of
what is his robust criminal history, and I would acknowledge that.
But he was brought here when he was eight months of age. He knows
no other home. He has already been deported once; hence, the 1326.
He’s going to be deported to a country he doesn’t know, away from
family and friends. And again, I make this request fully cognizant of what is
a checkered history.
But his guideline range is 57 to 71 months, and I wonder if the Court
would exercise its discretion, now that the guidelines are advisory, to lower
that to one step lower, which would be 46 months if at the low end.
Id. at 2-3. The district court then announced that it would impose a sentence falling
within the Guidelines range:
The Court has reviewed the presentence report factual findings and has
considered the sentencing guideline applications and the factors set forth in 18
United States Code Section 3553(a)(1) through (7).
The offense level is 21. The criminal history category is IV. The
guideline imprisonment range is 57 to 71 months.
The Court notes the defendant illegally reentered the United States after
having been previously deported subsequent to an aggravated felony
conviction.
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As to the redacted indictment, Criminal Cause 05-1664, the defendant,
Daniel Romero, is committed to the custody of the Bureau of Prisons for a
term of 57 months.
Id. at 6-7. Neither Romero nor his counsel objected after the district court’s imposition of
sentence. This timely appeal followed.
II. DISCUSSION
1. Procedural Reasonableness under 18 U.S.C. § 3553(c)
Romero first argues that his sentence was unreasonable under 18 U.S.C. § 3553(c)
because the district court failed to explain its reason for rejecting his cultural assimilation
argument for a below-Guidelines sentence.1 Although our reasonableness review after
United States v. Booker, 543 U.S. 220 (2005), “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) (per curiam) (italics
omitted), Romero here challenges only the method by which the district court calculated
his sentence; he makes no argument that the length of the sentence imposed was
unreasonable. Thus, he alleges only procedural unreasonableness.2
1
Section § 3553(c) states, in relevant part, “[t]he court, at the time of sentencing,
shall state in open court the reasons for its imposition of the particular sentence . . . .”
2
Romero alternatively phrases his argument as alleging that “remand is required
because this court is unable to assess the reasonableness of the sentence as required by
Booker because the District Court failed to state its reasons for imposing the sentence.”
This formulation still characterizes the district court’s error as a procedural failure to
explain the sentence, however, and again does not allege any error in the actual length of
the sentence imposed. Thus, Romero’s alternative phrasing does not change our holding
that his appeal presents only a procedural challenge to his sentence.
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A. Standard of Review
It is clear from the record that, although Romero argued for a sentence below the
Guidelines range at his sentencing hearing, he did not raise the procedural objection he
now asserts after the district court imposed sentence. Our decisions have created some
confusion as to the correct standard of review for an unpreserved procedural objection to
the district court’s failure to properly explain a sentence under 18 U.S.C. §§ 3553(a) and
(c). In United States v. Lopez-Flores, we addressed this issue directly and held that,
because the defendant-appellant did not object to the district court’s lack of explanation
after it announced his sentence, “plain-error review is appropriate.” 444 F.3d 1218, 1221
(10th Cir. 2006). However, in Lopez-Flores, the defendant-appellant also failed to raise
before the district court any substantive argument that the § 3553(a) factors merited a
below-Guidelines sentence, raising some question as to whether this omission affected
our determination that his procedural objection went unpreserved.
Further complications arose when, less than a month after Lopez-Flores was
issued, we decided United States v. Sanchez-Juarez, in which we reviewed the same
procedural question — whether the district court adequately explained the reasons for its
within-Guidelines sentence under the § 3553(a) factors — without addressing the
defendant-appellant’s apparent failure to object on procedural grounds to the court’s
pronouncement of sentence. 446 F.3d 1109, 1114-15 (10th Cir. 2006). The facts of that
case differed from Lopez-Flores in that the defendant-appellant had argued for a below-
Guidelines sentence prior to the district court’s imposition of a within-Guidelines
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sentence. Id. at 1111-12. Proceeding directly to the substantive merits of the appeal, we
reversed and remanded Sanchez-Juarez’s sentence because he had raised a non-frivolous
argument for a below-Guidelines sentence, invoking the § 3553(a) factors, and the district
court gave no indication that it had considered this argument or explanation of its reasons
for rejecting it. Id. at 1117.
Subsequent to Sanchez-Juarez, several of our cases have followed its approach and
considered the merits of procedural arguments under § 3553(a) and (c) without addressing
whether sufficient objection had been raised or preserved at the district court. See United
States v. Branson, 463 F.3d 1110, 1112 (10th Cir. 2006); United States v. Paredes, 461
F.3d 1190, 1194 (10th Cir. 2006); United States v. Gillespie, 452 F.3d 1183, 1192 (10th
Cir. 2006). On the other hand, we have also continued to cite Lopez-Flores for the
proposition that “when the defendant fails to object to the method by which the sentence
was determined, such as a claim that the Guidelines were misapplied or that the court did
not adequately explain the sentence with reference to the factors set forth in 18 U.S.C. §
3553(a), we review only for plain error.” United States v. Torres-Duenas, 461 F.3d 1178,
1182-83 (10th Cir. 2006); see also United States v. Jarillo-Luna, 478 F.3d 1226, 1229
(10th Cir. 2007); United States v. Ruiz-Terrazas, 477 F.3d 1196, 1199 (10th Cir. 2007).
In order to alleviate this confusion, we today clarify that Lopez-Flores controls our
standard of review for unpreserved challenges to the method by which the district court
arrived at a sentence, including arguments that the sentencing court failed to explain
adequately the sentence imposed under the statutory factors in 18 U.S.C. § 3553(a). Our
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conviction that the requirement of contemporaneous objection to procedural errors is
consistent with our precedent and represents a reasonable burden on defendants rests on
several grounds.
First, the principle of stare decisis requires that we accord precedential value to
Lopez-Flores as to the particular issues that it actually decided. See United Food &
Commercial Workers Union, Local 1564 v. Albertson's, Inc., 207 F.3d 1193, 1199 (10th
Cir. 2000). Lopez-Flores explicitly considered the requirement of a procedural objection
in the court below and held that, while a defendant need not object after pronouncement
of sentence based on substantive reasonableness, i.e. the length of that sentence, he must
object to any procedural flaws or receive, on appeal, only plain error review. 444 F.3d at
1221. Sanchez-Juarez, on the other hand, did not address the proper standard of review
for an unpreserved procedural objection but simply applied reasonableness review. 446
F.3d at 1114. “Questions which merely lurk in the record, neither brought to the attention
of the court nor ruled upon, are not to be considered as having been so decided as to
constitute precedents.” United Food & Commercial Workers Union, Local 1564, 207
F.3d at 1199 (quoting Webster v. Fall, 266 U.S. 507, 511 (1925)). In addition, Sanchez-
Juarez was decided after Lopez-Flores; assuming that the standards of review applied in
these cases conflict, we must regard the earlier decision as binding. Haynes v. Williams,
88 F.3d 898, 900 n.4 (10th Cir. 1996) (“[W]hen faced with an intra-circuit conflict, a
panel should follow earlier, settled precedent over a subsequent deviation therefrom.”).
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Second, we agree with the analysis in Lopez-Flores of the benefits accorded by our
general application of plain error review to unpreserved claims of error and of the benefits
from this particular application of that practice. We noted there that
[a] timely objection to the method [used to calculate the
sentence] can alert the district court and opposing counsel, so
that a potential error can be corrected, obviating any need for an
appeal.
Here, for example, an objection that the sentencing court
had not adequately explained the sentence under the factors set
forth in 18 U.S.C. § 3553(a) would have enabled the court either
to correct a failure to consider those factors or to state
affirmatively that the factors had been considered.
Lopez-Flores, 444 F.3d at 1221; see also United States v. Dominguez Benitez, 542 U.S.
74, 82 (2004) (noting that the plain error standard “encourage[s] timely objections and
reduce[s] wasteful reversals by demanding strenuous exertion to get relief for
unpreserved error”).
Further, an en banc footnote to our opinion in United States v. Harris Atencio
supports the requirement of raising procedural objections in front of the sentencing court.
See 476 F.3d 1099, 1105 n.6 (10th Cir. 2007). There, we overruled our decision in
United States v. Bartsma, 198 F.3d 1191, 1198 (10th Cir. 1999), and eliminated an
exception to the plain error rule which had previously allowed unfettered review of
unpreserved Rule 32(h) errors. Id. Rule 32(h), like § 3553(c), is a procedural rule,
requiring that the sentencing court provide reasonable notice to the parties if it
contemplates a departure or variance from the Guidelines sentencing range. In holding
that a defendant must object to a Rule 32(h) violation at sentencing in order to preserve
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the issue for review, Atencio noted that this requirement “both promotes . . . focused,
adversarial resolution of the legal and factual sentencing issues . . . , and avoids
inefficient appellate litigation by permitting the court below to cure its error.” Id. at 1105
(quotation omitted). The en banc footnote also notes that, since the Atencio opinion
provides ample notice to the parties of Rule 32’s procedural requirements, “requiring
objection at sentencing . . . is neither unfair nor burdensome.” Id. at 1105 n.6. The
concerns which prompted the en banc court to impose the duty on defendants to object to
Rule 32(h) errors at sentencing also weigh strongly in favor of requiring defendants to
object to §§ 3553(a) or (c) errors below.
Finally, the opinions of other circuit courts provide persuasive support for plain
error review in this case. Published opinions from the First, Third and Ninth Circuits, as
well as unpublished opinions from the Sixth and Eleventh Circuits, have allowed only
plain error review when a defendant failed to procedurally object to the district court’s
imposition of sentence below. United States v. Gilman, 478 F.3d 440, 447 (1st Cir. 2007)
(holding that a plaintiff who fails to object to the district court’s explanation of his
sentence “has forfeited his Section 3553(c)(1) argument, and he must thus make a
showing of plain error to win a remand on that score”); United States v. Henry, 205 Fed.
Appx. 763, 764 (11th Cir. 2006) (unpublished) (“[B]ecause Henry failed to raise the
instant argument [that the district court erred by failing to consider the § 3553(a) factors]
in the district court, our review of her claim is for only plain error.”); United States v.
Parker, 462 F.3d 273, 278 (3d Cir. 2006) (reviewing for plain error the defendant-
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appellant’s unpreserved argument “that the District Court failed to give a sufficient
statement of reasons under 18 U.S.C. § 3553(c) for its imposition of sentence”); United
States v. Harden, 195 Fed. Appx. 382, 385 (6th Cir. 2006) (unpublished) (holding that a
defendant who “did not raise the issue of the procedural inadequacies of the district
court’s sentencing determination at [the sentencing hearing] . . . has forfeited his right to
object to the procedural reasonableness of his sentence, and so we will review his
procedural-reasonableness claim for plain error”); United States v. Knows His Gun, 438
F.3d 913, 918 (9th Cir. 2006) (holding that a defendant-appellant who “did not object [at
sentencing] on the ground that the district court did not sufficiently address and apply the
factors listed in § 3553(a)” could receive only plain error review of this claim on appeal).
We therefore conclude that, because Romero did not object on procedural grounds
under § 3553(a) or (c) after the district court imposed his sentence, he has forfeited his
right to appeal this issue and our review is only for plain error.
B. The district court did not commit plain error.
We find plain error only when there is (1) error, (2) that is plain, (3) which affects
substantial rights, and (4) which seriously affects the fairness, integrity, or public
reputation of judicial proceedings. Lopez-Flores, 444 F.3d at 1222. The plain error
standard presents a heavy burden for an appellant, one which is not often satisfied. See
United States v. Toro-Pelaez, 107 F.3d 819, 827 (10th Cir. 1997) (“[T]he plain-error
exception to the contemporaneous-objection rule is to be used sparingly, solely in those
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circumstances in which a miscarriage of justice would otherwise result.” (quoting United
States v. Young, 470 U.S. 1, 15 (1985) (alteration in original))).
It is clear that under plain error review, Romero’s procedural reasonableness
argument under § 3553(c) cannot succeed, for he has entirely failed to allege that any
error by the district court affected his substantial rights. “For an error to have affected
substantial rights, ‘the error must have been prejudicial: It must have affected the
outcome of the district court proceedings.’” United States v. Trujillo-Terrazas, 405 F.3d
814, 819 (10th Cir. 2005) (quoting United States v. Olano, 507 U.S. 725, 734 (1993)).
The burden to show that substantial rights have been prejudiced is on “the party that
failed to raise the issue below,” id.; in this case, Romero bears this burden. Romero,
however, does not argue on appeal that the court’s failure to explain his sentence affected
his substantial rights, and we will not supply such an argument for him. See Salehpoor v.
Shahinpoor, 358 F.3d 782, 785 (10th Cir. 2004) (holding that “[w]e will not manufacture
a party’s argument on appeal when it has failed in its burden to draw our attention to the
error below.”). Indeed, at oral argument, Romero conceded that if a plain error standard
of review is applied to his case, he cannot prevail. Thus, we need not consider the other
elements of plain error review in order to conclude that Romero has failed to satisfy his
burden on appeal as to this issue. See United States v. Edward Atencio, 435 F.3d 1222,
1231-32 (10th Cir. 2006) (declining to reverse appellants’ sentences for plain error
because they failed to “carr[y] their burden of demonstrating that any error . . . prejudiced
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the result of their trial.”). Based on our plain error review, we therefore decline to reverse
his sentence on the ground of procedural unreasonableness under § 3553(c).
2. Failure to Ascertain that Romero Reviewed the Presentence Report
under Rule 32(i)(1)(A)
Romero also contends that the district court’s failure at the sentencing hearing to
ask Romero directly — as opposed to his counsel — whether he had reviewed the PSR
was error under Fed. R. Crim. P. 32(i)(1)(A). The parties agree that Romero did not raise
this issue below; we therefore review this issue too for plain error. See United States v.
Williamson, 53 F.3d 1500, 1527 (10th Cir. 1995) (applying plain error review where the
appellant failed to object to the district court’s failure to make findings under precursor to
Rule 32(i)(3)).
Rule 32(i)(1)(A) requires that “[a]t sentencing, the court[] must verify that the
defendant and the defendant’s attorney have read and discussed the presentence report
and any addendum to the report.” We have rejected a reading of this language that would
require the district court to gain this information by directly questioning the defendant.
United States v. Rangel-Arreola, 991 F.2d 1519, 1525 (10th Cir. 1993) (holding that the
precursor to Rule 32(i)(1)(A) “merely requires the court to determine whether the
defendant and defendant’s counsel had the opportunity to read and discuss the report, but
does not require the court to address the defendant personally”). Instead, the district
court “may draw reasonable inferences from court documents, the defendant’s statements,
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and counsel’s statements in determining whether the defendant and counsel had the
opportunity to read and discuss the presentence report.” Id. (quotation omitted).
The district court here asked defense counsel whether “he had an opportunity to
review the presentence report with [his] client,” to which defense counsel responded
“Yes, we have, Your honor.” ROA Vol. IV at 2 (emphases added). From this, the district
court could draw a reasonable inference that Romero had reviewed and discussed the PSR
with his counsel. See United States v. Frisby, 182 F.3d 933, 1999 WL 314628 at *2 (10th
Cir. May 19, 1999) (unpublished) (holding that court’s question as to whether the parties
and their counsel had “received and reviewed” the PSR, and defense counsel’s
affirmative response, was sufficient to satisfy the precursor to Rule 32(i)(1)(A)).
In addition, this court – unlike the Sixth and Seventh Circuits 3 – requires a
defendant to demonstrate prejudice resulting from a district court’s error in failing to
verify that the defendant had the opportunity to read and discuss the PSR under Rule
32(i)(1)(A). Rangel-Arreola, 991 F.2d at 1526 n.5 (“[W]e will not remand for
resentencing without some showing of prejudice by the defendant.”); United States v.
3
Romero appears to wish this court to adopt the reasoning of these circuits.
However, we have expressly considered their reasoning and rejected it. In Rangel-
Arreola, we noted the Seventh Circuit’s requirement that a district court directly ask
certain questions of a defendant prior to sentencing but decided not to follow this
approach. 991 F.2d at 1525 (reviewing but declining to adopt the reasoning of United
States v. Rone, 743 F.2d 1169 (7th Cir. 1984)). We also noted that some circuits permit
remand for a Rule 32 error without requiring the defendant to demonstrate prejudice, as
did the Sixth Circuit in United States v. Mitchell, 243 F.3d 953, 955 (6th Cir. 2001), but
we rejected this approach, noting that “[t]o remand when no prejudice exists is to require
the district court to undergo an exercise in futility in order to obtain the same sentence.”
Rangel-Arreola, 991 F.2d at 1526 n.5.
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Archer, 70 F.3d 1149, 1151 (10th Cir. 1995) (same). Romero concedes that Tenth Circuit
law requires a showing of prejudice to allow remand under Rule 32(i)(1)(A), but makes
no effort to demonstrate such prejudice. We therefore reject his Rule 32(i)(1)(A)
argument.
III. CONCLUSION
Romero’s appeal alleges procedural error under § 3553(c) in his sentencing;
however, he failed to object to this error before the district court. As such, we are
constrained to a plain error standard of review. Because Romero failed to argue that the
alleged error affected his substantial rights, we decline to reverse his sentence on this
ground. We also reject Romero’s argument that the district court was required to ask him
personally whether he had been afforded the opportunity to review his PSR prior to
sentencing. The judgment of the district court is therefore AFFIRMED.
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