F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
July 30, 2007
UNITED STATES CO URT O F APPEALS Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
U N ITED STA TES O F A M ER ICA,
Plaintiff - Appellee,
No. 06-2313
v.
PEDRO CHAVEZ-CALDERON, a/k/a
Pedro Acosta-Pinela,
Defendant - Appellant.
A PPE AL FR OM T HE UNITED STATES DISTRICT COURT
FOR T HE D ISTRICT OF NEW M EXICO
(D.C. No. CR -05-2606-JP)
Jerry A. W alz, W alz and Associates, Cedar Crest, New M exico, for D efendant -
Appellant.
David N. W illiams, (David C. Iglesias, United States Attorney and Laura Fashing,
Assistant United States Attorney, on the brief), Albuquerque, New M exico, for
Plaintiff - Appellee.
Before TA CH A, Chief Judge, B ALDOCK , and KELLY, Circuit Judges.
KELLY, Circuit Judge.
Defendant-Appellant Pedro Chavez-Calderon appeals from the sentence
imposed following his guilty plea to one-count of illegal reentry of an alien after
deportation, see 8 U.S.C. §§ 1326(a) & (b)(2). He was sentenced to fifty-seven
months’ imprisonment— a term of imprisonment at the low end of the advisory
Guideline range— and three years’ unsupervised release. 1 Our jurisdiction arises
under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a), and we affirm.
Background
Subsequent to M r. Chavez-Calderon’s plea of guilty, a presentence
investigation report (PSR ) was prepared. The PSR indicated a total offense level
of twenty-one, and a criminal history category of VI. The base offense level was
eight. The base offense level was enhanced by sixteen levels because M r.
Chavez-Calderon was previously deported following a felony conviction for a
drug-trafficking offense. See U.S.S.G. § 2L1.2(b)(1)(A)(i). The offense level
was then reduced by three levels for acceptance of responsibility. See id. §
3E1.1. W hen the total offense level of twenty-one was combined with a criminal
history category of VI, the recommended Guideline range was seventy-seven to
ninety-six months’ imprisonment.
In response to the PSR, M r. Chavez-Calderon filed a sentencing
memorandum, arguing that a criminal history category of VI over-represented his
past convictions and requesting a further variance from the applicable Guideline
1
M r. Chavez-Calderon’s release is unsupervised because the district court
ordered that he be deported following his term of imprisonment.
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range based on the factors set forth in 18 U.S.C. § 3553(a). At sentencing, the
Government agreed that a criminal history category of V I over-represented M r.
Chavez-Calderon’s criminal history. As a result, the district court reduced his
criminal history category to IV, resulting in a new advisory Guideline range of
fifty-seven to seventy-one months’ imprisonment. Rejecting M r. Chavez-
Calderon’s request for a sentence below the adjusted advisory Guideline range,
the district court sentenced him to fifty-seven months’ imprisonment. In so
doing, the district court noted M r. Chavez-Calderon’s history of violence tow ard
women.
M r. Chavez-Calderon now appeals, arguing that in fashioning a fifty-seven
month sentence the district court (1) failed to adequately indicate that it had
considered the § 3553(a) factors and (2) should not have considered (or placed
undue weight upon) various domestic violence incidents in his past.
Discussion
In reviewing a criminal sentence, we first determine whether the district
court correctly applied the Guidelines to arrive at the applicable sentencing range.
See United States v. Kristl, 437 F.3d 1050, 1054 (10th Cir. 2006) (per curiam).
In so doing, “we review factual findings for clear error and legal determinations
de novo.” Id. A ssuming the district court correctly applied the Guidelines, we
review the sentence imposed for substantive reasonableness in light of the factors
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contained within 18 U.S.C. § 3553(a). See United States v. Booker, 543 U.S.
220, 261-62 (2005). A sentence is reasonable so long as the district court does
not abuse its discretion in imposing sentence. See Rita v. United States, – S. Ct.
–, 2007 W L 1772146, at *9 (2007). And if the applicable advisory Guideline
range is correctly calculated and the district court has imposed a sentence within
that range, there is a rebuttable presumption that the sentence is reasonable, see
Kristl, 437 F.3d at 1055. See also Rita, 2007 W L 1772146, at *6 (upholding the
use of an appellate presumption of reasonableness for within-Guidelines
sentences).
Here, M r. Chavez-Calderon does not challenge the district court’s
application of the G uidelines. Rather, he first contends that the district court
comm itted reversible error in failing to adequately explain why it imposed the
sentence it did. Because M r. Chavez-Calderon did not lodge an objection on the
basis of inadequate explanation at the time of sentencing, we review for plain
error. See United States v. Romero, – F.3d –, 2007 W L 1874231, at *3 (10th Cir.
2007). Plain error is present only when there is (1) an error, (2) that is plain, (3)
which affects substantial rights, and (4) which seriously affects the fairness,
integrity, or public reputation of judicial proceedings. United States v. Olano,
507 U .S. 725, 732 (1993). M r. Chavez-Calderon’s contention fails because we
find no error.
In order to facilitate appellate reasonableness review and to ensure that the
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§ 3553(a) factors have informed a district court’s exercise of discretion, we
require district courts to give reasons for their sentences. See United States v.
Sanchez-Juarez, 446 F.3d 1109, 1116-17 (10th Cir. 2006). W e do not, however,
require “that the district court recite any magic words to show us that it fulfilled
its responsibility to be mindful of the factors [in § 3553(a).]” United States v.
Jarrillo-Luna, 478 F.3d 1226, 1229 (10th Cir. 2007) (quoting United States v.
Contreras-M artinez, 409 F.3d 1236, 1242 (10th Cir. 2005)). Additionally, “a
district court’s duty to explain why it chose the given sentence does not . . .
require it to explain why it decided against a different sentence.” Id. at 1230.
All that is required (especially in a case where the district court merely
imposes a within-Guidelines sentence) is that the court state its reasons for
arriving at the particular sentence imposed. See id.; Rita, 2007 W L 1772146, at
*12 (“[W]hen a judge decides simply to apply the Guidelines to a particular case,
doing so will not necessarily require lengthy explanation.”). O rdinarily, and in
good practice, the district court will address a defendant’s nonfrivolous arguments
for a more lenient sentence; but that is not legally required so long as “the
sentencing judge . . . [sets] forth enough to satisfy [us] that he has considered the
parties’ arguments and has a reasoned basis for exercising his own legal
decisionmaking authority.” See Rita, 2007 W L 1772146, at *12.
In the present case, after hearing argument from both sides, the district
court clearly explained that, “I have considered the factors under 18 United States
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Code Section 3553(a)(1) through (7), and believe that a guideline sentence of 57
months is consistent with the principles under that statute.” III R. (Tr. Sent.
H’rg) at 14; see also id. at 15 (repeating). In addition, the district court observed
that “there is really not a justification for sentencing [him outside of the
guidelines.” Id. The district court was also concerned about M r. Chavez-
Calderon’s lengthy “history of violence against women” and that none of the
previous time M r. Chavez-Calderon spent in prison “really corrected his conduct
in that respect.” Id. at 14-15.
The foregoing is sufficient for us to perform our appellate reasonableness
review, and it confirms that the sentencing decision was tethered to the § 3553(a)
factors. Essentially, after listening to M r. Chavez-Calderon’s arguments for a
below-Guidelines sentence and the government’s arguments for a within-
Guidelines sentence, the district judge stated that he agreed with the government
that there was no reason to vary from the G uidelines. See id. at 7-14. This case
falls within the mine run of cases in which the district court determines that the
Sentencing Commission’s recommended sentence is proper in light of the §
3553(a) factors, and where, as a result, not much explanation on the sentencing
judge’s part is needed. See Rita, 2007 W L 1772146, at *12.
M r. Chavez-Calderon’s second argument is somewhat related to his first.
He maintains that the district court gave improper weight to two incidents
allegedly involving domestic violence when neither resulted in a
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conviction— namely a 1999 charge for menacing that was dismissed and a
pending 2004 charge for violation of a restraining order in which no conviction
has yet resulted. He does not dispute that the district court could consider a prior
conviction for assault and battery directed at a w oman, other than to suggest it is
dated. Aplt. Br. at 14. However, he argues that the conduct is unrelated to his
current offense for illegal reentry. M r. Chavez-Calderon claims he preserved this
objection below, and the government claims otherwise; regardless, the
preservation issue is academic because w e find no error.
Although he now denies committing the acts in relation to the menacing
charge, M r. Chavez-Calderon did not object to any fact contained within the PSR.
Thus, the district court was permitted to accept the PSR’s account of the incidents
as factual findings. See Fed. R. Crim. P. 32(i)(3)(A) (allowing a court at
sentencing to “accept any undisputed portion of the presentence report as a
finding of fact”). It was also permitted to “extrapolate[] from the uncontested
facts in the PSR. . . to draw conclusions about characteristics relevant to
sentencing factors enumerated in 18 U.S.C. § 3553(a).” United States v. M ateo,
471 F.3d 1162, 1167 (10th Cir. 2006). In fact, “[w]e have noted that ‘no
limitation’ should be placed on ‘the information concerning the background,
character, and conduct of a person for the purpose of imposing an appropriate
sentence.’” Id. (quoting United States v. M agallanez, 408 F.3d 672, 684 (10th Cir.
2005)) (internal modifications omitted).
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“The sentencing court is well within its discretion and, indeed, is required
to carefully consider the facts contained in the PSR when evaluating the § 3553(a)
sentencing factors, including ‘the history and characteristics of the defendant,’
and the need for a sentence to ‘afford adequate deterrence to criminal conduct,’
and ‘to protect the public from further crimes of the defendant.’” Id. (citing 18
U.S.C. §§ 3553(a)(1), (a)(2)(B), (a)(2)(C)). In M ateo, we rejected the contention
that a district court was precluded from considering uncontested conduct, even if
uncharged, in formulating a reasonable sentence. Id. at 1167-68. W e believe that
the district court was justified in considering both the assault and battery
conviction and the other incidents in discharging its obligations under § 3553(a).
The district court’s weighing of the various sentencing factors was reasonable.
Although M r. Chavez-Calderon argues that he will be deported from the United
States upon release from prison, this is but one fact— among many— that the court
may consider in fashioning a reasonable sentence. It is far from dispositive.
A FFIR ME D.
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