FILED
United States Court of Appeals
Tenth Circuit
May 13, 2008
PUBLISH Elisabeth A. Shumaker
Clerk of Court
UNITED STATES COURT OF APPEALS
TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 07-3205
ALEJANDRO ZAMORA-
SOLORZANO,
Defendant - Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
(D. Ct. No. 06-CR-20100-JWL)
Submitted on the briefs: *
David J. Phillips, Federal Public Defender, and Kirk C. Redmond, Assistant
Federal Public Defender, Office of the Federal Public Defender for the District of
Kansas, Topeka, Kansas, for the Appellant.
Eric F. Melgren, United States Attorney, and Leon Patton, Assistant United States
Attorney, Office of the United States Attorney for the District of Kansas, Kansas
City, Kansas, for the Appellee.
Before HENRY, Chief Circuit Judge, TACHA, and LUCERO, Circuit Judges.
*
After examining the briefs and the appellate record, this three-judge panel
has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1.9. The cause is therefore ordered submitted without oral argument.
TACHA, Circuit Judge.
Defendant-Appellant Alejandro Zamora-Solorzano pleaded guilty to
conspiracy to possess with intent to distribute methamphetamine, in violation of
21 U.S.C. § 841(a) and 18 U.S.C. § 2, and using a firearm in furtherance of a drug
trafficking felony in violation of 18 U.S.C. § 924(c). His resulting sentence of
270 months’ imprisonment is at the low end of the applicable range under the
United States Sentencing Guidelines (“Guidelines” or “U.S.S.G.”). Mr. Zamora-
Solorzano appeals his sentence, contending that the district court afforded the
Guidelines improper weight in violation of Rita v. United States, 127 S. Ct. 2456
(2007). We have jurisdiction under 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291,
and we AFFIRM.
I. BACKGROUND
After the district court accepted Mr. Zamora-Solorzano’s guilty plea, the
United States Probation Office prepared a presentence report (“PSR”). The PSR
calculated the applicable Guidelines range for the conspiracy conviction at
210–262 months’ imprisonment. The PSR also stated that the applicable
Guidelines sentence for the firearms conviction is the statutory minimum sentence
of 60 months’ imprisonment to be served consecutively to the sentence for
conspiracy. This produced a total Guidelines range of 270–322 months.
Mr. Zamora-Solorzano objected to the PSR’s calculation of the applicable
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Guidelines range, 1 and he further contended that regardless of the Guidelines
sentence for the conspiracy conviction, the statutory minimum sentence of 120
months’ imprisonment is appropriate in light of the sentencing factors set forth in
18 U.S.C. § 3553(a). 2 In conjunction with the 60-month mandatory minimum for
the firearm conviction, this produced a total sentence of 180 months’
imprisonment.
At the sentencing hearing, which took place shortly after the Supreme
Court issued its decision in Rita, the district court heard extensive argument from
both parties regarding the applicable Guidelines range and whether a downward
variance under § 3553(a) is appropriate. The district court ultimately agreed with
the PSR’s computation of the Guidelines range of 270–322 months. It then turned
to the question of a variance, stating:
As I have evaluated the Supreme Court’s description of sentencing in
terms of the role of the advisory guidelines here, I do think it
remains my obligation to consider the guidelines and give them
considerable weight, and I do give them considerable weight because
of the, I think, very important consideration of uniformity in
sentencing. And as a result, while I don’t engage in any legal
presumption of reasonableness, I start with the notion that the
guidelines very much deserve careful consideration as to what a
sentence might look like here in terms of an attempt to sentence
individuals consistently throughout the federal courts.
1
Specifically, Mr. Zamora-Solorzano argued that he was not an organizer or
leader subject to a four-level enhancement under U.S.S.G. § 3B1.1(a).
2
In addition to arguing for a variance under § 3553(a), Mr. Zamora-
Solorzano also sought a departure under U.S.S.G. § 5K2.0. He does not appeal
the district court’s denial of his request for a departure.
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From that then I turn to the underlying factors set out in the
sentencing statute to make the evaluation as to whether or not the
court’s own view of this process accords with where a sentence ought
to go, whether within the guidelines or not.
The district court then expressly considered the factors under § 3553(a) as applied
to the facts of this case. The court ultimately concluded that the facts do not
warrant a variance and sentenced Mr. Zamora-Solorzano to 270 months’
imprisonment. Mr. Zamora-Solorzano appeals, contending that the district court
erred under Rita in giving the Guidelines sentence “considerable weight.”
II. DISCUSSION
After United States v. Booker, 543 U.S. 220 (2005), we review sentencing
decisions for an abuse of discretion, asking whether the sentence is reasonable.
Rita, 127 S. Ct. at 2465. “Reasonableness review is a two-step process
comprising a procedural and a substantive component.” United States v. Verdin-
Garcia, 516 F.3d 884, 895 (10th Cir. 2008) (citing Gall v. United States, 128 S.
Ct. 586, 597 (2007)). Procedural review asks whether the sentencing court
committed any “significant procedural error, such as failing to calculate (or
improperly calculating) the Guidelines range, treating the Guidelines as
mandatory, failing to consider the § 3553(a) factors, selecting a sentence based on
clearly erroneous facts, or failing to adequately explain the chosen sentence.”
Gall, 128 S. Ct. at 597. Substantive review “involves whether the length of the
sentence is reasonable given all the circumstances of the case in light of the
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factors set forth in 18 U.S.C. § 3553(a).” United States v. Conlan, 500 F.3d 1167,
1169 (10th Cir. 2007).
In Rita, the Supreme Court held that an appellate court may apply a
presumption of substantive reasonableness to within-Guidelines sentences. 127 S.
Ct. at 2462. The Court made clear, however, that any such presumption is
appropriate only at the appellate level; a district court may not presume that a
Guidelines sentence is substantively reasonable. Id. at 2465; see also Conlan,
500 F.3d at 1170 (remanding for resentencing because the district court applied a
presumption of reasonableness to a Guidelines sentence); United States v. Huff,
514 F.3d 818, 820–21 (8th Cir. 2008) (remanding for resentencing after Rita
because “[t]he district court imposed the sentence not as a result of the district
court’s assessment of the relevant factors and determination of the minimally
adequate sentence, as required by § 3553(a), but as a direct consequence of the
court’s incorrect conclusion it was bound . . . to accord the guidelines range
presumptive weight”).
In this case, the district court clearly did not deem the Guidelines sentence
presumptively reasonable. The court specifically cited to the decision in Rita and
stated that the court was not “engag[ing] in any legal presumption of
reasonableness.” Nevertheless, Mr. Zamora-Solorzano contends that by giving
the Guidelines “considerable weight,” the district court “bestowed a primacy on
the guidelines calculation that Supreme Court precedent has clearly counseled
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against.” He argues that Rita effectively overruled our holding in United States v.
Terrell, 445 F.3d 1261, 1265 (10th Cir. 2006), that a district court may give the
Guidelines “heavy weight” in fashioning a particular sentence.
Because this particular objection was not brought to the attention of the
district court, we review it for plain error. See United States v. McComb, 519
F.3d 1049, 1054 (10th Cir. 2007). “We will find plain error where 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.” Id. We conclude that the district court did not err.
To begin, Rita simply held that “the sentencing court does not enjoy the
benefit of a legal presumption that the Guidelines sentence should apply.” Rita,
127 S. Ct. at 2465 (emphasis added). Similarly, we have explained that a district
court is not required to give heightened consideration to the Guidelines as a
matter of course. See United States v. Smart, 518 F.3d 800, 808 (10th Cir. 2008).
On the other hand, “gravitational pull [towards a Guidelines sentence at the
district court level] that reduces sentencing disparity—so long as it does not rise
to the level of mandate—is neither unconstitutional nor undesirable.” United
States v. Angel-Guzman, 506 F.3d 1007, 1014 (10th Cir. 2007) (emphasis added).
Thus, neither Rita nor our case law suggests that a district court is precluded
from, in its individualized judgment, attributing considerable weight to a
Guidelines sentence in a given case. On this point, Terrell therefore remains
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good law. 3
Moreover, the Guidelines are a factor the district court must consider under
§ 3553(a), and the Supreme Court has recently explained that our abuse-of-
discretion review requires us to give “due deference” to the weight the district
court bestows on any particular § 3553(a) factor in justifying its sentencing
decision. See Gall, 128 S. Ct. at 597–602; Smart, 518 F.3d at 808 (“We may not
examine the weight a district court assigns to various § 3553(a) factors, and its
ultimate assessment of the balance between them, as a legal conclusion to be
reviewed de novo. Instead, we must ‘give due deference to the district court’s
decision that the § 3553(a) factors, on a whole, justify the [sentence].’” (quoting
Gall, 128 S. Ct. at 597)). We find such deference appropriate here. The district
court balanced all of the § 3553(a) factors, including the policy considerations
reflected in the Guidelines. And, given the facts of the case, the district court
reasonably attached considerable weight to the applicable Guidelines range. See
Gall, 128 S. Ct. at 600, 602 (holding that the court of appeals should have
deferred to the district court’s sentencing decision when the court “quite
reasonably attached great weight” to facts supporting particular sentencing
3
We also indicated in Terrell that district courts may apply a presumption
of reasonableness to Guidelines sentences. 445 F.3d at 1265 (“[J]ust as we
presume on appeal that a sentence within the applicable Guidelines range is
reasonable, so are district courts free to make the same presumption . . . .”). On
this point, Terrell is no longer good law. See Rita, 127 S. Ct. at 2465; Conlan,
500 F.3d at 1170.
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factors); see also United States v. Dale, 498 F.3d 604, 610–11 (7th Cir. 2007)
(stating—after Rita—that “the district court can place significant weight on the
guidelines without rendering the resulting sentence unreasonable”). The resulting
sentence is therefore reasonable.
III. CONCLUSION
For the foregoing reasons, we AFFIRM Mr. Zamora-Solorzano’s sentence.
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