FILED
United States Court of Appeals
Tenth Circuit
December 9, 2008
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 08-3173
(D. Ct. No. 5:07-CR-40151-SAC-1)
ROGELIO RUIZ-VELGARA, (D. Kan.)
Defendant - Appellant.
ORDER AND JUDGMENT *
Before TACHA, KELLY, and McCONNELL, 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)(2); 10th
Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument.
The Defendant-Appellant challenges the length of his forty-one month
sentence for illegal re-entry by a deported alien. Mr. Ruiz-Velgara pleaded guilty
to the charge without a plea agreement. The district court then sentenced him to
*
This order and judgment is not binding precedent except under the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.
forty-one months’ imprisonment, at the bottom of the applicable Guidelines
range. On appeal, Mr. Ruiz-Velgara challenges only the procedural
reasonableness of the sentence. Because the district judge adequately explained
the sentence, we AFFIRM the forty-one month sentence.
I. BACKGROUND
In November 2007, ICE agents took Mr. Ruiz-Velgara into custody after he
had been arrested in Topeka, Kansas. Officials then discovered that Mr. Ruiz-
Velgara was in the United States illegally, having previously been deported. He
was convicted in 2000 of possession of marijuana with intent to distribute, an
aggravated felony. He was deported to Mexico in 2002 and re-entered the United
States illegally in 2005. Mr. Ruiz-Velgara pleaded guilty to illegal re-entry by a
deported alien. See 8 U.S.C. § 1326(a).
At sentencing, Mr. Ruiz-Velgara did not challenge the calculation of the
applicable Guidelines range, forty-one to fifty-one months. Mr. Ruiz-Velgara
instead argued for a downward variance to a thirty-month sentence. He asserted
that the sixteen-month enhancement—taking his offense level from 8 to 24—for
his prior drug conviction overstated the severity of the prior crime. He also
argued that because Kansas does not have a “fast-track program” that would
potentially have reduced his sentence, the forty-one month sentence created an
unwarranted sentencing disparity between him and defendants in jurisdictions that
utilize fast-track programs.
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The district judge went into great detail in explaining the sentence, but
touched only briefly on the fast-track argument. In explaining the sentence, the
judge first explained the Guidelines calculation. He then stated that he had
considered the parties’ statements and the factors listed in 18 U.S.C. § 3553(a).
The judge noted Mr. Ruiz-Velgara’s previous conviction and recent arrest for
domestic battery. He considered and rejected Mr. Ruiz-Velgara’s argument that
the sixteen-level enhancement represented unfair double-counting. He noted the
“serious risk” of a defendant with this criminal history returning illegally to the
United States, as well as Mr. Ruiz-Velgara’s “lack of respect for the laws of this
country.”
Regarding Mr. Ruiz-Velgara’s argument that fast-track programs in other
jurisdictions lead to a sentencing disparity, the judge said, “Notwithstanding the
defendant’s position over what he calls an unwarranted disparity with fast track
jurisdictions, the Court believes the seriousness of the defendant’s offense and the
need to protect the public fully warrant a sentence at the low end of the guideline
range of 41 months.”
On appeal, Mr. Ruiz-Velgara asserts that his sentence is procedurally
unreasonable because the district court did not adequately address his fast-track
argument. Mr. Ruiz-Velgara does not challenge any of the district court’s
substantive conclusions, either its acceptance of the sixteen-level enhancement or
its decision not to vary based on fast-track programs in other jurisdictions.
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II. DISCUSSION
Mr. Ruiz-Velgara’s argument fails because it is based on the inaccurate
notion that the district court must fully address all of a defendant’s arguments for
a lower sentence. His argument is based on language from our decision in United
States v. Hall, 473 F.3d 1295 (10th Cir. 2007). We wrote that “when a district
court fails to consider a defendant’s non-frivolous argument that a variance from
the Guidelines is warranted under § 3553(a) . . . the failure renders the sentence
procedurally unreasonable such that resentencing is required.” Id. at 1314. The
district court’s brief reference to the fast-track argument, Mr. Ruiz-Velgara
asserts, did not adequately address the argument.
Mr. Ruiz-Velgara then explained why the court should find that fast-track
programs in other jurisdictions create unwarranted sentencing disparities.
Essentially, that argument is substantive. Presumably, Mr. Ruiz-Velgara makes
that argument to demonstrate that his previous argument was not “frivolous,”
tracking the language in Hall.
First, it is worth noting that Hall vacated a sentence that was outside the
recommended Guidelines range. Id. at 1313–14. By the terms of the sentencing
statute, district courts are required to give more specific explanations of the
reasons for imposing sentence outside than for imposing a sentence within the
recommended Guidelines ranges. Title 18 U.S.C. § 3553(c) requires the district
court, in all cases, to state the “reasons for its imposition of the particular
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sentence,” but if the court imposes a sentence outside the Guidelines range, the
statute requires the court to provide “the specific reason for the imposition of a
sentence different from [the Guidelines range],” 18 U.S.C. § 3553(c)(2). Hall is
therefore distinguishable from this case, in which the district court sentenced Mr.
Ruiz-Velgara within the Guidelines. However, Hall cites United States v.
Sanchez-Juarez, 446 F.3d 1109 (10th Cir. 2006), in which this court did vacate a
within-Guidelines sentence. Id. at 1118. We discuss briefly how our case law
has evolved since Sanchez-Juarez.
In February 2007, we stated that when a district court sentences a defendant
within the Guidelines range, “Section 3553(c) requires the court to provide only a
general statement of the reasons for its imposition of the particular sentence.”
United States v. Ruiz-Terrazas, 477 F.3d 1196, 1199 (10th Cir. 2007) (quotations
omitted). In March 2007, we rejected the notion that Sanchez-Juarez requires
judges to address “each and every argument for leniency.” United States v.
Jarrillo-Luna, 478 F.3d 1226, 1229 (10th Cir. 2007). We held that the sentencing
judge merely “must somehow indicate that he or she did not rest on the guidelines
alone, but considered whether the guideline sentence actually conforms, in the
circumstances, to the statutory factors.” Id. at 1230 (quotations omitted).
In June 2007, the Supreme Court addressed sentencing issues in Rita v.
United States, 127 S. Ct. 2456 (2007). The Court wrote that “when a judge
decides simply to apply the Guidelines to a particular case, doing so will not
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necessarily require lengthy explanation.” Id. at 2468. The Court said that a judge
would “normally” address nonfrivolous arguments for a different sentence, id.,
but the Court did not require such a response.
Subsequently, we held that “[a] court’s brief explanation for a Guidelines
sentence may be sufficient when the context and the record clearly show that the
court listened to and considered the evidence and the arguments.” United States
v. Hamilton, 510 F.3d 1209, 1218 (10th Cir. 2007). In another case we wrote
that, despite the district court’s failure to address the defendant’s request for a
departure, “its citation of the PSR’s calculation method and recitation of the
suggested imprisonment range amply fulfilled § 3553(c)’s requirement of a
general statement noting the appropriate guideline range and how it was
calculated.” United States v. Cereceres-Zavala, 499 F.3d 1211, 1217 (10th Cir.
2007) (quotations omitted).
In this case, the district court’s explanation easily cleared the bar set by our
precedent. The district judge did everything done by the judge in Cereceres-
Zavala, and much more. Like the judge in Cereceres-Zavala, the judge discussed
the PSR calculation and the suggested imprisonment range. In addition, he
discussed Mr. Ruiz-Velgara’s previous conviction and arrest; he discussed Mr.
Ruiz-Velgara’s disregard for the law; he discussed whether Mr. Ruiz-Velgara’s
criminal history score was fair; and he mentioned the § 3553(a) factors three
times. Though not required to do so by our precedent, the judge fully addressed
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one of Mr. Ruiz-Velgara’s arguments for a variance, the sixteen-level
enhancement. The judge even made reference to the argument that Mr. Ruiz-
Velgara claims he failed to address—the alleged disparity based on fast-track
programs.
Clearly, the district court did everything required of it and more. We
therefore reject Mr. Ruiz-Velgara’s contention that the sentence was procedurally
unreasonable. Because Mr. Ruiz-Velgara has made no claim that the sentence
was substantively unreasonable, we need not consider whether fast-track
programs in other jurisdictions create unwarranted disparities in sentencing.
III. CONCLUSION
The district court adequately explained its reasons for sentencing Mr. Ruiz-
Velgara to forty-one months’ imprisonment. We therefore reject Mr. Ruiz-
Velgara’s argument that his sentence was procedurally unreasonable, and we
AFFIRM the sentence.
ENTERED FOR THE COURT,
Deanell Reece Tacha
Circuit Judge
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