FILED
United States Court of Appeals
Tenth Circuit
August 25, 2009
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee, No. 08-2240
v. (D. New Mexico)
RAMON GONZALEZ-PEREZ, (D.C. No. 2:03-CR-01797-RB-1)
Defendant - Appellant.
ORDER AND JUDGMENT *
Before LUCERO, MURPHY, and McCONNELL, Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist 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.
I. Introduction
Defendant-Appellant Ramon Gonzalez-Perez pleaded guilty to violating the
conditions of supervised release and re-entry by a removed felon in violation of 8
*
This order and judgment is not binding precedent except under the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.
U.S.C. § 1326(a)(1), (2), (b)(2). The district court imposed a sentence of thirty-
three months’ imprisonment for the re-entry conviction and eighteen months’
imprisonment for the supervised release violation and ordered the two sentences
to run consecutively. Gonzalez-Perez raises two issues on appeal. He argues the
district court abused its discretion in running the two sentences consecutively, and
he argues the cumulative term of imprisonment is unreasonable. Exercising
jurisdiction pursuant to 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291, we affirm the
district court on both issues.
II. Background
Gonzalez-Perez was apprehended in southern New Mexico and charged
with re-entry by a removed felon. At the time, he was on supervised release for a
previous illegal re-entry conviction. Gonzalez-Perez pleaded guilty to re-entry by
a removed felon and violating the conditions of supervised release.
Because of a fast-track plea agreement, the advisory guidelines range for
the re-entry conviction was thirty-three to forty-one months’ imprisonment, and
the guidelines range for the supervised release violation was eighteen to twenty-
four months’ imprisonment. At his sentencing hearing, Gonzalez-Perez did not
challenge the computation of these ranges. Instead, he asked for some part of his
supervised release violation sentence to run concurrently with his re-entry
sentence. After hearing this request, and before imposing sentence, the district
court noted Gonzalez-Perez had an extensive criminal history over a period of
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fifteen years, including multiple illegal re-entries, and stated Gonzalez-Perez was
not as sympathetic as first-time offenders. The district court then sentenced
Gonzalez-Perez to thirty-three months’ imprisonment on the re-entry charge and
eighteen months’ imprisonment on the supervised release violation. The two
sentences were run consecutively.
III. Discussion
Gonzalez-Perez raises two arguments on appeal: (1) the district court
abused its discretion in imposing consecutive sentences without articulating why
it was doing so, and (2) the use of the same facts in imposing both sentences
renders the cumulative term of imprisonment unreasonable. As to his first
contention, it fails because it relies upon an erroneous interpretation of the record.
Shortly after Gonzalez-Perez requested concurrent sentences, and before his
sentence was imposed, the district court stated Gonzalez-Perez was not a
sympathetic defendant because of his long criminal history, including his history
of committing re-entry offenses. Gonzalez-Perez complains the district court
described his criminal history only before sentencing him on the re-entry charge,
but failed to separately state its reasons when it imposed a consecutive sentence
for the supervised release violation. Gonzalez-Perez’s criminal history, however,
was plainly relevant to both the new charge and the supervised release violation,
as well as the question of whether the sentences should run consecutively. See 18
U.S.C. § 3584(b) (directing courts to consider the 18 U.S.C. § 3553(a) sentencing
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factors when deciding whether to run sentences consecutively). It is clear from
the record the district court addressed Gonzalez-Perez’s criminal history at least
in part to resolve the only contested issue raised by the parties at sentencing:
whether the sentences were to run consecutively.
The decision whether to run the sentences concurrently or consecutively
was discretionary on the part of the district court. 18 U.S.C. § 3584(a). The
commentary to the applicable advisory guidelines policy statement expresses a
preference for running sentences consecutively in the circumstances of this case.
U.S.S.G. § 7B1.3 cmt. n.4. “We . . . traditionally do not disturb decisions
entrusted by statute or other rule of law to the discretion of a district court unless
we have a definite and firm conviction that the lower court made a clear error of
judgment or exceeded the bounds of permissible choice in the circumstances.”
United States v. Ruiz-Terrazas, 477 F.3d 1196, 1201 (10th Cir. 2007) (quotation
omitted). Here, the district court explicitly cited Gonzalez-Perez’s criminal
history in response to his request for concurrent sentences. No more detailed
explanation was required. Cf. id. at 1202 (holding a specific discussion of the
§ 3553(a) factors is not required for sentences falling within the advisory
guidelines range).
Gonzalez-Perez also contends his cumulative sentence is unreasonable
because the district court used the same facts in imposing both sentences, namely
his previous conviction for which he was on supervised release when he
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committed the new re-entry offense. He points out the previous conviction was
used to increase his criminal history category for the re-entry conviction and also
used as a predicate for his supervised release violation.
Gonzalez-Perez’s prior conviction can be used for multiple purposes during
sentencing so long as two conditions are met: 1) the Sentencing Commission
intended the result, and 2) each use of the conviction “concerns conceptually
separate notions related to sentencing.” United States v. Lewis, 115 F.3d 1531,
1537 (10th Cir. 1997). The Sentencing Commission certainly intended the use of
the prior conviction in both circumstances here, as the prior conviction was
relevant to his criminal history category under § 4A1.1(a), (d), (e) (providing for
calculation of criminal history category when offense is committed while
defendant is still serving another sentence) and his supervised release violation
under § 7B1.3(a)(1), (b) (explaining violation of supervised release is grounds for
imposition of a term of imprisonment). Furthermore, as Gonzalez-Perez
concedes, the sentence for the supervised release violation serves a conceptually
different purpose from the sentence for the re-entry conviction. For these
reasons, the district court did not err in using Gonzalez-Perez’s previous
conviction to calculate his sentences for the re-entry charge and the supervised
release violation.
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IV. Conclusion
For the foregoing reasons, the sentences imposed by the district court are
affirmed.
ENTERED FOR THE COURT
Michael R. Murphy
Circuit Judge
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