IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 99-40070
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JAVIER GUADALUPE IZAGUIRRE-LOSOYA,
Defendant-Appellant.
Appeal from the United States District Court
For the Southern District of Texas
July 17, 2000
Before REYNALDO G. GARZA, JOLLY, and HIGGINBOTHAM, Circuit Judges.
PATRICK E. HIGGINBOTHAM, Circuit Judge:
Javier Izaguirre-Losoya appeals the district court’s
imposition of a consecutive rather than concurrent sentence.
Finding no reversible error, we AFFIRM.
I
The defendant is a citizen of Mexico with an extensive history
of criminal behavior. Between 1986 and 1998 he received
convictions for voluntary manslaughter, possession of marijuana,
burglary of a vehicle, burglary of a building, assault, criminal
mischief, robbery, and inhalation of abusable paint. In February
1997, he was finally deported from the United States. In September
1997, he was jailed in Brownsville, Texas after committing a
robbery. INS officials found him there, and he was indicted in
December 1997 for illegal re-entry. In August 1998 a Texas state
court sentenced him to fifteen years in prison for the robbery. In
November 1998 he pled guilty in federal court to illegal re-entry.
Before and again at sentencing, the defendant requested a
concurrent sentence with his state robbery sentence. The district
court sentenced the defendant to serve 77 months in federal prison
to run consecutively to the state sentence. The court did not give
any reasons for his sentence, stating only that
[i]t is the judgment of the Court the defendant, Javier
Guadalupe Izaguirre-Losoya, is hereby committed to the
custody of the Bureua of Prisons for a term of 77 months.
The terms of imprisonment imposed by this judgment shall
run consecutively to the defendant’s imprisonment under
98-407-C, state conviction.
On appeal, the defendant’s counsel filed an Anders brief, stating
that no non-frivolous issues existed, and requested to withdraw.
This court denied the motion and requested counsel to brief
the issue of whether the district court’s failure to explicitly
consider factors set forth in 18 U.S.C. § 3553(a) when deciding to
impose a consecutive sentence merits resentencing.1 Defense
counsel did so, additionally citing 18 U.S.C. § 3553(c)’s
requirement that the district court must state in open court its
reasons for imposing a particular sentence.
1
In determining whether to impose a concurrent or consecutive sentence, the
court must consider the factors in 18 U.S.C. § 3553(a). See 18 U.S.C. §
3584(b). Section 3553(a) requires the court to consider numerous factors,
including “the nature and circumstances of the offense and the history and
characteristics of the defendant,” “the need for the sentence imposed,” and “the
kinds of sentences available.”
2
II
The United States Sentencing Guidelines require concurrent
sentencing if “the undischarged term of imprisonment resulted from
offense(s) that have been fully taken into account in the
determination of the offense level for the instant offense.”2
The defendant argues because his criminal history category was
based on a consideration of his undischarged state sentence for
robbery, a concurrent sentence was required. This argument fails
for two reasons. First, his criminal offense history is separate
from and does not affect his offense level even if it does affect
the range of potential punishment. In other words, the defendant’s
offense level of 21 for his illegal re-entry offense was not based
on the defendant’s commission of the recent robbery, but instead
was based on a base offense level of 8 for illegal re-entry,
increased by 16 because the prior offense which resulted in
deportation was an aggravated felony – burglary of a building.
Finally, the offense level was reduced by 3 because the defendant
entered a guilty plea expeditiously. None of these calculations
was based on the recent state robbery offense.
Second, even without the recent robbery, which contributed 3
points to his criminal history score of 19, the defendant’s
criminal history category would have been the same, since any
criminal history score above 12 results in a criminal history
2
U.S.S.G. § 5G1.3(b) (emphasis added).
3
category of VI.3 Thus, there is no merit to the claim that the
district court was required to give a concurrent sentence.
III
The defendant correctly notes, however, that the district
court failed to explicitly consider factors enumerated in 18 U.S.C.
§ 3553(a) when imposing a consecutive sentence.4 Other circuits
that have addressed this issue subscribe to the principle that,
absent a contrary indication in the record, a district court will
be presumed to have considered and weighed the § 3553(a) factors
when making the choice between consecutive and concurrent
sentences.5 This approach is based on the presumption that
district courts know the applicable law and apply it correctly.6
It is also based on the belief that “Congress never intended . . .
for sentencing to become a hyper-technical exercise devoid of
common sense.”7
3
See id. Ch. 5, Pt. A, Sentencing Table.
4
The defendant’s objection to the district court’s failure to consider the
§ 3553(a) factors was preserved by the defendant’s repeated requests for a
concurrent sentence. See United States v. Richardson, 87 F.3d 706, 710 (5th Cir.
1996).
5
See United States v. Rose, 185 F.3d 1108, 1111 (10th Cir. 1999); United
States v. Johnson, 138 F.3d 115, 119-20 (4th Cir. 1998); United States v.
Velasquez, 136 F.3d 921, 924 (2d Cir. 1998); United States v. Cervantes-
Valenzuela, 931 F.2d 27, 29 (9th Cir. 1991).
6
See Cervantes-Valenzuela, 931 F.2d at 29.
7
Johnson, 138 F.3d at 119.
4
In United States v. Richardson,8 this court considered this
same issue. The district court had denied the defendant’s request
for a concurrent sentence, and the defendant appealed, claiming
that the district court had failed to accord any consideration to
the § 3553(a) factors.9 The district court did not mention §
3553(a) or any of the relevant factors. The district court merely
stated that it believed that the sentence imposed “adequately
address[es] the sentencing objectives of punishment and
deterrence.”10
The panel concluded that “this sole statement by the district
court evinces due consideration to the § 3553(a) factors.”11 This
court found that the district court’s statement “impli[ed] a
general consideration by the district court of several of the [§
3553(a)] factors” and, despite its vagueness, was not “so lacking
as to evince a disregard of the § 3553(a) factors.”12
Other circuits that have considered this issue require that
the record merely not evidence a disregard for the § 3553(a)
factors. We read Richardson to impose little more and hold that it
is satisfied so long as the proceedings imply consideration of the
§ 3553(a) factors. In this case, unlike Richardson, the district
court did not make a statement on the record from which such
8
87 F.3d 706, 711 (5th Cir. 1996).
9
See id. at 708-09.
10
Id. at 711.
11
Id.
12
Id.
5
consideration can be inferred. However, the district court was
advised of those factors by the PSR and by the arguments of defense
counsel.13 Absent a contrary indication in the record, such
evidence implies that the district court was aware of and
considered the § 3553(a) factors.
IV
Our analysis does not stop here, however. Section 3553(c)
separately requires that “[t]he court, at the time of sentencing,
shall state in open court the reasons for its imposition of the
particular sentence.” In United States v. Rose,14 the Tenth Circuit
excused the district court for failing to explain its consideration
of the § 3553(a) factors on the record, but nevertheless vacated
the sentence because the district court had failed to comply with
§ 3553(c) by giving reasons for imposing a consecutive sentence.15
The court in Rose observed that although the defendant’s conduct
justified a consecutive sentence, the district court’s failure to
provide any rationale prevented the appellate court from being able
to determine whether the district court had abused its discretion
13
The addendum to the PSR advised the court that it had the discretion to
impose either a concurrent or consecutive sentence and that this choice was to
be guided by the § 3553(a) factors. Moreover, the PSR advised the court
regarding the defendant’s situation vis-à-vis several of the § 3553(a) factors,
including the defendant’s criminal history, drug addiction, and undischarged
state sentence. See § 3553(a)(1); § 3553(a)(2)(D); U.S.S.G. § 5G1.3, comment
(n.3). Defense counsel also requested consideration of various of the § 3553(a)
factors, including the defendant’s criminal history, the trivial nature of the
illegal re-entry offense, and the types of sentences available in the case. See
§ 3553(a)(1)-(3).
14
185 F.3d 1108 (10th Cir. 1999).
15
See id. at 1111-13.
6
and left it in a “zone of speculation.”16 The Ninth Circuit has
ruled similarly.17
The defendant, however, did not object to the district court’s
failure to explain the reasons for its imposition of the sentence
as required under § 3553(c). Thus, our review is for plain error
only.18 Under this standard, we may correct forfeited errors only
if “(1) there is an error, (2) that is clear or obvious, and (3)
that affects [the defendant’s] substantial rights.”19 Even if those
factors are met, however, correction of the error is discretionary
and this court “will not exercise that discretion unless the error
seriously affects the fairness, integrity, or public reputation of
judicial proceedings.”20
Even assuming that the district court’s failure to state the
reasons for the particular sentence was an error that was clear or
obvious, the defendant has not shown that the error affected his
substantial rights. The district court was not required to impose
16
Id. at 1112.
17
See United States v. Conkins, 9 F.3d 1377, 1385 (9th Cir. 1993).
18
See United States v. Vences, 169 F.3d 611, 613 (9th Cir. 1999) (adopting
plain error standard for failure to comply with § 3553(c)). The government in
the present case did not argue that the plain error standard applies. We may
apply the standard sua sponte, however, because “no party has the power to
control our standard of review.” United States v. Milton, 147 F.3d 414, 420 n.*
(5th Cir. 1998) (quoting United States v. Vontsteen, 950 F.2d 1086, 1091 (5th
Cir. 1992)).
19
United States v. Ferguson, 211 F.3d 878, 886 (5th Cir. 2000).
20
Id. (citing United States v. Olano, 507 U.S. 725, 735-36 (1993)).
7
a concurrent sentence,21 and was within its discretion to impose a
consecutive sentence given the defendant’s extensive criminal
background.22 The parties apprised the district court of the
reasons for and against a consecutive sentence.23 The district
court rejected the government’s request for a longer term of
imprisonment and rejected the defendant’s request for a concurrent
sentence, reflecting a balanced consideration of the competing
statutory factors.24 As such, the sentence imposed was supported
by the record and not contrary to law. The district court’s
failure to articulate precise reasons for imposing the sentence did
not impair the defendant’s substantial rights.
Nor do we find that any error under § 3553(c) affected the
fairness, integrity, or public reputation of judicial proceedings.
Instead, under these circumstances, remand to comply with the
dictates of § 3553(c) would be an empty formality and waste of
judicial resources.
21
See supra Part II.
22
In determining whether to impose a consecutive or concurrent sentence,
§ 3553(a) allows consideration of the “history and characteristics of the
defendant,” the need “to promote respect for the law,” the need “to afford
adequate deterrence to criminal conduct,” and the need “to protect the public
from further crimes of the defendant.” See 18 U.S.C. § 3553(a)(1), (2)(A),
(2)(B), (2)(C). The defendant’s criminal history suggests that a consecutive
sentence was necessary to address many of the § 3553(a) considerations.
23
See supra note 13.
24
The defendant argued that his current offense – illegal re-entry – was
relatively trivial, and the court rejected the government’s request for an 89-
month, rather than 77-month, term of imprisonment. The sentence imposed thus
demonstrates a balancing of the competing concerns found in § 3553(a). See supra
note 22. On the one hand, the illegal re-entry offense may not have warranted
the longer term of imprisonment, but on the other hand, this particular defendant
has shown no ability to conform his behavior with the law. Such concerns support
the imposition of the shorter term of imprisonment, but imposed consecutively.
8
AFFIRMED.
9