FILED
United States Court of Appeals
Tenth Circuit
August 15, 2011
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
FOR THE TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 10-1362
(D.C. No. 1:10-CR-00028-PAB-1)
STEVEN CLAY ROMERO, (D. Colo.)
Defendant-Appellant.
ORDER AND JUDGMENT *
Before BRISCOE, Chief Judge, EBEL and O’BRIEN, Circuit Judges.
Steven Clay Romero appeals his three-year sentence, imposed after
pleading guilty to one count of aggravated animal cruelty. We AFFIRM.
B ACKGROUND
On December 30, 2009, Romero tied a rope around the neck of Buddy, a
dog belonging to a family in Delta, Colorado, and dragged him to death behind a
*
After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and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.
pick-up truck on federal land. The evidence at the scene indicated that Buddy
initially tried to keep up with the truck, but eventually fell, and was then dragged
to death.
Romero was charged with “knowingly tortur[ing], needlessly mutilat[ing],
and needlessly kill[ing] an animal.” R., Vol. 1 at 6. These acts were in violation
of Colorado Revised Statute § 18-9-202(1.5)(b) and the federal Assimilative
Crimes Act, 18 U.S.C. § 13. 1 Romero pleaded guilty to an indictment in federal
court.
The United States Probation Office prepared a presentence investigation
report (PSR), indicating that while Romero was in jail for killing Buddy and
before pleading guilty, he made a series of telephone calls attempting to silence
witnesses and procure false grand jury testimony. Regarding the offense level for
committing aggravated animal cruelty, the PSR found that the sentencing factors
under 18 U.S.C. § 3553 controlled because there was no analogous guideline
level. As for criminal history and offender characteristics, the PSR recounted
Romero’s ten prior felony convictions, poor physical health, mild mental
retardation, amphetamine dependence, depression, and “[i]ntermittent [e]xplosive
1
“[T]he Assimilative Crimes Act[ ] was enacted to fill gaps in criminal law
otherwise applicable to federal enclaves by incorporating state law.” United
States v. Pethick, 513 F.3d 1200, 1201 n.1 (10th Cir. 2008). “The Act provides a
method of punishing a crime committed on government reservations in the way
and to the extent that it would have been punishable if committed within the
surrounding jurisdiction.” Id. (quotation omitted).
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[d]isorder,” R., Vol. 3 at 27. Finally, the PSR noted that under Colorado law, the
presumptive sentence for aggravated animal cruelty is 12-18 months, but that the
maximum could be doubled under certain circumstances. See Colo. Rev. Stat. §
18-1.3-401.
At sentencing, the district court concluded that Romero’s prior felony
convictions constituted extraordinary aggravating circumstances, doubling the
possible maximum sentence to 36 months. See id. § 18-1.3-401(6). 2 It then
imposed a 36-month sentence after considering Romero’s childhood, intellectual
functioning, health problems, multiple probation violations, attempts to influence
witnesses before pleading guilty, the large number of prior felony convictions,
and the premeditated and cruel nature of the crime.
2
In full, the statute provides:
In imposing a sentence to incarceration, the court shall impose
a definite sentence which is within the presumptive range[ ] . . .
unless it concludes that extraordinary mitigating or aggravating
circumstances are present, are based on evidence in the record of the
sentencing hearing and the presentence report, and support a
different sentence which better serves the purposes of this code with
respect to sentencing, as set forth in section 18-1-102.5. If the court
finds such extraordinary mitigating or aggravating circumstances, it
may impose a sentence which is lesser or greater than the
presumptive range; except that in no case shall the term of sentence
be greater than twice the maximum nor less than one-half the
minimum term authorized in the presumptive range for the
punishment of the offense.
Colo. Rev. Stat. § 18-1.3-401(6).
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D ISCUSSION
I. The Sixth Amendment - Apprendi
Romero argues that the district court’s reliance on his prior convictions to
increase the presumptive maximum sentence for aggravated animal cruelty from
18 months to 36 months violates Apprendi v. New Jersey, 530 U.S. 466 (2000).
There, the Supreme Court held that “[o]ther than the fact of a prior conviction,
any fact that increases the penalty for a crime beyond the prescribed statutory
maximum must be submitted to a jury, and proved beyond a reasonable doubt.”
Id. at 490. “[T]he ‘statutory maximum’ for Apprendi purposes is the maximum
sentence a judge may impose solely on the basis of the facts reflected in the jury
verdict or admitted by the defendant.” Blakely v. Washington, 542 U.S. 296, 303
(2004) (emphasis omitted). We review de novo the issue of whether Romero’s
sentence violates Apprendi. See United States v. Holyfield, 481 F.3d 1260, 1261
(10th Cir. 2007).
Romero’s argument is a non-starter, as Apprendi clearly allows a judge to
consider as fact a prior conviction when imposing an enhanced sentence. See
United States v. Harris, 447 F.3d 1300, 1303, 1307 (10th Cir. 2006). Romero
attempts to avoid this principle by asserting that the district court examined the
qualitative nature of his prior convictions and found that they were extraordinary
and aggravating. Further, he asserts that Colorado’s aggravating sentencing
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statute requires facts beyond the defendant’s record of convictions. He is wrong
on both counts.
First, the district court did not address the nature of Romero’s prior
felonies. Rather, the court simply noted the large number of felony convictions,
stating, “[T]his is Mr. Romero’s 11th felony conviction. When you get to No. 11,
you should assume that you are going to be given the maximum sentence
regardless of the nature of the crime.” R., Vol. 2 at 52-53. Second, Colorado’s
aggravated sentencing statute does not require a factual inquiry regarding prior
convictions beyond the defendant’s record of convictions. Instead, it requires a
sentence within the presumptive range, here 12-18 months, unless “extraordinary
mitigating or aggravating circumstances are present.” Colo. Rev. Stat. § 18-1.3-
401(6). A large number of prior convictions can constitute an extraordinary
aggravating circumstance regardless of the nature of those offenses. See People
v. Blessett, 155 P.3d 388, 397-98 (Colo. App. 2006). 3
3
To the extent Romero suggests that the district court aggravated his
sentence based on the cruel nature of the instant offense and his post-arrest
conduct, he misrepresents the record. The district court’s observation that this
was a “particularly cruel” and “particularly shocking” offense, R., Vol. 2 at 55,
was not made in the context of determining the maximum sentence, but rather, in
the context of determining where in the sentencing range of 12-36 months to
place Romero based on the 18 U.S.C. § 3553 factors. The same is true of the
district court’s observation that Romero first attempted to avoid responsibility for
the crime but then decided to plead guilty. This observation was not made in the
context of deciding whether to apply an aggravated sentence.
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Romero also claims that Colorado’s aggravated sentencing statute violates
Apprendi because the statute requires the trial judge to find that an aggravated
range sentence “better serves the purposes of this code with respect to
sentencing,” Colo. Rev. Stat. § 18-1.3-401(6). But as noted by the Colorado
Supreme Court, the statute “does not mandate a restricted or increased sentencing
range based on judicial fact-finding.” Lopez v. People, 113 P.3d 713, 716
(Colo. 2005) (en banc). Indeed, when a judge exercises his or her discretion to
consider an aggravated sentence based on the fact of a prior conviction, “[t]he
sentencing judge then has full discretion to sentence within this widened range
according to traditional sentencing considerations.” Id.
Romero further contends that even if there is no constitutional error,
remand is necessary because the district court failed to consider the purposes of
sentencing when sentencing him within an aggravated range. Because Romero
did not raise this argument at sentencing, we review only for plain error. See
United States v. Steele, 603 F.3d 803, 808 (10th Cir. 2010). To succeed, Romero
must demonstrate “(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. But Romero discusses none of these factors.
Moreover, we note that the district court during sentencing did discuss sentencing
purposes. See, e.g., R, Vol. 2 at 52-55. There is no plain error.
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II. Reasonableness
“We review sentences under an abuse of discretion standard for procedural
and substantive reasonableness.” United States v. Washington, 634 F.3d 1180,
1184 (10th Cir. 2011). “A sentence is procedurally reasonable when the district
court computes the applicable Guidelines range, properly considers the § 3553(a)
factors, and affords the defendant his rights under the Federal Rules of Criminal
Procedure.” United States v. Begaye, 635 F.3d 456, 461 (10th Cir. 2011)
(quotations and brackets omitted). “In performing substantive reasonableness
review, we consider whether the length of the sentence is reasonable given all the
circumstances of the case in light of the factors set forth in 18 U.S.C. § 3553(a).”
United States v. Lewis, 625 F.3d 1224, 1231 (10th Cir. 2010) (quotation omitted).
A. Procedural Reasonableness
Romero argues that the district court erred by not showing “some leniency”
based on his acceptance of responsibility for the crime. Aplt. Br. at 34. “We
review a district court’s determination not to allow a reduction for acceptance of
responsibility for clear error.” United States v. Hutchinson, 573 F.3d 1011, 1032
(10th Cir. 2009). “The sentencing judge is in a unique position to evaluate a
defendant’s acceptance of responsibility.” U.S.S.G. § 3E1.1 cmt. n.5. “For this
reason, the determination of the sentencing judge is entitled to great deference on
review.” Id.
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Where, as here, “there is not a sufficiently analogous [sentencing]
guideline, the provisions of 18 U.S.C. § 3553 shall control, except that any
guidelines and policy statements that can be applied meaningfully in the absence
of a Chapter Two offense guideline shall remain applicable.” U.S.S.G. § 2X5.1
(emphasis added). Sentencing Guideline § 3E1.1 provides a two- or three-point
decrease in the offense level when the defendant has accepted responsibility for
his crime.
When determining where to sentence Romero within the aggravated range,
the district court noted that after his arrest, Romero “attempt[ed] to avoid
responsibility for the crime and get people to lie for him to avoid responsibility,”
but then “changed his attitude in the sense that he came in and he pled guilty to
the charges here.” R., Vol. 2 at 54. The district court explained that
if there were an analogous sentencing guideline, [Romero’s
acceptance of responsibility] would be taken into account. Because
there isn’t, it doesn’t enter into the calculation quite as much or as in
a formal way as it would otherwise do, but nonetheless, the Court
thinks that despite his acceptance of responsibility, a sentence at the
top of the range is appropriate here.
Id. As the record indicates, the district court considered the extent to which
Romero accepted responsibility, correctly noted there was no offense level to
reduce, and decided that the maximum sentence was warranted.
We conclude that it was not clearly erroneous for the district court to
sentence Romero to the maximum sentence despite his acceptance of
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responsibility by entering a guilty plea. Even when there is a guidelines offense
level, a guilty plea does not guarantee an offense-level reduction under § 3E1.1.
See U.S.S.G. § 3E1.1 cmt. 3. The district court must still consider any conduct
that is inconsistent with an acceptance of responsibility. Id. Here, after his
arrest, Romero attempted to silence witnesses and procure false grand jury
testimony. Further, as the district court noted when discussing the nature of the
crime, Romero told a psychologist before sentencing that he did not drag Buddy
to death, but rather, had strangled him to death before tying him to the truck.
This statement contradicted the factual recitation contained in the plea agreement,
and was offered to somehow mitigate the cruelty of his crime.
Given the totality of Romero’s conduct with respect to accepting
responsibility, we defer to the district court’s decision to reject a § 3E1.1-type
sentence reduction. 4
B. Substantive Reasonableness
Romero argues that “the district court imposed a substantively unreasonable
sentence because, on the whole, it placed too little weight on [his] mental
4
Given the inapplicability of § 3E1.1 here, we need not decide what would
be a “meaningful[ ]” substitute, U.S.S.G. § 2X5.1, for a two- or three-level
reduction in offense level when there is no analogous sentencing guideline. In
any event, the amount of such a reduction would appear particularly confined to
the district court’s judgment.
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retardation.” Reply Br. at 9. 5 Our review, however, is limited to determining
“whether the length of the sentence is reasonable given all the circumstances of
the case in light of the factors set forth in 18 U.S.C. § 3553(a).” United States v.
Alapizco–Valenzuela, 546 F.3d 1208, 1215 (10th Cir. 2008) (quotations omitted).
“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 imposed].” United States v. Smart, 518 F.3d 800, 808 (10th Cir. 2008)
(quotations omitted).
The § 3553(a) factors include: the nature and circumstances of the offense;
the history and characteristics of the defendant; the need for the sentence imposed
to afford adequate deterrence, protect the public, and provide the defendant with
needed training, medical care or other correctional treatment; pertinent guidelines
and policy statements; the need to avoid unwanted sentence disparities; and the
need to provide restitution. 18 U.S.C. § 3553(a). The district court considered
these factors, noting Romero’s difficult childhood, various health problems,
multiple probation violations, his attempts to influence witnesses before pleading
guilty, his large number of prior felony convictions, the premeditated and cruel
5
In his reply brief, Romero specifically eschews any attack on the
procedural reasonableness of his sentence based on his mental retardation. Aplt.
Reply Br. at 8-11.
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nature of the crime, and the psychological evaluation report showing his low-level
intellectual functioning. Specifically, in regard to his intellectual functioning, the
district court stated that “the mental health aspect of it, while it may be
explanatory, does not . . . form a strong mitigator in this case” given that when
Romero was psychologically evaluated, he was found to be “about as capable as
most people of recognizing conventional modes of response and knowing what is
expected of him in terms of socially appropriate and law-abiding behavior.”
R., Vol. 2 at 52.
We conclude that the district court did not impose a substantively
unreasonable sentence when sentencing Romero to 36-months’ imprisonment.
C ONCLUSION
The judgment of the district court is AFFIRMED.
Entered for the Court
Mary Beck Briscoe
Chief Judge
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