FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT October 23, 2015
_________________________________
Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 14-1506
(D.C. No. 1:14-CR-00242-JLK-1)
LUIS ALBERTO LOPEZ-MONTEZ, (D. Colo.)
a/k/a ALBERTO LOPEZ-MONTEZ,
a/k/a RODOLFO GONZALEZ-LOPEZ,
a/k/a YAMIL URIEL LECINTO,
Defendant - Appellant.
–––––––––––––––––––––––––––––––––––
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 14-1507
(D.C. No. 1:14-CR-00320-JLK-1)
RODOLFO GONZALEZ-LOPEZ, (D. Colo.)
Defendant - Appellant.
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before TYMKOVICH, Chief Judge, HOLMES and PHILLIPS, Circuit Judges.
*
After examining the briefs and appellate record, this panel has determined
unanimously to honor 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
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 This order and judgment is not binding precedent,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.
_________________________________
In two cases that were consolidated on appeal, appellant Rodolfo
Gonzalez-Lopez, a/k/a Luis Alberto Lopez-Montez, pleaded guilty to illegal reentry
by a deported alien following an aggravated felony conviction and to violating his
supervised release. He challenges the procedural reasonableness of the sentences
imposed. Exercising jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742, we
affirm both sentences.
I. Background
Mr. Gonzalez-Lopez is a Mexican citizen who first came to the United States
illegally in 1999. Since then, he has sustained three convictions for drug offenses
and been removed from the country three times. His latest conviction, in Colorado
state court, resulted in a four-year prison sentence. While serving that sentence, he
was charged in Colorado federal court with illegal reentry, to which he pleaded guilty
(Appeal No. 14-1506). In addition, because Mr. Gonzalez-Lopez was still serving a
term of supervised release imposed by a federal court in Ohio for an earlier drug
offense, jurisdiction in that case was transferred to the Colorado federal court, where
he was then also charged with violating his supervised release (Appeal No. 14-1507).
The Presentence Investigation Report (PSR) for the reentry offense
recommended a 37-month sentence based on the United States Sentencing Guidelines
imprisonment range of 37 to 46 months. The Supervised Release Violation Report
for the revocation offense recommended a sentence of 18 months (consecutive to any
sentence imposed for the reentry offense) based on the Guidelines imprisonment
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range of 12 to 18 months. The calculation of these Guidelines ranges is not at issue
in this appeal.
Before sentencing, Mr. Gonzalez-Lopez moved for a variant sentence of
24 months on the reentry conviction, to run concurrently with the sentence he was
already serving on his Colorado conviction. Citing United States v. Garcia-Jaquez,
807 F. Supp. 2d 1005 (D. Colo. 2011), Mr. Gonzalez-Lopez argued that the
Guidelines for the reentry conviction should be disregarded because they are not
based on empirical data and that the purposes of 18 U.S.C. § 3553(a) would be better
served if a shorter sentence were imposed. He did not file any objections to the
sentencing recommendation on the violation of his supervised release.
The district court held a single hearing at which it sentenced
Mr. Gonzalez-Lopez on the reentry conviction and, after he admitted to violating his
supervised release, sentenced him on that also. At the hearing, Mr. Gonzalez-Lopez
continued to argue for a 24-month concurrent sentence, emphasizing that his actions,
though misguided, were motivated by a desire to help his family in Mexico. The
government agreed that a 24-month sentence was appropriate but argued that the
sentence should be consecutive to the Colorado sentence he was already serving.
With respect to the violation of his supervised release, Mr. Gonzalez-Lopez admitted
the allegations supporting the revocation petition but did not make any arguments
about sentencing.
The district court addressed the reentry conviction first. It identified the same
Guidelines range as set forth in the PSR, denying Mr. Gonzalez-Lopez’s objections to
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the PSR. The court then stated it would not follow the Guidelines in this case,
expressly adopting the rationale provided in Garcia-Jaquez, 807 F. Supp. 2d
at 1011-15. Nonetheless, the court stated it would look at the Guidelines and take
them as advice as required under Gall v. United States, 552 U.S. 38, 49 (2007). The
court also stated that it would follow and apply the factors to be considered in
imposing a sentence set forth in 18 U.S.C. § 3553(a). The court then considered
several of the § 3553(a) factors.
Regarding the history and characteristics of Mr. Gonzalez-Lopez, the court
stated that selling heroin is “the moral equivalent of a crime of violence” because it
means “selling death on the installment plan”; that providing one’s family with the
fruit of such a crime is “not a noble endeavor”; and that his conduct placed him
outside the category of people who, despite entering the country illegally, deserve
compassion and empathy. R., Vol. III, at 42-43.1 With regard to promoting respect
for the law, the court noted that Mr. Gonzalez-Lopez had “demonstrated time and
time again that the laws of the United States mean absolutely nothing to him” by
repeatedly reentering the country and selling dangerous drugs. Id. With regard to
affording adequate deterrence, the court emphasized that it would not “trivialize”
Mr. Gonzalez-Lopez’s conduct by imposing a light sentence: “I want the other
people in prison and the people in Mexico to know that you come to this country and
do what this defendant did, you’re going to pay for it. And he should know it, too.”
1
Citations to the record in this order and judgment are to the record on appeal
filed in Appeal No. 14-1506. An identical transcript of the hearing (but with
different pagination) was filed in Appeal No. 14-1507.
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Id. at 43. The court also noted that in response to a prior lenient sentence,
Mr. Gonzalez-Lopez had chosen to reoffend. And regarding protecting the public,
the court stated that a determined drug pusher needed to be kept off the streets. Id.
Based on these findings, the court sentenced Mr. Gonzalez-Lopez to a
40-month term of imprisonment on the reentry conviction, to run consecutively to his
Colorado sentence.
The court then addressed the supervised release violation, indicating that for
essentially the same reasons, it was imposing an 18-month sentence, consecutive to
both the Colorado sentence and the reentry sentence.
II. Discussion
On appeal, Mr. Gonzalez-Lopez argues that both sentences are procedurally
unreasonable. First, he argues that the district court failed to adequately consider the
Guidelines with respect to his sentence on the reentry offense. Second, he argues that
the district court failed to adequately explain why it imposed a consecutive sentence
for the violation of his supervised release.
When a party does not preserve a procedural challenge to a sentence, as
Mr. Gonzalez-Lopez concedes is true here, we review only for plain error. See
United States v. Gantt, 679 F.3d 1240, 1246 (10th Cir. 2012). “Under plain error
review, the defendant must demonstrate (1) there is error, (2) that is plain, (3) which
affects substantial rights, and (4) which seriously affects the fairness, integrity, or
public reputation of judicial proceedings.” United States v. Ruby, 706 F.3d 1221,
1226 (10th Cir. 2013). We discern no plain error.
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A sentence is procedurally reasonable when the sentencing court calculates the
applicable Guidelines range, considers the § 3553(a) factors, and affords the
defendant his rights under the Federal Rules of Criminal Procedure. United States v.
Geiner, 498 F.3d 1104, 1107 (10th Cir. 2007). Conversely, “[a] district court
commits a procedural sentencing error by failing to consider sentencing factors
enumerated in 18 U.S.C. § 3553(a) or by failing to offer an individualized assessment
of how the factors apply in a particular criminal defendant’s case.” United States v.
Chavez, 723 F.3d 1226, 1232 (10th Cir. 2013). Section 3553(a) requires the
sentencing court to consider, among other things, whether the sentence imposed
reflects the seriousness of the offense, promotes respect for the law, provides just
punishment, affords adequate deterrence, and protects the public from further crimes
of the defendant. Chavez, 723 F.3d at 1232. “This same requirement applies to a
district court’s determination of whether to impose a consecutive or concurrent
sentence.” Id.; see also 18 U.S.C. § 3584(b).
A. Reentry Offense
Although the Guidelines are merely advisory, “[t]he sentencing court must
give consideration to the applicable guideline sentence.” Gantt, 679 F.3d at 1247.
Mr. Gonzalez-Lopez does not argue that the district court failed to properly calculate
the applicable sentencing range under the Guidelines. By calculating and
acknowledging the advisory guideline sentence, the court satisfied its obligation to
consider the Guidelines. See id. at 1248 (“To consider is not necessarily to adopt.”).
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Contrary to Mr. Gonzalez-Lopez’s argument on appeal, the record as a whole makes
clear that the court did not outright disregard the Guidelines.
Further, in spite of the court’s statement that it would not follow the
Guidelines, the sentence it imposed is within the Guidelines imprisonment range.
When a court imposes a sentence falling within the range suggested by the
Guidelines, it must give “only a general statement of the reasons for its imposition of
the particular sentence.” Chavez, 723 F.3d at 1232. Here, the district court gave
much more than a general statement and specifically described its reasons, based
explicitly on the § 3553(a) factors, for imposing a 40-month sentence. We see no
clear or obvious error.
To the extent Mr. Gonzalez-Lopez argues that the court erred by stating that
his motion for a variant sentence was “moot,” the record reflects that at that point in
the hearing the court had already denied the motion and that its reasons for declining
to vary downward from the Guidelines range were based on the § 3553(a) factors.
B. Violation of Supervised Release
Mr. Gonzalez-Lopez argues that the district court failed to explain its reasons
for imposing a consecutive sentence for the violation of his supervised release. He
did not make any arguments directly addressing his supervised release sentence at the
hearing, nor does he argue on appeal that the 18-month sentence was improperly
calculated. There is no dispute that the sentence is within the applicable Guidelines
range and that the court had the discretion to impose a consecutive sentence. We find
the reasons for imposing a consecutive sentence are clear from the court’s discussion
7
of the § 3553(a) factors as they pertained to the reentry sentence. Thus, the record as
a whole makes it clear that the court considered the relevant factors and made an
individualized assessment when deciding to have Mr. Gonzalez-Lopez’s federal
sentences run consecutively to one another and to his Colorado sentence. See
Chavez, 723 F.3d at 1232-33 (finding consecutive sentence procedurally reasonable
in light of district court’s application of the § 3553(a) factors). We further conclude
the court did not commit plain error by implicitly incorporating the same analysis it
performed on the reentry offense into its sentencing determination as to the violation
of supervised release.
III. Conclusion
Therefore, we affirm both sentences.
Entered for the Court
Jerome A. Holmes
Circuit Judge
8