FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT December 9, 2015
_________________________________
Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 15-1187
(D.C. No. 1:14-CR-00009-REB-1)
JOSE RODOLFO CAMPOS-LUCAS, (D. Colo.)
Defendant - Appellant.
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before HOLMES, MATHESON, and PHILLIPS, Circuit Judges.
_________________________________
Jose Rodolfo Campos-Lucas pled guilty to illegally reentering the United States
in violation of 8 U.S.C. § 1326(a). The district court sentenced him to 18 months in
prison. Mr. Campos-Lucas appeals that sentence. Exercising jurisdiction under 28
U.S.C. § 1291 and 18 U.S.C. § 3742(a), we affirm.
*
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 This order and judgment is not binding precedent,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.
I. BACKGROUND
In 2005, Mr. Campos-Lucas illegally entered the United States in violation of 8
U.S.C. § 1325. In 2010, he was discovered and removed. Later in 2010, Mr. Campos-
Lucas illegally reentered the United States in violation of 8 U.S.C. § 1326(a). He pled
guilty and was sentenced to 90 days incarceration, to be followed by one year of
supervised release. After serving his 90-day sentence, he was removed.
In 2013, Mr. Campos-Lucas was arrested in Colorado for driving without a
license. While he was detained, Immigration and Customs Enforcement lodged an
immigration detainer against him for illegal reentry. In April 2014, in the District of
Colorado, he pled guilty to illegally reentering the United States. He was sentenced to
four months in prison and two years of supervised release, and was removed
approximately one month after sentencing. The four-month sentence was below the
range of 8 to 14 months suggested by the U.S. Sentencing Guidelines Manual
(“Guidelines”). His supervised release conditions prohibited him from entering the
United States illegally.
In September 2014, Mr. Campos-Lucas was arrested in Arizona for illegal reentry.
He pled guilty and was sentenced to 180 days incarceration. In February 2015, the U.S.
Probation Office (“Probation”) petitioned to revoke his supervised release in the District
of Colorado based on the Arizona conviction. In March 2015, after serving his 180-day
sentence, Mr. Campos-Lucas was arrested based upon Probation’s petition.
In May 2015, the district court in Colorado held a hearing on Probation’s petition
to revoke supervised release. Before the hearing, Probation prepared a violation report
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and determined that, if Mr. Campos-Lucas’s supervised release were revoked, his
applicable Guidelines range would be 5 to 11 months based on his Grade C violation of
his supervised release condition not to enter the United States and his criminal history
category of III. Probation recommended an 8-month sentence with no supervised release.
The Government recommended a sentence of 2 months, or time served, because Mr.
Campos-Lucas had already served 180 days for the Arizona conviction.
At the hearing, the district court revoked Mr. Campos-Lucas’s supervised release
and adopted Probation’s Guidelines calculation. The court then mentioned its April 2014
sentencing of Mr. Campos-Lucas where he promised not to return to the United States
illegally and the district court imposed a sentence below the Guidelines range. The court
expressed concern that Mr. Campos-Lucas had broken his promise:
This is a first in the experience of this Court to have a defendant take such a
position and make such a statement under oath only to reenter within such a
short period of time after that solemn promise and pledge.
The conduct here represents and constitutes the ultimate expression of
abject disrespect and contempt not only for our federal judicial system
generally but this Court in particular.
ROA, Vol. 5 at 17.
The court determined that Mr. Campos-Lucas’s violation of the special condition not to
reenter warranted a sentence above his Guidelines range:
The failure of Mr. Campos to follow this simple but significant and serious
Court ordered condition of supervised release constitutes an unwarranted
and unexcused breach of trust which in these unique circumstances
warrants severe punishment.
Id. at 18.
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The district court then sentenced Mr. Campos-Lucas to 18 months in prison—
above the 5-11 month Guidelines range—and 15 months of supervised release.
II. DISCUSSION
Mr. Campos-Lucas asserts his sentence is unreasonable. “[T]his Court reviews
sentences for reasonableness, as informed by the 18 U.S.C. § 3553(a) sentencing factors.”
United States v. Montgomery, 550 F.3d 1229, 1233 (10th Cir. 2008); see also Gall v.
United States, 552 U.S. 38, 51 (2007). This review can consist of two components:
procedural and substantive reasonableness. See Montgomery, 550 F.3d at 1233. On
appeal, Mr. Campos-Lucas challenges only the substantive reasonableness of his
sentence.1 We affirm.
We review a sentence’s substantive reasonableness for abuse of discretion, Gall,
552 U.S. at 51, assessing whether “the length of the sentence is unreasonable given the
totality of the circumstances,” United States v. Haley, 529 F.3d 1308, 1311 (10th Cir.
1
Mr. Campos-Lucas argues for the first time on appeal that the district court
impermissibly relied at the sentencing hearing on “respect for the law,” a factor found in
18 U.S.C. § 3553(a)(2), but which is not among the § 3553(a) factors specified in 18
U.S.C. § 3583(e) for district courts to consider when determining a revocation sentence.
A court’s reliance on an impermissible sentencing factor would be procedural error. See
United States v. Smart, 518 F.3d 800, 803-04 (10th Cir. 2008). But because Mr. Campos-
Lucas did not specifically object on this ground in district court, he forfeited this
argument; and because he does not argue for plain error review on appeal, he has waived
it. See Richison v. Ernest Grp., Inc., 634 F.3d 1123, 1131 (10th Cir. 2011) (“[T]he
failure to argue for plain error and its application on appeal . . . surely marks the end of
the road for an argument for reversal not first presented to the district court.”).
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2008). “In many cases there will be a range of possible outcomes [that] the facts and law
at issue can fairly support; rather than pick and choose among them ourselves, we will
defer to the district court’s judgment so long as it falls within the realm of these rationally
available choices.” United States v. Reyes-Alfonso, 653 F.3d 1137, 1145 (10th Cir. 2011)
(quotations and alterations omitted).
After considering certain § 3553(a) factors and the policy statements in Chapter 7
of the Sentencing Guidelines, a district court may revoke a term of supervised release and
impose prison time. See U.S.C. § 3583(e)(3); United States v. Steele, 603 F.3d 803, 808
(10th Cir. 2010).
Unlike sentences that fall within the recommended Guidelines range, Mr. Campos-
Lucas’s sentence is not entitled to a presumption of reasonableness because the 18-month
sentence exceeds the 5-11 month Guidelines range. See United States v. Shaw, 471 F.3d
1136, 1140 (10th Cir. 2006) (holding because a district court’s sentencing determination
“involved a nonguideline sentence, . . . it was not entitled to such a presumption” of
reasonableness). Even so, Mr. Campos-Lucas’s sentence “falls within the realm of . . .
rationally available choices” and is therefore substantively reasonable. Reyes-Alfonso,
653 F.3d at 1145 (quotations and alterations omitted).
Mr. Campos-Lucas argues the district court over-emphasized respect for the law
and under-emphasized the applicable § 3553(a) factors, including the nature and
circumstance of Mr. Campos-Lucas’s offense and his history and characteristics. This
argument ignores the district court’s specific consideration of the § 3553(a) factors and
Chapter 7’s statement, found in the introduction to Chapter 7, that “the court should
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sanction primarily the defendant’s breach of trust” in determining a revocation sentence.
U.S. Sentencing Guidelines Manual ch. 7, pt. A, introductory cmt. 3(b) (U.S. Sentencing
Comm’n 2014).
Having considered carefully the nature and circumstances of this violation,
which I consider to be very serious, the history and characteristics of Mr.
Campos as they have evolved, being cognizant of the need for the
disposition to reflect the seriousness of the violation, to provide for just
punishment, to promote respect for the law, to protect the public from
further crimes of the defendant, to provide adequate deterrence to both the
defendant and others similarly situated and inclined, to avoid unwarranted
dispositional disparities, and to sanction, to punish, Mr. Campos for this
breach of trust inherent to a violation of supervised release, I conclude
ultimately that I should vary upward to impose a sentence to the Bureau of
Prisons of 18 months, to be followed by an additional term of supervised
release.
ROA, Vol. 5 at 20-21.
The district court also noted it previously sentenced Mr. Campos-Lucas to a
below-Guidelines sentence, which is a factor a court may consider in determining a
sentence for revocation of supervised release. See U.S.S.G. § 7B1.4 cmt. n.4 (“Where the
original sentence was the result of a downward departure . . . , an upward departure may
be warranted.”).
Under the totality of the circumstances, including Mr. Campos-Lucas’s previous
below-Guidelines sentence, the district court did not abuse its discretion in imposing a
sentence seven months above Mr. Campos-Lucas’s Guidelines range.
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III. CONCLUSION
We affirm Mr. Campos-Lucas’s sentence.
ENTERED FOR THE COURT,
Scott M. Matheson, Jr.
Circuit Judge
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