FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS May 20, 2013
Elisabeth A. Shumaker
TENTH CIRCUIT Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 12-5198
HUGO ROSAS-GONZALEZ, (D.C. No. 4:12-CR-00147-GKF-1)
(N. D. Okla.)
Defendant-Appellant.
ORDER AND JUDGMENT *
Before BRISCOE, Chief Judge, ANDERSON and TYMKOVICH, 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This order and judgment is not binding precedent, except under the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 2012, Hugo Rosas-Gonzalez was charged with illegal reentry, in
violation of 8 U.S.C. § 1326, and violation of the terms of his supervised release
imposed for previous illegal reentry in 2010. The district court sentenced
Rosas-Gonzalez to eighteenth months’ imprisonment for the most recent illegal
reentry charge and six months’ imprisonment for his violation of the terms of his
supervised release, to be served consecutively. In this direct appeal,
Rosas-Gonzalez argues the district court procedurally erred in denying his Motion
for Concurrent Sentence in which he asked the court to order that his six month
sentence be served concurrently with his eighteenth month sentence. Exercising
jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a), we affirm.
I
In a prior case, Rosas-Gonzalez was sentenced on June 24, 2011, to ten
months’ imprisonment and two years’ supervised release after pleading guilty to
illegal reentry in violation of 8 U.S.C. § 1326. R. Vol. 1, at 26-29. As one of the
conditions of his supervised release, Rosas-Gonzalez was prohibited from
illegally reentering the United States. Id. at 28. Rosas-Gonzalez’s period of
supervised release began on October 31, 2011. Id. at 23. On June 27,
2012—approximately one year after being sentenced for illegal reentry, six
months after being deported, and during his period of supervised
release—Immigration and Customs Enforcement (ICE) officials arrested
Rosas-Gonzalez for illegal reentry after discovering him working at a
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construction site in Tulsa, Oklahoma. Id. at 31-32. Thereafter, the government
filed a petition to revoke Rosas-Gonzalez’s supervised release, and he was again
charged with illegal reentry. Id. at 17, 23-24. Rosas-Gonzalez pled guilty to this
latest charge of illegal reentry, and he admitted the allegations in the Superseding
Order on Supervised Release that he violated the conditions of his release by
illegally reentering the United States. Id. at 23-24, 42.
After sentencing Rosas-Gonzalez to eighteen months’ imprisonment for the
illegal reentry charge, the district court also sentenced Rosas-Gonzalez for
violating the terms of his supervised release pursuant to 18 U.S.C. § 3583(e). R.
Vol. 2, at 12-13. Given his Criminal History Category of II and the Grade B
violation of his conditions of supervised release, Rosas-Gonzalez’s sentencing
guideline range was six to twelve months’ imprisonment. R. Vol. 3, at 4; R. Vol.
2, at 14-15; U.S.S.G. § 7B1.4. Rosas-Gonzalez did not object to the district
court’s calculation of his sentencing guideline range.
Prior to his sentencing hearing, however, Rosas-Gonzalez filed a motion
requesting concurrent sentences pursuant to 18 U.S.C. § 3584(a) based on 18
U.S.C. § 3553(a) factors. R. Vol. 1, at 39-40. Specifically, Rosas-Gonzalez cited
his continued employment, duty to his family, and otherwise law-abiding conduct
as warranting a concurrent sentence. Id. at 40. At sentencing, Rosas-Gonzalez
again asked for concurrent sentences or, alternatively, the “low end of the
guideline range.” R. Vol. 2, at 15.
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At the sentencing hearing, the district court recognized that it had
discretion to impose a concurrent or consecutive sentence under § 3584(a), and
that the Sentencing Guidelines recommended a consecutive sentence. Id. at
17-18. The district court denied Rosas-Gonzalez’s motion for concurrent
sentences and imposed a six month consecutive sentence for violating the
conditions of his supervised release. On appeal, Rosas-Gonzalez argues that the
district court failed to consider § 3553(a) factors in determining whether his
sentence should be served concurrently, and the district court failed to sufficiently
explain its consideration of the § 3553(a) factors when imposing his sentence. 1
II
Rosas-Gonzalez sought concurrent sentences in a pre-sentencing motion,
but “he did not raise the procedural objection[s] he now asserts after the district
court imposed sentence.” See United States v. Romero, 491 F.3d 1173, 1176
(10th Cir. 2007); R. Vol. 2, at 19-21. Accordingly, we review for plain error.
“Under the plain error standard, we may reverse only if a defendant demonstrates
(1) error (2) that is plain, (3) that prejudices his substantial rights, and (4) that
1
In his appellate brief, Rosas-Gonzalez sets forth only one issue:
“Whether the district court, while denying a motion for concurrent sentencing,
committed procedural error by failing to consider 18 U.S.C. § 3553(a) sentencing
factors and reasons submitted in the motion.” Aplt. Br. at 1. However, in his
brief, Rosas-Gonzalez also indicates the district court failed to sufficiently
articulate its reasons for sentencing. See, e.g., id. at 13 (discussing the district
court’s failure to “make a record” of its consideration of the § 3553(a) factors).
Regardless, we will address both points.
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seriously affects the fairness, integrity, or public reputation of judicial
proceedings.” United States v. Mendiola, 696 F.3d 1033, 1036 (10th Cir. 2012)
(quotation omitted). Because we discern no error in the district court’s
sentencing of Rosas-Gonzalez, we need not look beyond the first prong of plain
error. See United States v. Gantt, 679 F.3d 1240, 1246 (10th Cir. 2012).
III
Pursuant to 18 U.S.C. § 3583, a district court may “revoke a term of
supervised release, and require the defendant to serve in prison all or part of the
term of supervised release authorized by statute for the offense that resulted in
such term of supervised release.” Id. § 3583(e). When determining “whether to
revoke a term of supervised release and . . . the sentence imposed after
revocation,” the district court is required to consider the factors articulated in 18
U.S.C. § 3553(a). See United States v. McBride, 633 F.3d 1229, 1231-32 (10th
Cir. 2011); 18 U.S.C. § 3583(e). These factors include the characteristics of the
offense and defendant, deterrence, protection of the public, as well as applicable
guidelines and policy statements by the Sentencing Commission. 18 U.S.C. §
3553(a). Section 7B1.3 of the Sentencing Guidelines states the following:
Any term of imprisonment imposed upon the revocation of
probation or supervised release shall be ordered to be served
consecutively to any sentence of imprisonment that the defendant is
serving, whether or not the sentence of imprisonment being served
resulted from the conduct that is the basis of the revocation of
probation or supervised release.
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U.S.S.G. § 7B1.3(f). Under 18 U.S.C. § 3584(a), a district court has discretion to
impose concurrent or consecutive sentences. United States v. Rodriguez-
Quintanilla, 442 F.3d 1254, 1256 (10th Cir. 2006).
When imposing a sentence, a district court is required by 18 U.S.C. §
3553(c) to provide a general statement of “the reasons for its imposition of the
particular sentence.” United States v. Ruiz-Terrazas, 477 F.3d 1196, 1199 (10th
Cir. 2007) (quotation omitted); see United States v. Rose, 185 F.3d 1108, 1111-13
(10th Cir. 1999) (applying § 3553(c) to a sentencing for revocation of supervised
release). However, “the sentencing court is not required to consider individually
each factor listed in § 3553(a) before issuing a [within-Guidelines] sentence.”
Rodriguez-Quintanilla, 442 F.3d at 1258 (quotation omitted)); 18 U.S.C. §
3553(c).
Rosas-Gonzalez argues that the district court procedurally erred by simply
applying the Guidelines, U.S.S.G. § 7B1.3(f), without consideration of the §
3553(a) factors or consideration of the arguments raised in his motion.
Specifically, Rosas-Gonzalez argues that the district court failed to consider the
following mitigating factors during his sentencing hearing: Rosas-Gonzalez had
committed no new crime other than reentry; he was employed as a construction
worker and was supporting his family; and, a significant other reported him to
immigration officials. Aplt. Br. at 5. Additionally, throughout Rosas-Gonzalez’s
opening brief, he asserts that the district court did not explicitly reference §
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3553(a) sentencing factors or the individual mitigating factors raised in his
motion. After reviewing the sentencing transcript, however, it is clear that the
district court did consider § 3553(a) factors and Rosas-Gonzalez’s arguments in
ruling on his motion.
During the sentencing hearing, Rosas-Gonzalez reiterated that the
mitigating factors he argued warranted a concurrent sentence. R. Vol. 2, at 15
(citing his “gainful[] employ[ment],” and commission of no “new offenses”).
Thereafter, the district court explicitly stated that it reviewed and considered
Rosas-Gonzalez’s motion and the § 3553(a) factors. Id. at 16-17 (stating that it
“reviewed the defendant’s motion for a concurrent sentence” and “consider[ed]
the factors set forth in . . . section 3553(a) and chapter 7 of the sentencing
guidelines,” as well as “the nature of this violation and the history and
characteristics of the defendant”).
Following that statement, the district court denied Rosas-Gonzalez’s motion
for concurrent sentences, “[a]fter taking into consideration all of the
aforementioned.” Id. at 18 (emphasis added). The district court also stated as a
reason for imposing consecutive sentences “the fact that the defendant ha[d]
repeatedly illegally re-entered the United States.” 2 Id.; see 18 U.S.C. §
3553(a)(2)(B) (listing the need to “afford adequate deterrence to criminal
2
At the time of sentencing, Rosas-Gonzalez had previously illegally
reentered the United States on two separate occasions. R. Vol. 1, at 32.
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conduct” as one sentencing factor). Based on those statements, it is clear the
district court did not “‘rest on the guidelines alone.’” See Aplt. Br. at 9 (quoting
United States v. Sanchez-Juarez, 446 F.3d 1109, 1117 (10th Cir. 2006)). In light
of the district court’s explicit reference to the statutory factors and
Rosas-Gonzalez’s motion, the district court did not “automatic[ally]” apply §
7B1.3(f) without consideration of § 3553(a) factors. Id. at 11.
Nor is this a case where we are left “simply to assume” the sentencing
court’s reasons for imposition of a particular sentence. See Sanchez-Juarez, 446
F.3d at 1116; see also United States v. Cereceres-Zavala, 499 F.3d 1211, 1217
(10th Cir. 2007) (finding no plain error when district court cited “the PSR’s
calculation method and recitation of the suggested imprisonment range” even
though “the sentencing court provided no direct response at all to [the
defendant’s] requests for departure”). The district court’s previously described
statements at sentencing were sufficient to satisfy § 3553(c). United States v.
Lente, 647 F.3d 1021, 1034-35 (10th Cir. 2011) (quotation omitted) (describing
the requirement that a district court provide at least a general statement of its
reasons for the within-Guidelines sentence imposed, but it “need not explicitly
refer to either the § 3553(a) factors or respond to every argument for leniency that
it rejects in arriving at a reasonable sentence”). Contrary to Rosas-Gonzalez’s
assertion, the district court is not required to specifically discuss each § 3553(a)
factor. See Ruiz-Terrazas, 477 F.3d at 1202. Because the district court
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sufficiently explained the sentence imposed and considered the relevant
sentencing factors in addressing Rosas-Gonzalez’s motion for concurrent
sentences, it did not procedurally err in sentencing Rosas-Gonzalez.
IV
Affirmed.
Entered for the Court
Mary Beck Briscoe
Chief Judge
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