United States v. Izaguirre-Losoya

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).

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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.

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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.

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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)).

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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.

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AFFIRMED.

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