United States v. Ruiz-Terrazas

F I L E D
United States Court of Appeals
Tenth Circuit
PU BL ISH
February 26, 2007
UNITED STATES COURT O F APPEALS Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT

U N ITED STA TES O F A M ER ICA,

Plaintiff-Appellee,
v.
No. 06-2138
JAVIER RU IZ-TER RA ZA S,

Defendant-Appellant.

Appeal from the United States District Court
for the District of New M exico
(D .C . No. CR-05-2635 JC)

Charles A. Harwood, Assistant Federal Public Defender, Las Cruces, New
M exico, for Defendant-Appellant.

Terri J. Abernathy, Assistant United States Attorney (David C. Iglesias, United
States Attorney, with her on the brief), Las Cruces, New M exico, for Plaintiff-
Appellee.

Before H E N RY , A N D ER SON , and GORSUCH, Circuit Judges.

G O R SU CH, Circuit Judge.

Javier Ruiz-Terrazas contends that the district court erred when it failed to

articulate its reasons for rejecting his arguments, based on the factors set forth in

18 U.S.C. § 3553(a), that a sentence below the range recommended by the United
States Sentencing Guidelines (“U SSG” or the “Guidelines”) w as w arranted. M r.

Ruiz-Terrazas also argues that sentences falling within the Guidelines’ advisory

ranges should not be presumed reasonable and that the district court

impermissibly “double counted” his criminal history by using it to calculate not

just his proper criminal history category but also his criminal offense level. W e

are constrained to disagree with M r. Ruiz-Terrazas and affirm the district court’s

judgment.

I

In late 2005, M r. Ruiz-Terrazas pled guilty to an indictment charging him

with violating 8 U.S.C. §§ 1326(a)(1), (a)(2) and (b)(2) – that is, illegally

reentering the United States after a prior deportation which itself was initiated

after M r. R uiz-Terrazas’s commission of an aggravated felony in this country. A s

it happens, M r. Ruiz-Terrazas’s criminal history in the United States is not

limited to these matters but includes convictions for third degree assault on a law

enforcement officer, resisting arrest, refusing an order of law enforcement,

aggravated burglary, burglary of a dwelling house, as well as six other arrests

(stealing, obstructing law enforcement, third degree assault, disorderly conduct,

and two for domestic violence) for w hich no disposition information appears in

his pre-sentence report (“PSR”). 1

1
In addition, M r. Ruiz-Terrazas received numerous disciplinary reports
(continued...)

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 The PSR presented to the district court in this case recommended a base

offense level of eight and a sixteen-level enhancement, pursuant to USSG

§ 2L1.2(b)(1)(A), because of M r. Ruiz-Terrazas’s prior conviction for aggravated

burglary. The PSR further recommended a three-level downward adjustment for

acceptance of responsibility, resulting in a total offense level of 21. An offense

level of 21, coupled with a criminal history category of IV, resulted in a

recommended sentence of 57 to 71 months under the Guidelines. The PSR did

not identify any potential departure issues, and noted that its calculations were

“provided as a guide” only and were not “binding on the Court.”

On April 12, 2006, M r. Ruiz-Terrazas filed a sentencing memorandum

requesting a sentence below the range suggested by the Guidelines, based on his

assessment of the factors set out in Section 3553(a). The United States filed a

response opposing M r. Ruiz-Terrazas’s request. On April 25, 2006, M r. Ruiz-

Terrazas appeared before the district court for sentencing. Defense counsel was

permitted to argue and centered his presentation on the fact that the range

suggested by the Guidelines would treat M r. Ruiz-Terrazas “as harshly” as

1
(...continued)
while incarcerated, including for possession of contraband and fighting, and
multiple violations of probation while released. All of these events occurred
within just eight years prior to M r. Ruiz-Terrazas’s arrest on the present offense
(despite the fact that M r. Ruiz-Terrazas was incarcerated for more than two of
those years) and spanned at least four states (Colorado, Kansas, M issouri, and
New M exico).

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defendants convicted of crimes such as robbery and arson. Counsel argued that a

sentence with appropriate sensitivity to Section 3553(a) factors would be 30

months. The government argued against the lower sentence, citing the serious

nature of M r. Ruiz-Terrazas’s prior criminal history. Ultimately, the district court

denied M r. Ruiz-Terrazas’s request for a below-Guidelines sentence and imposed

a sentence of 57 months – the bottom of the Guidelines range.

Before pronouncing the sentence, the district court stated that it had

“reviewed the Presentence Report[’s] factual findings[,] . . . considered the

guideline applications[,] and the factors set forth in 18 United States Code,

Section 3553(a)(1) through (7).” The district court also noted that “the defendant

reentered the United States subsequent to being convicted of an aggravated

felony,” and its belief that the sentence advised by the Guidelines was reasonable;

the court did not, however, specifically address the Section 3553(a) arguments

M r. Ruiz-Terrazas pursued in his brief or at oral argument. M r. Ruiz-Terrazas

raised no contemporaneous objection to the district court’s explanation of his

sentence and judgment was entered on April 27, 2006.

II

a. Because M r. Ruiz-Terrazas did not object to the procedure by which

his sentence w as determined and explained, we may reverse the district court’s

judgment only in the presence of plain error. United States v. Torres-Duenas, 461

F.3d 1178, 1182-83 (10th Cir. 2006); United States v. Lopez-Flores, 444 F.3d

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1218, 1221 (10th Cir. 2006). Plain error occurs w hen there is (i) error, (ii) that is

plain, which (iii) affects the defendant’s substantial rights, and which (iv)

seriously affects the fairness, integrity, or public reputation of judicial

proceedings. Lopez-Flores, 444 F.3d at 1222.

M r. Ruiz-Terrazas does not dispute that, before imposing sentence, the

district court entertained extensive Section 3553(a) argument from his counsel,

both in writing and orally, and explained on the record that it had considered “the

factors set forth in 18 United States Code Section 3553(a)(1) through (7).” Still,

as M r. Ruiz-Terrazas notes, the district court did not specifically state why it

rejected his Section 3553(a) arguments. And it is this, M r. Ruiz-Terrazas

contends, that constitutes reversible error. Because he “raised a non-frivolous

argument implicating the 18 U.S.C. § 3553(a) sentencing factors,” M r. Ruiz-

Terrazas asserts, “the district court was required to address the argument. Since it

did not do so, remand for a new sentencing hearing is required.” A ppellant’s

Reply Brief at 2-3.

M r. Ruiz-Terrazas’s argument draws on and highlights our prior decisions

in two lines of cases associated with Lopez-Florez and United States v. Sanchez-

Juarez, 446 F.3d 1109 (10th Cir. 2006), both of w hich concern a district court’s

obligations of explanation at sentencing. The parties seem to think our lines of

cases are at odds and perhaps even irreconcilable. W e disagree and seek today to

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clarify our thinking in this area, one that has become of recurring significance for

litigants and district courts alike in our jurisdiction.

b. W e begin by noting our view that this case can be resolved at the first

step of the plain error analysis – that is, in our view, the district court committed

no error at all – because M r. Ruiz-Terrazas’s argument runs afoul of

Section 3553(c)’s plain language. W here, as here, a district court imposes a

sentence falling within the range suggested by the Guidelines, Section 3553(c)

requires the court to provide only a general statement of “the reasons for its

imposition of the particular sentence.” 2 By contrast, when imposing a sentence

outside the Guidelines range, the same statute requires a district court to state

“the specific reason for the imposition of a sentence . . . , which reasons m ust also

be stated with specificity in the written order of judgment and commitment.” 18

U.S.C. § 3553(c)(2) (emphasis added). See, e.g., United States v. Hall, 1473

F.3d 1295, 1314 (10th Cir. 2007) (requiring explanation of sentence departing by

more than 30% from Guidelines range). We do not feel at liberty to ignore

Congress’s requirement of a greater degree of explication for sentences falling

within the scope of (c)(2) than those falling within the ambit of (c)(1); the

decision by a coordinate branch of government to use the term “with specificity”

2
In addition, Section 3553(c)(1) requires the district court to state “the
reason for imposing a sentence at a particular point within the [Guidelines] range”
when imposing a sentence for w hich the Guidelines range exceeds 24 months.

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in one portion of the statute but not another is entitled to effect and our respect.

See Davis v. M ichigan D ept. of Treasury, 489 U .S. 803, 809 (1989) (“It is a

fundamental canon of statutory construction that the words of a statute must be

read in their context and with a view to their place in the overall statutory

scheme.” (internal quotation omitted)); Hain v. M ullin, 436 F.3d 1168, 1177 (10th

Cir. 2006) (Briscoe, J., dissenting) (“[I]t is necessary to examine the phrase at

issue in light of the statute as a whole. . . . The reason for doing so is clear: a

provision that may seem ambiguous in isolation is often clarified by the

remainder of the statutory scheme – because the same terminology is used

elsewhere in a context that makes its meaning clear, or because only one of the

permissible meanings produces a substantive effect that is compatible with the

rest of the law .” (internal quotation, citation, and alteration omitted)); see also

Johnson v. United States, 529 U.S. 694, 704-13 (2000) (contrasting the use of

“terminate” in a statute with the use of “revoke” in another part of the same

statute); Paper, Allied-Industrial, Chemical And Energy Workers Intern. Union v.

Continental Carbon Co., 428 F.3d 1285, 1298 (10th Cir. 2005) (hereinafter

“PACE”) (contrasting the use of “civil action” in one statute w ith the use of “civil

penalty action” in another).

c. Congress’s decision in Section 3553(c) not to require as specific a

statement of reasons for sentences imposed within the Guidelines range is

consistent with the fact that the Guidelines themselves seek, in some measure, to

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give meaning to the considerations embodied in Section 3553(a). In setting forth

the purposes and goals of the Guidelines, Congress specifically charged the

Sentencing Commission with the task of formulating a structure for sentencing

that would “assure the meeting of the purposes of sentencing as set forth in [18

U.S.C. §] 3553(a)(2).” 28 U.S.C. § 991(b)(1)(A). Congress also instructed the

Sentencing Commission to consider, “to the extent that they do have relevance,”

various factors relating to the nature and circumstances of the offense, the need

for deterrence, public policy concerns, and the history and personal characteristics

of the defendant (see 28 U.S.C. §§ 994(c) & (d)) – factors similar to those

Congress has tasked district courts with considering under Section 3553(a). See

also United States v. Johnson, 445 F.3d 339, 343 (4th Cir. 2006) (“[T]he advisory

Guidelines are not something separate and apart from Congress’s objectives in

§ 3553(a). Rather, they embody many of those objectives.”); United States v.

Shelton, 400 F.3d 1325, 1332 (11th Cir. 2005) (”[T]he factors the Sentencing

Commission was required to use in developing the Guidelines are a virtual mirror

image of the factors sentencing courts are required to consider under Booker and

§ 3553(a).”)

To be sure, it would be an exaggeration to suggest a perfect overlap

between the Sentencing Commission’s statutory charge and the factors in Section

3553(a), and some could challenge how well certain portions of the Guidelines

actually fulfill Section 3553(a)’s purposes. But there is no gainsaying that there

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is a sympathy between the goals and purposes of the Guidelines and those of

Section 3553(a), with the former acting at a greater level of generality to suggest

certain background sentencing norms and the other seeking at a greater level of

particularity to ensure many of those same norms are given appropriate effect in

the context of, and given the variations found in, individualized cases. Given this

congruence, if not identity, of purposes, Congress could, and we think did,

reasonably make a determination that different levels of specificity of reasoning

and explication are required from the district court based on how closely its own

judgment about the appropriate sentence in a particular case aligns with the

judgment embodied in the Guidelines. That is to say, Section 3553(a) and the

Guidelines may serve related (not identical) purposes and Congress not

unreasonably took this into account when prescribing the district court’s

obligations in Section 3553(c).

d. Just as w e see nothing in Section 3553(c) requiring a specific

explanation from the district court of a sentence falling within the Guidelines

range, neither do we see anything in Section 3553(a) compelling such a result.

Section 3553(a) imposes on the district court a duty to “consider” a variety of

important sentencing considerations. But it nowhere imposes on the court a duty

to address those factors on the record; by contrast, Section 3553(c) speaks

expressly to the nature of the district court’s duty to explain itself on the record.

It would be incongruous, we think, to read a duty of explanation into subsection

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(a) when the exact matter has already been considered and addressed by Congress

in subsection (c). See Johnson, 529 U.S. at 704-13; Davis, 489 U.S. at 809;

PACE, 428 F.3d at 1298.

It would also appear to be inconsistent with other background legal norms

as w ell. W e traditionally presume, absent some indication in the record

suggesting otherwise, that “‘[t]rial judges are presumed to know the law and

apply it in making their decisions.’” United States v. Russell, 109 F.3d 1503,

1512-13 (10th Cir. 1997) (quoting Walton v. Arizona, 497 U.S. 639, 652 (1990),

overruled on other grounds by Ring v. Arizona, 536 U.S. 584 (2002)). W e

likewise traditionally do not disturb decisions entrusted by statute or other rule of

law to the discretion of a district court unless we have “a definite and firm

conviction that the lower court made a clear error of judgment or exceeded the

bounds of permissible choice in the circumstances.” United States v. Weidner,

437 F.3d 1023, 1042 (10th Cir. 2006) (internal quotation omitted) (concerning the

admission of evidence). And there can be perhaps no greater example of

discretion statutorily entrusted to the district courts than the act of sentencing – a

task calling on a district court’s unique familiarity with the facts and

circumstances of a case and its judgment in balancing a host of incommensurate

and disparate considerations, ranging from the degree of the defendant’s

cooperation and remorse to the need for deterring potential future offenders. See

generally United States v. Booker, 543 U.S. 220, 233 (2005) (“W e have never

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doubted the authority of a judge to exercise broad discretion in imposing a

sentence within a statutory range.”); United States v. Aguayo-Gonzalez, 472 F.3d

809, 811 (10th Cir. 2007) (post-Booker, a “[district] court may use its discretion

to impose a sentence either within the Guidelines range or outside of it, relying on

the sentencing factors set out in 18 U.S.C. § 3553(a)”).

e. Our conclusion today is consistent with and compelled by our prior

pronouncements in this arena. W e have emphasized repeatedly the fact that,

when imposing a sentence within the properly calculated Guidelines range, a

district court must provide, as Section 3553(c) indicates by its plain language,

only “‘a general statement noting the appropriate guideline range and how it was

calculated.’” Lopez-Flores, 444 F.3d at 1222 (quoting United States v.

Underwood, 938 F.2d 1086, 1092 (10th Cir. 1991)); see also United States v.

Rines, 419 F.3d 1104, 1107 (10th Cir. 2005) (“It is true that the district court did

not march through § 3553(a)’s sentencing factors, but we have never imposed

such a requirement.”); United States v. M ares, 402 F.3d 511, 519 (5th Cir. 2005)

(“W hen the judge exercises her discretion to impose a sentence within the

Guideline range and states for the record that she is doing so, little explanation is

required.”). W e have further emphasized that this general statement need involve

no “‘ritualistic incantation to establish consideration of a legal issue, nor do w e

demand that the district court recite any magic words’” to prove that it considered

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the various factors Congress instructed it to consider. Lopez-Flores, 444 F.3d at

1222 (quoting United States v. Kelley, 359 F.3d 1302, 1305 (10th Cir. 2004)).

In holding as w e do that a specific discussion of Section 3553(a) factors is

not required for sentences falling within the ranges suggested by the G uidelines,

we pause to emphasize that we seek to delineate only the boundaries of what is

permissible conduct by a district court under our precedents and do not

necessarily mean to describe best practices. Indeed, a more detailed sentencing

explanation can often prove beneficial, even if it is not mandatory, helping to

reduce confusion among the parties, facilitate and expedite judicial review, and

provide guidance to practitioners and other defendants, enabling them to better

predict the type of sentence that will be imposed in their cases.

M r. Ruiz-Terrazas contends that, notwithstanding the plain language of

Section 3553 and our holding in Lopez-Florez, our holdings in Sanchez-Juarez

and its progeny, 3 command a different result. But this misunderstands our

precedents. The cases on which M r. Ruiz-Terrazas seeks to rest stand simply (but

significantly) for the inverse of Russell, Walton, Weidner and Lopez itself; that is,

they hold that we will step in and find error w hen the record gives us reason to

3
See United States v. Doe, No. 06-3156, 2007 W L 80724, at *3 (10th Cir.
Jan. 12, 2007) (unpub.) (“the district court did not reference any of the § 3553(a)
factors” and “we cannot discern from the record whether the district court . . .
considered . . . the § 3553(a) factors”); United States v. Serna-Valdiviezo, 191
Fed. Appx. 724, 727-28 (10th Cir. 2006) (unpub.); United States v. Vaca-Perez,
178 Fed. Appx. 841 (10th Cir. 2006) (unpub.).

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think that our ordinary (Lopez-Florez) presumption that the district court knew

and applied the law is misplaced. W hile w e are not in a position to predict all

circumstances in which we may have to step in, the problem in Sanchez-Juarez

was that (i) there was “no indication” by the district court that it had considered

the Section 3553(a) factors, and (ii) we were otherwise unable ourselves to

discern a “clear explanation of the sentence” in the record. 446 F.3d at 1116.

The same problem does not remotely apply to M r. Ruiz-Terrazas’s case. The

record before us reveals that the district court entertained M r. Ruiz-Terrazas’s

Section 3553(a) arguments at length; indicated on the record that it had

considered the Section 3553(a) factors; and proceeded to explain its reliance on

the range suggested by the sentencing Guidelines. In our view , no more is

required by statute or our precedents. 4

f. W hile in this case we have been called upon to explain and reconcile

the basis for our decisions Lopez-Florez and Sanchez-Juarez, the Supreme Court

currently has under review a case whose disposition may touch on some of these

same issues. See United States v. Rita, 177 Fed. Appx. 357 (4th Cir. 2006) cert.

granted, 75 U.S.L.W . 3246 (U.S. Nov. 3, 2006) (No. 06-5754). Given that the

4
Neither have we been pointed to any other, non-statutory basis for
suggesting that a judge must specifically address a defendant’s arguments before
rendering sentence. See, e.g., Blakely v. Washington, 542 U.S. 296, 343 (2004)
(Breyer, J., dissenting) (noting that historically trial judges at comm on law have
been afforded great “discretion within the range provided by the legislatively
labeled maximum term”).

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Court may soon speak to some of the questions we have addressed, and given that

its analysis may affect or alter our own, we think it best in this case to proceed

beyond the question of error alone to examine the remaining elements of plain

error review. In doing so, we conclude that, even if the district court committed

error and some additional level of specificity of explanation were required of it,

any such deficiency would not affect the outcome of this particular case. That is,

we find that any possible error did not affect M r. Ruiz-Terrazas’s substantial

rights or the fairness, integrity, or public reputation of judicial proceedings.

During sentencing, defense counsel argued that a 30-month sentence “should be

sufficient to deter [M r. Ruiz-Terrazas] from coming back [into the United States]”

and under Section 3553(a) his sentence should not be more than that. However,

the record before us reveals that M r. Ruiz-Terrazas previously had received a

sentence of nearly the same length, 24 months imprisonment and two years

parole, after violating his probation for an aggravated burglary in Kansas. At the

close of this sentence, M r. Ruiz-Terrazas was deported to M exico whereupon, just

ten days later, he was arrested after committing another burglary, this time in

New M exico. In light of M r. Ruiz-Terrazas’s failure to be deterred by a 24-

month sentence, we are unable to agree that a sentence of a mere six months

longer w ould, as M r. Ruiz-Terrazas argued, convince him to stop entering this

country illegally, let alone to give up his criminal activities, and the district

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court’s failure to discuss all this in detail makes it no less transparent from the

record.

III

Separately but relatedly, M r. Ruiz-Terrazas asks us to disregard our holding

in United States v. Kristl, 437 F.3d 1050 (10th Cir. 2006), that “a sentence that is

properly calculated under the Guidelines is entitled to a rebuttable presumption of

reasonableness.” Id. at 1054. Kristl has been cited for this proposition more than

40 times by panels of this Court and, for reasons w e have discussed, makes sense

of the interrelationship betw een Section 3553 and the Guidelines. Even were w e

somehow empow ered to overlook this binding precedent, or in the event our

decision in Kristl is affected by the Supreme Court’s ultimate resolution of Rita

(or Claiborne v. United States, No. 06-5618) the outcome in this case would not

change as we would be unable to conclude independently, as M r. Ruiz-Terrazas

would have us, that the sentence in his particular case was unreasonable in light

of the advisory Guidelines range, the Section 3553(a) factors, and M r. Ruiz-

Terrazas’s extensive criminal history. See supra at 3, 15.

Finally, M r. Ruiz-Terrazas argues that use of his prior criminal history to

calculate both his criminal history category and his offense level was improper

double counting; since he did not raise this argument below, our review on this

issue as well can only be for plain error. See United States v. Burbage, 365 F.3d

1174, 1180 (10th Cir. 2004). In any event, the Guidelines expressly state in

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commentary to Section 2L1.2 that, in computing a defendant’s criminal history

category, a “conviction taken into account [in calculating an offense level

enhancement] is not excluded from consideration of whether that conviction

receives criminal history points.” U.S.S.G. § 2L1.2 cmt. 6. And we have

routinely upheld as reasonable the use of prior convictions to calculate both the

criminal history category and a sentence enhancement where, as here, the

Guidelines authorize it. See Alessandroni, 982 F.2d at 421; United States v.

Florentino, 922 F.2d 1443, 1447-48 (10th Cir. 1990); see also United States v.

M urriega-Santos, No. 05-3435, 2006 W L 3291683 at *2 (10th Cir. Nov. 14, 2006)

(unpub.) (holding that double counting under Section 2L1.2 is permissible);

United States v. Hernandez-Juarez, 185 Fed. Appx. 758, 762-63 (10th Cir. 2006)

(unpub.) (same). M r. Ruiz-Terrazas has given us no reason to suggest a different

conclusion would be appropriate under the facts and circumstances of his case.

The district court’s judgment is AFFIRMED.

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