F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
August 28, 2006
UNITED STATES CO URT 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. 06-1062
JOSE CRESCENCIO TO RRES-
DUEN AS, a/k/a JOE TO RR ES,
Defendant - Appellant.
A PPE AL FR OM T HE UNITED STATES DISTRICT COURT
FO R TH E D ISTR IC T O F C OLO RA DO *
(D .C . NO. 05-CR-00372-W YD)
Submitted on the briefs:
Raymond P. M oore, Federal Public Defender, Edward A. Pluss, Assistant Federal
Public D efender, Lynn C. Hartfield, Research & W riting Attorney, Denver,
Colorado, for Defendant - Appellant.
W illiam J. Leone, United States Attorney, Robert Brown, John M . Hutchins,
Assistant United States Attorneys, Denver, Colorado, for Plaintiff - Appellee.
Before HA RTZ, EBEL, and T YM KOVICH, Circuit Judges.
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*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
ordered submitted without oral argument.
HA RTZ, Circuit Judge.
Jose Torres-Duenas pleaded guilty in the United States District Court for
the District of Colorado to illegal reentry by a person previously deported for an
aggravated felony, see 8 U.S.C. § 1326(a) and (b)(2). He was sentenced to 41
months’ imprisonment. On appeal he contends that (1) the district court erred in
enhancing his sentence based on a felony kidnapping conviction that was nearly
two decades old, (2) his sentence is unreasonable, and (3) sentences within a
properly calculated range under the United States Sentencing Guidelines (USSG )
should not be presumed reasonable. W e have jurisdiction under 28 U.S.C.
§ 1291, and conclude that (1) the enhancement was not plain error, (2) the
sentence was reasonable, and (3) we must follow the decision of a prior panel of
this court that sentences w ithin a properly calculated Guidelines range are
presumptively reasonable. W e affirm the judgment of the district court.
I. B ACKGR OU N D
The presentence report (PSR) for M r. Torres-Duenas assigned a base
offense level of 8, which was increased by 16 levels because of a previous felony
kidnapping conviction, and then reduced 3 levels for acceptance of responsibility,
creating a total offense level of 21. The PSR initially placed M r. Torres-Duenas
in criminal-history category III, but after objection this was reduced to category
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II, because he had not been sentenced, or served any portion of his sentence, for
the kidnapping within the prior 15 years. See USSG § 4A1.2(e)(1) and (3). W ith
a total offense level of 21 and criminal-history category II, the advisory
Guidelines range was 41 to 51 months’ imprisonment.
At sentencing, M r. Torres-Duenas requested a variance from the Guidelines
range, contending that his case was “unusual” because his “felony conviction is
almost 20 years old. And that occurred when he was certainly much
younger . . . .” R. Vol. II at 5. The district court, however, noted the seriousness
of the prior offense, as described in the PSR. The PSR states that M r. Torres-
Duenas and two codefendants abducted a waitress from a bar at gunpoint, placed
a cloth over her head, forced her into a vehicle, and took her to a residence. On
the way to the residence she heard one of the abductors say that they were being
followed. “At the residence, they had her lay [sic] down on a sofa, and she was
threatened if she made any noise. W ith the cloth still over her head, the victim
stated she could hear a helicopter directly above the house. The suspects began
arguing, and then she felt hands grabbing her about the breasts and crotch area.
Her stockings were also being removed.” R. Vol. III at 7 ¶ 36. One of the
suspects then told her to put her clothes on. “She was taken back to the vehicle,
and later pushed out of the vehicle by the suspects.” Id.
M r. Torres-Duenas’s defense counsel stated that, given M r. Torres-
Duenas’s sentence (he served just over two years for the offense), “[i]t would be
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my guess . . . that he w as one of the less culpable” of the codefendants. R. Vol. II
at 6. Defense counsel also pointed out that “in the 20 years since that offense,
there has [sic] not been any felony allegations against the defendant . . . [and] no
real police contacts other than the drinking and driving offenses.” Id. at 7.
Noting the advisory Guidelines range and the factors set forth in 18 U.S.C.
§ 3553(a), the district court stated that although the kidnapping conviction could
not be included in the criminal-history calculation, it “has other significance” and
has “some bearing on the Court’s consideration of sentencing factors” because of
the seriousness of the offense. Id. at 14. The court also commented that
M r. Torres-Duenas’s “multiple violations of the immigration laws of this country
is indicative of his inability to indicate through his actions respect for the law.”
Id. at 15. M r. Torres-Duenas was sentenced to 41 months’ imprisonment, the
bottom of the advisory range.
II. D ISC USSIO N
A. 16-Level Enhancement
M r. Torres-Duenas first contends that the district court erred in enhancing
his sentence 16 levels based on his prior kidnapping conviction. He did not raise
this claim below, so we review it only for plain error. “Plain error occurs when
there is (1) error, (2) that is plain, which (3) affects substantial rights, and which
(4) seriously affects the fairness, integrity, or public reputation of judicial
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proceedings.” United States v. Gonzalez-Huerta, 403 F.3d 727, 732 (10th Cir.
2005) (en banc) (internal quotation marks omitted).
USSG § 2L1.2(a) establishes a base offense level of 8 for illegal reentry.
Subsection (b)(1)(A ) increases this by 16 levels
[i]f the defendant previously was deported, or unlaw fully remained in
the U nited States, after—
(A) a conviction for a felony that is (i) a drug trafficking
offense for which the sentence imposed exceeded 13
months; (ii) a crime of violence; (iii) a firearms offense;
(iv) a child pornography offense; (v) a national security
or terrorism offense; (vi) a human trafficking offense; or
(vii) an alien smuggling offense . . . .
(emphasis added). The definition of crime of violence in the commentary to this
section sets no time limit on the age of a prior conviction. 1 Two other provisions
in the commentary to this section, however, explicitly state that they apply
“without regard to the date of conviction.” First, comment 1(B)(viii) states:
“Sentence imposed” has the meaning given the term ‘sentence of
imprisonment’ in Application Note 2 and subsection (b) of § 4A1.2
(Definitions and Instructions for Computing Criminal History),
without regard to the date of the conviction. The length of the
sentence imposed includes any term of imprisonment given upon
revocation of probation, parole, or supervised release.
1
USSG § 2L1.2 cmt. 1(B)(iii) states: “‘Crime of violence’ means any of the
following: murder, manslaughter, kidnapping, aggravated assault, forcible sex
offenses, statutory rape, sexual abuse of a minor, robbery, arson, extortion, extortionate
extension of credit, burglary of a dwelling, or any offense under federal, state, or local
law that has as an element the use, attempted use, or threatened use of physical force
against the person of another.”
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(emphasis added). Second, comment 3(A) states that aggravated felony (a term
that appears in § 2L1.2(b)(1)(C)) “has the meaning given that term in section
101(a)(43) of the Immigration and Nationality Act (8 U .S.C. § 1101(a)(43)),
without regard to the date of conviction for the aggravated felony.” (emphasis
added).
M r. Torres-Duenas relies on the canon of construction expressio unius est
exclusio alterius to contend that the use of the phrase “without regard to the date
of conviction” twice in this section, combined with its absence in the definition of
crime of violence, demonstrates that a crime of violence is not to be considered
without regard to the date of conviction. He then contends that the time limit that
should apply to enhancements for a prior crime of violence under § 2L1.2 is the
limit found in § 4A1.2(e). Section 4A1.2(e)(1) states that in calculating a
defendant’s criminal history,
[a]ny prior sentence of imprisonment exceeding one year and one
month that was imposed within fifteen years of the defendant’s
commencement of the instant offense is counted. Also count any
prior sentence of imprisonment exceeding one year and one month,
whenever imposed, that resulted in the defendant being incarcerated
during any part of such fifteen-year period.
Such a sentence not within that time period “is not counted.” Id. § 4A1.2(e)(3).
M r. Torres-Duenas concludes: “Because the plain language of the crime of
violence definition does not lift the time restriction otherwise imposed by the
Guidelines, it was error for the court to use the prior conviction— which was
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conceded by all parties to be time-barred under § 4A 1.2— to enhance M r. Torres-
Duenas’ offense level by sixteen points” under § 2L1.2. Aplt. Br. at 13.
Only one other circuit court has addressed this issue. In United States v.
Camacho-Ibarquen, 410 F.3d 1307 (11th Cir. 2005), the court rejected an
identical claim for three reasons: First, “if the Sentencing Commission had
intended § 2L1.2(b)(A)-(E) to mean what [the defendant] argues, there is no
reason the Commission would not have written an explicit time restriction into
that guideline,” just as it did with other G uidelines. Id. at 1313. “W e are more
inclined to find that, because other guidelines sections have explicit time
restrictions on the application of convictions, the omission of such a restriction in
§ 2L1.2 means that none was intended for that section.” Id. Second, it is “highly
unlikely that the Sentencing Commission intended that § 2L1.2 should have a
time period restriction of unspecified length.” Id. (emphasis added). One might
say (as does M r. Torres-Duenas) that the limitations in the criminal-history
provisions should apply, “[b]ut there is no reason to choose these provisions over
any others.” Id. Finally, the inclusion of the phrase “without regard to the date
of conviction” in the § 2L1.2 definitions of aggravated felony and sentence
imposed can be attributed to those definitions being borrowed from other
provisions.
Each of those [borrowed] provisions has language limiting the time
period in which certain kinds of convictions can apply. It is entirely
possible, indeed likely, that the Sentencing Commission wanted to
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import into § 2L1.2 the substantive definitions from these other
provisions, but not the time limitations they contain, and that is the
reason it added the “without regard to the date of conviction”
language in the application notes defining “sentence imposed” and
“aggravated felony.”
Id.
This reasoning is persuasive. In our view , the language “without regard to
the date of conviction” in the definitions of sentence imposed and aggravated
felony implies the opposite of what M r. Torres-D uenas contends. In both
instances, commentary to § 2L1.2 borrowed definitions from other provisions but
altered the borrowed definitions by eliminating age limits. These alterations to
the borrowed definitions evince an intent to treat all prior convictions the same,
regardless of their age, for purposes of § 2L1.2. W hy, if age limits are explicitly
eliminated from borrow ed definitions, should w e assume that age limits are
implicitly imported into unborrowed definitions that contain no explicit age
limits?
In any event, we need not agree fully with the Eleventh Circuit in order to
hold that no plain error occurred here. Even if the district court erred, the error
certainly was not “plain.” See United States v. Olano, 507 U.S. 725, 734 (1993)
(“‘Plain’ is synonymous with ‘clear’ or, equivalently, ‘obvious.’ . . . [C]ourt[s] of
appeals cannot correct an error pursuant to Rule 52(b) unless the error is clear
under current law .”); United States v. Jones, 108 F.3d 668, 671 (6th Cir. 1997)
(error was not plain when “[t]here is only sparse case law addressing this
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question, and what little case law exists is divergent and conflicting”). W e will
not reverse on this ground.
B. Reasonableness of Sentence
M r. Torres-Duenas also contends that even “[i]f . . . this Court finds the
advisory guideline range to be properly calculated, . . . his sentence was
unreasonable.” Aplt. Br. at 17. See United States v. Kristl, 437 F.3d 1050, 1053
(10th Cir. 2006) (“[T]he proper standard of review for sentences imposed post-
[United States v.] Booker[, 543 U.S. 220 (2005)] is ‘reasonableness.’”). The
government argues that we should review this claim only for plain error because
M r. Torres-D uenas did not specifically object to the reasonableness of his
sentence in district court. We require reasonableness in two respects— “the length
of the sentence, as well as the method by which the sentence was calculated.” Id.
at 1055. W e have held that when the defendant fails to object to the method by
which the sentence w as determined, such as a claim that the G uidelines were
misapplied or that the court did not adequately explain the sentence with
reference to the factors set forth in 18 U.S.C. § 3553(a), we review only for plain
error. See United States v. Lopez-Flores, 444 F.3d 1218, 1221 (10th Cir. 2006).
But when the claim is merely that the sentence is unreasonably long, we do not
require the defendant to object in order to preserve the issue. See id; United
States v. Castro-Juarez, 425 F.3d 430, 433-34 (7th Cir. 2005). Thus, we do not
review for plain error.
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Instead, we review merely for “reasonableness” of the sentence’s length. In
this regard,
[r]easonableness review is guided by the factors set forth in 18
U.S.C. § 3553(a), which include the nature of the offense and
characteristics of the defendant, as well as the need for the sentence
to reflect the seriousness of the crime, to provide adequate
deterrence, to protect the public, and to provide the defendant with
needed training or treatment.
Kristl, 437 F.3d at 1053 (internal citation omitted). A sentence within a properly
calculated Guidelines range is entitled to a presumption of reasonableness. Id. at
1054. “This is a deferential standard that either the defendant or the government
may rebut by demonstrating that the sentence is unreasonable when viewed
against the other factors delineated in § 3553(a).” Id.
At sentencing, M r. Torres-Duenas contended that the § 3553(a) factors,
other than the Guidelines, warranted a lower sentence. In particular, he asserted
that the age of his prior conviction, his likely minor role in that offense, and the
intervening lack of any serious involvement with law enforcement, warranted a
variance from the Guidelines. The district court appropriately considered each of
these contentions and noted countervailing considerations, including the absence
of anything in the record showing that M r. Torres-Duenas was a minor participant
in the kidnapping, the serious nature of that crime, and M r. Torres-Duenas’s
multiple violations of immigration law. M r. Torres-Duenas contends that the
court missed the point, because “the advisory guidelines range already reflected
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that the offense was serious,” Aplt. Br. at 19, and already accounted for his prior
immigration offenses. But the court did not impose a sentence above the
Guidelines range, so there was no double counting. The court simply found that
M r. Torres-Duenas’s arguments could not justify imposition of a sentence below
that range, although it did impose a sentence at the bottom of the range. The 41-
month sentence imposed by the district court was reasonable.
C. Presum ption of Reasonableness
Finally, M r. Torres-Duenas contends that this court erred in Kristl, 437
F.3d at 1054, in finding that a sentence within a properly calculated Guidelines
range is entitled to a presumption of reasonableness. As he notes, however,
Kristl is controlling in this circuit, and absent en banc review or intervening
Supreme Court precedent, we cannot overturn another panel’s decision. See
United States v. Brothers, 438 F.3d 1068, 1074 (10th Cir. 2006).
III. C ON CLU SIO N
W e AFFIRM the judgment of the district court.
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