                                                                       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        This order and judgment is not binding precedent, except under the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

                                         2
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.

                                          3
      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.

                                            4
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.


                                           5
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 §

                                           6
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.

                                           7
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

                                           8
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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