                                                                           FILED
                                                               United States Court of Appeals
                                                                       Tenth Circuit

                                                                       May 20, 2016
                      UNITED STATES COURT OF APPEALS
                                                                   Elisabeth A. Shumaker
                                   TENTH CIRCUIT                       Clerk of Court



 UNITED STATES OF AMERICA,

          Plaintiff - Appellee,

 v.                                                      No. 15-1430
                                              (D.C. No. 1:15-CR-00055-PAB-1)
 JUAN ALBERTO MORALES,                                    (D. Colo.)

          Defendant - Appellant.


                              ORDER AND JUDGMENT *


Before BRISCOE, BALDOCK and MURPHY, 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.

      Juan Alberto Morales, who is serving a state sentence, raises a single issue

in this direct appeal: he argues that the district court procedurally erred by


      *
        This order and judgment is not binding precedent, except under the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.
inadequately explaining its decision to impose a consecutive sentence. We

affirm.

                                          I

      In 2014, Morales pleaded guilty to state charges of attempted sexual assault

and second-degree assault. He was sentenced to eight years of supervised

probation. While on probation, Morales was involved in an incident in which he

fired a firearm multiple times into the air during a verbal altercation. As a result

of this incident, his probation was revoked, and he was sentenced to twelve- and

six-year sentences to be served concurrently.

      The same firearm incident also resulted in the federal charge underlying the

sentence now appealed. Morales was charged with possession of a firearm by a

previously convicted felon, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2).

Pursuant to a plea agreement, Morales pleaded guilty to this charge.

      Morales’s Presentence Report calculated his Guideline range at 77 to 96

months. At sentencing, each party presented arguments regarding the appropriate

length of sentence and whether his sentence should be served concurrently or

consecutively to his state term. The district court imposed a 96-month

consecutive sentence. The court relied on several factors, including the fact that

Morales’s criminal history indicated that his recurring short sentences for past

offenses had left him undeterred. The court noted Morales’s history of poor

performance under court supervision, his apparent lack of “reflection” prior to

                                          2
committing “brazen” crimes with high probabilities of being caught, the

escalating nature of his offenses, and the danger he poses to the public. ROA

Vol. 3 at 53–54. On the mitigating side of the ledger, the court also considered

Morales’s personal history, including his “terrible childhood” and his promising

commitment to care for his own children. Id. at 55. But, on balance, the district

court concluded that Morales’s extensive criminal history and the nature of his

offenses outweighed these mitigating influences. The court’s overriding concern

for the public’s safety was foremost in its sentencing decision.

       Specific to its decision to impose a consecutive sentence, the district

court stated:

       That is going to lead to a harsh result, but I simply -- I think that
       running them concurrently would be an injustice. He got those
       sentences because he deserved those sentences. And I think just
       receiving a concurrent sentence in this case I don’t think is
       appropriate at all, not when they are distinct conduct, not when they
       are conduct which is in and of itself in this case extremely
       concerning.

Id. at 57.

                                           II

       Morales concedes that he did not raise his procedural challenge in the

district court, and we therefore review only for plain error. United States v.

Gantt, 679 F.3d 1240, 1246 (10th Cir. 2012). Morales may “obtain relief under

the plain-error doctrine only if . . . (1) the district court committed error; (2) the

error was plain—that is, it was obvious under current well-settled law; (3) the

                                           3
error affected [his] substantial rights; and (4) ‘the error seriously affected the

fairness, integrity, or public reputation of judicial proceedings.’” Gantt, 679 F.3d

at 1246 (quoting United States v. Dazey, 403 F.3d 1147, 1174 (10th Cir. 2005))

(internal alterations omitted). “Because all four requirements must be met, the

failure of any one will foreclose relief and the others need not be addressed.” Id.

                                          III

         Morales only challenges the procedural reasonableness of the district

court’s decision to impose his sentence consecutive to his current state sentence.

The decision to impose sentences consecutively or concurrently is left to the

discretion of the district court. Setser v. United States, 132 S. Ct. 1463, 1468

(2012); see 18 U.S.C. § 3584(a) (“[I]f a term of imprisonment is imposed on a

defendant who is already subject to an undischarged term of imprisonment, the

terms may run concurrently or consecutively . . . .”). “The court, at the time of

sentencing, shall state in open court the reasons for its imposition of the particular

sentence,” 18 U.S.C. § 3553(c), including its decision to impose a concurrent or

consecutive sentence, United States v. Chavez, 723 F.3d 1226, 1232 (10th Cir.

2013).

         In determining whether to impose a concurrent or consecutive sentence,

district courts must consider the factors enumerated in 18 U.S.C. § 3553(a). 18

U.S.C. § 3584(b). Most relevant to Morales’s case, the § 3553(a) factors include:

         (1) the nature and circumstances of the offense and the history and

                                           4
      characteristics of the defendant; [and]

      (2) the need for the sentence imposed–

             (A) to reflect the seriousness of the offense, to promote respect
             for the law, and to provide just punishment for the offense;

             (B) to afford adequate deterrence to criminal conduct; [and]

             (C) to protect the public from further crimes of the
             defendant[.]

18 U.S.C. § 3553(a).

      “A district court commits a procedural sentencing error by failing to

consider sentencing factors enumerated in 18 U.S.C. § 3553(a) or by failing to

offer an individualized assessment of how the factors apply in a particular

criminal defendant’s case.” Chavez, 723 F.3d at 1232 (citing Gall v. United

States, 552 U.S. 38, 50–51 (2007)). But “the district court need not expressly

weigh each of the § 3553(a) factors on the record. Instead, the district court need

only ‘consider 18 U.S.C. § 3553(a) en masse and state its reasons for imposing a

given sentence.’” United States v. Rose, 185 F.3d 1108, 1113 (10th Cir. 1999)

(quoting United States v. Burdex, 100 F.3d 882, 886 (10th Cir. 1996)). “[A]bsent

a contrary indication in the record, this court will assume that a district court

weighed each of the sentencing factors set forth in § 3553(a) in exercising its

discretion pursuant to § 3584, even where the district court does not explicitly so

state at the sentencing hearing . . . .” Id. at 1111.

      The Supreme Court has addressed the sentencing judge’s responsibility to

                                            5
explain its reasons for selecting the sentence imposed. The Court has explained

that “[t]he appropriateness of brevity or length, conciseness or detail, when to

write, what to say, depends upon circumstances. . . . The law leaves much, in this

respect, to the judge’s own professional judgment.” Rita v. United States, 551

U.S. 338, 356 (2007). “The sentencing judge should set forth enough to satisfy

the appellate court that he has considered the parties’ arguments and has a

reasoned basis for exercising his own legal decisionmaking authority.” Id.; see

also Gall, 552 U.S. at 50 (requiring district courts to “adequately explain the

chosen sentence to allow for meaningful appellate review and to promote the

perception of fair sentencing”).

      In Rita, the Supreme Court considered, and rejected, the defendant’s

argument that the following oral explanation for imposing a sentence within the

Guidelines range, rather than applying a downward departure, was inadequate:

      [T]he judge concluded that he was “unable to find that the report’s
      recommended sentencing guideline range is an inappropriate
      guideline range for that, and under 3553 the public needs to be
      protected if it is true, and I must accept as true the jury verdict.” The
      court concluded: “So the [c]ourt finds that it is appropriate to enter”
      a sentence at the bottom of the Guidelines range, namely, a sentence
      of imprisonment “for a period of 33 months.”

551 U.S. at 338, 345 (internal alterations and citations omitted) (quoting

appendix). The Court noted that “[t]he record ma[de] clear that the sentencing

judge listened to each argument” from the defendant in favor of a downward

departure, including mitigating factors. Id. at 358. “The judge then simply found

                                          6
these circumstances insufficient to warrant a sentence lower than the Guidelines

range . . . . He said that this range was not ‘inappropriate.’” Id. Acknowledging

that “the judge might have said more,” the Court nonetheless found this level of

explanation “legally sufficient” based on “context and the record.” Id. at 358–59.

      In Chavez, under plain error review, we found a similarly brief explanation

sufficient for the imposition of a consecutive sentence. Although the defendant

and the government agreed that the defendant should serve his federal sentence

concurrent to an impending state sentence, the district court stated that “there

need to be consequences” for a violation of federal law “independent of the

consequences that might flow from the violation of a state law.” Chavez, 723

F.3d at 1229 (internal alterations omitted) (quoting record). The district court

explained that, in Chavez’s case, it did “not believe that it is appropriate for this

sentence to be concurrent to a state charge.” Id. at 1230 (quoting record). On

this record, we “f[ou]nd nothing . . . to overcome our presumption that the district

court weighed each of the § 3553(a) factors” because its statements “relate[d] to a

number of the factors . . . , including the seriousness of Chavez’s offense, the

need to promote respect for the law, and the need to afford adequate deterrence

for separate violations of federal law.” Id. at 1233.

      Morales argues that the district court plainly erred because the portion of

the court’s explanation specific to consecutive sentencing was inadequate. He

points out that the district court did not specifically mention 18 U.S.C. §

                                           7
3584(b)’s requirement that it consider the factors in 18 U.S.C. § 3553(a), and that

the court did not state that it had considered those factors with respect to

consecutive sentencing. He argues that the court’s discussion of § 3553(a) factors

immediately prior to its imposition of the consecutive sentence “at most explained

the court’s decision to impose a sentence at the top of the Guidelines range; it did

not justify the decision” to also impose that term consecutively. Aplt. Br. at 8

n.3. As a result, Morales contends that this court has “no information with which

to conduct a ‘meaningful appellate review,’” in contravention of Supreme Court

precedent. Aplt. Br. at 8 (quoting Gall, 552 U.S. at 50).

      We disagree. When the district court’s statements specific to consecutive

sentencing are properly viewed in the context of its entire statement, it becomes

clear that the court thoroughly considered the § 3553(a) factors. As in Rita, the

district judge listened thoroughly to Morales’s argument, and “then simply found

these circumstances insufficient” to justify the imposition of the sentence

requested. See Rita, 551 U.S. at 358 (discussing the district court’s consideration

of the defendant’s argument for a downward departure). The district court

discussed the nature of Morales’s prior convictions and the apparent failure of

those sentences to deter his criminal behavior, Morales’s personal history and

potential mitigating factors in his past, and the need to protect the public. The

court particularly noted the “extremely concerning” nature of Morales’s

dangerous conduct. ROA Vol. 3 at 57. The court concluded that Morales

                                           8
“deserved” the independent sentences for his state and federal crimes because

each sentence punished distinct conduct, and that it would be “an injustice” and

“not appropriate at all” to run those sentences concurrently. Id.

      It is evident that the district court considered “the nature and circumstances

of the offense and the history and characteristics of the defendant,” “the need for

the sentence imposed . . . to reflect the seriousness of the offense . . . and to

provide just punishment for the offense,” and the need “to protect the public from

further crimes of the defendant.” 18 U.S.C. § 3553(a). Although the district

court did not speak to every factor on the record, it need not do so. Rose, 185

F.3d at 1113. On this record, we are convinced that the district court

“consider[ed] 18 U.S.C. § 3553(a) en masse and state[d] its reasons for imposing

a given sentence,” id. (quoting Burdex, 100 F.3d at 886), sufficient to allow for

“meaningful appellate review,” Gall, 552 U.S. at 50. Nothing in this record

contradicts the “assum[ption] that a district court weighed each of the sentencing

factors set forth in § 3553(a) in exercising its discretion pursuant to § 3584.” See

Rose, 185 F.3d at 1111.

      The district court therefore did not commit plain procedural error in its

explanation of Morales’s sentence. Because Morales cannot satisfy the first two

elements of plain error review, we need not address the remaining elements. See

Gantt, 679 F.3d at 1246.




                                            9
                                  IV

The judgment of the district court is affirmed.



                                       Entered for the Court


                                       Mary Beck Briscoe
                                       Circuit Judge




                                  10
