                                                                        F I L E D
                                                                United States Court of Appeals
                                                                        Tenth Circuit
                    UNITED STATES CO URT O F APPEALS
                                                                        July 23, 2007
                                 TENTH CIRCUIT                      Elisabeth A. Shumaker
                                                                        Clerk of Court


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

               Plaintiff - Appellee,                     No. 06-1000
          v.                                            (D. Colorado)
 FR AN CISC O JA V IER CA STO RENA-               (D.C. No. 04-CR-413 LTB)
 IB ARRA,

               Defendant - Appellant.




                            OR D ER AND JUDGM ENT *


Before H E N RY, B AL DOC K , and HA RTZ, Circuit Judges.


      Francisco Javier Castorena-Ibarra pleaded guilty to conspiracy to launder

monetary instruments in violation of 18 U.S.C. § 1956(a)(1)(A)(i), (a)(1)(B)(i),

and (h). The district court sentenced him to 87 months’ imprisonment, a sentence

at the top of the advisory United States Sentencing Guidelines (“USSG ” or

“Guidelines”) range, and 3 years’ supervised release. M r. Castorena appeals the

procedural reasonableness of that sentence. W e exercise jurisdiction pursuant to



      *
         This order and judgment is not binding precedent except under the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.
28 U.S.C. § 1291 and 18 U.S.C. § 3742(a), and, reviewing for plain error, affirm.

                                I. BACKGROUND

      On September 22, 2004, M r. Castorena was charged in a five-count

indictment. Count One charged him with aiding and abetting the counterfeiting

and possession of fraudulent immigration documents in violation of 18 U.S.C. §§

2 and 1546(a); Count Two charged him with aiding and abetting the possession

with intent to use and transfer five or more false identification documents in

violation of 18 U.S.C. §§ 2 and 1028(a)(3); Count Three charged him with aiding

and abetting the possession of document-making implements w ith the intent to

use them for the production of false identification documents in violation of 18

U.S.C. §§ 2 and 1028(a)(5); Count Four charged him with aiding and abetting the

counterfeiting and possession of Social Security Cards with the intent to sell them

in violation of 18 U.S.C. § 2 and 42 U.S.C. § 408(a)(7)(C); and Count Five

charged him with conspiracy to launder monetary instruments in violation of 18

U.S.C. § 1956(a)(1)(A)(i), (a)(1)(B)(i), and (h).

      M r. Castorena and the government subsequently entered into a written plea

agreement under which M r. Castorena agreed to plead guilty to a one-count

information charging him with conspiracy to launder monetary instruments in

violation of 18 U.S.C. § 1956(a)(1)(A)(i), (a)(1)(B)(i), and (h). In exchange, the

government agreed to dismiss the indictment.

      Pursuant to the plea agreement, M r. Castorena stipulated to the conduct

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underlying the conspiracy to launder monetary instruments charge. He

specifically agreed that from around August 11, 2003 through November 14,

2003, he and several others conspired to manufacture and sell counterfeit alien

registration receipt cards, Social Security cards, and other identification

documents. He further admitted that he used and directed others to use W estern

Union money transfers in order to send and receive the proceeds from the

conspiracy to and from each other, with the intent to conceal the proceeds and

further the conspiracy. The plea agreement identified M r. Castorena as the

“organizer” of the conspiracy. Rec. vol. I, doc. 80, at 8.

        As evidence, the plea agreement identified fourteen separate money

transfers, cumulatively involving $19,050. M r. Castorena conceded that he

received these transfers knowing the proceeds came from the sale of counterfeit

identity documents and that more than one hundred counterfeit documents were

sold.

        On October 7, 2005, the district court held a plea hearing. At the hearing,

the district court orally recited the facts underlying the conspiracy to launder

monetary instruments charge and asked M r. Castorena several times whether he

understood the terms of the plea agreement. He answered the district court’s

inquiries affirmatively. Satisfied that his plea was knowing and voluntary, the

district court accepted the plea agreement.

        In preparation for sentencing, the probation officer submitted a Presentence

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Investigation Report (“PSR”). The PSR calculated a total offense level of twenty-

five. It also assigned M r. Castorena five total criminal history points: two for a

1995 conviction for fraud in connection with an immigration document and aiding

and abetting, two for a 2003 conviction for illegal re-entry following deportation,

and one because M r. Castorena committed the instant offense while on supervised

release. M r. Castorena did not receive any criminal history points for two other

prior convictions – a 1989 conviction for possession of false identification and a

1988 conviction for conspiracy to produce and transfer false identification

documents – due to their age. See USSG § 4A1.2(e). Five criminal history points

placed M r. Castorena in a criminal history category of III. An adjusted offense

level of twenty-five and a criminal history category of III yielded a suggested

sentencing range of 70 to 87 months. The PSR identified no departure issues.

      To describe the conduct underlying M r. Castorena’s guilty plea, the PSR

quoted directly from the stipulated facts in the plea agreement. See PSR ¶ 6-12.

In regard to M r. Castorena’s criminal history, the PSR stated that he was deported

following his 1995 fraud conviction. It did not indicate whether he was deported

following his three other prior convictions.

      In a section entitled “Background Information,” see PSR ¶¶ 13-20, the PSR

set forth additional facts it deemed “relevant to sentencing,” id. ¶ 4. Specifically,

this section discussed a large-scale counterfeit document manufacturer and

distributor known as the Castorena Family Organization (“CFO ”). Among other

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things, the PSR provided that (1) the CFO controlled counterfeit identity

document operations in numerous U.S. cities, including Chicago, Denver, and Los

Angeles, (2) several government investigations into the CFO ’s operations

collectively resulted in the seizure of millions of counterfeit identity documents

and the tracking of millions of dollars in proceeds from the sale of those

documents, and (3) an investigation in Denver ultimately resulted in the arrest and

prosecution of more than thirty-five CFO members, including M r. Castorena. The

PSR identified M r. Castorena as one of the CFO’s “leaders.” Id. ¶¶ 13, 20.

      In an addendum to the PSR, the probation officer recommended that M r.

Castorena receive a low-end Guidelines sentence of 70-months and three years of

supervised release. In doing so, the probation officer incorrectly stated that M r.

Castorena “has three prior federal felony convictions that, due to their ages, do

not aggravate his criminal history category.” Supp. Rec. vol. II, at R-2 (emphasis

added). The probation officer also stated, without support from the PSR’s

criminal history section, that M r. Castorena had multiple “removals.” Id. M r.

Castorena did not object to the PSR’s factual recitations or Guideline

calculations. Nor did he contest anything contained in the probation officer’s

sentencing recommendation.

      On December 21, 2005, M r. Castorena appeared before the district court for

sentencing. The government asked the court to impose a high-end Guidelines

sentence of 87 months. For support, the government emphasized M r. Castorena’s

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admitted role as “a leader/organizer” of the CFO and noted that the nationwide

investigation into the CFO had resulted “in the conviction of over a hundred

individuals, the confiscation of millions of dollars in assets, and indeed this

organization has been responsible for millions of counterfeit identity documents.”

R ec. vol. II, at 4. In response, M r. Castorena’s defense counsel requested a low-

end Guidelines sentence of 70 months. For support, defense counsel pointed out

that a 70-month sentence would already be “significantly longer than any

sentence received by any other co-conspirator or involved individual in the

actions [the government] is discussing with the Court.” Id. at 6.

      After adopting the PSR’s factual findings and Guidelines calculations

without objection, the district court sentenced M r. Castorena to 87 months’

imprisonment and 3 years’ supervised release. Although it acknowledged an 87-

month sentence was “not necessarily . . . proportionate” to the sentences imposed

on others associated with the CFO , the court concluded several other factors set

forth in 18 U.S.C. § 3553(a) “outweigh[ed] the disparity.” 1 Id. at 10.

      In discussing the nature and circumstances of M r. Castorena’s offense, the

court observed:



      1
         Included among the § 3553(a) factors are (1) the nature and
circumstances of the offense; (2) the history and characteristics of the defendant;
(3) the need to reflect the seriousness of the offense, to promote respect for the
law, and to provide just punishment for the offense; (4) the need for deterrence;
(5) the need to protect the public; (6) the Sentencing Guidelines range; and (7) the
need to avoid unwanted sentencing disparities. 18 U.S.C. § 3553(a).

                                          -6-
       The breadth and scope of the criminal conduct in your case for which
       you are an organizer and leader is simply breathtaking. That, of course,
       is summarized by government counsel and is more graphically set forth
       and explained in paragraphs 13 through 20 of the Presentence Report.
       M illions of counterfeit identity documents, millions of dollars in benefit
       from these illicit gains.

       W ell, the production of one counterfeit document for an immigrant into
       this country is probably no big deal, but we have millions here. . . .
       W hat is so striking about the breadth and scope of your organization is
       nothing less than striking at the heart of the sovereignty of the United
       States of America. Every nation, state, be it the United States of
       America, the Republic of M exico, has a sovereign right to control its
       borders. And what you and your organization has [sic] done is strike
       at the very heart of that sovereign right of this country.

       That is one reason w hy your offense under the circumstances of your
       case that is before me is so egregiously serious.

Id. at 7-8.

       Turning to his criminal history and characteristics, the district court noted

that M r. Castorena “repeatedly violated the law of this country by entering this

country illegally.” Id. at 9. Ostensibly relying on the misstatement in the

probation officer’s sentencing recommendation, the court further observed that

M r. Castorena had “three prior federal felonies that because of their age aren’t

counted in calculating under the advice of the Guidelines.” Id. (emphasis added).

Still focusing on M r. Castorena’s criminal history, the court next propounded that

       [w]hat is also remarkable is that your prior criminal conduct is the same
       type of criminal conduct that brings you here today. This tells me that
       in terms of your history and characteristics you have a total disregard
       for the law s of this country in order to reap substantial financial gain
       through the violation of that law. And prior sentences haven’t deterred
       you one bit.

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      Even under the advice of these Guidelines it would not be unreasonable
      for me to sentence you to a term of imprisonment above the 87 months.

Id.

      The court then reasoned that imposing an 87-month sentence would

promote respect for the law, “have a deterrent effect on others,” and “protect[] the

public and this Republic from further crimes.” Id. at 10. This timely appeal

followed.

                                 II. DISCUSSION

      Post-Booker, we review sentencing decisions for reasonableness. Rita v.

United States, 127 S. Ct. 2456, 2464 (2007); United States v. Kristl, 437 F.3d

1050, 1054 (10th Cir. 2006) (per curiam). Reasonableness has both procedural

and substantive components which encompass, respectively, “the method by

which the sentence was calculated” and “the length of the sentence.” Kristl, 437

F.3d at 1055 (emphasis omitted).

      On appeal, M r. Castorena declines to attack the length of his 87-month

prison term and thus concedes his sentence is substantively reasonable. Instead,

he styles a procedural reasonableness challenge, arguing that the district court’s

method of imposing his sentence was flawed because it misunderstood the

uncontested facts set forth in the PSR. Focusing on the district court’s

explanation of his high-end Guidelines sentence, he contends the court incorrectly

believed that (1) his “offense conduct encompassed extensive activity that pre-



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dated the [charged conduct],” (2) “the [PSR] showed a greater pattern of illegal

reentry than it did”; and (3) he “had three felony convictions not counted due to

their age, rather than two.” A plt’s Br. at 2 (emphasis added).

      Because M r. Castorena did not call these alleged errors to the district

court’s attention at the sentencing hearing, we review for only plain error. United

States v. Ruiz-Terrazas, 477 F.3d 1196, 1199 (10th Cir. 2007). For M r. Castorena

to prevail under this standard, he must establish there is (1) “error,” (2) “that is

plain,” and (3) “that affects substantial rights.” United States v. Olano, 507 U.S.

725, 732 (1993) (internal quotation marks and alteration omitted). If all three

conditions are satisfied, we may exercise our discretion to notice the error, but

only if (4) the error “seriously affects the fairness, integrity or public reputation

of judicial proceedings.” Id. (internal quotation marks and alteration omitted).

Applying this stringent standard, we address the three errors alleged by M r.

Castorena in turn.

A. O FFENSE C ONDUCT

      M r. Castorena first argues the district court erred in assessing the

seriousness of the conduct underlying his guilty plea to conspiracy to launder

monetary instruments because it “mistakenly conflated” that conduct with the

uncontested facts set forth in the “Background Information” section of the PSR.

Aplt’s Br. at 23. As evidence of this alleged error, M r. Castorena points out,

among other things, that even though his offense conduct only involved

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approximately $19,000 from the sale of one hundred or more counterfeit

documents, the district court stated at sentencing that “[t]he breadth and scope of

the criminal conduct in your case for which you are an organizer is simply

breathtaking” because it involved “[m]illions of counterfeit identity documents

[and] millions of dollars in benefit from these illicit gains.” Rec. vol. II, at 7

(emphasis added).

      W hile the language employed by the district court during sentencing was

perhaps imprecise, we find M r. Castorena’s allegation of error far-fetched. First,

the record indicates the court was w ell-aw are of the facts underlying M r.

Castorena’s guilty plea. Indeed, the court read them aloud at the plea hearing,

which occurred less than three months before the sentencing hearing. M oreover,

just prior to making the allegedly erroneous statements, the district court

explicitly referenced the paragraphs comprising the PSR’s “Background

Information” section. See Rec. vol. II, at 7. Because this section is clearly set-

off from the PSR’s recitation of the offense conduct, it is evident to us the court

referred to the uncontested facts therein as uncharged, relevant conduct justifying

M r. Castorena’s high-end Guidelines sentence. This is undisputedly proper. See

United States v. Rodriguez-Felix, 450 F.3d 1117, 1131 (10th Cir. 2006) (“In the

aftermath of Booker, we have routinely permitted a district court to enhance a

defendant’s sentence using uncharged conduct proven to the court by a

preponderance of the evidence.”).

                                          -10-
      Accordingly, we conclude there was no error and need not address the

remaining disjunctive plain error elements.

B. U NLAWFUL E NTRIES

      M r. Castorena next argues the district court erred in stating that his 87-

month sentence was justified, in part, because he had “repeatedly violated the law

of this country by entering this country illegally.” Rec. vol. II, at 9 (emphasis

added). Although the district court’s statement concerned illegal entries, M r.

Castorena premises this challenge on the lack of explicit information in the PSR

regarding the removal actions taken by the United States – if any – following

three of his four prior convictions. He emphasizes that the PSR, in discussing his

criminal history, only provides that he was deported after his 1995 fraud

conviction; it does not indicate whether he was removed after his 1988, 1989, and

2003 convictions.

      Despite the lack of specific information regarding removals, the undisputed

facts in the PSR suggest that M r. Castorena, an illegal alien, unlawfully entered

the country at least three times: (1) w hen he “first entered the United States in

1982,” PSR ¶ 70; (2) prior to his 1995 fraud conviction as he admitted

“return[ing] to M exico” for an unspecified period of time after “resid[ing]in

Northridge, California, from 1990 to 1993,” id.; and (3) before his 2003

conviction for illegal reentry following deportation. These facts are more than

sufficient to support the district court’s statement that M r. Castorena “repeatedly”

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entered the country illegally. See 13 Oxford English Dictionary 635 (2d ed.

1989) (repeatedly: “M ore than once, again and again, frequently”).

      W e therefore conclude the district court comm itted no error and, as above,

do not move beyond the first plain error review prong.

C. P RIOR C ONVICTIONS

      Finally, M r. Castorena asserts the district court erred in stating his 87-

month sentence was justified, in part, because he had three prior convictions

unaccounted for in his criminal history score. Because M r. Castorena had only

two such convictions, it is clear the district court erred and that such error was

plain. W e thus turn to the third prong of plain error review, asking whether M r.

Castorena has shown that the district court’s error affected his substantial rights.

      “For an error to have affected substantial rights, ‘the error must have been

prejudicial: It must have affected the outcome of the district court proceedings.’”

United States v. Dazey, 403 F.3d 1147, 1175 (10th Cir. 2005) (quoting Olano, 507

U.S. at 725). W e have held that an error is prejudicial when there is a

“reasonable probability” that the district court would have imposed a more lenient

sentence had it not made the error. Id. (internal quotation marks omitted).

      There is no such probability here. At sentencing, the district court

supported its imposition of a high-end Guidelines sentence with a litany of

reasons that, according to the court, could have justified a “a term of

imprisonment above . . . 87 months.” Rec. vol. II, at 9 (emphasis added). During

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its discussion of these reasons, the court placed relatively little emphasis on the

number of convictions unaccounted for in M r. Castorena’s criminal history score.

It instead focused on the “egregiously serious” nature of M r. Castorena’s offense

conduct and his admitted role in the C FO. Id. at 8. Even when discussing M r.

Castorena’s prior convictions, the court did not dwell on their number but their

nature. Indeed, the court stated that it was “remarkable” that M r. Castorena’s

offense conduct was of the “same type” as the conduct underlying several of his

prior convictions and that this demonstrated “a total disregard for the law s of this

country in order to reap substantial financial gain through the violation of that

law .” Id. at 9. The court further remarked that an 87-month sentence would

protect the public because M r. Castorena’s recidivism indicated that he had “no

inclination to comport [his] conduct with the law of this country.” Id. at 10.

      In light of these compelling statements, there is (at most) a miniscule

likelihood that the district court would have imposed a lesser sentence had it been

aware that M r. Castorena had two, rather than three, convictions unaccounted for

in his criminal history score. W e therefore find that M r. Castorena has not

satisfied his burden of establishing that the district court’s error affected his

substantial rights so as to satisfy the third plain error prong. Even assuming this

error somehow affected M r. Castorena’s substantial rights, we cannot say it

“seriously affect[s] the fairness, integrity or public reputation of judicial

proceedings” under the fourth plain error prong. Olano, 507 U.S. at 732 (citation

                                          -13-
and internal quotation marks omitted).

                               III. CONCLUSION

      For the reasons detailed above, the sentence imposed by the district court is

A FFIRME D.

                                                Entered for the Court,


                                                Robert H. Henry
                                                Circuit Judge




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