                                                                             FILED
                                                                 United States Court of Appeals
                                     PUBLISH                             Tenth Circuit

                     UNITED STATES COURT OF APPEALS                      March 16, 2018

                                                                     Elisabeth A. Shumaker
                            FOR THE TENTH CIRCUIT                        Clerk of Court
                        _________________________________


UNITED STATES OF AMERICA,

     Plaintiff - Appellee,

v.
                                                           No. 16-2141
DAVID ORTIZ-LAZARO,

     Defendant - Appellant.
                     _________________________________

                    Appeal from the United States District Court
                          for the District of New Mexico
                         (D.C. No. 1:16-CR-02006-TM-1)
                      _________________________________

Alonzo J. Padilla, Assistant Federal Public Defender, Albuquerque, New Mexico, for
Defendant-Appellant.

James R. W. Braun, Assistant United States Attorney (Damon P. Martinez, United States
Attorney, with him on the brief), Albuquerque, New Mexico, for Plaintiff-Appellee.
                        _________________________________

Before BRISCOE, SEYMOUR, and McHUGH, Circuit Judges.
                   _________________________________

SEYMOUR, Circuit Judge.
                   __________________________________
       Defendant Ortiz-Lazaro pled guilty to illegal reentry after deportation in violation

of 18 U.S.C. § 1326(a)(1) and (b)(1), and he admitted that he violated the supervised

release terms of his prior illegal reentry charge. He appeals his above-guidelines

sentence for the supervised release violation as procedurally and substantively

unreasonable. We affirm.

                                           I.

       On September 4, 2015, Mr. Ortiz-Lazaro pled guilty to one count of reentry of a

deported alien, in violation of 8 U.S.C. § 1326(a). He was sentenced to eight months in

prison and three years of supervised release, and upon his release from prison he was

deported to Mexico. One of his release conditions was that he not illegally reenter the

United States. Mr. Ortiz-Lazaro disregarded that condition and on March 19, 2016, he

was apprehended by U.S. Border Patrol agents in New Mexico and ultimately charged

with reentry after deportation in violation of 8 U.S.C. § 1326(a)(1) and (b)(1).

       Mr. Ortiz-Lazaro pled guilty to the § 1326 charge pursuant to a fast track plea

agreement. On June 14, 2016, he appeared before the district court for sentencing

concerning his most recent illegal reentry charge, and also for a hearing on revocation of

his supervised release relating to his prior illegal reentry charge. Regarding the § 1326

charge, the court noted that Mr. Ortiz-Lazaro had illegally reentered the United States a

little over a month after his most recent deportation and stated, “I mean, it’s obvious to

me that you don’t respect the law of the United States.” Supp. ROA vol. 1 at 12. The

court sentenced him to twelve months imprisonment, the high end of the guideline range

for the illegal reentry charge.

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       The district court then held a hearing on revocation of Mr. Ortiz-Lazaro’s

supervised release. He admitted to violating the supervised release terms. With respect

to sentencing, the court noted that the Grade B violation with a criminal history category

of II equated to an advisory guideline range of six to twelve months. But the court found

that several factors warranted a departure from that range, including that Mr. Ortiz-

Lazaro had illegally reentered the United States barely a month after his term of

supervised release commenced, had been deported twice before, had also been

voluntarily returned to Mexico on three prior occasions, and had previously been

convicted of serious violent offenses.

       The district court ultimately sentenced Mr. Ortiz-Lazaro to twenty-four months

imprisonment on his supervised release violation, to run consecutively to the twelve-

month sentence for his current violation of § 1326. Mr. Ortiz-Lazaro did not lodge any

objection to the court’s explanation of reasons, nor did he ask for clarification of the

material on which the court relied in imposing the sentences. The court entered judgment

on June 17, 2016, and Mr. Ortiz-Lazaro appeals.


                                             II.

       Mr. Ortiz-Lazaro makes multiple arguments on appeal. He contends that (1) his

sentence for violation of supervised release condition was both procedurally and

substantively unreasonable; (2) his due process rights were violated by the court’s

consideration of sentencing information that was not provided to him; and (3) his double




                                              3
jeopardy rights were violated because the district court punished him twice for the same

reentry. We address each argument in turn.

A. Reasonableness of Sentences

       “Since the Supreme Court's decision in Booker, which relegated the Sentencing

Guidelines to an advisory status, district courts have been free to apply any sentence that

is ‘reasonable’ under the sentencing factors listed at 18 U.S.C. § 3553(a).” United States

v. Smart, 518 F.3d 800, 803 (10th Cir. 2008) (citing United States v. Booker, 543 U.S.

220, 261 (2005)). When we review for reasonableness, our review “includes both a

procedural component, encompassing the method by which a sentence was calculated, as

well as a substantive component, which relates to the length of the resulting sentence.”

Id. Mr. Ortiz-Lazaro argues that his sentence for the supervised release violation was

both procedurally and substantively unreasonable.

       1. Procedural Reasonableness

       Mr. Ortiz-Lazaro contends that his sentence was procedurally unreasonable

because (1) the district court did not provide specific reasons at the sentencing hearing for

its deviation from the Sentencing Guideline Revocation Table; (2) it did not provide

reasons in writing for that deviation; (3) it failed to address the need for the sentence to

avoid unwarranted sentencing disparities; and (4) it ordered consecutive sentences

without weighing the pertinent sentencing factors. We normally review a defendant’s

claim of procedural unreasonableness for abuse of discretion, “under which we review de

novo the district court's legal conclusions regarding the guidelines and review its factual

findings for clear error.” United States v. Gantt, 679 F.3d 1240, 1246 (10th Cir. 2012)

                                              4
(citing United States v. Mollner, 643 F.3d 713, 714 (10th Cir. 2011)). “If, however,

Defendant did not preserve the procedural challenge below, we review only for plain

error.” Id. “We will find plain error where there is (1) error, (2) that is plain, (3) which

affects substantial rights, and (4) which seriously affects the fairness, integrity or public

reputation of judicial proceedings.” United States v. McComb, 519 F.3d 1049, 1054

(10th Cir. 2007).

       a. Failure to Provide Specific Reasons at the Sentencing Hearing

       Because Mr. Ortiz-Lazaro did not raise any objection to the adequacy of the

court’s statement of reasons for the sentence imposed, we review for plain error. Mr.

Ortiz-Lazaro fails on the first prong because he cannot show there was an error.

       In imposing a sentence for a violation of supervised release, a district court is

required to consider the policy statements contained in Chapter 7 of the Sentencing

Guidelines and a number of factors enumerated in 18 U.S.C. § 3553(a). See United

States v. Cordova, 461 F.3d 1184, 1188 (10th Cir. 2006); see also § 3583(e)(3) (“The

court may, after considering the factors set forth in section 3553(a)(1), (a)(2)(B),

(a)(2)(C), (a)(2)(D), (a)(4), (a)(5), (a)(6), and (a)(7) . . . revoke a term of supervised

release . . . .”). The court must also “explain its reasons for imposing a sentence.” United

States v. Martinez-Barragan, 545 F.3d 894, 902-03 (10th Cir. 2008); see also § 3553(c)

(“The court, at the time of sentencing, shall state in open court the reasons for its

imposition of the particular sentence . . . .”). If, as in this case, the sentence is outside the

guideline range, the court must state “the specific reason for the imposition of a sentence

different from that described, which reasons must also be stated with specificity in a

                                                5
statement of reasons form issued under section 994(w)(1)(B) of title 28.” § 3553(c)(2).

Nevertheless, when a court imposes a sentence above the guideline range for a supervised

release violation, the court “‘is not required to consider individually each factor listed in

§ 3553(a),’ nor is it required to ‘recite any magic words to show us that it fulfilled its

responsibility to be mindful of the factors that Congress has instructed it to consider’

before issuing a sentence.” Cordova, 461 F.3d at 1189 (quoting United States v.

Rodriguez-Quintanilla, 442 F.3d 1254, 1258-59 (10th Cir. 2006)).

       Mr. Ortiz-Lazaro claims that the district court “did not explain at the sentencing

hearing . . . why it concluded that the policy statement did not adequately take into

account Mr. Ortiz-Lazaro’s supervised release violation and criminal history.” Aplt. Br.

at 18. The record supports our conclusion to the contrary. In explaining why it chose to

deviate from the applicable guideline range, the district court stated the following:

               So the specific finding is that the Defendant violated conditions of
       Supervised Release by committing another crime, namely, the reentry of a
       removed alien as reflected in the District of New Mexico Case 16 Criminal
       Docket 01542 that is contained within the same record of this proceeding.
       The Court has reviewed the violation report in preparation for today and set
       -- and the factors set forth in 18, United States Code, 3553(a)(1) through
       (7).

               The Court determines that the -- under Section 7D1.1 . . . of the
       sentencing guidelines, the violation to which the Defendant admitted was
       classified as a Grade B violation. The Criminal History Category is II. A
       Grade B violation and a Criminal History Category of II establishes a
       revocation of imprisonment range of six to twelve months.

              The Court finds that the sentencing guidelines are advisory. . . .
       [T]he Court has determined that there exists the following sentencing
       factors that warrant a sentence outside the applicable guideline range: the
       nature and circumstances of the offense; the history and characteristics of
       the Defendant pursuant to 18, United States Code, Section 3553(a)(1), the

                                              6
       need to reflect the seriousness of the offense; to promote respect for the law
       and to provide just punishment for the offense pursuant to 18, United States
       Code, 3553(a)(2)(A); the need to afford adequate deterrence to criminal
       conduct pursuant to 18, United States Code, Section 3553(a)(2)(B); the
       need to protect the public from further criminal conduct of the Defendant
       pursuant to 18, United States Code, Section 3553(a)(2)(C).

              After evaluating the factors listed above, the Court finds the
       Defendant violated the terms of his Supervised Release just one month after
       the term commenced by illegally reentering the United States. The
       Defendant continues to ignore the immigration laws of the United States as
       he has been deported from the United States on two previous occasions,
       has been granted a voluntary removal on three occasions and was just
       sentenced for his third Federal immigration offense.

              Additionally, while illegally residing in the United States, the
       Defendant has been convicted of serious offenses, including a felony
       weapons related offense that involved violence, specifically, based on the
       record, the Defendant struck the victim with a tire iron causing physical
       injury and a misdemeanor harassment offense that involved violence
       against his daughter. Again, based on the record, specifically, the
       Defendant struck his daughter with a garden hose and punched her in the
       face.

               Based on these findings, the Court determines that a sentence above
       the guideline range is warranted in this case and will be reasonable and
       sufficient but not greater than necessary to accomplish the sentencing goals
       set forth in 18, United States Code, Section 3553(a).

ROA vol. 2 at 10-12 (emphasis added). The court specifically mentioned Mr. Ortiz-

Lazaro’s inability to conform his behavior to the terms of his supervised release, his

blatant disrespect for immigration laws, and the need to protect the public from his

criminal conduct. By so doing, the district court adequately fulfilled its duty under §

3553(c)(2) to “state in open court . . . the specific reason for the imposition of a sentence

different from that described,” and thus committed no error.




                                              7
       b. Failure to Provide Specific Reasons in Writing

       As we mentioned, § 3553(c)(2) also requires that the reasons for imposing a non-

guidelines sentence “be stated with specificity in a statement of reasons form issued

under section 994(w)(1)(B) of title 28.” However, there is no indication in the record that

the district court completed a written statement of reasons form in this case.

       While it does not appear that we have addressed this issue in our circuit, we are

persuaded by the holding in United States v. Pedroza-Orengo, 817 F.3d 829, 837 (1st Cir.

2016), that the error was harmless. There, reviewing a district court’s failure to submit a

written statement of reasons under § 3553(c)(2), the court concluded that even under an

abuse of discretion standard, “a sentencing court's failure to submit a statement of reasons

form will not cause us to vacate the sentence if, ‘[g]iven our review of the district court's

oral explanation, we believe that the district court would have imposed the same sentence

had it filed a written statement of reasons form.’” Pedroza-Orengo, 817 F.3d at 837

(quoting United States v. Vázquez–Martínez, 812 F.3d 18, 25 (1st Cir. 2016)). We agree

with this pronouncement and conclude that, in light of the district court’s comprehensive

explanation for its deviation from the guidelines in open court, the error it made by not

submitting a written statement of reasons was harmless.


       c. Failure to Address the Need to Avoid Unwarranted Sentencing Disparities

       Mr. Ortiz-Lazaro next contends the district court failed to address sentencing

disparities under § 3553(a)(6), which directs courts to consider “the need to avoid

unwarranted sentence disparities among defendants with similar records who have been


                                              8
found guilty of similar conduct.” Mr. Ortiz-Lazaro never argued that the above-

guidelines sentence on his supervised release violation resulted in an unwarranted

sentencing disparity. We therefore review for plain error.

       Mr. Ortiz-Lazaro has failed to satisfy the first prong of plain error review. As the

government pointed out, Aple. Br. at 14, we have said that “when a court considers what

the guidelines sentence (or sentencing range) is, it necessarily considers whether there is

a disparity between the defendant's sentence and the sentences imposed on others for the

same offense.” Gantt, 679 F.3d at 1248–49. Mr. Ortiz-Lazaro did not respond to this

assertion. The court clearly considered the advisory sentencing range, stating that “[a]

Grade B violation and a Criminal History Category of II establishes a revocation of

imprisonment range of six to twelve months.” ROA vol. 2 at 10. When the court then

explained why it was differing from those guidelines, it was necessarily considering the

sentencing disparity. Accordingly, the court did what it was required to do.


       d. Failure to Weigh the Pertinent Sentencing Factors Before Imposing a

Consecutive Sentence

       Mr. Ortiz-Lazaro also challenges the adequacy of the court’s explanation for

imposing a consecutive sentence. While he asked the district court to impose a sentence

that would run concurrently with his sentence for the subsequent reentry violation, he did

not object to the adequacy of the court’s explanation when it instead imposed a

consecutive sentence.




                                             9
       “Under 18 U.S.C. § 3584(a), a district court has the discretion to impose

consecutive or concurrent sentences.” Rodriguez-Quintanilla, 442 F.3d at 1256. Section

3584(b) provides that “[t]he court, in determining whether the terms imposed are to be

ordered to run concurrently or consecutively, shall consider . . . the factors set forth in

section 3553(a).” With respect to cases involving supervised release, § 3553(a)(4)(B)

requires the court to consider the applicable guidelines or policy statements issued by the

Sentencing Commission. The applicable policy statement concerning consecutive or

concurrent sentences states:

       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.

U.S.S.G. § 7B1.3(f) (emphasis added). The district court’s order requiring Mr. Ortiz-

Lazaro’s twelve-month sentence to run consecutively to his twenty-four-month sentence

was in accordance with the advisory policy statement.

       Mr. Ortiz-Lazaro argues that the district court “conducted no analysis of the

sentencing factors pertinent to the decision whether to impose consecutive or concurrent

sentences.” Aplt. Br. at 25. But the court stated that it had considered the § 3553(a)

factors and we do not require district courts to “consider individually each factor listed in

§ 3553(a) before issuing a sentence,” nor do we require them to “‘recite any magic

words’ to show us that [they] fulfilled [their] responibilit[ies].” United States v.

Contreras-Martinez, 409 F.3d 1236, 1242 (10th Cir. 2005) (quoting United States v.

Kelley, 359 F.3d 1302, 1305 (10th Cir. 2004)). Accordingly, “the court’s election to

                                              10
apply the Chapter 7 advisory policy statement exactly as written was not [error].” Id. at

1241.


        2. Substantive Reasonableness

        “We consider the substantive reasonableness of the length of a sentence under an

abuse-of-discretion standard.” United States v. Steele, 603 F.3d 803, 809 (10th Cir.

2010) (citing Gall v. United States, 552 U.S. 38, 51 (2007)). “A district court abuses its

discretion when it renders a judgment that is arbitrary, capricious, whimsical, or

manifestly unreasonable.” Id. (quoting United States v. Landers, 564 F.3d 1217, 1224

(10th Cir. 2009)). Mr. Ortiz-Lazaro argues that “[b]ecause of the district court’s

procedural errors, [we] cannot meaningfully review the substantive reasonableness of

[his] sentence.” Aplt. Br. at 43. As we have held, however, the district court did not

make any procedural errors. Thus, our “only question” is “whether the sentence was

reasonable—i.e., whether the District Judge abused his discretion in determining that the

§ 3553(a) factors supported [the] sentence . . . and justified a substantial deviation from

the Guidelines range.” Gall, 552 U.S. at 56. In looking at the detailed explanation the

district court gave for its deviation from the guidelines, which we quoted at length above,

we conclude that the sentence was reasonable and that the district court did not abuse its

discretion.

B. Due Process

        Mr. Ortiz-Lazaro made an argument in his brief that his “Fifth Amendment Due

Process rights were violated by the [court’s] failure to provide him with and allow him to


                                             11
address pertinent sentencing information that was apparently provided to the court.”

Aplt. Br. at 33. This argument stems from the district court’s apparent misstatement in

referencing a non-existent “violation report” during the sentencing hearing. Mr. Ortiz-

Lazaro claimed that by not being presented with this document, his due process rights

were violated. But he conceded during oral argument that there never was a violation

report and that he had suffered no harm:


       A: From what we’ve been able to determine, there was not a violation
       report.
       Q: So the court misstated, on the record, the sentencing court referred to a
       violation report but in fact there wasn’t one?
       A: That’s what it appears.
       Q: How is the Defendant harmed by that? If there in fact wasn’t one?
       A: If there was information, I think he had a right to . . . .
       Q: But if there wasn’t a report? Is there any harm?
       A: At this point, probably not.

Oral Argument at 11:05-11:29. Our review of the record leads us to the same

conclusion.1

       Accordingly, we affirm.




1
  Mr. Ortiz-Lazaro also contends the district court violated his double jeopardy rights by
punishing him twice for the same conduct. He claims that both sentences were
punishment for his most recent reentry because the court gave identical explanations for
its sentence in both judgments. He did not make this argument below, so our review is
for plain error. There is no error—Mr. Ortiz-Lazaro was sentenced for two separate
crimes. See Johnson v. United States, 529 U.S. 694, 701 (2000) (“We therefore attribute
postrevocation penalties to the original conviction.”).
                                            12
