                                                                         FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                                                                  August 19, 2009
                    UNITED STATES COURT OF APPEALS
                                                 Elisabeth A. Shumaker
                                                                    Clerk of Court
                                 TENTH CIRCUIT



 UNITED STATES OF AMERICA,

               Plaintiff- Appellee,                      No. 09-1043
          v.                                             (D. Colorado)
 ERNEST LEO VALDEZ,                           (D.C. No. 1:08-CR-00129-JLK-1)

               Defendant - Appellant.


                            ORDER AND JUDGMENT *


Before LUCERO, MURPHY, and McCONNELL, Circuit Judges.



      After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist in the determination

of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.

I.    Introduction

      Appellant Ernest Leo Valdez pleaded guilty to one count of unlawful

possession of a machine gun, in violation of 18 U.S.C. §§ 922(o) and 924(a)(2).


      *
        This order and judgment is not binding precedent except under the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.
The district court sentenced him to twenty-four months’ imprisonment, the low

end of the advisory guidelines range. Valdez now appeals his sentence, arguing

the district court erred by failing to explicitly state its reasons for rejecting the

arguments made in his written request for a variance. Exercising jurisdiction

pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a), we affirm Valdez’s

sentence.

II.   Background

      During a 2008 search of Valdez’s residence by federal and local law

enforcement officers, a Sten machine gun and a videotape were seized. Valdez

made the videotape by surreptitiously filming his stepdaughter in the bathroom

while she was undressing and showering. Valdez was charged with misdemeanor

unlawful sexual contact, in violation of Colorado state law. He pleaded guilty to

the charge and was sentenced to eighteen months’ imprisonment.

      While the Colorado state charges were pending, a federal grand jury

indicted Valdez for unlawfully possessing a machine gun, in violation of 18

U.S.C. §§ 922(o) and 924(a)(2). Valdez pleaded guilty and the United States

Probation Office prepared a Presentence Investigation Report (“PSR”). The PSR

computed Valdez’s total offense level to be fifteen. It computed his criminal

history score to be four, assigning one point for a 2001 theft conviction and three

points for the recent Colorado conviction for unlawful sexual contact. Valdez’s

criminal history score corresponded to a Criminal History Category III. Based on

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the Criminal History Category and offense level, the PSR calculated the advisory

guidelines range at twenty-four to thirty months’ imprisonment.

       Valdez did not object to the calculation of the advisory guidelines range,

but he filed a written request for a downward variance from that range. He

argued the sequence of prosecutions stemming from the 2008 search of his

residence had the effect of increasing his criminal history score by three points.

According to Valdez, if the federal case had proceeded before the state case, his

advisory guidelines range would be eighteen to twenty-four months’ and he would

have had the opportunity to ask the state court to run its sentence concurrently

with the federal sentence. During the sentencing hearing, Valdez referenced his

written arguments when he asked the district court to impose a concurrent

sentence. Based on its consideration of the § 3553(a) factors, the district court

imposed a twenty-four-month sentence: the bottom of the advisory guidelines

range. When it imposed the sentence, the court did not reference or expressly

address the reasons Valdez asserted as justification for a downward variance.

Valdez did not contemporaneously object to the sufficiency of the district court’s

explanation.

III.   Discussion

       Valdez argues his sentence is procedurally unreasonable because the

district court did not adequately explain its reasons for rejecting his non-frivolous

arguments for a downward variance. Because Valdez did not contemporaneously

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raise this alleged procedural error during the sentencing hearing, we review his

claim for plain error. United States v. Ruiz-Terrazas, 477 F.3d 1196, 1199 (10th

Cir. 2007).

      In Ruiz-Terrazas, this court addressed the very issue raised by Valdez in

this appeal. Id. at 1199. We held that “a specific discussion of Section 3553(a)

factors is not required for sentences falling within the ranges suggested by the

Guidelines.” Id. at 1202. Because Valdez’s sentence fell within a properly

calculated advisory guidelines range, the district court did not commit plain error

by failing to specifically address each of his arguments at the sentencing hearing. 1

IV.   Conclusion

      The sentence imposed by the district court is affirmed.

                                               ENTERED FOR THE COURT


                                               Michael R. Murphy
                                               Circuit Judge




      1
       Valdez acknowledges his argument is foreclosed by this court’s precedent
but advises the court he has raised the issue in this appeal to preserve it for
further review in light of the conflicting resolutions of the issue by the Third and
Sixth Circuit Courts of Appeals. See United States v. Sevilla, 541 F.3d 226, 232
(3d Cir. 2008); United States v. Peters, 512 F.3d 787, 788-89 (6th Cir. 2008).

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