                                                                       FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                                                                  August 25, 2009
                    UNITED STATES COURT OF APPEALS
                                                 Elisabeth A. Shumaker
                                                                    Clerk of Court
                                 TENTH CIRCUIT



 UNITED STATES OF AMERICA,

               Plaintiff - Appellee,                     No. 08-2240
          v.                                          (D. New Mexico)
 RAMON GONZALEZ-PEREZ,                        (D.C. No. 2:03-CR-01797-RB-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

      Defendant-Appellant Ramon Gonzalez-Perez pleaded guilty to violating the

conditions of supervised release and re-entry by a removed felon in violation of 8


      *
        This order and judgment is not binding precedent except under the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.
U.S.C. § 1326(a)(1), (2), (b)(2). The district court imposed a sentence of thirty-

three months’ imprisonment for the re-entry conviction and eighteen months’

imprisonment for the supervised release violation and ordered the two sentences

to run consecutively. Gonzalez-Perez raises two issues on appeal. He argues the

district court abused its discretion in running the two sentences consecutively, and

he argues the cumulative term of imprisonment is unreasonable. Exercising

jurisdiction pursuant to 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291, we affirm the

district court on both issues.

II. Background

      Gonzalez-Perez was apprehended in southern New Mexico and charged

with re-entry by a removed felon. At the time, he was on supervised release for a

previous illegal re-entry conviction. Gonzalez-Perez pleaded guilty to re-entry by

a removed felon and violating the conditions of supervised release.

      Because of a fast-track plea agreement, the advisory guidelines range for

the re-entry conviction was thirty-three to forty-one months’ imprisonment, and

the guidelines range for the supervised release violation was eighteen to twenty-

four months’ imprisonment. At his sentencing hearing, Gonzalez-Perez did not

challenge the computation of these ranges. Instead, he asked for some part of his

supervised release violation sentence to run concurrently with his re-entry

sentence. After hearing this request, and before imposing sentence, the district

court noted Gonzalez-Perez had an extensive criminal history over a period of

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fifteen years, including multiple illegal re-entries, and stated Gonzalez-Perez was

not as sympathetic as first-time offenders. The district court then sentenced

Gonzalez-Perez to thirty-three months’ imprisonment on the re-entry charge and

eighteen months’ imprisonment on the supervised release violation. The two

sentences were run consecutively.

III. Discussion

      Gonzalez-Perez raises two arguments on appeal: (1) the district court

abused its discretion in imposing consecutive sentences without articulating why

it was doing so, and (2) the use of the same facts in imposing both sentences

renders the cumulative term of imprisonment unreasonable. As to his first

contention, it fails because it relies upon an erroneous interpretation of the record.

Shortly after Gonzalez-Perez requested concurrent sentences, and before his

sentence was imposed, the district court stated Gonzalez-Perez was not a

sympathetic defendant because of his long criminal history, including his history

of committing re-entry offenses. Gonzalez-Perez complains the district court

described his criminal history only before sentencing him on the re-entry charge,

but failed to separately state its reasons when it imposed a consecutive sentence

for the supervised release violation. Gonzalez-Perez’s criminal history, however,

was plainly relevant to both the new charge and the supervised release violation,

as well as the question of whether the sentences should run consecutively. See 18

U.S.C. § 3584(b) (directing courts to consider the 18 U.S.C. § 3553(a) sentencing

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factors when deciding whether to run sentences consecutively). It is clear from

the record the district court addressed Gonzalez-Perez’s criminal history at least

in part to resolve the only contested issue raised by the parties at sentencing:

whether the sentences were to run consecutively.

      The decision whether to run the sentences concurrently or consecutively

was discretionary on the part of the district court. 18 U.S.C. § 3584(a). The

commentary to the applicable advisory guidelines policy statement expresses a

preference for running sentences consecutively in the circumstances of this case.

U.S.S.G. § 7B1.3 cmt. n.4. “We . . . traditionally do not disturb decisions

entrusted by statute or other rule of law to the discretion of a district court unless

we have a definite and firm conviction that the lower court made a clear error of

judgment or exceeded the bounds of permissible choice in the circumstances.”

United States v. Ruiz-Terrazas, 477 F.3d 1196, 1201 (10th Cir. 2007) (quotation

omitted). Here, the district court explicitly cited Gonzalez-Perez’s criminal

history in response to his request for concurrent sentences. No more detailed

explanation was required. Cf. id. at 1202 (holding a specific discussion of the

§ 3553(a) factors is not required for sentences falling within the advisory

guidelines range).

      Gonzalez-Perez also contends his cumulative sentence is unreasonable

because the district court used the same facts in imposing both sentences, namely

his previous conviction for which he was on supervised release when he

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committed the new re-entry offense. He points out the previous conviction was

used to increase his criminal history category for the re-entry conviction and also

used as a predicate for his supervised release violation.

      Gonzalez-Perez’s prior conviction can be used for multiple purposes during

sentencing so long as two conditions are met: 1) the Sentencing Commission

intended the result, and 2) each use of the conviction “concerns conceptually

separate notions related to sentencing.” United States v. Lewis, 115 F.3d 1531,

1537 (10th Cir. 1997). The Sentencing Commission certainly intended the use of

the prior conviction in both circumstances here, as the prior conviction was

relevant to his criminal history category under § 4A1.1(a), (d), (e) (providing for

calculation of criminal history category when offense is committed while

defendant is still serving another sentence) and his supervised release violation

under § 7B1.3(a)(1), (b) (explaining violation of supervised release is grounds for

imposition of a term of imprisonment). Furthermore, as Gonzalez-Perez

concedes, the sentence for the supervised release violation serves a conceptually

different purpose from the sentence for the re-entry conviction. For these

reasons, the district court did not err in using Gonzalez-Perez’s previous

conviction to calculate his sentences for the re-entry charge and the supervised

release violation.




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IV. Conclusion

     For the foregoing reasons, the sentences imposed by the district court are

affirmed.

                                             ENTERED FOR THE COURT


                                             Michael R. Murphy
                                             Circuit Judge




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