                                                                                  FILED
                                                                      United States Court of Appeals
                      UNITED STATES COURT OF APPEALS                          Tenth Circuit

                            FOR THE TENTH CIRCUIT                          February 5, 2020
                        _________________________________
                                                                         Christopher M. Wolpert
                                                                             Clerk of Court
 UNITED STATES OF AMERICA,

       Plaintiff - Appellee,
                                                             No. 19-2074
 v.                                                 (D.C. No. 1:18-CR-01144-JB-1)
                                                           (D. New Mexico)
 JAIME FLORES-MARTINEZ,

       Defendant - Appellant.
                      _________________________________

                            ORDER AND JUDGMENT*
                        _________________________________

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


      After Jaime Flores-Martinez (“Mr. Flores-Martinez”) pleaded guilty to reentry

by a removed alien, the United States petitioned to revoke his supervised release in a

prior reentry case. The district court sentenced Mr. Flores-Martinez to 46 months’

imprisonment on the guilty plea and to 10 months’ imprisonment on the supervised

release violation, with the sentences to run consecutively.

      Mr. Flores-Martinez appeals from the sentence imposed on the supervised

release violation, arguing that the district court committed two procedural errors and

that imposing consecutive terms of imprisonment was substantively unreasonable.


      *
         This order and judgment is not binding precedent, except under the doctrines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.
Because the district court did not commit plain error with respect to either procedural

issue, and because imposing consecutive terms of imprisonment was not an abuse of

discretion, we affirm Mr. Flores-Martinez’s 10-month sentence.

                                I.     BACKGROUND

       On March 13, 2018, United States Customs and Border Patrol agents found

Mr. Flores-Martinez just north of the Mexican border in Sunland Park, New Mexico.

The agents determined that Mr. Flores-Martinez did not have legal authorization to

enter or remain in the United States and arrested him. This was not Mr. Flores-

Martinez’s first illegal reentry into the United States and, at the time of his arrest, he

was serving a term of supervised release for a June 21, 2012 illegal reentry

conviction (“the June 2012 reentry”).1

       On April 10, 2018, the United States filed an information charging Mr. Flores-

Martinez with reentry of a removed alien, in violation of 8 U.S.C. § 1326. That same

day, Mr. Flores-Martinez pleaded guilty. The presentence investigation report

(“PSR”) on the new illegal reentry conviction calculated Mr. Flores-Martinez’s total

offense level as 27 and criminal history category as VI, for an imprisonment range of




       1
        On June 14, 2014, Mr. Flores-Martinez was sentenced for a reentry that
violated his supervised release based on the June 2012 reentry. That revocation
proceeding resulted in a new term of imprisonment, followed by an additional 2 years
of supervised release that commenced on May 12, 2016. Consequently, Mr. Flores-
Martinez was serving a second term of supervised release in connection with the June
2012 reentry when he was arrested on March 13, 2018. All told, Mr. Flores-Martinez
had been removed from the United States seven times prior to March 13, 2018.
                                             2
130 to 162 months under the United States Sentencing Guidelines (“Sentencing

Guidelines” or “Guidelines”).

      The United States petitioned to revoke Mr. Flores-Martinez’s supervised

release imposed for the June 2012 reentry based on his new conviction for illegal

reentry. On January 29, 2019, the district court held a hearing to adjudicate the

revocation petition stemming from the violation of conditions of supervised release

imposed for the June 2012 reentry and to impose a sentence on the new reentry

conviction.

      At that hearing, Mr. Flores-Martinez admitted to the allegations in the petition.

The United States and Mr. Flores-Martinez also agreed with the Guidelines

calculations in the PSR.

      With respect to Mr. Flores-Martinez’s new reentry conviction, the district

court found that a downward departure from the applicable Guidelines range was

appropriate under U.S.S.G. § 4A1.3.2 The district court consequently reduced

Mr. Flores-Martinez’s offense level to 17 and reduced his criminal history category

to V, resulting in an applicable Guidelines range of 46 to 57 months. The district

court sentenced Mr. Flores-Martinez at the low end of the Guidelines to 46 months’

imprisonment, followed by a three-year term of supervised release.

      Next, the district court addressed Mr. Flores-Martinez’s violation of the

conditions of supervised release on the June 2012 reentry conviction. Mr. Flores-


      2
      The district court made clear that it would, in the alternative, also grant a
downward variance under 18 U.S.C. § 3553(a).
                                           3
Martinez asked that any sentence imposed for the supervised release violation run

concurrently with the sentence imposed on the new reentry conviction. The United

States disagreed, arguing that a concurrent sentence would “essentially nullify” the

“deterrent effect” of supervised release. ROA, Vol. V at 29.

      The district court found that Mr. Flores-Martinez had admitted to a Grade B

supervised release violation and had a criminal history category of III, resulting in an

applicable Guidelines range of 8 to 14 months. After observing that the Sentencing

Guidelines are “advisory,” the district court sentenced Mr. Flores-Martinez to 10

months’ imprisonment on the supervised release violation, to run consecutively to the

46-month sentence for the new reentry conviction. The district court explained,

“[Mr. Flores-Martinez has] been warned time and time again, and he hasn’t received

that warning, and I don’t believe in two-for-ones.” ROA, Vol. V at 33.

      Mr. Flores-Martinez objected that imposing “another ten months of

consecutive . . . imprisonment” for his supervised release violation was

“unreasonable and unsupported by the goals of” § 3553 because he “did plead guilty

. . . and has been sentenced to a term of 46 months already.” ROA, Vol. V at 34. The

district court overruled that objection, observing that “under the Guidelines it is

recommended and directed that it be run consecutive, and until the Sentencing

Commission wishes to change its stance on that, I believe that it’s an appropriate

sentence.” ROA, Vol. V at 34. The district court further determined that,

“considering the totality of the circumstances[,] . . . the 3553 factors are met.” ROA,

Vol. V at 34.

                                            4
      The district court entered judgment on March 29, 2019. After obtaining an

extension of time under Fed. R. App. P. 4(b)(4), Mr. Flores-Martinez timely filed a

notice of appeal on April 30, 2019.

                                 II.    DISCUSSION

      Mr. Flores-Martinez challenges the lawfulness of his sentence on three

grounds: (1) the district court incorrectly treated the Guidelines as mandatory; (2) the

district court exhibited personal bias against the imposition of concurrent terms of

imprisonment; and (3) the sentence imposed was substantively unreasonable. We

disagree with each of these arguments and therefore affirm Mr. Flores-Martinez’s

sentence.

                               A. Standard of Review

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

an abuse-of-discretion standard.” United States v. Ortiz-Lazaro, 884 F.3d 1259, 1265

(10th Cir. 2018) (quotation marks omitted). “A district court abuses its discretion

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

unreasonable.” Id. (quotation marks omitted).

      “When a party challenges a sentence for procedural reasonableness, our

standard of review is ordinarily 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). “If, however, [a] [d]efendant did not preserve the procedural challenge below,

we review only for plain error.” Id.

                                           5
       A defendant “can obtain relief under the plain-error doctrine only if four

requirements are satisfied: (1) the district court committed error; (2) the error was

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

[d]efendant’s substantial rights; and (4) the error seriously affect[ed] the fairness,

integrity, or public reputation of judicial proceedings.” Id. (second alteration in

original) (internal quotation marks omitted).

                                     B. Analysis

1. The District Court Did Not Treat the Guidelines as Mandatory.

       Mr. Flores-Martinez first argues that the district court erred by treating the

Sentencing Guidelines as mandatory. But he did not object to the district court’s

treatment of the Guidelines at the sentencing hearing. Rather, his objection focused

on whether “another ten months of consecutive” imprisonment was “unreasonable

and unsupported by the goals of 3553.” ROA, Vol. V at 34. We therefore review this

argument under the plain error standard. Because we conclude the district court did

not commit an error, we do not address the second, third, or fourth components of the

plain error test.

       The Supreme Court has explained that “treating the Guidelines as mandatory”

is a “significant procedural error.” Gall v. United States, 552 U.S. 38, 51 (2007).

Mr. Flores-Martinez argues that the district court treated the Guidelines as mandatory

when it stated that “under the Guidelines it is recommended and directed” that the

sentence for a supervised release violation run consecutive to any other sentence.

ROA, Vol. V at 34. Specifically, Mr. Flores-Martinez points to the word “directed”

                                            6
as evidence that the district court believed it lacked discretion to impose concurrent

sentences. We disagree.

      The district court properly treated the Guidelines as advisory. First, the district

court explicitly referred to the Guidelines as “advisory” at the sentencing hearing.

ROA, Vol. V at 32–33. Second, the district court correctly observed that the

Guidelines “recommend[]” that Mr. Flores-Martinez’s sentences run consecutively.

ROA, Vol. V at 34. Third, the district court’s use of the term “directed” logically

refers to the unusually strong language of U.S.S.G. § 7B1.3(f), which states that

terms of imprisonment “shall be ordered to be served consecutively.”3 Fourth, the

district court—in the course of overruling Mr. Flores-Martinez’s objection—applied

the § 3553 factors to “the totality of the circumstances,” a step that would have been

unnecessary if it were bound by a mandatory guideline. ROA, Vol. V at 34.

      In effect, Mr. Flores-Martinez asks us to infer that the district court committed

a significant procedural error based only on its single use of the term “directed.” But

such an inference would contradict our usual presumption that district court judges

“know the law and apply it in making their decisions.” United States v. Chavez-Meza,

854 F.3d 655, 659 (10th Cir. 2017) (quotation marks omitted), aff’d, 138 S. Ct. 1959

(2018). We have no reason to doubt that the district court here was aware of the



      3
         U.S.S.G. § 7B1.3(f) provides, in full, that “[a]ny 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.”
                                           7
advisory nature of the Guidelines and correctly exercised its discretion in imposing

consecutive sentences.

2. Mr. Flores-Martinez Cannot Establish Plain Error with Respect to the
   District Court’s Imposition of Consecutive Sentences.

       Mr. Flores-Martinez next contends that the district court erred at sentencing by

exhibiting an impermissible bias against concurrent sentences. We are not convinced.

       To begin, we must frame the issue under the proper standard of review. Mr.

Flores-Martinez made no objection at the sentencing hearing to the district court’s

comment that it does not “believe in two-for-ones.” ROA, Vol. V at 33. As

previously noted, Mr. Flores-Martinez argued only that consecutive terms of

imprisonment were “unreasonable and unsupported by the goals of 3553.” ROA, Vol.

V at 34. Because that substantive objection does not encompass Mr. Flores-

Martinez’s argument on appeal, we review this claim for plain error. See Gantt, 679

F.3d at 1246.

       As discussed, Mr. Flores-Martinez can prevail only if he establishes: “(1) the

district court committed error; (2) the error was plain—that is, it was obvious under

current well-settled law; (3) the error affected the [d]efendant’s substantial rights;

and (4) the error seriously affect[ed] the fairness, integrity, or public reputation of

judicial proceedings.” Id. (second alteration in original) (internal quotation marks

omitted). For the reasons we now explain, even if the district court plainly erred, we

cannot conclude the alleged error affected Mr. Flores-Martinez’s substantial rights.




                                            8
       According to Mr. Flores-Martinez, the district court’s reference to two-for-

ones “ignore[d] the individualized consideration mandated by 18 U.S.C. § 3553(a).”

Opening Br. at 9. He claims the district court’s decision to impose consecutive terms

of imprisonment was driven by its personal opposition to concurrent terms and thus

constitutes plain error.

       Mr. Flores-Martinez analogizes his case to the facts in United States v.

Haggerty, 731 F.3d 1094 (10th Cir. 2013). In Haggerty, the government moved for a

decrease in the defendant’s offense level under U.S.S.G. § 3E1.1(b). Section

3E1.1(b) provides, that under certain circumstances, the government may file a

motion “stating that the defendant has assisted authorities in the investigation or

prosecution of his own misconduct by timely notifying authorities of his intention to

enter a plea of guilty, thereby permitting the government to avoid preparing for trial

and permitting the government and the court to allocate their resources efficiently.”

       At the sentencing hearing in Haggerty, the district court stated:

       I will never agree that avoidance of trial is a more efficient or appropriate
       allocation of resources. On the contrary, I think trials are the way that our
       system wants us to resolve these cases and that they are a good thing, not a
       bad thing. I do not think that saving the Government the task of preparing
       for trial is a benefit that’s entitled to any weight, nor do I think that saving
       the Court the trouble of presiding over a trial is a positive that is entitled to
       any credit at all.

Haggerty, 731 F.3d at 1097.

       On appeal, the United States and Haggerty each asked this court to reverse,

and we did so. Specifically, we held “a sentencing judge’s personal view that one

should not be rewarded with a lesser sentence for pleading guilty is an impermissible

                                               9
reason for denying a § 3E1.1(b) reduction and constitutes an abuse of discretion

resulting in a procedurally unreasonable sentence.” Id. at 1101.

      Unlike the district court in Haggerty, however, the district court here

expressed agreement—not disagreement—with the Guidelines statement. And rather

than disregard the policy position articulated by the Sentencing Commission, the

district court implemented it faithfully. We are not convinced that the district court’s

comments reflect impermissible bias.

      But even if we agreed with Mr. Flores-Martinez that the district court plainly

erred, he has not shown that the asserted error affected his substantial rights. To

satisfy the third component of the plain error standard, Mr. Flores-Martinez must

demonstrate “a reasonable probability that, but for the error claimed, the result of the

proceeding would have been different.” United States v. Gonzalez-Huerta, 403 F.3d

727, 733 (10th Cir. 2005) (en banc) (quoting United States v. Dominguez Benitez,

542 U.S. 74, 82 (2004)).

      Here, Mr. Flores-Martinez asserts in a single sentence that, if the district court

had not acted on its personal beliefs, it might have sentenced him to concurrent terms

of imprisonment. Reply Br. at 7–8. But there is nothing in the record to support that

assertion. To the contrary, the district court was clear that its consideration of the

§ 3553 factors would independently lead it to impose consecutive terms of

imprisonment.

      To be sure, § 3553 requires judges to consider policy statements issued by the

Sentencing Commission. See 18 U.S.C. § 3553(a)(4)(B). In other words, “district

                                            10
courts must begin their analysis with the Guidelines and remain cognizant of them

throughout the sentencing process.” Gall, 552 U.S. at 50 n.6. Here, the relevant

policy statement appears at U.S.S.G. § 7B1.3(f), which expresses an unequivocal

preference for consecutive terms of imprisonment for violations of supervised

release. See United States v. Zamora-Solorzano, 528 F.3d 1247, 1250–51 (10th Cir.

2008) (explaining that nothing in “our case law suggests that a district court is

precluded from, in its individualized judgment, attributing considerable weight to a

Guidelines sentence in a given case”).4

      But the district court did not rely solely on the Guidelines preference. Instead,

after making its “two-for-ones” comment, the district court considered the § 3553

factors, explaining that they independently supported the imposition of consecutive

sentences. Thus, even if the district court plainly erred in considering § 7B1.3(f),

Mr. Flores-Martinez cannot show that it affected his substantial rights. For these

reasons, Mr. Flores-Martinez’s bias claim fails under our plain error test.




      4
        Mr. Flores-Martinez also points to the judicial disqualification statute, 28
U.S.C. § 455, and this court’s decision in United States v. Cooley, 1 F.3d 985 (10th
Cir. 1993), for the proposition that a “sentence selected because of a sentencing
judge’s personal belief is an abuse of discretion.” Opening Br. at 13. But Cooley did
not address sentencing. There, we reached the unsurprising holding that a judge who
had discussed anti-abortion protests during a television interview must disqualify
himself from criminal prosecutions arising out of those same protests. See 1 F.3d at
995. Here, the district court did not say or do anything at the sentencing hearing to
create an appearance of impropriety.

                                           11
3. The District Court’s Imposition of Consecutive Terms of Imprisonment is
   Substantively Reasonable.

      Finally, Mr. Flores-Martinez argues that the district court’s consecutive

sentences are substantively unreasonable. “Under 18 U.S.C. § 3584(a), a district

court has the discretion to impose consecutive or concurrent sentences . . . guided by

the factors delineated by 18 U.S.C. § 3553(a).” United States v. Rodriguez-

Quintanilla, 442 F.3d 1254, 1256 (10th Cir. 2006). We apply a rebuttable

presumption of reasonableness to “a revocation-of-supervised-release sentence within

the range suggested by the Commission’s policy statements.” United States v.

McBride, 633 F.3d 1229, 1233 (10th Cir. 2011). In line with that presumption, we

have repeatedly upheld the imposition of consecutive sentences for reentry by

removed persons where that same reentry also violated the conditions of the

defendant’s supervised release. See, e.g., Ortiz-Lazaro, 884 F.3d at 1265; Rodriguez-

Quintanilla, 442 F.3d at 1258; United States v. Contreras-Martinez, 409 F.3d 1236,

1242 (10th Cir. 2005).

      Here, the district court explained that it was imposing consecutive terms of

imprisonment based on its analysis of the § 3553 factors. It acknowledged the

advisory Guidelines range of 8 to 14 months’ imprisonment and remarked on Mr.

Flores-Martinez’s many unlawful reentries. In response to Mr. Flores-Martinez’s

objection, the district court also considered U.S.S.G. § 7B1.3(f), which calls for

consecutive sentences under these circumstances. This analysis evidences a reasoned




                                          12
exercise of discretion by the district court in imposing consecutive terms of

imprisonment.

       Mr. Flores-Martinez argues that the district court failed to “adequately

balance” three facts. Opening Br. at 14. First, most of his family lives in the United

States. Second, he has no major criminal history. And third, he has secured work in

Mexico and acknowledged to the district court that he is barred from visiting his

family in the United States in the future.

      Mr. Flores-Martinez—through counsel and on his own behalf—presented each

of these mitigating facts to the district court at the sentencing hearing. When a

district court entertains arguments about why terms of imprisonment should run

concurrently, it is not an abuse of discretion to then reject those arguments based on

the defendant’s “offense, his criminal history, and all other relevant factors.”

Contreras-Martinez, 409 F.3d at 1242; see also Rodriguez-Quintanilla, 442 F.3d at

1257 (explaining that “sentencing a defendant to consecutive sentences following the

revocation of supervised release is not unreasonable”). Considering Mr. Flores-

Martinez’s seven prior illegal reentries, the district court concluded consecutive

sentences were appropriate despite these arguments.

      Mr. Flores-Martinez next argues that imposing a term of imprisonment for a

supervised release violation contravenes U.S.S.G. § 5D1.1(c). That provision states

that a “court ordinarily should not impose a term of supervised release in a case in

which supervised release is not required by statute and the defendant is a deportable



                                             13
alien who likely will be deported after imprisonment.” The application note that

accompanies subsection (c) further clarifies:

      In a case in which the defendant is a deportable alien specified in
      subsection (c) and supervised release is not required by statute, the court
      ordinarily should not impose a term of supervised release. Unless such a
      defendant legally returns to the United States, supervised release is
      unnecessary. If such a defendant illegally returns to the United States, the
      need to afford adequate deterrence and protect the public ordinarily is
      adequately served by a new prosecution. The court should, however,
      consider imposing a term of supervised release on such a defendant if the
      court determines it would provide an added measure of deterrence and
      protection based on the facts and circumstances of a particular case.

U.S.S.G. § 5D1.1 cmt. n.5 (emphasis added).

      Mr. Flores-Martinez argues that § 5D1.1(c) implicitly disfavors imprisonment

for the same reason that it explicitly disfavors supervised release. In other words, he

believes that § 5D1.1(c)’s statement disfavoring supervised release implicitly

contradicts § 7B1.3(f)’s statement favoring consecutive terms of imprisonment

imposed upon the revocation of supervised release.

      We have rejected this precise argument in at least three unpublished decisions.

See United States v. Rosales-Trujillo, 781 F. App’x 688, 692 (10th Cir. 2019); United

States v. Perez-Ramos, 525 F. App’x 868, 871 (10th Cir. 2013); United States v.

Gutierrez-Sierra, 513 F. App’x 767, 770 (10th Cir. 2013). As we recently explained,

§ 5D1.1(c) “is not based on a view that there is no need to punish recidivism by

aliens.” Rosales-Trujillo, 781 F. App’x at 692. Rather, the “rationale is that there is

no real need for a separate proceeding to increase the punishment by imposing a




                                           14
sentence for violating conditions of supervised release, since the court can just

impose a harsher sentence for the new violation itself.” Id.

      In this case, the district court’s decision to impose consecutive terms of

imprisonment must be understood together with Mr. Flores-Martinez’s sentence on

the new reentry conviction. To reiterate, the district court granted Mr. Flores-

Martinez a downward departure with respect to that sentence. Then, consistent with

the application note accompanying § 5D1.1(c), the district court analyzed the facts

and circumstances of this case and found that an added term of imprisonment for the

supervised release violation would best effectuate the § 3553 factors. Although the

district court could have sentenced Mr. Flores-Martinez more harshly on the new

reentry conviction and not imposed a sentence for violation of the conditions of

supervised release from his June 2012 reentry conviction, it was not required to do

so. Thus, none of Mr. Flores-Martinez’s arguments rebut the presumption of

reasonableness we attach to the district court’s imposition of consecutive terms of

imprisonment.

                                III.   CONCLUSION

      Because the district court did not commit any plain procedural error, and

because the district court’s imposition of a 10-month, consecutive sentence for




                                           15
Mr. Flores-Martinez’s supervised release violation was substantively reasonable, we

AFFIRM Mr. Flores-Martinez’s sentence.

                                          Entered for the Court


                                          Carolyn B. McHugh
                                          Circuit Judge




                                         16
