                                                                          FILED
                                                               United States Court of Appeals
                                                                       Tenth Circuit
                   UNITED STATES COURT OF APPEALS                   October 31, 2008
                                TENTH CIRCUIT                      Elisabeth A. Shumaker
                                                                       Clerk of Court


 UNITED STATES OF AMERICA,

              Plaintiff-Appellee,                 Nos. 07-2176 and 07-2177
 v.                                                       (D. N.M.)
 LIONEL ROMERO-RESENDEZ,                     (D.C. Nos. 1:07-CR-000492-BB and
                                                    1:01-CR-00736-BB)
              Defendant-Appellant.


                           ORDER AND JUDGMENT *


Before O’BRIEN, TYMKOVICH, and HOLMES, Circuit Judges.



      Lionel Romero-Resendez appeals the procedural reasonableness of the 70-

month sentence imposed after he pleaded guilty to illegally re-entering the United

States in violation of 8 U.S.C. §§ 1326(a) and (b). Exercising our jurisdiction

under 28 U.S.C. § 1291 and 18 U.S.C. § 3742, we conclude the district court’s

sentence was procedurally reasonable and AFFIRM the district court’s judgment.




      *
         This order and judgment is not binding precedent except under the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.
                                   Background

       In 2001, Romero-Resendez pleaded guilty to conspiring to possess more

than five grams of cocaine with intent to distribute. While awaiting sentencing on

that charge, Romero-Resendez was arrested for abuse of a child and aggravated

battery on a household member. Court records indicate the abuse of a child

charge was dismissed and Romero-Resendez either pleaded guilty or nolo

contendere to aggravated battery. 1 Following his release from prison in 2003 on

the drug charge and as part of his supervised release, Romero-Resendez was

deported to Mexico as he had been residing in the United States illegally. 2

       Shortly thereafter, Romero-Resendez illegally returned to the United States.

After arresting him on an unrelated state crime, authorities discovered Romero-

Resendez had violated the terms of his supervised release and had illegally re-

entered the United States. As a consequence, he was charged in federal district

court with Reentry of a Removed Alien in violation of 8 U.S.C. §§ 1326(a) and

(b).

       Romero-Resendez pleaded guilty and a pre-sentence report (PSR) was

prepared which calculated a total of ten criminal history points and determined

       1
         It is undisputed Romero-Resendez was arrested for both of these charges.
The parties only disagree as to the disposition of the aggravated battery charge
and its effect on the sentencing in this case.
       2
        As a condition of his supervised release on the drug charge, Romero-
Resendez was ordered “not to reenter the United States without prior approval
from the Attorney General.” R., Vol. II, ¶ 5.

                                         -2-
Romero-Resendez’s criminal history was a category V. The PSR based this

conclusion, in part, on his prior aggravated battery conviction. Romero-Resendez

filed a written objection to the PSR, claiming it incorrectly assessed two criminal

history points for the aggravated battery charge. According to Romero-Resendez,

the PSR was in error because that charge had actually been dismissed and had not

resulted in a conviction. Romero-Resendez, however, conceded the only records

available indicated he had been convicted after a plea of either guilty or nolo

contendere. Nevertheless, he argued the “incorrect” conviction on the aggravated

battery charge should be ignored and his criminal history category should actually

be a IV.

      On July 16, 2007, the district court held the sentencing hearing. At the

hearing, the court inquired whether Romero-Resendez had any “challenges to

either the factual statements or guideline proposals” in the PSR. R., Vol. III, at

2–3. Romero-Resendez replied: “you’ve received my written objection, I think,

to the calculation of criminal history. Other than that, we have not.” Id. at 3.

The district court then sentenced Romero-Resendez to 70 months’ imprisonment

on the illegal re-entry charge, followed by two years of supervised release.

Although the district court noted it had considered the 18 U.S.C. § 3553 factors, it

did not directly address Romero-Resendez’s written objection to the aggravated




                                         -3-
battery conviction noted in the PSR. 3 Romero-Resendez’s counsel did not

comment on this failure at the sentencing hearing.

      On appeal, Romero-Resendez argues the district court procedurally erred in

failing to specifically address his written objection to the PSR. 4

                                     Discussion

      Romero-Resendez argues the district court committed reversible error in

failing to specifically address and resolve the disputed portion of the PSR in

violation of Federal Rule of Criminal Procedure 32(i)(3)(B). But because

Romero-Resendez did not object to the district court’s failure to directly address

his written objection at the time of sentencing, we review for plain error. See

United States v. Torres-Duenas, 461 F.3d 1178, 1182–83 (10th Cir. 2006) (stating

that when a defendant fails to object to the method by which the sentence was

determined, we review only for plain error); United States v. Lopez-Flores, 444

F.3d 1218, 1221 (10th Cir. 2006) (“A timely objection to the method can alert the

district court and opposing counsel, so that a potential error can be corrected,

      3
         Nor did the district court specifically express why it imposed a sentence
at the bottom of the guideline range.
      4
         Romero-Resendez initially appealed the district court’s sentencing in two
separate cases. In addition to the appeal of his sentence on the illegal re-entry
conviction, 10th Circuit No. 07-2177, he also appealed the sentence imposed for
the supervised release violation, 10th Circuit No. 07-2176. In his opening brief,
Romero-Resendez states he “no longer seeks review of his sentence in his release
violation case and withdraws that appeal.” Aple. Br. at 1. Consequently, we only
address his appeal of the sentence imposed for illegally re-entering the United
States.

                                          -4-
obviating any need for an appeal.”). Plain error occurs when there is “(1) error,

(2) that is plain, which (3) affects substantial rights, and which (4) seriously

affects the fairness, integrity, or public reputation of judicial proceedings.”

Torres-Duenas, 461 F.3d at 1180 (internal quotation omitted). Rule 32(i)(3)(B)

states: “At sentencing, the court . . . must — for any disputed portion of the

presentence report or other controverted matter — rule on the dispute or

determine that a ruling is unnecessary either because the matter will not affect

sentencing, or because the court will not consider the matter in sentencing . . . .”

      It is not entirely clear a naked assertion that a prior conviction is recorded

in error is sufficient to invoke the district court’s fact-finding obligation under

Rule 32. United States v. Traxler, 477 F.3d 1243, 1249 (10th Cir. 2007)

(“Arguments ‘clearly without merit’ can be ‘passed over in silence.’” (quoting

United States v. Sanchez-Juarez, 446 F.3d 1109, 1117 (10th Cir. 2006)); United

States v. Rodriguez-Delma, 456 F.3d 1246, 1253 (10th Cir. 2006) (citing United

States v. Huerta, 182 F.3d 361, 364 (5th Cir. 1999) and stating that in order to

invoke the court’s fact-finding obligation, the “defendant’s rebuttal evidence must

demonstrate that information in the PSR is materially untrue, inaccurate or

unreliable”). For purposes of our analysis we shall assume the district court’s

failure to either address the validity of the prior aggravated battery conviction or

to determine explicitly that such a ruling was unnecessary was in error and the

error was plain.

                                          -5-
      Romero-Resendez nevertheless fails to demonstrate that this error affected

his substantial rights. See, e.g., United States v. Romero, 491 F.3d 1173, 1179

(10th Cir. 2007) (“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.’” (quoting United States v. Trujillo-Terrazas, 405 F.3d 814, 819

(10th Cir. 2005)). Romero-Resendez submitted nothing to challenge the accuracy

of his previous conviction for aggravated battery—nothing by way of affidavit,

court record or otherwise to call into question the documentary support provided

in the PSR. In fact, the only evidence he offered was a case sheet clearly

indicating he had pleaded nolo contendere to the aggravated battery charge and

had been subsequently convicted. His proffer fails to satisfy our requirement that

a defendant must “make a showing that the information in the PSR is unreliable

and articulate the reasons why the facts contained therein are untrue or

inaccurate.” United States v. Avalos, 506 F.3d 972, 979–80 (10th Cir. 2007)

(internal quotation omitted).

      Finally, Romero-Resendez neither challenges the substantive

reasonableness of his sentence nor contends his sentence was somehow

unreasonable in light of the statutory sentencing factors. See United States v.

Rojas, 531 F.3d 1203, 1209 (10th Cir. 2008) (holding a sentence falling within a

properly-calculated guideline range is entitled to a presumption of

reasonableness). Therefore, the district court’s error, if any, did not affect his

                                          -6-
substantial rights. See Romero, 491 F.3d at 1179 (declining to reverse a sentence

challenged for procedural unreasonableness where the plain error burden was not

met: “The burden to show that substantial rights have been prejudiced is on the

‘party that failed to raise the issue below’” (internal quotation and citation

omitted)).

                                     Conclusion

      Because Romero-Resendez has failed to show the alleged procedural error

affected his substantial rights, we AFFIRM the district court’s judgment and

sentence.

                                        Entered for the Court


                                        Timothy M. Tymkovich
                                        Circuit Judge




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