                                                                       FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                                                                 December 9, 2008
                    UNITED STATES COURT OF APPEALS
                                                 Elisabeth A. Shumaker
                                                                    Clerk of Court
                                 TENTH CIRCUIT


 UNITED STATES OF AMERICA,

               Plaintiff - Appellee,

          v.                                             No. 08-3173
                                             (D. Ct. No. 5:07-CR-40151-SAC-1)
 ROGELIO RUIZ-VELGARA,                                    (D. Kan.)

               Defendant - Appellant.


                            ORDER AND JUDGMENT *


Before TACHA, KELLY, and McCONNELL, Circuit Judges.


      After examining the briefs and the appellate record, this three-judge panel

has determined unanimously that oral argument would not be of material

assistance 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.

      The Defendant-Appellant challenges the length of his forty-one month

sentence for illegal re-entry by a deported alien. Mr. Ruiz-Velgara pleaded guilty

to the charge without a plea agreement. The district court then sentenced him to



      *
        This order and judgment is not binding precedent except under the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.
forty-one months’ imprisonment, at the bottom of the applicable Guidelines

range. On appeal, Mr. Ruiz-Velgara challenges only the procedural

reasonableness of the sentence. Because the district judge adequately explained

the sentence, we AFFIRM the forty-one month sentence.

                               I. BACKGROUND

      In November 2007, ICE agents took Mr. Ruiz-Velgara into custody after he

had been arrested in Topeka, Kansas. Officials then discovered that Mr. Ruiz-

Velgara was in the United States illegally, having previously been deported. He

was convicted in 2000 of possession of marijuana with intent to distribute, an

aggravated felony. He was deported to Mexico in 2002 and re-entered the United

States illegally in 2005. Mr. Ruiz-Velgara pleaded guilty to illegal re-entry by a

deported alien. See 8 U.S.C. § 1326(a).

      At sentencing, Mr. Ruiz-Velgara did not challenge the calculation of the

applicable Guidelines range, forty-one to fifty-one months. Mr. Ruiz-Velgara

instead argued for a downward variance to a thirty-month sentence. He asserted

that the sixteen-month enhancement—taking his offense level from 8 to 24—for

his prior drug conviction overstated the severity of the prior crime. He also

argued that because Kansas does not have a “fast-track program” that would

potentially have reduced his sentence, the forty-one month sentence created an

unwarranted sentencing disparity between him and defendants in jurisdictions that

utilize fast-track programs.

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      The district judge went into great detail in explaining the sentence, but

touched only briefly on the fast-track argument. In explaining the sentence, the

judge first explained the Guidelines calculation. He then stated that he had

considered the parties’ statements and the factors listed in 18 U.S.C. § 3553(a).

The judge noted Mr. Ruiz-Velgara’s previous conviction and recent arrest for

domestic battery. He considered and rejected Mr. Ruiz-Velgara’s argument that

the sixteen-level enhancement represented unfair double-counting. He noted the

“serious risk” of a defendant with this criminal history returning illegally to the

United States, as well as Mr. Ruiz-Velgara’s “lack of respect for the laws of this

country.”

      Regarding Mr. Ruiz-Velgara’s argument that fast-track programs in other

jurisdictions lead to a sentencing disparity, the judge said, “Notwithstanding the

defendant’s position over what he calls an unwarranted disparity with fast track

jurisdictions, the Court believes the seriousness of the defendant’s offense and the

need to protect the public fully warrant a sentence at the low end of the guideline

range of 41 months.”

      On appeal, Mr. Ruiz-Velgara asserts that his sentence is procedurally

unreasonable because the district court did not adequately address his fast-track

argument. Mr. Ruiz-Velgara does not challenge any of the district court’s

substantive conclusions, either its acceptance of the sixteen-level enhancement or

its decision not to vary based on fast-track programs in other jurisdictions.

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                                  II. DISCUSSION

      Mr. Ruiz-Velgara’s argument fails because it is based on the inaccurate

notion that the district court must fully address all of a defendant’s arguments for

a lower sentence. His argument is based on language from our decision in United

States v. Hall, 473 F.3d 1295 (10th Cir. 2007). We wrote that “when a district

court fails to consider a defendant’s non-frivolous argument that a variance from

the Guidelines is warranted under § 3553(a) . . . the failure renders the sentence

procedurally unreasonable such that resentencing is required.” Id. at 1314. The

district court’s brief reference to the fast-track argument, Mr. Ruiz-Velgara

asserts, did not adequately address the argument.

      Mr. Ruiz-Velgara then explained why the court should find that fast-track

programs in other jurisdictions create unwarranted sentencing disparities.

Essentially, that argument is substantive. Presumably, Mr. Ruiz-Velgara makes

that argument to demonstrate that his previous argument was not “frivolous,”

tracking the language in Hall.

      First, it is worth noting that Hall vacated a sentence that was outside the

recommended Guidelines range. Id. at 1313–14. By the terms of the sentencing

statute, district courts are required to give more specific explanations of the

reasons for imposing sentence outside than for imposing a sentence within the

recommended Guidelines ranges. Title 18 U.S.C. § 3553(c) requires the district

court, in all cases, to state the “reasons for its imposition of the particular

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sentence,” but if the court imposes a sentence outside the Guidelines range, the

statute requires the court to provide “the specific reason for the imposition of a

sentence different from [the Guidelines range],” 18 U.S.C. § 3553(c)(2). Hall is

therefore distinguishable from this case, in which the district court sentenced Mr.

Ruiz-Velgara within the Guidelines. However, Hall cites United States v.

Sanchez-Juarez, 446 F.3d 1109 (10th Cir. 2006), in which this court did vacate a

within-Guidelines sentence. Id. at 1118. We discuss briefly how our case law

has evolved since Sanchez-Juarez.

      In February 2007, we stated that when a district court sentences a defendant

within the Guidelines range, “Section 3553(c) requires the court to provide only a

general statement of the reasons for its imposition of the particular sentence.”

United States v. Ruiz-Terrazas, 477 F.3d 1196, 1199 (10th Cir. 2007) (quotations

omitted). In March 2007, we rejected the notion that Sanchez-Juarez requires

judges to address “each and every argument for leniency.” United States v.

Jarrillo-Luna, 478 F.3d 1226, 1229 (10th Cir. 2007). We held that the sentencing

judge merely “must somehow indicate that he or she did not rest on the guidelines

alone, but considered whether the guideline sentence actually conforms, in the

circumstances, to the statutory factors.” Id. at 1230 (quotations omitted).

      In June 2007, the Supreme Court addressed sentencing issues in Rita v.

United States, 127 S. Ct. 2456 (2007). The Court wrote that “when a judge

decides simply to apply the Guidelines to a particular case, doing so will not

                                          -5-
necessarily require lengthy explanation.” Id. at 2468. The Court said that a judge

would “normally” address nonfrivolous arguments for a different sentence, id.,

but the Court did not require such a response.

      Subsequently, we held that “[a] court’s brief explanation for a Guidelines

sentence may be sufficient when the context and the record clearly show that the

court listened to and considered the evidence and the arguments.” United States

v. Hamilton, 510 F.3d 1209, 1218 (10th Cir. 2007). In another case we wrote

that, despite the district court’s failure to address the defendant’s request for a

departure, “its citation of the PSR’s calculation method and recitation of the

suggested imprisonment range amply fulfilled § 3553(c)’s requirement of a

general statement noting the appropriate guideline range and how it was

calculated.” United States v. Cereceres-Zavala, 499 F.3d 1211, 1217 (10th Cir.

2007) (quotations omitted).

      In this case, the district court’s explanation easily cleared the bar set by our

precedent. The district judge did everything done by the judge in Cereceres-

Zavala, and much more. Like the judge in Cereceres-Zavala, the judge discussed

the PSR calculation and the suggested imprisonment range. In addition, he

discussed Mr. Ruiz-Velgara’s previous conviction and arrest; he discussed Mr.

Ruiz-Velgara’s disregard for the law; he discussed whether Mr. Ruiz-Velgara’s

criminal history score was fair; and he mentioned the § 3553(a) factors three

times. Though not required to do so by our precedent, the judge fully addressed

                                          -6-
one of Mr. Ruiz-Velgara’s arguments for a variance, the sixteen-level

enhancement. The judge even made reference to the argument that Mr. Ruiz-

Velgara claims he failed to address—the alleged disparity based on fast-track

programs.

      Clearly, the district court did everything required of it and more. We

therefore reject Mr. Ruiz-Velgara’s contention that the sentence was procedurally

unreasonable. Because Mr. Ruiz-Velgara has made no claim that the sentence

was substantively unreasonable, we need not consider whether fast-track

programs in other jurisdictions create unwarranted disparities in sentencing.

                               III. CONCLUSION

      The district court adequately explained its reasons for sentencing Mr. Ruiz-

Velgara to forty-one months’ imprisonment. We therefore reject Mr. Ruiz-

Velgara’s argument that his sentence was procedurally unreasonable, and we

AFFIRM the sentence.

                                      ENTERED FOR THE COURT,



                                      Deanell Reece Tacha
                                      Circuit Judge




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