                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit

                                                                         AUG 5 1998
                    UNITED STATES COURT OF APPEALS

                                 TENTH CIRCUIT                        PATRICK FISHER
                                                                             Clerk


 UNITED STATES OF AMERICA,

               Plaintiff - Appellee,                    No. 98-3046
          v.                                            (D. Kansas)
 JOSE ALONZO VALENZUELA-                     (D.C. No. 92-CR-30011-01-RDR)
 CASTANEDA,

               Defendant - Appellant.


                            ORDER AND JUDGMENT *


Before ANDERSON, McKAY, and LUCERO, Circuit Judges.




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

unanimously that oral argument would not materially assist the determination of

this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The case is therefore

ordered submitted without oral argument.




      *
       This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
      Jose Alonzo Valenzuela-Castaneda stipulated to a violation of the

conditions of his supervised release, and the district court sentenced him to a term

of twenty-one months’ imprisonment, to be served consecutively to an

undischarged term of imprisonment. Valenzuela-Castaneda appeals the sentence,

contending that it was based upon the district court’s erroneous belief that a

consecutive term was mandatory. We affirm.



                                 BACKGROUND

      Valenzuela-Castaneda was previously convicted in the District of Kansas

for the offense of escape, for which he received a sentence of thirty-three months’

imprisonment and three years’ supervised release. Immediately upon his release

from imprisonment, Valenzuela-Castaneda was deported to Mexico. Later,

however, Valenzuela-Castaneda was apprehended and prosecuted in the District

of New Mexico for illegal reentry to the United States. He pleaded guilty and

was sentenced to a term of fifty-seven months’ imprisonment.

      Following Valenzuela-Castaneda’s conviction in New Mexico, the Kansas

probation officer filed a petition seeking revocation of his supervised release

under the prior District of Kansas sentence. Apparently, the probation officer

recommended a prison term of twenty-four months, to be served consecutively to

the sentence for illegal reentry. At the final revocation hearing, Valenzuela-


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Castaneda urged the district court to terminate the supervised release, which

would effectively obviate any punishment and sentence for violation of the

relevant release conditions. Valenzuela-Castaneda’s arguments explicitly

presumed that any prison term for violation of the supervised release would be

consecutive to his sentence for illegal reentry.

      Obviously, it would cost the tax payers a great deal of money,
      approximately forty thousand dollars, to incarcerate Mr. Castaneda
      for an additional two years if his supervised release were revoked
      and he was sentenced to incarceration in this matter.

               Mr. Castaneda is going to be punished by a term of almost
      . . . five years, . . . in addition to the 33 months that he has already
      served in this case. It occurs to us that that is sufficient punishment,
      Your Honor, and we see no good that could come from Mr.
      Castaneda having to serve an additional two years, so therefore we
      do request that the supervised release be terminated.

R. Vol. II at 4-5.

      In response, the government argued that Valenzuela-Castaneda’s history did

not warrant termination of the supervised release, but, rather, “given the past

track record of this defendant[,] [i]t appears, Judge, that he’s not going to abide

by any sort of conditions that the Court might set . . . .” Id. at 6.

      After hearing the arguments, the district court stated,

      Well, it appears to the Court that I do not have a great amount of
      leeway. The only leeway I might have would be to terminate the
      supervised release. If I need to sentence this man, there’s apparently
      a requirement that I make his term consecutive, and I apparently have
      no great leeway as to the range of an imprisonment in this case, so
      I’m going to proceed with the sentencing recommendation here.

                                          -3-
               I’m going to make a finding, of course, that you have violated
       your term of supervised release by re-entering the United States when
       you were prohibited to do so. You have had numerous convictions
       for illegal entry and/or re-entry to the United States and from all
       indications, have no intent to discontinue this type of activity, and
       the most serious grade of violation is Grade B with a criminal history
       category of six. The guideline range is 21 to 24 months, and the
       Court is going to depart somewhat from the probation officer’s
       recommendation and sentence you to the minimum that I can, which
       is 21 months.

Id. at 7.

       Valenzuela-Castaneda now contends that the district court erred in

interpreting the guidelines to require a consecutive sentence.



                                  DISCUSSION

       As noted, Valenzuela-Castaneda failed to object to the district court’s

statement regarding the requirement for consecutive sentences. Consequently, we

review for plain error only. United States v. Williamson, 53 F.3d 1500, 1526

(10th Cir. 1995). Under this standard, Valenzuela-Castaneda must show that a

clear and obvious error affected his substantial rights and seriously affected the

integrity of his judicial proceedings. See Johnson v. United States, 520 U.S. 461,

___, 117 S. Ct. 1544, 1548-49 (1997) (citing United States v. Olano, 507 U.S.

725, 732-36 (1993)). In all cases, the defendant bears the burden of

demonstrating that he was prejudiced by the error before this court can grant

relief. Olano, 507 U.S. at 734.

                                        -4-
      In this case, the relevant sentencing guideline provides that:

      Any 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.

U.S.S.G. § 7B1.3(f), p.8.

      Valenzuela-Castaneda contends that the above guideline does not create a

mandatory requirement that the sentence be consecutive. As authority, he cites

United States v. Lee, 957 F.2d 770, 773 (10th Cir. 1992), for its holding that “the

policy statements regarding revocation of supervised release contained in Chapter

7 of the U.S.S.G. are advisory rather than mandatory in nature.” While

Valenzuela-Castaneda correctly cites Tenth Circuit authority, he does not go far

enough. That is, notwithstanding the advisory nature of Chapter 7 policy

statements, Lee specifically requires a sentencing court to consider those

statements in its deliberations. Id. at 774. Additionally, Lee also provides that a

district court’s sentence for revocation of supervised release will not be reversed

“if it can be determined from the record to have been reasoned and reasonable.”

Id.; see also United States v. Hurst, 78 F.3d 482, 483-84 (10th Cir. 1996).

      In this case, the record amply supports the conclusion that the district

court’s sentence was both reasoned and reasonable. Thus, even if the district

court did misinterpret the guideline’s advisory nature, Valenzuela-Castaneda has

                                        -5-
failed to demonstrate any clear and obvious error which “seriously affect[ed] the

fairness, integrity or public reputation of [his] judicial proceedings.” 1 Johnson,

117 S. Ct. at 1550 (internal quotations omitted).

      AFFIRMED.

                                               ENTERED FOR THE COURT



                                               Stephen H. Anderson
                                               Circuit Judge




      1
        Inasmuch as we find that there is no plain error in any event, we need not
consider whether the court’s recognition of its ability to terminate the supervised
release, together with its statement, “[i]f I need to sentence this man,” R. Vol. II
at 7, adequately demonstrates its awareness of its discretion.

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