                                                                        FILED
                                                             United States Court of Appeals
                                                                     Tenth Circuit
                   UNITED STATES COURT OF APPEALS
                                                                    June 17, 2010
                                TENTH CIRCUIT                    Elisabeth A. Shumaker
                                                                     Clerk of Court

 UNITED STATES OF AMERICA,

       Plaintiff-Appellee,
                                                         No. 09-2004
 v.
                                                  (District of New Mexico)
                                                  (D.C. No. 06-01447 BB)
 JAVIER RODRIGUEZ-HERNANDEZ,

       Defendant-Appellant.


                             ORDER AND JUDGMENT *


Before BRISCOE, Chief Circuit Judge, McWILLIAMS, Senior Circuit Judge and
MURPHY, Circuit Judge.



      The defendant, Javier Rodriguez-Hernandez, was sentenced on December 2,

2002, in the District Court of the State of New Mexico, to a term of nine years and

six months incarceration for an aggravated felony conviction, assault with a deadly

weapon, and aggravated battery with a deadly weapon. On March 16, 2005,

defendant was released from prison to the Immigration and Naturalization Service


       *
        After examining the brief 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)(2); 10th Cir. R. 34.1(G). 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not binding precedent, except under the doctrines of law of the case, res judicata,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. It may be cited, however, for its persuasive value
consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
and deported to Mexico.

      On June 28, 2006, the defendant was charged in a one count indictment in

the United States District Court for the District of New Mexico with reentry into

the United States after removal following an aggravated felony conviction in

violation of 8 U.S.C. §1326(a)(1), (a)(2) and (b)(2). Pursuant to a plea agreement,

the defendant, with the assistance of counsel, pled guilty to the indictment on

October 17, 2006.

      By way of background, on February 14, 2006, New Mexico State Police

clocked a Ford Expedition with radar at 100 miles per hour on Interstate 25, near

Truth or Consequences, New Mexico. The defendant, who was the driver of the

vehicle, drove the vehicle into a rest area where he, and 10 other illegal aliens, ran

into the desert to evade apprehension. Defendant was arrested one hour later,

nearby.

      In the presentence report, defendant’s base offense level was an 8, however

his prior conviction of a felony warranted a 16-level increase. Defendant was

given an adjustment downward 3 levels for acceptance of responsibility, making

his total offense level 21. Due to his criminal history, defendant was given a

criminal history category of 5, which, combined with an offense level of 21,

results in a sentencing range of 70-87 months.

      At sentencing on March 21, 2007, defendant’s counsel sought a downward

variance by asking the court “whether a sentence of less than 70 months was

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considered, and it was decided that one less than 70 months would be

insufficient?” The court responded “Yes, ma’am. I considered the factors of

3553, if that’s what you’re referring to.” The district court denied defendant’s

motion and sentenced Rodriguez-Hernandez to be imprisoned for a term of 70

months.

      Three months later on June 27, 2007, Rodriguez-Hernandez sent a letter that

the district court construed as a motion for leave to file a notice of appeal out of

time, which motion was denied. Thereafter, defendant filed a pro se motion with

the district court on January 10, 2008, to vacate the sentence due to ineffective

assistance of counsel for failure to file a timely notice of appeal. The district court

granted the 28 U.S.C. §2255 motion to vacate the sentence on that ground. The

district court vacated the original judgment, then reentered the original judgment

to allow defendant to file a timely notice of appeal. Defendant appeals.

      On appeal, defendant contends that the sentence ultimately imposed is both

procedurally and substantively unreasonable. Rodriguez-Hernandez admits that

his criminal history was largely due to his addiction to cocaine, for which he

alleges he has taken the cure.

      Defendant also admits that he did not specifically object to the district

court’s sentencing procedure, therefore, this court reviews that procedure for plain

error. Plain error is “(1) error, (2) that is plain, which (3) affects substantial

rights, and which (4) seriously affects the fairness, integrity, or public reputation

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of judicial proceedings.” U.S. v. Cordova, 461 F.3d 1184, 1186 (10th Cir. 2006).

      Rodriguez-Hernandez argues that the record meets the standard for plain

error reversal on procedural unreasonableness for two reasons. First, the district

court did not properly consider defendant’s addiction recovery argument. Second,

the district court failed to explicitly consider defendant’s variance argument. The

result was a significantly higher sentence than the court would otherwise impose.

And the error has precluded this court from meaningful review of defendant’s

sentence.

      The government argues that Rodriguez-Hernandez has waived these

arguments because he never filed a sentencing memorandum or a request for a

downward variance. The only evidence of defendant’s overcoming a drug

addiction was in a statement at the sentencing hearing made by his attorney:

                    [Rodriguez-Hernandez] explained to me that the
             problems that he’s had has been all pretty much drug
             related. He was using cocaine, doing some drugs, and that
             caused a lot of stress in his relationship with his wife. He
             did do some time for some offenses that he had in Las
             Cruces and in the area.
                    He feels that he had learned his lesson and was
             staying away from drugs and trying to make a living in
             Mexico, earning $5 a day working on a construction crew.
             And he just feels really bad that his situation has come up.
                    And it’s affected his two little boys and his wife,
             Your Honor. His wife has kept in constant contact with
             me. She couldn’t be here today because of finances. I did
             talk to her yesterday. I’ve been in contact with her on a regular basis.
                    And on behalf of Mr. Rodriguez-Hernandez, Your
             Honor, he apologizes to the Court and requests the Court to
             impose a sentence less than the recommended guidelines,

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             but at the Court’s discretion, Your Honor.

Sentencing Hearing at 3-4.

      At the conclusion of the sentencing hearing, Rodriguez-Hernandez’ counsel

inquired as to whether the district court considered a sentence of less than 70

months. In this regard, the district court at sentencing spoke as follows:

                  All right. The Court has reviewed the presentence
             report factual findings. The Court has considered the
             Sentencing Guideline applications, as well as the factors set
             out in 18 U.S.C. § 3553.
                   I see nothing in this case that takes it out of the
             heartland of cases considered by the guidelines. We
             frequently in this district, unfortunately, see families
             divided by the border. In this case, with a criminal history
             of category 5, I’m less sympathetic to that argument than I
             would be in other factual contexts.

Sentencing Hearing at 6.

      Thus, the district court did consider a sub-guideline sentence and concluded

that one was inappropriate. The district court did not err in sentencing Rodriguez-

Hernandez to 70 months imprisonment.

      Rodriguez-Hernandez argues that the sentence was substantively

unreasonable due not only to his family circumstances, but also to the fact that his

criminal record was the product of an addiction he has conquered. From the

record, it appears that defendant was allegedly cured after he completed drug

education classes while in prison, and has been drug and alcohol free since the

year 2001.


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      However, after considering Rodriguez-Hernandez’ criminal history category

of 5, the fact that he was deported after being convicted of 4 felonies, returning to

the United States illegally, transporting illegal aliens and fleeing from police, the

district court did not abuse its discretion in sentencing Rodriguez-Hernandez to the

bottom of the sentencing guideline range. The sentence imposed is reasonable

under all of the circumstances. United States v. Kristl, 437 F.3d 1050, 1054 (10th

Cir. 2006). See also United States v. Navarrete-Medina, 554 F.3d 1312, 1313

(10th Cir. 2009); United States v. Algarate-Valencia, 550 F.3d 1238, 1245 (10th

Cir. 2008); United States v. Rojas, 531 F.3d 1203, 1209 (10th Cir. 2008).

      Judgment affirmed.



                                               ENTERED FOR THE COURT

                                               Robert H. McWilliams
                                               Senior Circuit Judge




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