                                                                        FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                                                                  October 29, 2009
                      UNITED STATES COURT OF APPEALS
                                                   Elisabeth A. Shumaker
                                                                     Clerk of Court
                                   TENTH CIRCUIT


 UNITED STATES OF AMERICA,

          Plaintiff - Appellee,
                                                         No. 08-8076
 v.                                           (D.C. No. 2:07-CR-00239-WFD-13)
                                                           (D. Wyo.)
 ARTHUR EDDIE HERNANDEZ,

          Defendant - Appellant.


                              ORDER AND JUDGMENT *


Before KELLY, BRORBY, and MURPHY, Circuit Judges.


      Defendant-Appellant Arthur Eddie Hernandez pled guilty to conspiracy to

possess with intent to distribute and to distribute 50 grams or more of

methamphetamine. 21 U.S.C. §§ 841(a)(1), (b)(1)(A), 846; 1 R. Doc. 562 at 1; 1

Supp. Rec. Doc. 315 at 2. The district court sentenced him to 151 months’

imprisonment followed by five years’ supervised release. 6 R. at 30. On appeal,

Mr. Hernandez challenges the procedural reasonableness of his sentence arguing

that the district court erred by failing to consider his request for a variance. Aplt.



      *
        This order and judgment is not binding precedent, except under the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.
Br. at 3, 7. As part of that challenge, he also contends that the district court did

not adequately explain how it applied the 18 U.S.C. § 3553(a) factors. Id. at 9.

Our jurisdiction arises pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a) and

we affirm.



                                     Background

       From approximately January 2006 through mid-2007, the Esteban Cornelio-

Legarda drug trafficking organization distributed crystal methamphetamine in

central Wyoming. 7 R. at 9. Mr. Hernandez, then addicted to methamphetamine,

obtained and distributed drugs from Mr. Cornelio and others during the summer

of 2007. 5 R. at 28-31; 7 R. at 9-11. Mr. Hernandez traded various small

quantities of methamphetamine with fellow addicts. Aplt. Br. at 4; see 5 R. at 28-

31. Mr. Hernandez maintains that these drugs deals were among friends and not

for his own profit. 5 R. at 28-31. As he put it, “[i]t wasn’t to make money, yeah,

it was just – to support my habit.” Id. at 31; Aplt. Br. at 4. Court-authorized

telephone intercepts recorded Mr. Hernandez participating in these drug trades. 7

R. at 9.

       In April 2008, Mr. Hernandez pled guilty. A presentence report (PSR)

calculated Mr. Hernandez’s advisory Guidelines range. The base offense level

was 32, U.S.S.G. § 2D1.1(c)(4) (2007), and Mr. Hernandez received a three-point

reduction for acceptance of responsibility, U.S.S.G. § 3E1.1(a) & (b), resulting in

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a total offense level of 29. 7 R. at 12-13. With 14 criminal history points, his

criminal history category was VI, resulting in an advisory Guidelines range of

151-188 months. U.S.S.G. ch. 5. pt. A. One of the convictions counted in the

criminal history computation was a 2002 state controlled substances conviction

which added two points. Had this conviction not been counted, the criminal

history category would have been V, resulting in an advisory Guidelines range of

140-175 months. Aplt. Br. at 5.

       Mr. Hernandez objected to the PSR arguing that the 2002 conviction should

not be counted because it arose out of a failed urinalysis while he was on

probation for another offense. 6 R. 4-6. According to Mr. Hernandez’s counsel,

when someone on state probation fails a drug test, it is unusual for the state to

charge a new crime instead of simply revoking probation. Id. Counsel suggested

that Mr. Hernandez’s waiver of counsel for the offense probably resulted in the

charge.

       The district court included the two criminal history points viewing the

objection as “a collateral attack on that conviction which the Court will not

countenance here. Those two criminal history points are properly calculated.” 6

R. at 19; see also 7 R. att. 2 at i.



                                       Discussion

       We review a sentencing decision for reasonableness under a deferential

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abuse-of-discretion standard. Gall v. United States, 128 S. Ct. 586, 597 (2007);

United States v. Huckins, 529 F.3d 1312, 1317 (10th Cir. 2008). In a review for

procedural reasonableness, we ask whether the sentencing court erred in “failing

to calculate (or improperly calculating) the Guidelines . . . failing to consider the

§ 3553(a) factors, . . . or failing to adequately explain the chosen sentence.” Gall

v. United States, 128 S. Ct. 586, 597 (2007); United States v. Alapizco-

Venezuela, 546 F.3d 1208, 1214-15 (10th Cir. 2008). We review the district

court’s “legal conclusions de novo and its factual findings for clear error.”

United States v. Kristl, 437 F.3d 1050, 1055 (10th Cir. 2006). Where a defendant

fails to object to the reasonableness of his sentence or to the explanation of his

sentence, we review for plain error. United States v. Hamilton, 510 F.3d 1209,

1218 (10th Cir. 2007); United States v. Romero, 491 F.3d 1173, 1180 (10th Cir.

2007).

         Mr. Hernandez concedes that the 2002 conviction “is a valid, constitutional

conviction.” Aplt. Br. at 8. He argues that the district court viewed his objection

as an improper collateral attack, when in reality it was request for a variance.

Aplt. Br. at 3, 8; Aplt. Reply Br. at 3; 6 R. at 4-6. He suggests that the

government plainly understood it to be a request for a variance. Aplee. Br. at 7;

Aplt. Reply Br. at 3. Although the court mentioned the § 3553(a) factors, Mr.

Hernandez maintains that it did not explain why it included the two criminal

history points in the sentence in light of the factors. Aplt. Br. at 8-9.

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      Based on our review of the record, Mr. Hernandez simply did not ask for a

variance. Rather, he asked the court to ignore two criminal history points in its

calculation of his advisory sentence. 6 R. at 4-6; 7 R. att. 2. at i. The

government did not preserve the variance issue merely by surmising that Mr.

Hernandez was asking the court in its “discretion” to not count the two criminal

history points. 6 R. at 17-18. Mr. Hernandez likewise did not object to the

district court’s explanation of its announced sentence. 6 R. at 33. Accordingly,

our review is for plain error.

      Plain error requires that Mr. Hernandez establish: (1) error, (2) that is plain,

(3) which affects a defendant’s substantial rights, and (4) which seriously affects

the fairness, integrity, or public reputation of judicial proceedings. Romero, 491

F.3d at 1178. The district court was required to compute the advisory Guidelines

sentence including the 2002 conviction. See Gall, 128 S. Ct. at 596. We know of

no authority suggesting that a district court is required to sua sponte consider a

variance when it is not requested. Likewise, we find no procedural error in the

district court’s application of the § 3553(a) factors. The district court need not

provide a “lengthy explanation.” Rita v. United States, 551 U.S. 338, 356 (2007);

United States v. Verdin-Garcia, 516 F.3d 884, 898 (10th Cir. 2008). It is apparent




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from the record and the sentencing colloquy that the district court considered the

factors. 6 R. at 28-30.

      AFFIRMED.



                                       Entered for the Court


                                       Paul J. Kelly, Jr.
                                       Circuit Judge




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