                                                                       F I L E D
                                                                United States Court of Appeals
                                                                        Tenth Circuit
                      UNITED STATES CO URT O F APPEALS
                                                                       July 24, 2007
                                   TENTH CIRCUIT                   Elisabeth A. Shumaker
                                                                       Clerk of Court

 U N ITED STA TES O F A M ER ICA,

          Plaintiff-Appellee,
                                                        No. 06-1501
 v.                                           (D.Ct. No. 05-cr-00374-EW N-21)
                                                          (D . Colo.)
 M ANUEL TRUJILLO, a/k/a M anny,

          Defendant-Appellant.



                                OR D ER AND JUDGM ENT *


Before TA CH A, Chief Circuit Judge, and BARRETT and BROR BY, Senior
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)(2); 10th Cir. R. 34.1.9(G). The case is

therefore ordered submitted without oral argument.



      Appellant M anuel Trujillo pled guilty to one count of conspiracy to possess


      *
         This order and judgment is not binding precedent except under the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.
with intent to distribute and to distribute 500 grams or more of cocaine in

violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(B)(ii) and 846. 1 He now appeals

his sixty-month sentence on grounds his sentence is unreasonable under 18 U.S.C.

§ 3553(a) because, in granting his request for a downward departure based on his

terminal illness, the district court sentenced him to a sixty-month sentence rather

than a term of home detention or a lesser term of imprisonment. W e exercise

jurisdiction pursuant to 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291 and affirm M r.

Trujillo’s sentence.



                               I. Factual Background

      As stipulated by M r. Trujillo, an investigation began in July 2003 involving

several individuals involved in drug trafficking, including members of a gang

known as the “Gallant Knights Insane.” 2 Between June 15 and July 2, 2005, as

part of the ongoing investigation, authorities intercepted several calls between

Victor Valdez and M r. Trujillo which established M r. Trujillo began purchasing

multi-ounce quantities of cocaine from M r. V aldez.



      1
         This appeal is related to another appeal before this court, United States v.
Lucero, No. 06-1414, in which Adam Lucero was also indicted regarding the
same drug trafficking investigation. However, our dispositions in each case are
written separately given the facts and sentencing issues involved are
comparatively distinct.
      2
         The indictment brought forty drug trafficking and related charges against
tw enty-three defendants; count one implicated M r. Trujillo.

                                         -2-
                             II. Procedural Background

      The final superceding indictment charged M r. Trujillo with distribution of

five kilograms or more of powder cocaine and fifty grams or more of crack

cocaine in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A)(ii), and (b)(1)(A)(iii),

and 846. After his arrest, M r. Trujillo was released on bond so he could receive

medical treatment for a pre-existing liver condition. He then began associating

with his former gang members and violated the conditions of his release by: 1)

failing to appear for his pre-trial proceedings in the instant case; 2) violating his

parole in a state case; and 3) failing to maintain contact with his federal probation

officer or notify her of new felony charges pending against him when he was

arrested in the company of other gang members. Following these violations, M r.

Trujillo was taken into federal custody and then transferred to the Jefferson

County Detention Center where he received medical attention for his liver

disease.



      Ultimately, M r. Trujillo entered a guilty plea; in his plea agreement, he

agreed to plead guilty to the lesser offense of distributing 500 grams or more of

cocaine in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(B)(ii) and 846. The

government and M r. Trujillo also stipulated that he suffers from Hepatitis C and

chronic liver disease and “obtained opinions from his treating physicians that his

medical condition is terminal” and “that a pre-sentence evaluation of [his]

                                          -3-
medical condition is appropriate and necessary to determine the extent to which a

departure may be warranted under § 5H1.4.” R., Vol. 1, Doc. 972 at 4-5.



      Following M r. Trujillo’s guilty plea, a probation officer prepared a

presentence report and arrived at a base offense level of 30 and a two-level

enhancement for obstruction of justice based on his failure to appear for the pre-

trial proceedings after being released on bond. However, the probation officer

reduced his offense level by three levels for acceptance of responsibility, for a

total offense level of 29, which, together with a criminal history category of V I,

resulted in an advisory United States Sentencing Guidelines (“Guidelines” or

“U.S.S.G.”) range of 151 to 188 months imprisonment.



      Relying on a review of M r. Trujillo’s medical records and discussion with a

counselor in the Jefferson County Detention Center, the probation officer also

detailed M r. Trujillo’s medical condition, confirming he suffers from chronic,

advanced liver disease for which he has received medical treatment and noting a

downward departure under U.S.S.G. § 5H1.4 for his physical condition might be

appropriate. 3 Neither party objected to the presentence report.



      3
         The probation officer also noted M r. Trujillo’s belief he was receiving
inadequate medical treatment while incarcerated at the Jefferson County
Detention Center. However, nothing in the record suggests M r. Trujillo would
receive inadequate treatment at a federal facility after his sentencing.

                                          -4-
      Prior to the sentencing hearing M r. Trujillo filed a motion for downward

departure under § 5H1.4, explaining his terminal liver disease constituted an

extraordinary physical impairment which warranted supervised release for the

purpose of residing with his mother-in-law, or for an unspecified “short term of

imprisonment.” A t the sentencing hearing, a medical doctor treating M r. Trujillo

at the Jefferson County Detention Center testified M r. Trujillo suffered from

severe, advanced liver disease related to Hepatitis C and had a life expectancy of

a few years to under five years. 4 Based on this testimony, M r. Trujillo renewed

his request for a downward departure under § 5H1.4 for the purpose of allowing

him to reside at home with his mother-in-law rather than serve a prison sentence.



      In response, the district court stated:

      I’m more interested in how ... M r. Trujillo deals with the breach of
      faith with this court when he was allowed for this very reason to be
      released on pretrial detention in the face of overwhelming evidence
      and in the face of serious involvement by him, and he disappeared.

            I think he’s manipulated the Court. I don’t doubt that the
      doctor says he doesn’t have long to live. That’s sad, but that’s no
      reason for me to let him loose, on home detention or any other non-
      custody arrangement.

R., Vol. 2 at 14. The government, in opposing M r. Trujillo’s request to remain at



      4
         The doctor also testified it would be difficult for M r. Trujillo to w ork
because of his illness and that he must be housed by himself because the disease
is contagious and he has episodes of bleeding and bouts of excreting body fluids
which might transmit the disease to other people.

                                          -5-
home, pointed out he was released on bond because of his medical condition but

absconded without government approval and began associating with his former

gang members. Nevertheless, it did not oppose a reduction in his sentence term

based on his medical condition. It further recommended a departure under

U.S.S.G. § 5K1.1 for a ninety-one- to ninety-five-month sentence based on M r.

Trujillo’s assistance in the case. The government also explained medical

treatment at a federal facility like the one in Rochester, M innesota, which has an

affiliation with the M ayo Clinic, or others associated or affiliated with medical

facilities would be available during his incarceration, as w ell as hospice care

through a compassionate release program. However, the government explained

that to be eligible for compassionate release hospice care M r. Trujillo must have a

medical diagnosis of a life expectancy of six months or less at the time of his

request and that he could make such a request at a future date, which the

government would not oppose.



      In sentencing M r. Trujillo, the district court adopted the undisputed

calculations of the presentence report, considered the applicable Guidelines, and

discussed the sentencing factors under 18 U.S.C. § 3553(a). In so doing, the

district court pointed to M r. Trujillo’s criminal history category of VI, noting it

was “most serious” under the Guidelines and that it would be difficult to “imagine

circumstances under which a man or woman with this criminal history would not

                                          -6-
be incarcerated.” R., Vol. 2 at 27-28. In discussing the sentencing factors under

18 U.S.C. § 3553(a), the district court found the most significant factors in M r.

Trujillo’s case included the need for the sentence to reflect the seriousness of his

offense and to protect the public from his future crimes. In support of these

findings, the district court recounted the fact M r. Trujillo obtained release on

bond based on his plea about his deteriorating health but then failed to follow the

conditions of his pre-trial release, in part by involving himself in further crimes

by being arrested in the company of his former gang members. The district court

explained that based on this conduct it had “less sympathy” for a departure based

on his terminal illness.



      After discussing M r. Trujillo’s conduct during his release, the district court

acknowledged M r. Trujillo’s substantial assistance to the government, agreeing it

warranted a reduction in his sentence to ninety-one to ninety-five months.

Turning to M r. Trujillo’s request for a downward departure under U.S.S.G.

§ 5H1.4, it found he suffered from Hepatitis C and a terminal liver disease.

Recognizing the extraordinary circumstance of M r. Trujillo’s terminal illness and

noting the government did not oppose some degree of additional departure, the

district court found such an illness warranted a departure as an impairment under

U.S.S.G. § 5H1.4, but explained it did not justify a sentence of probation or “a

sentence other than a sentence of incarceration, when all of the statutory purposes

                                          -7-
of sentencing are considered.” R., Vol. 2 at 32. After balancing all the criteria

discussed, the district court imposed a sentence of sixty months imprisonment and

noted its “intention” for M r. Trujillo to “spend the rest of his life in prison for the

protection of society.” Id.



                                    III. Discussion

      On appeal, M r. Trujillo asserts the district court “imposed an unreasonable

sentence by sentencing [him] to sixty months of incarceration and denying his

request for a home detention based on his terminal illness that constituted an

extraordinary physical impairment pursuant to [U.S.S.G.] § 5H1.4.” Apt. Br. at 1.

In support, he points to the district court’s intention for M r. Trujillo to spend the

rest of his life in prison even though it found he qualified for a downward

departure under § 5H1.4. Pointing out he received a five-year sentence even

though his life expectancy is under five years, M r. Trujillo argues, “[t]he United

States Code does not authorize a life sentence for the crime [he] plead guilty to

and therefore the intention of the court in imposing what amounts to and was

intended to be a life sentence is unreasonable.” Id. at 11. W ithout further

discussion he also summarily contends, “[t]he sentence was also unreasonable as

it was greater than necessary to comply with the factors set forth in 18 U.S.C.

§ 3553(a).” Id.




                                           -8-
      W e begin our discussion by clarifying that a sentence above or below the

recommended Guidelines range based on an application of Chapters Four or Five

of the Guidelines is referred to as a “departure,” while a sentence above or below

the recommended Guidelines range through application of the sentencing factors

in 18 U.S.C. § 3553(a) 5 is called a “variance.” United States v. Atencio, 476 F.3d

1099, 1101 n.1 (10th Cir. 2007). It is evident M r. Trujillo is now also claiming

his sentence is unreasonable under the § 3553(a) factors based on the same illness

he previously raised to support his downward departure request under U.S.S.G.

§ 5H1.4. W hile M r. Trujillo may not have previously framed his objections

expressly in the context of a variance under § 3553(a), we do not require a

defendant to make such an objection in order to preserve a claim his sentence is



      5
          18 U.S.C. § 3553(a) provides, in part, the court shall consider:

      (1) the nature and circumstances of the offense and the history and
      characteristics of the defendant;
      (2) the need for the sentence imposed--
             (A) to reflect the seriousness of the offense, to promote respect
             for the law, and to provide just punishment for the offense;
             (B) to afford adequate deterrence to criminal conduct;
             (C) to protect the public from further crimes of the defendant;
             and
             (D) to provide the defendant with needed educational or
             vocational training, medical care, or other correctional
             treatment in the most effective manner;
      (3) the kinds of sentences available; ...
      (6) the need to avoid unwarranted sentence disparities among
      defendants with similar records who have been found guilty of
      similar conduct; and
      (7) the need to provide restitution to any victims of the offense.

                                          -9-
unreasonably long under those factors. See United States v. Torres-Duenas, 461

F.3d 1178, 1183 (10th Cir. 2006), cert. denied, ___ S. Ct. ___, 2007 W L 1854536

(U.S. Jun. 29, 2007) (No. 06-7990). Instead, we review for reasonableness the

sentence’s length, as guided by the factors in 18 U.S.C. § 3553(a). See id. These

factors “include the nature of the offense and characteristics of the defendant, as

well as the need for the sentence to reflect the seriousness of the crime, to provide

adequate deterrence, to protect the public, and to provide the defendant with

needed training or treatment ....” United States v. Kristl, 437 F.3d 1050, 1053

(10th Cir. 2006).



         W e require reasonableness in two respects: “the length of the sentence, as

well as the method by which the sentence was calculated.” Id. at 1055 (emphasis

omitted). In determining whether the district court properly applied the

Guidelines, we review its legal conclusions de novo and its factual findings for

clear error. Id. at 1054. W e have also held “the sentencing factors set forth in 18

U.S.C. § 3553(a) must be considered by the district court itself when imposing a

sentence.” United States v. Sanchez-Juarez, 446 F.3d 1109, 1115 (10th Cir.

2006).

         [W ]here a defendant has raised a nonfrivolous argument that the
         § 3553(a) factors warrant a below-Guidelines sentence and has
         expressly requested such a sentence, we must be able to discern from
         the record that the sentencing judge did not rest on the guidelines
         alone, but considered whether the guidelines sentence actually

                                          -10-
      conforms, in the circumstances, to the statutory factors.

Id. at 1117 (quotation marks, alterations and citation omitted).



      W ith these principles in mind, we turn to M r. Trujillo’s health, which is but

one of the factors the district court was required to consider together with the

other § 3553(a) factors. In this case, it is clear the district court weighed M r.

Trujillo’s terminal illness with the other § 3553(a) factors, such as the serious

nature of his offense and his other characteristics and history, including his

extensive criminal history, placing him in the highest criminal history category.

The district court also weighed M r. Trujillo’s health against the need for his

sentence to provide adequate deterrence, to protect the public, and to provide him

with needed treatment. In that regard, the district court participated in a

discussion about M r. Trujillo receiving medical and hospice care during his

incarceration, repeatedly highlighted M r. Trujillo’s continued criminal activity

after his release for the purpose of receiving medical care, and indicated the need

to place M r. Trujillo in prison for “the rest of his life” for “the protection of

society.” Thus, it is clear the district court reasonably believed M r. Trujillo’s

criminal conduct during his release pending trial demonstrated: 1) his strong

propensity to continue his criminal activity despite his terminal condition and

medical care needs; and 2) the need to protect the public from his ongoing

criminal activity. Based on these factors, together with the other factors

                                           -11-
considered, including the assurance of medical care while incarcerated, we cannot

say the district court’s rejection of M r. Trujillo’s request for supervised release,

presumably under the care of his mother-in-law, was unreasonable. W hile M r.

Trujillo suggests he essentially received a “life sentence” for his drug crime, he in

fact received a downward departure related to his health which resulted in his

receiving a sentence significantly less than what his conduct in the instant crime

warranted without such a departure. Thus, M r. Trujillo has not demonstrated his

illness, when view ed in light of the other § 3553(a) factors, is sufficiently

compelling for the purpose of determining that a sentence of sixty months

imprisonment is unreasonable under the circumstances presented.



                                    IV. Conclusion

      For the foregoing reasons, we AFFIRM M r. Trujillo’s sentence.



                                         Entered by the C ourt:

                                         W ADE BRO RBY
                                         United States Circuit Judge




                                          -12-
