                                                                       FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                     UNITED STATES COURT OF APPEALS                April 7, 2009
                                                               Elisabeth A. Shumaker
                                   TENTH CIRCUIT                   Clerk of Court


 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,
                                                       No. 08-3153
 v.
                                               (D.C. No. 07-CR-40112-JAR)
                                                         (D. Kan.)
 JOSE HERNANDEZ-LOPEZ,

          Defendant-Appellant.



                                ORDER AND JUDGMENT *


Before BRISCOE, MURPHY, and GORSUCH, Circuit Judges.


      Jose Hernandez-Lopez pled guilty to one count of unlawful re-entry of a

previously deported alien, in violation of 8 U.S.C. §§ 1326(a) and 1326(b)(2), and

was sentenced to 30 months’ imprisonment. On appeal, he challenges his

sentence as procedurally unreasonable. He contends that the district court’s

explanations for rejecting his arguments for a downward departure were either



      *
         After examining the briefs and appellate record, this panel has
determined unanimously to grant the parties’ request for a decision on the briefs
without oral argument. See Fed. R. App. P. 34(f) and 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judgment is not binding precedent except under the doctrines of law of the case,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.
inadequate or did not correspond to the ultimate sentence imposed. We disagree

and so affirm.

                                        ***

      After Mr. Hernandez-Lopez pled guilty to having violated 8 U.S.C.

§§ 1326(a) and 1326(b)(2), the probation officer prepared a presentence report in

which he calculated an offense level of 18, a criminal history of category III, and

a resulting recommended Guidelines range of 33-41 months. The government

later agreed, in exchange for the defendant’s limited waiver of his right to appeal

a sentence of 21 months or less, to a one-level reduction for acceptance of

responsibility; this yielded a recommended Guidelines range of 30-37 months.

Mr. Hernandez-Lopez did not object to the PSR, but prior to the sentencing

hearing filed a memorandum requesting a downward variance to 21 months.

      Mr. Hernandez-Lopez advanced three principal arguments for the variance.

First, Mr. Hernandez-Lopez argued that a 12-level enhancement for his prior

drug-trafficking crime, which the PSR recommended pursuant to U.S.S.G.

§ 2L1.2(b)(1)(B), “weigh[ed] far too heavily in the sentencing calculation”

because his prior crime was a relatively minor one. Vol. II at 4. Second, he

argued that the guideline allowing for the imposition of this enhancement should

be afforded less weight because the Sentencing Commission did not conduct an

empirical study of the need for such a punishment. Id. at 4-5. Finally, Mr.

Hernandez-Lopez argued that the court should reduce his sentence to avoid a

                                        -2-
sentencing disparity between him and other similarly situated defendants in fast-

track districts. Id. at 4, 9-13.

       At the sentencing hearing, Mr. Hernandez-Lopez’s counsel reiterated these

three arguments. The district court then addressed each argument in turn. As to

the first, the court rejected it, explaining:

             But in terms of the 12-level bump and the weight given to the prior
       drug conviction, the Court is of the mind that those are appropriate even
       though the Sentencing Commission may not have explained that very well.
       Particularly, the Court can see that those are appropriate under the
       circumstances in this specific case. Although the Court’s not saying they
       would be appropriate in every aggravated reentry case.

Id. at 24.

       The district court also rejected Mr. Hernandez-Lopez’s second argument for

a variance, explaining:

               And with regard to the lack of empirical basis for the specific
       12-level enhancement, that is of some concern. I think that’s an argument
       better made to the circuit court.
               But the Court will make this observation. At least in comparing it to
       the firearms offenses, there’s more of a graduated number of levels, and
       certainly a graduated base offense level based on a number of
       circumstances having to do with who the offender is and what the
       offender’s background is when compared to this immigration guideline,
       which starts with this very low base offense level of 6.
               The Sentencing Commission may not have explained it very well.
       They may not have explained it at all. I don’t know. But the real
       difference here between an aggravated reentry and an unaggravated reentry
       is a difference between someone who’s going to get probation, because
       they’re going to start with the base offense level of 6, and someone who’s
       going to get a sentence of more than probation.
               But, for example, in this case Mr. Lopez, who has a criminal history
       of 3, is looking at a sentence in the range of, you know, two plus to three
       years. So the real difference seems to be, you know, call it draconian, but


                                           -3-
       the real difference seems to be a situation in which either a defendant is
       essentially going to get probation, or they’re going to serve a relatively
       short sentence, somewhere in the range of two, three, four years, perhaps.
              When looked at in that aspect, the Court thinks that a sentence within
       the guideline range is justified for the reasons set forth in the sentencing
       statute. When someone has been deported before and–in this case twice–in
       between deportations has sustained a criminal conviction for a drug crime,
       although, obviously, in this case not for any major trafficking of any major
       quantity, at least he wasn’t convicted of that, none the less, it makes sense
       that this defendant should receive a sentence of prison.

Id. at 19-21.

       And finally, the district court rejected the third argument for a variance,

stating:

               This is not a fast-track district. There have been times that this Court
       has granted variances on the basis that this is not a fast-track district, and
       there are typically situations where the government agrees that a variance is
       appropriate.
               This Court can’t really speak to the disparities and charge bargaining
       among the districts. The case that the defendant cites in his brief about
       charge bargaining I’m not sure that [] court really did an empirical analysis
       of charge bargaining across the country.
               Clearly, that was one of the judiciary’s primary arguments against
       the diminishment of discretion in the judiciary when the guidelines were
       enacted back in the 1980s, that through charge bargaining and plea
       bargaining too much power would lie in the hands of the executive branch
       and not enough in the judicial branch. And perhaps that did play a part in
       the trilogy of decisions from the Supreme Court that changed the landscape
       in sentencing and the no longer mandatory power of guidelines.
       ...
               So essentially I’m not necessarily rejecting the generic arguments
       raised by this defendant in terms of some of the concerns in terms of
       geographical disparity and fast-track programs and geographical disparity,
       if any, in charge bargaining. There probably is; I just don’t have the
       evidence of that.

Id. at 18-19, 24.



                                          -4-
      The court then provided additional reasons for imposing the 30 month

sentence:

             The Court is to fashion a sentence under Title 18, United States
      Code, Section 3553 (a) that imposes a sentence that is sufficient, but not
      greater than necessary, to comply with the purposes of sentencing identified
      in this statute. And those purposes are: The need that the sentence reflect
      the seriousness of the offense, promote respect for the law, and provide just
      punishment for the offense, the need to afford adequate deterrence to
      criminal conduct, the need to protect the public from further crimes of the
      defendant, and the need to provide the defendant with needed correctional
      treatment.
             The Court finds in this case this is a 26-year-old defendant. He first
      illegally entered this country in the year 2000. He was deported in 2001.
      He thereafter entered illegally again and in 2001 sustained a conviction for
      a drug crime, sale or transport of a controlled substance. Specifically, a
      very small quantity of crack cocaine. Less than 2 grams of crack cocaine.
      He received probation for that sentence, although that probation
      supervision was apparently revoked at some point.
             He was deported in 2002. By his own acknowledgment he reentered
      the country in 2004, and then was found to be in this country resulting in
      the current charges filed of unlawful reentry of a deported illegal alien.
             So he’s been deported at least twice before. Once before for a drug
      conviction. He sustained the drug conviction. Very shortly after that
      deportation he was deported again, some six years ago, and has now been
      convicted, pled guilty to reentering the country under all of these
      circumstances.
      ....
             This defendant should receive a sentence of prison because it serves
      the interest of a deterrent effect. There may not be empirical research
      about that, but just generally speaking, the guidelines–there’s been a
      number of other guidelines where there’s been empirical research that a
      sentence of some custody versus a sentence of probation, particularly with
      a repeat offender, seems to have some deterrent effect. Perhaps it hasn’t
      been studied enough, but there seems to be this general sense in the
      guidelines that that’s why some people should receive a custodial sentence
      and some people should not.
             And then it is a serious offense, and it’s much more serious when
      someone comes in the country illegally multiple times and commits a crime
      while they’re here than someone who comes into the country multiple times

                                       -5-
      to work but does not commit a crime while they’re here. So a custodial
      sentence reflects that it is a serious offense in that respect.
             There’s a need to impose a sentence that promotes respect for the
      law. Again, someone that comes into the country repeatedly illegally is
      illustrating, demonstrating a lack of respect for the law. But again, that’s
      someone that ought to be looked at differently than someone that comes
      into the country repeatedly and then commits a distinct crime while they’re
      here.
             And so for these reasons the Court is of the mind that a sentence
      within the guideline range is appropriate under all circumstances in this
      case because it will reflect the seriousness of the offense in this case,
      promote respect for the law, provide just punishment, as well as afford
      adequate deterrence.
             Also, again, this is a defendant that has demonstrated that when he
      comes into the country, and he’s saying he comes in here to work, like most
      defendants do, he’s willing to commit a crime. He did at least commit one.
      Whether it was to supplement his income or because he does have a history
      of drug and alcohol abuse, a custodial sentence is one that the Court views
      as necessary in this case to protect the public from further crimes of the
      defendant. That’s different than someone that comes here to work and is
      not going to commit any crimes while they’re here, other than just being
      here illegally.
             And then the need to provide the defendant with correctional
      treatment. This defendant is 26, does have a history of drug and alcohol
      abuse. During his short custodial sentence when he was revoked because
      of, I guess, violating the conditions of probation, he did receive, it looks
      like, some sort of drug treatment. He went to AA or something along those
      lines. But a sentence in the range of two plus to three plus years here will
      provide him with that benefit as well.
      ...
             So the Court will deny the request for a variance and sentence the
      defendant to the bottom of the guideline range. In this case the defendant’s
      total offense level is 17, and the criminal history category is 3. The statute
      provides for not more than 20 years. The guideline range is 30 to 37
      months. The Court’s sentence is 30 months of custody.

Id. at 16-18, 21-25.

      After discussing additional terms of defendant’s sentence, the court turned

to defense counsel and informed him that the defendant’s grounds for variance

                                        -6-
were “duly noted,” and asked whether counsel had “[a]ny additional objections.”

Id. at 27. To this, counsel replied: “No. I think under Tenth Circuit precedent, as

I understand it, I think the Court’s noting the variance objections is sufficient to

preserve them. For whatever it’s worth, to avoid plain error we urge those

objections procedurally and substantively.” Id. at 27-28.

                                         ***

      On appeal, Mr. Hernandez-Lopez challenges the procedural, not

substantive, reasonableness of his sentence. In other circumstances, we might

have to face the question whether Mr. Hernandez-Lopez’s objections in the

district court – all aimed at the substantive propriety of a variance – were

sufficient to preserve his appellate challenge to the procedural adequacy of the

district court’s explanations for its decision and thereby avoid plain error review. 1

But the government has conceded the adequacy of defense counsel’s objections to

preserve a procedural challenge in this court, Appellee Br. at 7, and because the

      1
         While defense counsel vigorously disputed substantive dimensions of his
client’s sentence, after the court explained its reasons for rejecting counsel’s
variance arguments and for imposing a 30 month sentence, counsel informed the
court that it had no additional objections. It is far from clear whether counsel’s
substantive objections, coming before the court’s explanations, put the court on
notice that counsel viewed the court’s later explanation for its sentence to be
procedurally inadequate. See United States v. Mendoza, 543 F.3d 1186, 1191
(10th Cir. 2008) (government’s substantive objections at sentencing hearing did
not encompass a procedural objection it later raised on appeal). It is likewise
unclear whether counsel’s statement that “[f]or whatever it’s worth, . . . we urge
those [variance] objections procedurally and substantively,” id. at 27-28, could
fairly cure the problem by identifying the nature of the procedural objections Mr.
Hernandez-Lopez now brings on appeal.

                                         -7-
standard of review makes no difference to the outcome of the case, we analyze

Mr. Hernandez-Lopez’s appeal assuming his procedural objection was preserved.

      Under this posture, we ask whether the district court abused its discretion.

United States v. Gall, 128 S.Ct. 586, 597 (2007); United States v. Todd, 515 F.3d

1128, 1134 (10th Cir. 2008). The Supreme Court has explained that, for a

sentence to be procedurally reasonable, a “sentencing judge should set forth

enough to satisfy the appellate court that he has considered the parties’ arguments

and has a reasoned basis for exercising his own legal decisionmaking authority.”

Rita v. United States, 127 S.Ct. 2456, 2468 (2007). In this case, the record makes

clear that the district court carefully considered Mr. Hernandez-Lopez’s request

for a downward departure, but concluded that leniency beyond that contemplated

by the Guidelines was unwarranted given his personal history. The court

specifically addressed each of Mr. Hernandez-Lopez’s three variance arguments,

explaining why, given the circumstances of his case, it rejected them. In

particular, the court pointed to the seriousness of the fact that Mr. Hernandez-

Lopez had been twice deported, and had sustained another, intervening conviction

for a drug crime. We have little difficulty concluding on this record that the

court’s degree of explanation was sufficient; indeed, it exceeded in detail what we

have previously held reasonable in analogous circumstances. See, e.g., United

States v. Jarrillo-Luna, 478 F.3d 1226, 1230 (10th Cir. 2007) (finding sentence

procedurally reasonable even though district court did not specifically address

                                        -8-
defendant’s request for a downward departure in its statement of reasons for

imposing the sentence); United States v. Cereceres-Zavala, 499 F.3d 1211, 1217

(10th Cir. 2007) (same).

      Mr. Hernandez-Lopez asserts in the alternative that, even if the district

court did articulate enough to ensure that it considered his arguments and had

some reason for rejecting them, those reasons did not rationally correspond or

“square with” its conclusion not to grant a variance. Aplt. Br. at 7. Factually, we

cannot agree.

      As to Mr. Hernandez-Lopez’s first argument – that a 12-level enhancement

“weigh[ed] far too heavily in the sentencing calculation” – the district court

explained that the enhancement was “appropriate under the circumstances in this

specific case.” Vol. II. at 4, 24. Later in the hearing, the district court identified

and emphasized those specifics: the defendant had engaged in a pattern of

unlawful behavior, including two prior deportations as well as a prior drug

offense. Id. at 17-18. We can hardly say the district court’s conclusion that a 30

month, within-Guidelines prison term was required is irrationally unconnected to

its citation to the defendant’s pattern of disregard for the immigration and drug

laws. Id. at 20-22.

      Regarding defendant’s second argument – that there was no empirical basis

for the 12-level enhancement – the court first observed that the difference in a

sentence calculated with and without the enhancement might be prison-time

                                         -9-
versus probation. Id. at 19-21. It then stated that in Mr. Hernandez-Lopez’s

particular case a sentence within the range calculated by applying the

enhancement was “justified for the reasons set forth in the sentencing statute.”

Id. at 21. Thus, here again, the court was clearly and not unreasonably calling

attention to and relying upon the seriousness of Mr. Hernandez-Lopez’s pattern of

unlawful conduct to justify a within-Guidelines prison term rather than probation.

Id.

      Finally, regarding Mr. Hernandez-Lopez’s third argument – concerning

disparity between his sentence and those obtained in fast-track districts – the

court recognized that it had previously granted variances on the basis of such

disparities, but noted that Mr. Hernandez-Lopez simply had failed to present

concrete evidence of such a disparity in his case. Id. at 18-19, 24. This rationale

clearly links to and supports the court’s result.

                                         ***

      The district court’s statement of reasons for imposing a within-Guidelines

sentence was legally adequate, and those reasons all bear a rational connection to

the sentence. The judgment of the district court is affirmed.


                                        ENTERED FOR THE COURT



                                        Neil M. Gorsuch
                                        Circuit Judge

                                         - 10 -
