                                                                                  FILED
                                                                      United States Court of Appeals
                      UNITED STATES COURT OF APPEALS                          Tenth Circuit

                             FOR THE TENTH CIRCUIT                          October 23, 2015
                         _________________________________
                                                                          Elisabeth A. Shumaker
                                                                              Clerk of Court
UNITED STATES OF AMERICA,

      Plaintiff - Appellee,

v.                                                          No. 14-1506
                                                  (D.C. No. 1:14-CR-00242-JLK-1)
LUIS ALBERTO LOPEZ-MONTEZ,                                   (D. Colo.)
a/k/a ALBERTO LOPEZ-MONTEZ,
a/k/a RODOLFO GONZALEZ-LOPEZ,
a/k/a YAMIL URIEL LECINTO,

      Defendant - Appellant.

–––––––––––––––––––––––––––––––––––

UNITED STATES OF AMERICA,

      Plaintiff - Appellee,

v.                                                          No. 14-1507
                                                  (D.C. No. 1:14-CR-00320-JLK-1)
RODOLFO GONZALEZ-LOPEZ,                                      (D. Colo.)

      Defendant - Appellant.
                      _________________________________

                             ORDER AND JUDGMENT*
                         _________________________________

Before TYMKOVICH, Chief Judge, HOLMES and PHILLIPS, Circuit Judges.

      *
        After examining the briefs and appellate record, this panel has determined
unanimously to honor the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
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 This order and judgment is not binding precedent,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.
                         _________________________________

      In two cases that were consolidated on appeal, appellant Rodolfo

Gonzalez-Lopez, a/k/a Luis Alberto Lopez-Montez, pleaded guilty to illegal reentry

by a deported alien following an aggravated felony conviction and to violating his

supervised release. He challenges the procedural reasonableness of the sentences

imposed. Exercising jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742, we

affirm both sentences.

I. Background

      Mr. Gonzalez-Lopez is a Mexican citizen who first came to the United States

illegally in 1999. Since then, he has sustained three convictions for drug offenses

and been removed from the country three times. His latest conviction, in Colorado

state court, resulted in a four-year prison sentence. While serving that sentence, he

was charged in Colorado federal court with illegal reentry, to which he pleaded guilty

(Appeal No. 14-1506). In addition, because Mr. Gonzalez-Lopez was still serving a

term of supervised release imposed by a federal court in Ohio for an earlier drug

offense, jurisdiction in that case was transferred to the Colorado federal court, where

he was then also charged with violating his supervised release (Appeal No. 14-1507).

      The Presentence Investigation Report (PSR) for the reentry offense

recommended a 37-month sentence based on the United States Sentencing Guidelines

imprisonment range of 37 to 46 months. The Supervised Release Violation Report

for the revocation offense recommended a sentence of 18 months (consecutive to any

sentence imposed for the reentry offense) based on the Guidelines imprisonment

                                           2
range of 12 to 18 months. The calculation of these Guidelines ranges is not at issue

in this appeal.

       Before sentencing, Mr. Gonzalez-Lopez moved for a variant sentence of

24 months on the reentry conviction, to run concurrently with the sentence he was

already serving on his Colorado conviction. Citing United States v. Garcia-Jaquez,

807 F. Supp. 2d 1005 (D. Colo. 2011), Mr. Gonzalez-Lopez argued that the

Guidelines for the reentry conviction should be disregarded because they are not

based on empirical data and that the purposes of 18 U.S.C. § 3553(a) would be better

served if a shorter sentence were imposed. He did not file any objections to the

sentencing recommendation on the violation of his supervised release.

       The district court held a single hearing at which it sentenced

Mr. Gonzalez-Lopez on the reentry conviction and, after he admitted to violating his

supervised release, sentenced him on that also. At the hearing, Mr. Gonzalez-Lopez

continued to argue for a 24-month concurrent sentence, emphasizing that his actions,

though misguided, were motivated by a desire to help his family in Mexico. The

government agreed that a 24-month sentence was appropriate but argued that the

sentence should be consecutive to the Colorado sentence he was already serving.

With respect to the violation of his supervised release, Mr. Gonzalez-Lopez admitted

the allegations supporting the revocation petition but did not make any arguments

about sentencing.

       The district court addressed the reentry conviction first. It identified the same

Guidelines range as set forth in the PSR, denying Mr. Gonzalez-Lopez’s objections to

                                            3
the PSR. The court then stated it would not follow the Guidelines in this case,

expressly adopting the rationale provided in Garcia-Jaquez, 807 F. Supp. 2d

at 1011-15. Nonetheless, the court stated it would look at the Guidelines and take

them as advice as required under Gall v. United States, 552 U.S. 38, 49 (2007). The

court also stated that it would follow and apply the factors to be considered in

imposing a sentence set forth in 18 U.S.C. § 3553(a). The court then considered

several of the § 3553(a) factors.

      Regarding the history and characteristics of Mr. Gonzalez-Lopez, the court

stated that selling heroin is “the moral equivalent of a crime of violence” because it

means “selling death on the installment plan”; that providing one’s family with the

fruit of such a crime is “not a noble endeavor”; and that his conduct placed him

outside the category of people who, despite entering the country illegally, deserve

compassion and empathy. R., Vol. III, at 42-43.1 With regard to promoting respect

for the law, the court noted that Mr. Gonzalez-Lopez had “demonstrated time and

time again that the laws of the United States mean absolutely nothing to him” by

repeatedly reentering the country and selling dangerous drugs. Id. With regard to

affording adequate deterrence, the court emphasized that it would not “trivialize”

Mr. Gonzalez-Lopez’s conduct by imposing a light sentence: “I want the other

people in prison and the people in Mexico to know that you come to this country and

do what this defendant did, you’re going to pay for it. And he should know it, too.”

      1
         Citations to the record in this order and judgment are to the record on appeal
filed in Appeal No. 14-1506. An identical transcript of the hearing (but with
different pagination) was filed in Appeal No. 14-1507.
                                           4
Id. at 43. The court also noted that in response to a prior lenient sentence,

Mr. Gonzalez-Lopez had chosen to reoffend. And regarding protecting the public,

the court stated that a determined drug pusher needed to be kept off the streets. Id.

       Based on these findings, the court sentenced Mr. Gonzalez-Lopez to a

40-month term of imprisonment on the reentry conviction, to run consecutively to his

Colorado sentence.

       The court then addressed the supervised release violation, indicating that for

essentially the same reasons, it was imposing an 18-month sentence, consecutive to

both the Colorado sentence and the reentry sentence.

II. Discussion

       On appeal, Mr. Gonzalez-Lopez argues that both sentences are procedurally

unreasonable. First, he argues that the district court failed to adequately consider the

Guidelines with respect to his sentence on the reentry offense. Second, he argues that

the district court failed to adequately explain why it imposed a consecutive sentence

for the violation of his supervised release.

       When a party does not preserve a procedural challenge to a sentence, as

Mr. Gonzalez-Lopez concedes is true here, we review only for plain error. See

United States v. Gantt, 679 F.3d 1240, 1246 (10th Cir. 2012). “Under plain error

review, the defendant must demonstrate (1) there is error, (2) that is plain, (3) which

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

public reputation of judicial proceedings.” United States v. Ruby, 706 F.3d 1221,

1226 (10th Cir. 2013). We discern no plain error.

                                               5
      A sentence is procedurally reasonable when the sentencing court calculates the

applicable Guidelines range, considers the § 3553(a) factors, and affords the

defendant his rights under the Federal Rules of Criminal Procedure. United States v.

Geiner, 498 F.3d 1104, 1107 (10th Cir. 2007). Conversely, “[a] district court

commits a procedural sentencing error by failing to consider sentencing factors

enumerated in 18 U.S.C. § 3553(a) or by failing to offer an individualized assessment

of how the factors apply in a particular criminal defendant’s case.” United States v.

Chavez, 723 F.3d 1226, 1232 (10th Cir. 2013). Section 3553(a) requires the

sentencing court to consider, among other things, whether the sentence imposed

reflects the seriousness of the offense, promotes respect for the law, provides just

punishment, affords adequate deterrence, and protects the public from further crimes

of the defendant. Chavez, 723 F.3d at 1232. “This same requirement applies to a

district court’s determination of whether to impose a consecutive or concurrent

sentence.” Id.; see also 18 U.S.C. § 3584(b).

A. Reentry Offense

      Although the Guidelines are merely advisory, “[t]he sentencing court must

give consideration to the applicable guideline sentence.” Gantt, 679 F.3d at 1247.

Mr. Gonzalez-Lopez does not argue that the district court failed to properly calculate

the applicable sentencing range under the Guidelines. By calculating and

acknowledging the advisory guideline sentence, the court satisfied its obligation to

consider the Guidelines. See id. at 1248 (“To consider is not necessarily to adopt.”).



                                           6
Contrary to Mr. Gonzalez-Lopez’s argument on appeal, the record as a whole makes

clear that the court did not outright disregard the Guidelines.

      Further, in spite of the court’s statement that it would not follow the

Guidelines, the sentence it imposed is within the Guidelines imprisonment range.

When a court imposes a sentence falling within the range suggested by the

Guidelines, it must give “only a general statement of the reasons for its imposition of

the particular sentence.” Chavez, 723 F.3d at 1232. Here, the district court gave

much more than a general statement and specifically described its reasons, based

explicitly on the § 3553(a) factors, for imposing a 40-month sentence. We see no

clear or obvious error.

      To the extent Mr. Gonzalez-Lopez argues that the court erred by stating that

his motion for a variant sentence was “moot,” the record reflects that at that point in

the hearing the court had already denied the motion and that its reasons for declining

to vary downward from the Guidelines range were based on the § 3553(a) factors.

B. Violation of Supervised Release

      Mr. Gonzalez-Lopez argues that the district court failed to explain its reasons

for imposing a consecutive sentence for the violation of his supervised release. He

did not make any arguments directly addressing his supervised release sentence at the

hearing, nor does he argue on appeal that the 18-month sentence was improperly

calculated. There is no dispute that the sentence is within the applicable Guidelines

range and that the court had the discretion to impose a consecutive sentence. We find

the reasons for imposing a consecutive sentence are clear from the court’s discussion

                                           7
of the § 3553(a) factors as they pertained to the reentry sentence. Thus, the record as

a whole makes it clear that the court considered the relevant factors and made an

individualized assessment when deciding to have Mr. Gonzalez-Lopez’s federal

sentences run consecutively to one another and to his Colorado sentence. See

Chavez, 723 F.3d at 1232-33 (finding consecutive sentence procedurally reasonable

in light of district court’s application of the § 3553(a) factors). We further conclude

the court did not commit plain error by implicitly incorporating the same analysis it

performed on the reentry offense into its sentencing determination as to the violation

of supervised release.

III. Conclusion

      Therefore, we affirm both sentences.


                                            Entered for the Court


                                            Jerome A. Holmes
                                            Circuit Judge




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