                                                                           FILED
                                                               United States Court of Appeals
                                                                       Tenth Circuit

                                                                     March 13, 2008
                     UNITED STATES COURT OF APPEALS
                                                                   Elisabeth A. Shumaker
                                   TENTH CIRCUIT                       Clerk of Court



 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,
                                                         No. 05-2352
 v.                                               (D.C. No. CR-04-2148 JC)
                                                          (D. N.M.)
 RAYMOND TILLETT,

          Defendant-Appellant.


                                ORDER AND JUDGMENT *


Before HENRY, Chief Judge, HARTZ, and HOLMES, Circuit Judges.


      Defendant-Appellant Raymond R. Tillett appeals his sentence of forty-six

months that the district court imposed following his plea of guilty to one count of

conspiracy to possess with intent to distribute 100 kilograms or more of marijuana

in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(B), and 846. On appeal, Mr.

Tillett argues that his sentence is both procedurally unreasonable due to the

district court’s alleged failure to address his request for a below-Guidelines

sentence as required by 18 U.S.C. § 3553(c) and substantively unreasonable under


      *
         This order and judgment is not binding precedent, except under the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.
the factors set forth in 18 U.S.C. § 3553(a). We exercise jurisdiction under 18

U.S.C. § 3742 and 28 U.S.C. § 1291, and AFFIRM Mr. Tillett’s sentence.



                                  I. BACKGROUND

      A New Mexico Motor Transportation Division officer stopped a white

tractor-trailer driven by Mr. Tillett for exceeding the forty-five miles per hour

construction-zone speed limit on Interstate 40. Mr. Tillett got out of the truck and

approached the officer at the rear of the trailer. A passenger, Steven C. Hadley,

was in the trailer’s sleeper compartment.

      The officer requested Mr. Tillett’s driver’s license, vehicle registration, bill

of lading, logbook, medical examiner’s certificate, and his state registration form.

Mr. Tillett provided all documents except for the medical examiner’s certificate.

During the safety inspection of the vehicle, the officer noticed some

inconsistencies between the logbook and the bill of lading. Consequently, the

officer cited Mr. Tillett for speeding, a logbook violation, and failure to have a

medical examiner’s certificate.

      The officer then told Mr. Tillett that he wanted to verify that the bill of

lading accurately reflected the contents of the trailer. After opening the door to

the trailer, the officer detected a strong odor of marijuana and noticed that the

front wall did not appear to be factory-made. On closer inspection, the officer




                                         -2-
noticed a small gap between the plywood front wall and the factory wall, through

which he observed a cardboard box and smelled a strong odor of raw marijuana.

      The officer then arrested both Mr. Tillett and Mr. Hadley, placing them in

handcuffs. The two men and the trailer were taken to the Santa Rosa State Police

Office. After privately conferring with each other, both men agreed to answer

questions and signed a written consent form authorizing a search of the trailer.

The search revealed twenty-four boxes of marijuana with an approximate gross

weight of 692.65 kilograms. The men and the trailer were turned over to the Drug

Enforcement Agency (“DEA”). Mr. Tillett told the DEA agents that he owned the

trailer and that he was transporting the marijuana from Tucson, Arizona, to

Columbus, Ohio, in exchange for $20,000.

      A federal grand jury returned a two-count indictment against Mr. Tillett

and Mr. Hadley, charging them with (1) conspiring to possess with intent to

distribute 100 kilograms or more of marijuana, in violation of 21 U.S.C. §§

841(a)(1), 841(b)(1)(B), and 846 (Count I); and (2) possessing with intent to

distribute 100 kilograms or more of marijuana in violation of 21 U.S.C.

§§ 841(a)(1) and 841(b)(1)(B) (Count II). 1

      Mr. Tillett was released from custody pending further proceedings. While

released, he was arrested by Ohio state authorities for marijuana trafficking. A


      1
             Mr. Hadley ultimately pleaded guilty to Count I of the indictment,
and the district court sentenced him to a prison term of twenty-one months.

                                        -3-
police officer stopped Mr. Tillett’s vehicle while it was traveling through Ohio

and found approximately 10 pounds of marijuana in the vehicle. Ohio authorities

subsequently surrendered Mr. Tillett to federal authorities.

       Mr. Tillett entered into a plea agreement in which he pleaded guilty to the

conspiracy count (Count I) in exchange for the government dismissing the

substantive drug count (Count II). The government agreed that Mr. Tillett had

demonstrated acceptance of responsibility within the meaning of the U.S.

Sentencing Guidelines (U.S.S.G. § 3E1.1) and, consequently, was eligible for a

three-level reduction in his base offense level. It also acknowledged that Mr.

Tillett may be eligible for a two-level reduction in his base offense under the

safety-valve provisions of the Guidelines (U.S.S.G. § 5C1.2). See 18 U.S.C. §

3553(f) (statutory safety-valve provision); U.S.S.G. § 2D1.1(b)(7) (cross-

referencing U.S.S.G. § 5C1.2 and providing for the two-level adjustment in drug-

trafficking cases). 2

       Based on the quantity of marijuana and Mr. Tillett’s eligibility for the

safety-valve reduction, the PSR calculated the advisory Guidelines range to be

forty-six to fifty-seven months. Mr. Tillett filed a motion requesting the district

court to impose a sentence below the advisory Guidelines range. Mr. Tillett


       2
              Mr. Tillett’s sentence was computed by referencing the 2004 edition
of the United States Sentencing Guidelines Manual. The parties do not question
the use of that edition. Accordingly, we use that edition in our analysis and our
citations to the Guidelines are to the 2004 edition.

                                         -4-
argued that his military service, family circumstances, future deportation, and

ineligibility for a halfway house at the end of his sentence (because of pending

deportation) warranted a sentence below the Guidelines range. In particular, in

light of the allegedly onerous nature of the latter two factors, Mr. Tillett argued

that imposing a Guidelines sentence on him would lead to an unwarranted

disparity between his sentence and that of otherwise similarly-situated United

States citizen defendants. See 18 U.S.C. § 3553(a)(6) (requiring sentencing

courts to consider “the need to avoid unwarranted sentence disparities among

defendants with similar records who have been found guilty of similar conduct”). 3

      At the sentencing hearing, after Mr. Tillett made a brief statement

apologizing for his conduct, the district court determined that Mr. Tillett’s

advisory Guidelines range was forty-six to fifty-seven months of imprisonment,

based on a total offense level of twenty-three and a criminal history category of I.

      3
             Mr. Tillet also filed a sealed pleading in support of a sentence below
the Guidelines range. There, he made one additional argument, an argument that
he maintains on appeal. Mr. Tillett alleged that public disclosure of the argument
would put his life and that of his family at risk. Apparently in recognition of the
argument’s sensitivity, the district court did not conduct the sentencing in a
courtroom open to the public and sealed the sentencing transcript. Still concerned
about public disclosure of this argument, Mr. Tillett moved this Court to permit
filing his opening brief and all other briefs in this case under seal and we granted
the motion. In considering the merits of Mr. Tillet’s appellate challenge to his
sentence, we have thoroughly considered all documents related to that argument.
However, in order to dispose of this case, we need not expressly discuss the
argument. Even taking it into account, along with Mr. Tillet’s other substantive
sentencing contentions, we ultimately conclude that the district court did not
abuse its discretion in declining to vary from the Guidelines and imposing a low-
end Guidelines sentence on Mr. Tillett.

                                         -5-
The district court thereafter announced its sentence: Mr. Tillett would be

required to serve forty-six months in prison followed by three years of supervised

release. Mr. Tillett at that juncture reminded the Court of the arguments that he

previously had advanced in writing and reiterated his request for a lower

sentence. After listening to the government’s contrary contentions, the district

court adhered to its sentence. The court commented that “[w]hen I read the

presentence report, I increased it to 52 months” and, finishing its thought, stated

“[s]o I’ve already given [Mr. Tillett] all the credit I’m going to give him, with

46.” R., Vol. III, Tr. at 10 (Transcript of Sentencing Hearing, dated Oct. 25,

2006).

         Mr. Tillett appeals, arguing that these statements are insufficient to meet

the requirements of § 3553(c) and that his sentence is unreasonable in light of the

factors of § 3553(a).

                                   II. DISCUSSION

         We review a federal criminal sentence for reasonableness, giving deference

to the district court under “the familiar abuse-of-discretion standard.” Gall v.

United States, 128 S. Ct. 586, 594 (2007); see United States v. Smart, ___ F.3d

___, No. 06-6120, 2008 WL 570804, at *4 (10th Cir. Mar. 4, 2008) (noting that it

is now “well settled that we review a district court’s sentencing decisions solely

for abuse of discretion”). Reasonableness “has both procedural and substantive

components.” United States v. Atencio, 476 F.3d 1099, 1102 (10th Cir. 2007); see

                                           -6-
Gall, 128 S. Ct. at 597 (noting that a reviewing court “must first ensure that the

district court committed no significant procedural error” and then it should

“consider the substantive reasonableness of the sentence”).

      The procedural component relates to the manner in which the district court

calculated and explained the sentence. See Gall, 128 S. Ct. at 597 (noting as

examples of “significant procedural error” a district court’s “fail[ure] to calculate

(or improperly calculating) the Guidelines range” and “fail[ure] to adequately

explain the chosen sentence”); United States v. Romero, 491 F.3d 1173, 1176

(10th Cir. 2007) (treating as a claim of procedural unreasonableness defendant’s

allegation that the district court failed to explain its reasons for rejecting an

argument for a below-Guidelines sentence).

      The substantive component relates to the length of the sentence: “In

evaluating the substantive reasonableness of a sentence, we ask whether the

length of the sentence is reasonable considering the statutory factors delineated in

18 U.S.C. § 3553(a).” United States v. Hamilton, 510 F.3d 1209, 1217-18 (10th

Cir. 2007); see Atencio, 476 F.3d at 1102 (“A substantively reasonable sentence

ultimately reflects the gravity of the crime and the § 3553(a) factors as applied to

the case.”). “[W]e accord a properly calculated Guidelines sentence a

presumption of substantive reasonableness.” United States v. Hernandez, 509

F.3d 1290, 1298 (10th Cir. 2007) (citing Rita v. United States, 127 S. Ct. 2456

(2007)), and noting that the Supreme Court has “recently upheld as

                                          -7-
constitutional” the Tenth Circuit’s “approach” to the appellate presumption of

reasonableness); see Gall, 128 S Ct. at 597 (“If the sentence is within the

Guidelines range, the appellate court may, but is not required to, apply a

presumption of reasonableness.”).

      Mr. Tillet challenges his sentence on both procedural and substantive

grounds. We review each claim in turn.

A.    P ROCEDURAL R EASONABLENESS UNDER 18 U.S.C. § 3553(c)

      Because Mr. Tillett did not object at sentencing to the district court’s

alleged failure to comply with the requirements of § 3553(c), we review for plain

error. See Hamilton, 510 F.3d at 1218 (“Because [defendant] raised no

contemporaneous objection to the court’s explanation of the method of

determining his sentence, we review only for plain error.”); United States v.

Chavez-Calderon, 494 F.3d 1266, 1268 (10th Cir. 2007) (same); see also Romero,

491 F.3d at 1178 (alleviating “confusion” caused by Tenth Circuit precedent by

concluding that where a defendant “did not object on procedural grounds under §

3553(a) or (c) after the district court imposed his sentence, he has forfeited his

right to appeal this issue and our review is only for plain error”). 4


      4
              At oral argument, defense counsel, who had represented Mr. Tillett
during the sentencing proceedings, conceded that although he raised an objection
to the Guidelines sentence and argued for a downward variance, he did not
specifically object to the district court’s alleged procedural error in failing to
state on the record its reasons for imposing the particular sentence of forty-six
months.

                                          -8-
       To secure relief under the demanding plain error standard, Mr. Tillett “must

show: (1) an error, (2) that is plain, which means clear or obvious under current

law, and (3) that affects substantial rights. If he satisfies these criteria, this Court

may exercise discretion to correct the error if it seriously affects the fairness,

integrity, or public reputation of judicial proceedings.” United States v. Goode,

483 F.3d 676, 681 (10th Cir. 2007) (internal quotation marks omitted) (quoting

United States v. Kimler, 335 F.3d 1132, 1141 (10th Cir. 2003)). Even assuming

arguendo that Mr. Tillett has established the first two components of the plain

error standard, we conclude that he has not satisfied the third. Accordingly, he is

not entitled to relief.

       Mr. Tillett has failed to make an adequate showing that the district court’s

alleged failure to comply with § 3553(c)’s requirements affected his substantial

rights. To affect substantial rights, “the error must have been prejudicial.”

Romero, 491 F.3d at 1179 (quotation marks omitted). “This standard requires the

defendant to show a reasonable probability that, but for the error claimed, the

result of the proceeding would have been different.” United States v. Avalos, 506

F.3d 972, 979 (10th Cir. 2007) (internal quotation marks omitted) (quoting United

States v. Corchado, 427 F.3d 815, 818 (10th Cir. 2005)).

       Mr. Tillett makes no contention of prejudice “and we will not supply such

an argument for him.” Romero, 491 F.3d at 1179. Furthermore, although we

need not decide on these facts whether it would be determinative, the district

                                           -9-
court’s statement that “I’ve already given [Mr. Tillett] all the credit I’m going to

give him, with 46 [months],” calls into serious question Mr. Tillett’s ability to

demonstrate a reasonable probability he would receive a different (i.e., lighter)

sentence on remand. See United States v. Underwood, 446 F.3d 1340, 1344 (11th

Cir. 2006) (holding third prong of the plain error standard not satisfied where the

“record indicates no frustration on the part of the district court with the severity

of the Guidelines sentence, nor did the district court indicate a desire to impose a

lesser sentence”). Cf. United States v. Moreno-Trevino, 432 F.3d 1181, 1189

(10th Cir. 2005) (under fourth prong of plain error review, where defendant

received low end of Guidelines range, seeing “no evidence” indicating that

district court would have given defendant lighter sentence, where district court

noted that it gave him low end “because he was facing prosecution and sentencing

for a new criminal charge”). Therefore, Mr. Tillett has not carried his burden as

to the third prong and he is not entitled to relief under the plain error standard.

B.    S UBSTANTIVE R EASONABLENESS U NDER 18 U.S.C. § 3553(a)

      Mr. Tillett also challenges the substantive reasonableness of his sentence

under § 3553(a). When a defendant argues for a lower sentence before the district

court, we do not require him to lodge “a formal objection” to the sentence’s

length to avoid plain error review. United States v. Mancera-Perez, 505 F.3d

1054, 1059 (10th Cir. 2007) (“clarify[ing]” Tenth Circuit case law as “allowing

for reasonableness review” even in instances of “unpreserved substantive

                                         - 10 -
sentencing challenges” so long as the defendant has “at least made the argument

for a lower sentence before the district court”); see United States v. Garcia-

Castaneda, No. 07-2030, 2007 WL 4124347, at *1 (10th Cir. Nov. 20, 2007)

(unpublished) (noting that “exception” to plain error review as to substantive

challenges “applies only when the defendant has already made an argument for a

lesser sentence during pre-sentence arguments”), petition for certiorari filed Feb.

19, 2008 (No. 07-9540).

      After reviewing the record, including Mr. Tillett’s sentencing memoranda,

we are unable to conclude that the district court abused its discretion in imposing

a sentence of forty-six months in the circumstances of this case. Mr. Tillett has

failed to rebut the presumption of reasonableness accorded to his properly

calculated, within-Guidelines sentence.

      Mr. Tillett’s offense of conviction ordinarily carries a mandatory minimum

sentence of sixty months. The absence of any significant aggravating factors in

this case related to the offense or to Mr. Tillett was in large measure taken into

account in the sentence reduction that Mr. Tillett received under the safety-valve

provision. See, e.g., U.S.S.G. § 5C1.2 (allowing for safety-valve where a

defendant did not, inter alia, “use violence,” “possess a . . . dangerous weapon,”

or “have more than 1 criminal history point”).

      Furthermore, the district court was required to balance Mr. Tillett’s military

service, family circumstances, future deportation, and ineligibility for a halfway

                                         - 11 -
house due to pending deportation with other sentencing variables under § 3553(a),

including the need for the sentence to reflect the seriousness of the crime and

promote respect for the law. See 18 U.S.C. § 3553(a)(2). First of all, it is

doubtful that Mr. Tillett’s future deportation and ineligibility for a halfway house

could give rise to unwarranted sentencing disparities because these are direct,

legal consequences of Mr. Tillett’s unlawful alien status. Cf. United States v.

Martinez-Trujillo, 468 F.3d 1266, 1268 (10th Cir. 2006) (“We cannot say that a

disparity is ‘unwarranted’ within the meaning of § 3553(a)(6) when the disparity

is specifically authorized by Congress . . . .”)

      In any event, the district court has a wide range of discretion in striking

that balance among the § 3553(a) factors. See Smart, 2008 WL 570804, at *7

(“We may not examine the weight a district court assigns to various § 3553(a)

factors, and its ultimate assessment of the balance between them, as a legal

conclusion to be reviewed de novo.”). And we cannot conclude here that the

district court abused that discretion. Cf. United States v. Galarza-Payan, 441

F.3d 885, 887, 889-90 (10th Cir. 2006) (upholding substantive reasonableness of

fifty-seven month sentence for reentry after deportation despite defendant’s

contentions that “evidence of his cultural assimilation,” including his residence in

the United States since he was twelve and his family’s presence in the United

States, “rebut[s] the presumption of reasonableness”). Mr. Tillett’s sentence is

substantively reasonable.

                                         - 12 -
                               III. CONCLUSION

      Because any procedural error by the district court under 18 U.S.C. §

3553(c) did not affect Mr. Tillett’s substantial rights and Mr. Tillett’s substantive

arguments do not rebut the presumption of reasonableness accorded to his

properly calculated, within-Guidelines sentence, Mr. Tillett’s sentence is

AFFIRMED.




                                       Entered for the Court


                                       JEROME A. HOLMES
                                       Circuit Judge




                                        - 13 -
