                                                                     F I L E D
                                                               United States Court of Appeals
                                                                       Tenth Circuit

                                                                     August 3, 2006
                      UNITED STATES CO URT O F APPEALS
                                                                  Elisabeth A. Shumaker
                                   TENTH CIRCUIT                      Clerk of Court




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

          Plaintiff-Appellee,
                                                        No. 05-2224
v.                                                       (D. N.M )
                                                 (D.C. No. CR-04-2105-JC)
RU BEN LO PEZ-CA M AS,

          Defendant-Appellant.




                                OR D ER AND JUDGM ENT *


Before L UC ER O, HA RTZ, and M cCO NNELL, Circuit Judges.




      Ruben Lopez-Camas pleaded guilty to illegal reentry into the United States

following deportation after conviction for an aggravated felony. After

considering the proper advisory range under the United States Sentencing

Guidelines, but failing to discuss any of the sentencing factors under 18 U.S.C.

§ 3553(a), the district court sentenced Lopez-Camas to a term of fifty-seven



      *
        This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
months’ imprisonment, a sentence at the bottom of the advisory guidelines range.

Lopez-Camas appeals his sentence, arguing it is unreasonable. Because Lopez-

Camas failed to object to the district court’s method of sentencing below, and

because failure to refer to the § 3553(a) factors in a sentencing order does not, on

its own, constitute plain error, we exercise jurisdiction pursuant to 28 U.S.C.

§ 1291 and AFFIRM the district court’s sentencing order.

      On October 7, 2004, Border Patrol agents arrested Lopez-Camas in New

M exico. Lopez-Camas admitted he was a citizen of M exico and was in the United

States illegally. Investigation revealed Lopez-Camas had been convicted of

second-degree child molestation in the State of Washington in 2003, for which he

was sentenced to eighteen months’ custody and deported to M exico on September

27, 2004.

      Lopez-Camas w as charged with and pleaded guilty to illegal reentry into

the United States following deportation after conviction for an aggravated felony

in violation of 8 U.S.C. § 1326. Applying relevant sections of the United States

Sentencing Guidelines (“USSG ” or “Guidelines”), the Presentence Investigation

Report (“PSR”) stated that Lopez-Camas’ adjusted offense level was twenty-one

and, based on his seven criminal history points, 1 his criminal history category was



      1
         In accordance with the Guidelines, Lopez-Camas received one criminal
history point for a DUI offense committed in Florida in 2000, three points for his
2003 child molestation offense, two points because his illegal reentry was
                                                                      (continued...)

                                          2
IV. Given this combination, the Guidelines specified a sentencing range of fifty-

seven to seventy-one months’ imprisonment.

      Prior to his sentencing hearing, Lopez-Camas submitted to the court a

Sentencing M emorandum and M otion for Downward Adjustment in Criminal

History Category. In the memorandum, he asserted that a criminal history

category of IV overstated the seriousness of his prior offenses and requested that

the court calculate his sentence using a criminal history category of III. He made

the same argument during the sentencing hearing.

      The district court considered Lopez-Camas’ argument, but then stated the

following:

      The Court has reviewed the presentence report factual findings and
      has considered the sentencing guideline applications. I accept your
      plea of guilty.

      The offense level is 21, and the criminal history category is IV. The
      guideline imprisonment range is 57 to 71 m onths.

      The Court notes that the defendant reentered the United States after
      having been deported following a conviction for a crime of violence,
      child molestation.

      As to the indictment . . . the defendant, Ruben Lopez-Camas, is
      committed to the custody of the Bureau of Prisons for a term of 57
      months.




      1
       (...continued)
comm itted while he remained on community supervision, and an additional point
because his illegal reentry occurred less than two years after his release from
imprisonment.

                                         3
Notably, the order did not state that the district court had considered all – or any

– of the sentencing factors under 18 U.S.C. § 3553(a) in determining the proper

sentence. Lopez-Camas appeals.

      Under U nited States v. Booker, appellate courts review district court

sentencing decisions for “reasonableness.” 543 U.S. 220, 262 (2005).

“Reasonableness has both procedural and substantive components.” United States

v. Cage, 451 F.3d 585, 591 (10th Cir. 2006).     Lopez-Camas argues that his

sentence is procedurally unreasonable because the district court failed to consider

the § 3553(a) factors before imposing his sentence.

      W e have recently considered several challenges to virtually identical

sentencing orders. On appeal, the resolution of w hether those sentencing orders

were reasonable has turned on the issue of what standard of review we applied.

The standard of review depended on whether the defendant objected to the

method by which the district court imposed the sentence.

      In U nited States v. Sanchez-Juarez, 446 F.3d 1109, 1112 (10th Cir. 2006),

we reversed a sentencing order that failed to explain why the court was imposing

the sentence. W e reviewed the sentence simply for reasonableness because the

defendant had objected to the method by which the district court calculated the

sentence. Id. The sentence was unreasonable because it did not provide a basis

for an appellate court to determine its reasonableness: “In particular, where a

defendant has raised a nonfrivolous argument that the § 3553(a) factors w arrant a

                                           4
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

conforms, in the circumstances, to the statutory factors.” Id. (emphasis added).

      In U nited States v. Lopez-Flores, 444 F.3d 1218, 1222 (10th Cir. 2006),

however, the defendant had not objected to a sentencing order which did not refer

to any § 3553(a) factors. Thus, we applied plain error review. The reason for

this is that parties should inform the district court about a failure in the method by

which it imposed the sentence so it can revise its order.

      “A timely objection to the method can alert the district court and
      opposing counsel, so that a potential error can be corrected, obviating
      any need for an appeal. Here, for example, an objection that the
      sentencing court had not adequately explained the sentence under the
      factors set forth in 18 U.S.C. § 3553(a) would have enabled the court
      either to correct a failure to consider those factors or to state
      affirmatively that the factors had been considered.”

Id. at 1221. W e then held that the district court's failure to give any explanation

for its reasoning other than a recitation of the applicable guidelines range did not

constitute plain error. “W hen the defendant has not raised any substantial

contentions concerning non-Guidelines § 3553(a) factors and the district court

imposes a sentence within the Guidelines range, our post-Booker precedents do

not require the court to explain on the record how the § 3553(a) factors justify the




                                           5
sentence.” Id. 2

      Thus, the only relevant question is whether Lopez-Camas’ objection to the

calculation of the sentencing range in the presentence report, which he made

again during the sentencing proceeding, constituted an objection to the

reasonableness of a sentence within the guidelines range. In that motion,

Lopez-Camas only requested that the district court grant a downward adjustment,

i.e., it should make a different determination of what the proper guidelines range

was. This was the only argument he raised; although Booker had been decided

months before his sentencing hearing, Lopez-Camas made absolutely no mention

of the district court’s sentencing discretion. Had he made any mention of

reasonableness or the § 3553(a) factors, this would be a substantially different

case. However, as we explained in Lopez-Flores, the failure to argue that a

sentence within the guidelines range would be unreasonable leaves the district

court without notice allowing it to reconsider the matter under § 3553(a), if

warranted. “Although . . . it is unnecessary to argue to the district court after

imposition of the sentence that the sentence is unreasonably long, the usual



      2
         In Lopez-Flores, we explicitly distinguished a Seventh Circuit opinion,
United States v. Castro-Juarez, 425 F.3d 430 (7th Cir. 2005). Lopez-Flores, 444
F.3d at 1221. That opinion held that a failure to object to the length of a sentence
after the sentence is issued does not require plain error review. Castro-Juarez,
425 F.3d at 433-34. The rule in Castro-Juarez is not implicated in this case
because this is a challenge to the sentencing method used by the district court,
and not to the length of the sentence, and because Lopez-Camas did not object at
any point to the reasonableness of a guidelines-range sentence.

                                          6
reasons for requiring a contemporaneous objection apply to challenges to the

district court's method of arriving at a sentence.” Lopez-Flores, 444 F.3d at 1221.

Nothing in Lopez-Camas’ objections referred to the method by which the district

court ultimately determined the sentence – in fact, until this appeal, he did not

argue that a sentence within the Guidelines w ould not be in accord with

§ 3553(a). A s such, plain error review applies.

      The district court did not commit plain error. “Plain error occurs when

there is (1) error, (2) that is plain, which (3) affects substantial rights, and which

(4) seriously affects the fairness, integrity, or public reputation of judicial

proceedings.” U nited States v. Gonzalez-Huerta, 403 F.3d 727, 732 (10th Cir.

2005) (internal quotation marks omitted). Lopez-Camas raises no argument that

distinguishes this case from Lopez-Flores, and, there, we found no error.

Accordingly, the district court did not commit plain error. AFFIRM ED.



                                         ENTERED FOR THE COURT



                                         Carlos F. Lucero
                                         Circuit Judge




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