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

                                                                             April 11, 2006
                      UNITED STATES COURT OF APPEALS
                                                                         Elisabeth A. Shumaker
                                                                             Clerk of Court
                                   TENTH CIRCUIT



 UNITED STATES OF AMERICA,

          Plaintiff - Appellee,
                                                          No. 05-1409
 v.
                                                      (D.C. No. 05-CR-37)
                                                           (D. Colo.)
 FERNANDO ROJO-QUINTERO,

          Defendant - Appellant.


                             ORDER AND JUDGMENT *


Before HARTZ, EBEL, and TYMKOVICH, Circuit Judges.


      Defendant Fernando Rojo-Quintero pleaded guilty but now appeals his

sentence, claiming that the district court failed to properly apply the factors

enumerated in 18 U.S.C. § 3553(a) in calculating that sentence. Because the

district court did not err in its consideration of the factors, we affirm.



      *
       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not binding precedent, except under the doctrines of law of the case, res judicata,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. 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.
                                 BACKGROUND

      Mr. Rojo-Quintero pleaded guilty, pursuant to a plea agreement, to one

count of conspiracy to distribute and to possess with intent to distribute over 500

grams of methamphetamine. See 21 U.S.C. §§ 841, 846. The presentence report

calculated an advisory Guidelines range of 108 to 135 months and recommended a

108-month sentence. Although this recommendation was lower than the 10-year

statutory minimum sentence for Mr. Rojo-Quintero’s offense, the report

concluded that the “safety valve” provision, 18 U.S.C. § 3553(f), would allow the

court to sentence below the statutory minimum. Paragraphs 77 to 81 of the

presentence report also discussed the applicability of some of the factors listed in

§ 3553(a). In particular, paragraph 81 noted that Mr. Rojo-Quintero, a Mexican

national, had entered the country illegally and that “it is probable the defendant

will be deported upon completion of his custodial term.” Mr. Rojo-Quintero did

not file any objections to the presentence report.

      At his August 2005 sentencing, the government conceded and the court

agreed that Mr. Rojo-Quintero was eligible for the safety valve adjustment. Mr.

Rojo-Quintero’s attorney also requested that the court “consider even going below

the guideline range given the circumstances of Mr. Rojo-Quintero’s situation; that

is his age, his lack of a prior criminal record, and his stated involvement in this

offense.” Although the government did not oppose sentencing Mr. Rojo-Quintero


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at the bottom end of the Guidelines range, it objected to imposition of a sentence

below that range.

      After hearing from the parties, the court imposed a sentence of 108 months,

the bottom of the advisory Guidelines range. The court noted that, “while not

bound to apply the guidelines, [it] has consulted these advisory guidelines and

taken them into account with the sentencing factors identified at 18 United States

Code Section 3553(a).” The court further noted that it would “adopt the rationale

for the sentences set forth in the presentence report, particularly . . . paragraphs

77 to . . . 81.” In responding to the arguments of Mr. Rojo-Quintero’s attorney,

the court stated that “I don’t see a basis for a downward departure. I don’t

believe that the criteria set forth in 18 United States code Section 3553(a)

mandates a lower sentence.”

      Mr. Rojo-Quintero now appeals his sentence, asserting that “the trial court

failed to make adequate findings with respect to the application of 18 U.S.C.

[§] 3553(a).” He claims error because “[t]he court articulated no specific reason

for following the application of the Sentencing Guidelines in imposing sentence

in this action, other than to merely reference the presentence report,” yet “[t]he

paragraphs cited in the presentence report do not specifically address all the

factors set forth in 18 U.S.C. 3553(a).” Specifically, Mr. Rojo-Quintero asserts

that the court failed to properly consider the factors given in § 3553(a)(2)(C) &


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(D). 1 He emphasizes that he is likely to be deported following completion of his

sentence, and “[s]ince the Defendant would not be returning to the population in

this country, his risk to the public would be much less.” Therefore, he asks that

we remand for the district court to consider this factor and to resentence him.

                                   DISCUSSION

      We reject Mr. Rojo-Quintero’s claims on appeal. He concedes that our

review is for plain error, which only “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.” United States v.

Gonzalez-Huerta, 403 F.3d 727, 736 (10th Cir.) (en banc) (quotation omitted),

cert. denied, 126 S. Ct. 495 (2005). In this case, there has been no showing of

error, plain or otherwise. As we have stated in no uncertain terms, it is

      quite clear that the sentencing court is not required to consider
      individually each factor listed in § 3553(a) before issuing a sentence.
      We do not require “a ritualistic incantation to establish consideration of
      a legal issue,” nor do we demand that the district court “recite any
      magic words” to show us that it fulfilled its responsibility to be mindful
      of the factors that Congress has instructed it to consider. Rather, it is
      enough if the district court considers § 3553(a) en masse and states its
      reasons for imposing a given sentence.


      1
       This portion of the § 3553(a) reads:
      The court, in determining the particular sentence to be imposed, shall
      consider . . . the need for the sentence imposed . . . (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 . . . .

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United States v. Kelley, 359 F.3d 1302, 1305 (10th Cir. 2004) (citations omitted);

see also United States v. Rines, 419 F.3d 1104, 1107 (10th Cir. 2005) (“It is true

that the district court did not march through § 3553(a)’s sentencing factors, but

we have never imposed such a requirement.”), cert. denied, 126 S. Ct. 1089

(2006).

      The district court has satisfied this standard. The court specifically adopted

the presentence report’s discussion of the § 3553(a) factors, including paragraph

81, which specifies that Mr. Rojo-Quintero is an illegal alien and likely to face

deportation upon release from custody. Moreover, there is no indication that the

court limited its analysis to the factors identified in the presentence report: it

stated that it “has consulted the[] advisory guidelines and taken them into account

with the sentencing factors identified at 18 United States Code Section 3553(a).”

(emphasis added). Ultimately, the district court simply “d[id]n’t believe that the

criteria set forth in 18 United States code Section 3553(a) mandates [sic] a lower

sentence.” Other than the court’s failure to “march through” the § 3553(a)

factors, there is nothing to suggest that it failed to properly consider those factors.

      Therefore, we AFFIRM Mr. Rojo-Quintero’s sentence.



                                        ENTERED FOR THE COURT


                                        David M. Ebel

                                          -5-
Circuit Judge




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