                                                                       F I L E D
                                                                United States Court of Appeals
                                                                        Tenth Circuit
                      UNITED STATES CO URT O F APPEALS
                                                                       May 25, 2007
                                 TENTH CIRCUIT                     Elisabeth A. Shumaker
                            __________________________                 Clerk of Court

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

          Plaintiff-Appellee,
                                                        No. 06-3339
 v.                                            (D.Ct. No. 06-CM -60058-W EB)
                                                          (D . Kan.)
 CA RLO S CEJA-M AR TINEZ,

          Defendant-Appellant.
                        ____________________________

                                OR D ER AND JUDGM ENT *


Before TA CH A, Chief Circuit Judge, and BARRETT and BROR BY, Senior
Circuit Judges.




      After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1.9(G). The case is

therefore ordered submitted without oral argument.



      Defendant Carlos Ceja-M artinez appeals his sentence following revocation



      *
         This order and judgment is not binding precedent except under the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.
of his supervised release on grounds the district court unreasonably imposed his

sentence consecutively to, rather than concurrently with, his sentence for illegal

reentry after deportation. M r. Ceja-M artinez raises three issues in support of a

concurrent sentence, arguing the district court: 1) failed to make necessary

findings pursuant to 18 U.S.C. § 3553(a); 2) prevented counsel from making a full

argument on one of the § 3553(a) factors; and 3) improperly relied on United

States Sentencing Guidelines (“Guidelines” or “U.S.S.G.”) § 7B1.3(f), which

mandates a consecutive sentence. W e exercise jurisdiction pursuant to 18 U.S.C.

§ 3742 and 28 U.S.C. § 1291 and affirm the imposition of consecutive sentences

by the district court in sentencing M r. Ceja-M artinez.



                              I. Procedural Background

      M r. Ceja-M artinez pled guilty to one count of illegal reentry after

deportation for an aggravated felony. At the time M r. Ceja-M artinez committed

this offense, he was serving a term of supervised release for the aggravated felony

conviction. After he committed the offense of illegal reentry, the government

filed a petition to revoke his supervised release, over which the same district

court took jurisdiction. 1 On September 11, 2006, the district court held a hearing



      1
         After M r. Ceja-M artinez was charged in the United States D istrict Court
for the District of Kansas for illegal reentry, jurisdiction over his supervised
release was transferred from the U nited States D istrict Court for the W estern
District of Texas to the same Kansas court.

                                          -2-
on both the illegal reentry sentence and the supervised release violation and

sentence. At that time, M r. Ceja-M artinez admitted violating the conditions of his

supervised release, but argued his sentence should run concurrently with his

sentence for illegal reentry because the violation conduct was taken into account

in determining the Guidelines range of seventy-seven to ninety-six months

imprisonment for his illegal reentry sentence. 2 Based on M r. Ceja-M artinez’s

violation of the conditions of his supervised release, the district court revoked M r.

Ceja-M artinez’s supervised release.



      In resentencing M r. Ceja-M artinez the district court provided an

explanation for the calculation and length of the sentence imposed, through verbal

statements at the hearing and a formal written memorandum and order. It

explained the policy statements in Chapter Seven of the Guidelines, including

§ 7B1.3(f), recommended a custodial sentence of eighteen to twenty-four months,

with such sentence to run consecutively to any term of imprisonment imposed for

his illegal reentry case. The district court recognized the recommendation was

advisory and noted it retained discretion to run the sentences either concurrently

or consecutively. After considering the sentencing factors in 18 U.S.C. § 3553(a),



      2
         The record establishes M r. Ceja-M artinez did not object to the
presentence report which calculated the advisory Guidelines ranges for his
sentences. On appeal, neither party furnished the presentence report for our
review .

                                         -3-
the district court announced its intention to sentence M r. Ceja-M artinez to

eighteen months imprisonment, to run consecutively to his illegal reentry

sentence, stating it was an appropriate sentence based on its consideration of the

nature of the violation; M r. Ceja-M artinez’s characteristics, including his

significant prior history of violating conditions of probation; 3 and the sentencing

objectives required by statute, including the need to deter M r. Ceja-M artinez and

others from future criminal conduct.



      In response, M r. Ceja-M artinez’s counsel argued the prior aggravated

conviction was his only felony and a concurrent sentence was more appropriate,

given his prior felony conviction was used to: 1) increase his offense level

sixteen levels for his illegal reentry sentence; 2) add two criminal history points

to his illegal reentry sentence; and 3) raise his criminal history score to V for the

revocation sentence and VI for the illegal reentry sentence. His counsel added

that while M r. Ceja-M artinez was not “an angel,” he deserved a concurrent

sentence given his only felony conviction resulted in a lengthy seventy-seven- to

ninety-six-month sentence, taking him outside the heartland of similar cases.

Counsel further noted M r. Ceja-M artinez was a productive member of the

community with unique family circumstances, which arguably also took him



      3
        The record indicates M r. Ceja-M artinez had six separate revocations of
his supervised release on two DUI convictions.

                                          -4-
outside the heartland of similar cases.



      In response, the district court reiterated M r. Ceja-M artinez had numerous

prior revocations and further noted the fact his family would suffer from his

incarceration or that he was a productive member of the community did not take

him outside the heartland of cases. At the conclusion of arguments concerning

the revocation sentence, the district court asked, “A nything else?” to w hich M r.

Ceja-M artinez’s counsel stated, “No, Your Honor.” R., Vol. 2 at 16. The district

court then sentenced M r. Ceja-M artinez to eighteen months incarceration, to run

consecutively to his sentence for the illegal reentry offense.



      The district court next sentenced M r. Ceja-M artinez for his illegal reentry,

noting it had considered the factors in 18 U.S.C. § 3553(a), the advisory

Guidelines, and the presentence report findings, and determined a sentence at the

low end of the advisory Guidelines range of seventy-seven months imprisonment

would serve the purposes of sentencing set forth in § 3553(a). In imposing both

of M r. Ceja-M artinez’s sentences, the district court noted the consecutive

sentences would result in ninety-five months imprisonment, which is within the

advisory Guidelines range of seventy-seven to ninety-six months for the illegal

reentry offense.




                                          -5-
                                   II. Discussion

      On appeal, M r. Ceja-M artinez contends the district court unreasonably

failed to sentence him for his revocation of supervised release concurrently with

his sentence for illegal reentry after deportation, resulting in an unreasonable

sentence. In imposing a consecutive sentence, he suggests, the district court

failed to make necessary findings pursuant to 18 U.S.C. § 3553(a) regarding his

unusual situation of having only one prior felony which increased his criminal

history score to V for the revocation sentence and VI for the illegal reentry

sentence, which, he points out, are “extremely high criminal history categories.”

Due to the district court’s interruptions during his counsel’s argument, M r. Ceja-

M artinez also suggests his counsel was unable to fully explain why his prior

felony placed him outside the heartland of typical cases, justifying a concurrent

sentence. Finally, M r. Ceja-M artinez argues the district court improperly relied

on U.S.S.G. § 7B1.3(f), which, by the use of the word “shall,” mandates a

consecutive sentence on revocation of supervised release with another criminal

sentence. Instead, he suggests, the district court should have relied on the

“weaker language” in Application Note Four to § 7B1.3, which recommends

imposition of consecutive sentences. 4

      4
         M r. Ceja-M artinez also summarily claims § 7B1.3(f) does not apply
because the sentence on revocation of supervised release was imposed first,
before the imposition of his sentence on illegal reentry. However, because both
sentences were imposed at the same hearing, we find it immaterial which was
                                                                     (continued...)

                                         -6-
      Under 18 U.S.C. § 3583(e)(2) and (3), when a person violates the

conditions of supervised release, the district court may modify the conditions of

release or revoke the term of supervised release and impose prison time. See

United States v. Kelley, 359 F.3d 1302, 1304 (10th Cir. 2004). In imposing a

sentence following revocation of supervised release, the district court is required

to consider both the Chapter Seven policy statements as well as the factors

provided in 18 U.S.C. § 3553(a). 5 United States v. Cordova, 461 F.3d 1184, 1188

(10th Cir. 2006). These factors include:

      The nature and circumstances of the offense; the history and
      characteristics of the defendant; the need for the sentence imposed to
      afford adequate deterrence, protect the public, and provide the


      4
      (...continued)
imposed before the other.
      5
          18 U.S.C. § 3553(a) provides, in part, that the court shall consider:

      (1) the nature and circumstances of the offense and the history and
      characteristics of the defendant;
      (2) the need for the sentence imposed--
             (A) to reflect the seriousness of the offense, to promote respect
             for the law, and to provide just punishment for the offense;
             (B) to afford adequate deterrence to criminal conduct;
             (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;
      (3) the kinds of sentences available; ...
      (6) the need to avoid unwarranted sentence disparities among
      defendants with similar records who have been found guilty of
      similar conduct; and
      (7) the need to provide restitution to any victims of the offense.

                                          -7-
      defendant with needed educational or vocational training, medical
      care or other correctional treatment in the most effective manner;
      pertinent guidelines; pertinent policy statements; the need to avoid
      unwanted sentence disparities; and the need to provide restitution.

Id. at 1188-89 (quoting Contreras-M artinez, 409 F.3d 1236, 1242 n.3 (10th Cir.

2005)). W e have said, “[t]he sentencing court, however, is not required to

consider individually each factor listed in § 3553(a), nor is it required to 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 before issuing a sentence.” Id.

at 1189 (quotation marks and citations omitted).



      Generally, when the district court “properly considers the relevant

Guidelines range and sentences the defendant within that range, the sentence is

presumptively reasonable,” unless the defendant “rebut[s] this presumption by

demonstrating that the sentence is unreasonable in light of the other sentencing

factors laid out in § 3553(a).” United States v. Kristl, 437 F.3d 1050, 1055 (10th

Cir. 2006). Even in instances where a sentence is imposed in excess of that

recommended by Chapter Seven of the Guidelines policy statements, it will be

upheld “if it can be determined from the record to have been reasoned and

reasonable.” United States v. Rodriguez-Q uintanilla, 442 F.3d 1254, 1258 (10th

Cir. 2006) (quotation marks and citation omitted). However, regarding the

imposition of a consecutive sentence, we have said, “it is unclear post-Booker



                                          -8-
whether such decisions should be reviewed for reasonableness or for an abuse of

discretion.” Cordova, 461 F.3d at 1188.



      W e begin by noting M r. Ceja-M artinez does not contest the length of either

sentence, both of which are at the low end of the applicable advisory Guidelines

ranges, and are thereby presumptively reasonable. Instead, his argument is

premised solely on whether the district court improperly ordered his revocation

sentence to run consecutively to his other sentence. W hile an incongruence may

exist regarding the standard of review in consecutive sentencing, it is plain in this

case that under either standard applied no abuse of discretion occurred and M r.

Ceja-M artinez’s consecutive revocation sentence is both procedurally and

substantively reasonable. See Cordova, 461 F.3d at 1188.



      First, M r. Ceja-M artinez asserts the district court’s “interruptions”

prevented him from fully presenting his argument regarding whether his prior

felony unreasonably took his sentence outside the heartland of similar cases.

However, he has not explained on appeal what further arguments he would have

made at the sentencing hearing if not interrupted. To the contrary, the record

discloses M r. Ceja-M artinez raised the same points in support of his argument

before the district court that he now contends in his appeal brief he was unable to

raise. M oreover, even if counsel felt the need to elaborate further on the issue

                                          -9-
with additional points, another opportunity presented itself when the court, prior

to imposing the revocation sentence, asked, “Anything else?” to which M r. Ceja-

M artinez’s counsel stated, “No, Your Honor.” R., Vol. 2 at 16.



      Similarly, we reject M r. Ceja-M artinez’s argument the district court

improperly applied U.S.S.G. § 7B1.3(f) in a mandatory fashion. 6 Instead, it is

clear the district court recognized that the Guidelines are merely

recommendations, as evidenced by its explicit comm ents: 1) it was relying on the

policy statements in Chapter Seven of the Guidelines, including § 7B1.3(f), which

“recommended” a consecutive sentence; 2) such a recommendation was

“advisory”; and 3) it retained discretion to run the sentences either concurrently

or consecutively. R., Vol. 1, Doc. 3 at 2; V ol. 2 at 4.



      Finally, the district court did not fail to make necessary findings pursuant

to 18 U.S.C. § 3553(a) regarding M r. Ceja-M artinez’s argument he deserved a

concurrent sentence because his prior aggravated felony increased his offense

level for his illegal reentry sentence and his criminal history scores, resulting in a




      6
         W hile M r. Ceja-M artinez’s counsel claims on appeal that § 7B1.3(f)
mandatorily requires a consecutive sentence, at the sentencing hearing counsel
acknowledged the Guidelines are advisory and the district court had “considerable
discretion” in determining whether to impose a consecutive or concurrent
sentence. R., Vol. 2 at 4.

                                         -10-
score of V for the revocation sentence and VI for the illegal reentry sentence. 7

This criminal history argument was presented to the district court at sentencing,

and the district court clearly rejected it when it imposed an eighteen-month

sentence to run consecutively to his illegal reentry sentence. In imposing the

sentence, the district court explained it was an appropriate sentence based on its

consideration of the nature of the violation; M r. Ceja-M artinez’s characteristics,

including his significant prior history of violating conditions of probation; and the

sentencing objectives required by statute, including the need to deter M r. Ceja-

M artinez and others from future criminal conduct. A review of the sentencing

hearing transcript reveals M r. Ceja-M artinez’s “one felony” argument did not

dissuade the district court from its assessment, and the effect of that prior felony

offense in calculating both sentences w as but one of the factors the district court

considered, to which it was not required to give more weight than any other

factor. Thus, M r. Ceja-M artinez has not demonstrated his single aggravated

felony offense, when view ed in light of the other § 3553(a) factors, including his



      7
         Essentially, M r. Ceja-M artinez is raising an argument against “double
counting” in using his prior felony conviction to calculate both his criminal
history category and offense level. However, we have generally upheld the use of
prior convictions to calculate both criminal history categories and sentence
enhancements where the Guidelines permit such application. See United States v.
Alessandroni, 982 F.2d 419, 423 (10th Cir. 1992); United States v. Florentino,
922 F.2d 1443, 1447-48 (10th Cir. 1990). In this case, absent the presentence
report, which was not provided on appeal, M r. Ceja-M artinez has not directed us
to any Guidelines used or misapplied in such a calculation nor otherwise
persuaded us to question our clear and long-held precedent.

                                         -11-
criminal history of repeatedly violating the conditions of his probation, is

sufficiently compelling for the purpose of making his sentence unreasonable.



                                   III. Conclusion

      For these reasons, we A FFIRM the imposition of consecutive sentences by

the district court in sentencing M r. Ceja-M artinez.



                                        Entered by the C ourt:

                                        W ADE BRO RBY
                                        United States Circuit Judge




                                         -12-
