                                                                      FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                     UNITED STATES CO URT O F APPEALS
                                                                 October 16, 2007
                                                    Elisabeth A. Shumaker
                              TENTH CIRCUIT             Clerk of Court



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

          Plaintiff–Appellee,
                                                        No. 06-2289
 v.                                               (D.C. No. CR-92-236 JC)
                                                         (D . N.M .)
 M AR IO PEREZ,

          Defendant–Appellant.



                                OR DER AND JUDGM ENT *


Before L UC ER O, HA RTZ, and GORSUCH, Circuit Judges.


      Appellant M ario Perez appeals his sentence following revocation of

supervised release on the ground that the district court was unreasonable in

imposing this sentence consecutive to, rather than concurrent with, his sentence

for a new drug conviction. W e have jurisdiction under 18 U.S.C. § 3742(a) and

28 U.S.C. § 1291 and A FFIR M .




      *
        The case is unanimously ordered submitted without oral argument
pursuant to Fed. R. App. P. 34(a)(2) and 10th Cir. R. 34.1(G). 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judgment is not binding precedent, except under the doctrines of law of the case,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. 32.1.
                                          I

      In 1992, Perez, a Cuban national and deportable alien, was convicted of

federal charges related to a drug distribution conspiracy in the District of New

M exico (“the N ew M exico case”). He was sentenced to 87 months’

imprisonment, concurrently with a 120-month sentence on related state charges,

followed by three years’ supervised release. After serving his term of

imprisonment, Perez was released into the custody of the Bureau of Immigration

and Customs Enforcement (“ICE”) and detained for nearly two years. 1 Perez’s

period of supervised release began to run as soon as he was transferred to ICE

custody.

      Approximately one year after his release from ICE custody and with only

five weeks of supervised release remaining, Perez was arrested for participating

in a cocaine sale. H e pled guilty to charges of possession with intent to distribute

in the Central District of California (“the California case”) and was sentenced to

108 months’ imprisonment.

      Because this new conviction violated the conditions of Perez’s supervised

release in the New M exico case, his parole officer filed a Violation Report



      1
        Because Cuba does not accept repatriations from the United States, Perez
was detainable for a reasonable period of time pursuant to Zadvydas v. Davis, 533
U.S. 678, 689 (2001). The reasons for Perez’s long detention are not clear from
the record and are not at issue in this case.

                                         -2-
calculating an advisory sentencing range of 18 to 24 months’ imprisonment

pursuant to § 7B1.1, .3, & .4(a) of the Sentencing Guidelines. The New M exico

district court held a revocation hearing on September 20, 2006, and imposed an

additional 18-month sentence, to run consecutively with the 108-month sentence

in the California case. Perez appeals the consecutive nature of this revocation

sentence, but not its length or method of calculation, as procedurally and

substantively unreasonable.

                                          II

       W e review sentences for both procedural and substantive reasonableness,

United States v. Cage, 451 F.3d 585, 591 (10th Cir. 2006), and apply a rebuttable

presumption of reasonableness to within-Guidelines sentences, United States v.

Kristl, 437 F.3d 1050, 1054 (10th Cir. 2006). W hen imposing a sentence upon

revocation of supervised release, procedural reasonableness requires that a

sentencing judge consider the sentencing factors specified in 18 U.S.C.

§ 3583(e). 2   Furthermore, the district court must “state in open court the reasons

       2
       Section 3583(e) incorporates several of the sentencing factors in 18
U.S.C. § 3553(a), specifically:

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

                                         -3-
for its imposition of a particular sentence.” 18 U.S.C. § 3553(c); see also United

States v. Rose, 185 F.3d 1108, 1112-13 (10th Cir. 1999) (applying § 3553(c) to

the imposition of consecutive sentences upon revocation of supervised release

under § 3583(e)(3)). This explanation need not be “lengthy” where the sentence

imposed is consistent with the Guidelines. Rita v. United States, 127 S. Ct. 2456,

2468 (2007). Rather, a judge must simply satisfy us “that he has considered the

parties’ arguments and has a reasoned basis for exercising his own legal

decisionmaking authority.” Id.

      W e apply an even more deferential standard of review where a defendant

fails to contemporaneously object to the sentencing court’s procedure, including

its consideration of the appropriate sentencing factors. In such cases, we review

only for plain error. United States v. Romero, 491 F.3d 1173, 1177 (10th Cir.

2007). Because Perez did not object at sentencing, we will remand for

resentencing only if “there is (1) error, (2) that is plain, (3) which affects

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

reputation of judicial proceedings.” Id. at 1178. W e have recently refused to find

plain error in the imposition of a within-Guidelines sentence even where a district

judge mentioned only the G uidelines and addressed neither the defendant’s



      2
          (...continued)

United States v. Contreras-M artinez, 409 F.3d 1236, 1242 n.3 (10th Cir. 2005).

                                          -4-
nonfrivolous arguments for a lower sentence, nor the factors in § 3553(a). See

United States v. Cereceres-Zavala, ___ F.3d ___, 2007 W L 2421755, at *5 (10th

Cir. Aug. 28, 2007).

      Perez challenges on appeal the sentencing judge’s failure to explicitly

reference the § 3553(a) factors during his revocation hearing. At the hearing,

Perez admitted violating the conditions of his supervised release, and his counsel

asked the judge to consider Perez’s cooperation against other defendants in the

California case in determining his sentence, adding that his violation came just

five weeks before the end of his term of supervised release. Perez himself

requested a concurrent sentence. The court rejected this request, stating:

      The Court determines that under Section 7B1.1 of the sentencing
      guidelines, which are not binding on me, that the crime for which the
      defendant admitted is classified as a Grade A violation. The criminal
      history category is III. A Grade A violation and a criminal history
      category of III establishes a revocation imprisonment range of 18 to
      24 months. The Court finds that the sentencing guidelines are
      advisory.

      The defendant, M ario Perez, is comm itted to the custody of the
      Bureau of Prisons for a term of 18 months. Said term shall run
      consecutively to the term of imprisonment in . . . the Central District
      of California.

      The Guidelines provide that “[a]ny term of imprisonment imposed upon the

revocation of probation or supervised release shall be ordered to be served

consecutively to any sentence of imprisonment that the defendant is serving.”

U.S.S.G. § 7B1.3(f). Thus, the district court was w ithin the Guidelines in


                                        -5-
imposing consecutive terms, and Perez’s sentence is entitled to a rebuttable

presumption of reasonableness. See Kristl, 437 F.3d at 1054. To rebut this

presumption, Perez argues that the district court’s failure to allude to the

§ 3553(a) factors or directly address his arguments for a variance renders his

sentence procedurally unreasonable.

      In light of our recent holding in Cereceres-Zavala, however, it was not

plain error for the sentencing court not to address Perez’s arguments in detail.

See Cereceres-Zavala, 2007 W L 2421755, at *5 (“Circumstances may well make

clear that the judge rests his decision upon the Commission’s own reasoning that

the Guidelines sentence is a proper sentence (in terms of § 3553(a) and other

congressional mandates) in the typical case.” (quoting Rita, 127 S. Ct. at 2468)).

In that case, we found a sentence to be reasonable in circumstances identical to

those at hand, except that the defendant therein had raised his arguments in more

detail and in writing. Id. at *1. Considering the weakness of Perez’s arguments

for a variance (see supra) and the sentencing court’s explicit recognition that the

Guidelines are not binding on it, we hold that the context here makes clear that

the sentencing judge applied his independent judgment and chose to rely on the

reasoning behind the Guidelines. 3 Thus, Perez’s sentence is procedurally reasonable.

      3
        W e recognize that there may be tension between Cereceres-Zavala and
past decisions holding that the district judge must “somehow indicate that he or
she did not rest on the guidelines alone.” E.g., United States v. Jarrillo-Luna, 478
F.3d 1226, 1230 (10th Cir. 2007) (citing United States v. Sanchez-Juarez, 446
                                                                        (continued...)

                                         -6-
                                         III

      Perez also challenges the substantive reasonableness of his sentence. W e

have not yet articulated a standard of review for consecutive sentences imposed

upon revocation of release after U nited States v. Booker, 543 U.S. 220 (2005).

However, because we find that Perez’s sentence was reasonable, and it is clear

that we do not examine a district court’s chosen sentence for anything more

demanding than reasonableness, see Rodriguez-Quintanilla, 442 F.3d 1254, 1257

(10th Cir. 2006), 4 we need not consider the applicability of some even more

deferential standard of review.




      Perez challenges the reasonableness of the consecutive nature of his

revocation sentence in light of: (1) the length of his sentence in the California

case; (2) the time he spent in ICE detention; and (3) his cooperation with the




      3
       (...continued)
F.3d 1109, 1117 (10th Cir. 2006)). Given the substantial similarity between
Cereceres-Zavala and this case, however, w e are bound by its holding.
      4
        Rodriquez-Quintanilla explains the confusion surrounding the effect of
Booker on our review of consecutively-imposed revocation sentences. See id. at
1256-58. W e note that since Rodriguez-Quintanilla was decided, we have held
that our sliding scale of “reasonableness” review is the same as the “abuse of
discretion” standard described in Rita. See United States v. Garcia-Lara, ___
F.3d ___, 2007 W L 2380991 (10th Cir. Aug. 22, 2007).

                                        -7-
government in the California case. 5 None of these factors rendered the district

court’s decision to impose a consecutive sentence unreasonable.

      First, Perez does not argue that either the California sentence or the

revocation sentence was unreasonably long by itself, and each sentence was

calculated in accordance with the Guidelines. In the absence of some other factor

not taken into account by the Guidelines, the long total incarceration imposed the

two sentences does not make their consecutive imposition unreasonable.

      Nor does the length of time Perez spent in immigration detention overcome

the presumed reasonableness of his revocation sentence. Perez asks us to find

that it was unreasonable for the sentencing judge not to make his revocation

sentence concurrent because he was recently deprived of his liberty for

nonpunitive reasons. 6 Although past immigration detention might be a

permissible fact for a sentencing judge to consider under § 3553(a)(2)(B)

(“adequate deterrence”), the court in this case was also free to exercise its

discretion to reject this factor. The fact that Perez committed a new crime so

soon after his release from ICE custody suggests that the judge was correct to

disregard the possibility of a deterrent effect.



      5
       Perez does not renew his argument at sentencing that the short time
remaining in his period of supervised release rendered the consecutive sentence
unreasonable.
      6
          Immigration detention is civil and nonpunitive. See Zadvydas, 533 U.S.
at 690.

                                         -8-
      Finally, although Perez apparently did not receive a departure in the

California case for “substantial assistance to authorities” under § 5K1.1 of the

Guidelines, it does not follow that it was unreasonable for the sentencing judge to

decline to take that cooperation into account in setting his revocation sentence.

Perez presented no evidence of this cooperation or its value to the sentencing

judge beyond the brief description offered by his counsel. In light of the Central

District of California’s failure to grant a departure from Perez’s sentence in the

case in which he alleges cooperation, it was reasonable for the N ew M exico court

to conclude that no departure from his revocation sentence was merited.

      In short, none of the factors cited by Perez are sufficient to overcome the

presumption of substantive reasonableness that attaches to within-Guidelines

sentences imposed by the district courts.

                                            IV

      For the reasons stated above, we AFFIRM the district court.


                                       ENTERED FOR THE COURT



                                       Carlos F. Lucero
                                       Circuit Judge




                                         -9-
