United States v. Romero ( 2016 )

FILED
United States Court of Appeals
Tenth Circuit
January 27, 2016
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
TENTH CIRCUIT Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 15-1201
(D.C. No. 09-CR-00426-PAB-1)
RONALD ROMERO, (D. Colo.)
Defendant - Appellant.
ORDER AND JUDGMENT *
Before KELLY, LUCERO, and McHUGH, Circuit Judges. **
Defendant-Appellant Ronald Romero appeals from the sentence of 21
months’ imprisonment for the violation of his supervised release conditions. Mr.
Romero’s attorney filed a brief and motion to withdraw following Anders v.
California, 386 U.S. 738 (1967). We have jurisdiction pursuant to 28 U.S.C.
§ 1291 and 18 U.S.C. § 3742(a). We dismiss the appeal and grant counsel’s
*
This order and judgment is not binding precedent, except under the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.
**
After examining the briefs and the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1(G). The cause is therefore ordered submitted without oral argument.
motion to withdraw.
Background
Mr. Romero was convicted of assaulting a federal officer, 18 U.S.C.
§ 111(a)(1) & (b), and sentenced to a term of 51 months’ imprisonment followed
by three years’ supervised release. For this sentence only, the court departed
from criminal history category II to VI. The judgment was affirmed on direct
appeal. United States v. Romero, 442 F. App’x 399 (10th Cir. 2011).
Mr. Romero began his supervised release on November 14, 2013. In
violation of the conditions imposed, he used alcohol to excess on January 4, 2014.
The magistrate judge warned Mr. Romero that this behavior was in violation of
the conditions imposed and would not be tolerated. Mr. Romero again violated
his supervised release conditions on March 1, 2014, and eventually pled guilty to
burglary, menacing, and assault in state district court. For these offenses, Mr.
Romero was sentenced to five years’ imprisonment on the burglary count (and
lesser concurrent terms on the other offenses) followed by three years of
mandatory parole.
Mr. Romero admitted to the violations of his supervised release alleged by
his federal probation officer. He was then sentenced to an additional 21 months’
imprisonment, consecutive to the state sentence with no additional term of
supervised release.
-2-
Mr. Romero’s advisory guideline range was 15–21 months for the violation
of his supervised release condition. To reach this guideline range, the court
placed him in criminal history category II. The government argued for an upward
departure to criminal history category of VI, although it recognized that the
maximum sentence the court could impose for the underlying Class C felony was
two years. 18 U.S.C. § 3583(e)(3). Mr. Romero filed a sentencing memorandum
requesting a consecutive sentence at the bottom of the guideline range, noting that
he had been incarcerated for most of the last eight years without assaultive
behavior. 1 R. 70–71. At the revocation hearing, Mr. Romero noted that counsel
did not include his request for a sentence concurrent with the state sentence. The
district court denied the government’s motion for a non-guideline sentence,
finding that Mr. Romero had made some progress in controlling his behavior, was
getting older, and wanted to change. 3 R. 23–25. Weighing the parties’ requests,
the district court sentenced Mr. Romero at the top of the guideline range and ran
the sentence consecutive to the state court sentence.
Discussion
In Anders, the Supreme Court explained that “if counsel finds his case to be
wholly frivolous, after a conscientious examination of it, he should so advise the
court and request permission to withdraw.” 386 U.S. at 744. Mr. Romero’s
counsel has done so, and Mr. Romero has responded. Pursuant to Anders, we
-3-
conduct an independent review to decide whether any claim Mr. Romero might
raise has merit. Id.We review the reasonableness of a district court’s sentence using an abuse
of discretion standard. Gall v. United States, 552 U.S. 38, 51 (2007). When the
review is of a sentence imposed after the revocation of supervised release, we
accept factual findings unless clearly erroneous and give de novo consideration to
legal conclusions. United States v. Tsosie, 376 F.3d 1210, 1217–18 (10th Cir.
2004). There is a presumption of reasonableness that attaches to a sentence
within the range suggested by the Sentencing Guidelines. United States v.
McBride, 633 F.3d 1229, 1233 (10th Cir. 2011). Because Mr. Romero admitted
to the violations of his supervised release and did not object to the revocation or
request to withdraw the admission, only plain error review is available on appeal.
See United States v. Fay, 547 F.3d 1231, 1234 (10th Cir. 2008).
Nothing in the record suggests that the court incorrectly calculated or
applied the guidelines range, failed to consider the 18 U.S.C. § 3553(a) factors,
relied on clearly erroneous facts, or ignored the policy statements in Chapter 7 of
the Sentencing Guidelines. See Gall, 552 U.S. at 51. Mr. Romero alleges that he
was incorrectly placed into criminal history category VI and that he signed a plea
deal limiting his sentence to 12 months. As previously stated, although the
government recommended Mr. Romero be placed in criminal history category VI,
the court placed him in criminal history category II after carefully weighing a
-4-
variety of factors. Furthermore, although Mr. Romero did sign a plea deal as to
the underlying convictions in which he admitted to the excessive use of alcohol,
burglary, menacing, and third-degree assault, 3 R. 7–9, there is no indication Mr.
Romero signed a plea agreement in regard to the revocation of his supervised
release.
For the foregoing reasons, we DISMISS the appeal and GRANT counsel’s
motion to withdraw.
Entered for the Court
Paul J. Kelly, Jr.
Circuit Judge
-5-