United States v. Ceja-Martinez ( 2007 )


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  •                                                                        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    This order and judgment is not binding precedent except under the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.
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    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 .
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    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.
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    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.
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    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...)
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    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.
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    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
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    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
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    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.
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    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.
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    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
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