UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

_________________________________ 

UNITED STATES OF AMERICA, 

 Plaintiff - Appellee, 

v. 

LUIS ALBERTO LOPEZ-MONTEZ, 

a/k/a ALBERTO LOPEZ-MONTEZ, 

a/k/a RODOLFO GONZALEZ-LOPEZ, 

a/k/a YAMIL URIEL LECINTO, 

 Defendant - Appellant. 

–––––––––––––––––––––––––––––––––––

UNITED STATES OF AMERICA, 

 Plaintiff - Appellee, 

v. 

RODOLFO GONZALEZ-LOPEZ, 

 Defendant - Appellant. 

No. 14-1506 

(D.C. No. 1:14-CR-00242-JLK-1) 

(D. Colo.) 

No. 14-1507 

(D.C. No. 1:14-CR-00320-JLK-1) 

(D. Colo.) 

_________________________________ 

ORDER AND JUDGMENT*

_________________________________ 

Before TYMKOVICH, Chief Judge, HOLMES and PHILLIPS, Circuit Judges. 

 *

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

unanimously to honor the parties’ request for a decision on the briefs without oral 

argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore 

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 This order and judgment is not binding precedent, 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. It 

may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 

and 10th Cir. R. 32.1. 

FILED 

United States Court of Appeals

Tenth Circuit 

October 23, 2015

Elisabeth A. Shumaker 

Clerk of Court
2 

_________________________________ 

In two cases that were consolidated on appeal, appellant Rodolfo 

Gonzalez-Lopez, a/k/a Luis Alberto Lopez-Montez, pleaded guilty to illegal reentry 

by a deported alien following an aggravated felony conviction and to violating his 

supervised release. He challenges the procedural reasonableness of the sentences 

imposed. Exercising jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742, we 

affirm both sentences. 

I. Background 

 Mr. Gonzalez-Lopez is a Mexican citizen who first came to the United States 

illegally in 1999. Since then, he has sustained three convictions for drug offenses 

and been removed from the country three times. His latest conviction, in Colorado 

state court, resulted in a four-year prison sentence. While serving that sentence, he 

was charged in Colorado federal court with illegal reentry, to which he pleaded guilty 

(Appeal No. 14-1506). In addition, because Mr. Gonzalez-Lopez was still serving a 

term of supervised release imposed by a federal court in Ohio for an earlier drug 

offense, jurisdiction in that case was transferred to the Colorado federal court, where 

he was then also charged with violating his supervised release (Appeal No. 14-1507). 

 The Presentence Investigation Report (PSR) for the reentry offense 

recommended a 37-month sentence based on the United States Sentencing Guidelines 

imprisonment range of 37 to 46 months. The Supervised Release Violation Report 

for the revocation offense recommended a sentence of 18 months (consecutive to any 

sentence imposed for the reentry offense) based on the Guidelines imprisonment 
3 

range of 12 to 18 months. The calculation of these Guidelines ranges is not at issue 

in this appeal. 

Before sentencing, Mr. Gonzalez-Lopez moved for a variant sentence of 

24 months on the reentry conviction, to run concurrently with the sentence he was 

already serving on his Colorado conviction. Citing United States v. Garcia-Jaquez, 

807 F. Supp. 2d 1005 (D. Colo. 2011), Mr. Gonzalez-Lopez argued that the 

Guidelines for the reentry conviction should be disregarded because they are not 

based on empirical data and that the purposes of 18 U.S.C. § 3553(a) would be better 

served if a shorter sentence were imposed. He did not file any objections to the 

sentencing recommendation on the violation of his supervised release. 

 The district court held a single hearing at which it sentenced 

Mr. Gonzalez-Lopez on the reentry conviction and, after he admitted to violating his 

supervised release, sentenced him on that also. At the hearing, Mr. Gonzalez-Lopez 

continued to argue for a 24-month concurrent sentence, emphasizing that his actions, 

though misguided, were motivated by a desire to help his family in Mexico. The 

government agreed that a 24-month sentence was appropriate but argued that the 

sentence should be consecutive to the Colorado sentence he was already serving. 

With respect to the violation of his supervised release, Mr. Gonzalez-Lopez admitted 

the allegations supporting the revocation petition but did not make any arguments 

about sentencing. 

 The district court addressed the reentry conviction first. It identified the same 

Guidelines range as set forth in the PSR, denying Mr. Gonzalez-Lopez’s objections to 
4 

the PSR. The court then stated it would not follow the Guidelines in this case, 

expressly adopting the rationale provided in Garcia-Jaquez, 807 F. Supp. 2d 

at 1011-15. Nonetheless, the court stated it would look at the Guidelines and take 

them as advice as required under Gall v. United States, 552 U.S. 38, 49 (2007). The 

court also stated that it would follow and apply the factors to be considered in 

imposing a sentence set forth in 18 U.S.C. § 3553(a). The court then considered 

several of the § 3553(a) factors. 

Regarding the history and characteristics of Mr. Gonzalez-Lopez, the court 

stated that selling heroin is “the moral equivalent of a crime of violence” because it 

means “selling death on the installment plan”; that providing one’s family with the 

fruit of such a crime is “not a noble endeavor”; and that his conduct placed him 

outside the category of people who, despite entering the country illegally, deserve 

compassion and empathy. R., Vol. III, at 42-43.1

 With regard to promoting respect 

for the law, the court noted that Mr. Gonzalez-Lopez had “demonstrated time and 

time again that the laws of the United States mean absolutely nothing to him” by 

repeatedly reentering the country and selling dangerous drugs. Id. With regard to 

affording adequate deterrence, the court emphasized that it would not “trivialize” 

Mr. Gonzalez-Lopez’s conduct by imposing a light sentence: “I want the other 

people in prison and the people in Mexico to know that you come to this country and 

do what this defendant did, you’re going to pay for it. And he should know it, too.” 

 1

 Citations to the record in this order and judgment are to the record on appeal 

filed in Appeal No. 14-1506. An identical transcript of the hearing (but with 

different pagination) was filed in Appeal No. 14-1507. 
5 

Id. at 43. The court also noted that in response to a prior lenient sentence, 

Mr. Gonzalez-Lopez had chosen to reoffend. And regarding protecting the public, 

the court stated that a determined drug pusher needed to be kept off the streets. Id. 

Based on these findings, the court sentenced Mr. Gonzalez-Lopez to a 

40-month term of imprisonment on the reentry conviction, to run consecutively to his 

Colorado sentence. 

The court then addressed the supervised release violation, indicating that for 

essentially the same reasons, it was imposing an 18-month sentence, consecutive to 

both the Colorado sentence and the reentry sentence. 

II. Discussion 

 On appeal, Mr. Gonzalez-Lopez argues that both sentences are procedurally 

unreasonable. First, he argues that the district court failed to adequately consider the 

Guidelines with respect to his sentence on the reentry offense. Second, he argues that 

the district court failed to adequately explain why it imposed a consecutive sentence 

for the violation of his supervised release. 

 When a party does not preserve a procedural challenge to a sentence, as 

Mr. Gonzalez-Lopez concedes is true here, we review only for plain error. See 

United States v. Gantt, 679 F.3d 1240, 1246 (10th Cir. 2012). “Under plain error 

review, the defendant must demonstrate (1) there is error, (2) that is plain, (3) which 

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

public reputation of judicial proceedings.” United States v. Ruby, 706 F.3d 1221, 

1226 (10th Cir. 2013). We discern no plain error. 
6 

 A sentence is procedurally reasonable when the sentencing court calculates the 

applicable Guidelines range, considers the § 3553(a) factors, and affords the 

defendant his rights under the Federal Rules of Criminal Procedure. United States v. 

Geiner, 498 F.3d 1104, 1107 (10th Cir. 2007). Conversely, “[a] district court 

commits a procedural sentencing error by failing to consider sentencing factors 

enumerated in 18 U.S.C. § 3553(a) or by failing to offer an individualized assessment 

of how the factors apply in a particular criminal defendant’s case.” United States v. 

Chavez, 723 F.3d 1226, 1232 (10th Cir. 2013). Section 3553(a) requires the 

sentencing court to consider, among other things, whether the sentence imposed 

reflects the seriousness of the offense, promotes respect for the law, provides just 

punishment, affords adequate deterrence, and protects the public from further crimes 

of the defendant. Chavez, 723 F.3d at 1232. “This same requirement applies to a 

district court’s determination of whether to impose a consecutive or concurrent 

sentence.” Id.; see also 18 U.S.C. § 3584(b). 

A. Reentry Offense 

 Although the Guidelines are merely advisory, “[t]he sentencing court must 

give consideration to the applicable guideline sentence.” Gantt, 679 F.3d at 1247. 

Mr. Gonzalez-Lopez does not argue that the district court failed to properly calculate 

the applicable sentencing range under the Guidelines. By calculating and 

acknowledging the advisory guideline sentence, the court satisfied its obligation to 

consider the Guidelines. See id. at 1248 (“To consider is not necessarily to adopt.”). 
7 

Contrary to Mr. Gonzalez-Lopez’s argument on appeal, the record as a whole makes 

clear that the court did not outright disregard the Guidelines. 

Further, in spite of the court’s statement that it would not follow the 

Guidelines, the sentence it imposed is within the Guidelines imprisonment range. 

When a court imposes a sentence falling within the range suggested by the 

Guidelines, it must give “only a general statement of the reasons for its imposition of 

the particular sentence.” Chavez, 723 F.3d at 1232. Here, the district court gave 

much more than a general statement and specifically described its reasons, based 

explicitly on the § 3553(a) factors, for imposing a 40-month sentence. We see no 

clear or obvious error. 

To the extent Mr. Gonzalez-Lopez argues that the court erred by stating that 

his motion for a variant sentence was “moot,” the record reflects that at that point in 

the hearing the court had already denied the motion and that its reasons for declining 

to vary downward from the Guidelines range were based on the § 3553(a) factors. 

B. Violation of Supervised Release 

 Mr. Gonzalez-Lopez argues that the district court failed to explain its reasons 

for imposing a consecutive sentence for the violation of his supervised release. He 

did not make any arguments directly addressing his supervised release sentence at the 

hearing, nor does he argue on appeal that the 18-month sentence was improperly 

calculated. There is no dispute that the sentence is within the applicable Guidelines 

range and that the court had the discretion to impose a consecutive sentence. We find 

the reasons for imposing a consecutive sentence are clear from the court’s discussion 
8 

of the § 3553(a) factors as they pertained to the reentry sentence. Thus, the record as 

a whole makes it clear that the court considered the relevant factors and made an 

individualized assessment when deciding to have Mr. Gonzalez-Lopez’s federal 

sentences run consecutively to one another and to his Colorado sentence. See

Chavez, 723 F.3d at 1232-33 (finding consecutive sentence procedurally reasonable 

in light of district court’s application of the § 3553(a) factors). We further conclude 

the court did not commit plain error by implicitly incorporating the same analysis it 

performed on the reentry offense into its sentencing determination as to the violation 

of supervised release. 

III. Conclusion 

 Therefore, we affirm both sentences. 

Entered for the Court 

Jerome A. Holmes 

Circuit Judge