F I L E D

United States Court of Appeals

Tenth Circuit

OCT 30 2001

PATRICK FISHER

Clerk

PUBLISH

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

GILBERTO URCINO-SOTELLO, also

known as Raul Ramirez-Tapia,

Defendant-Appellant.

No. 01-4035

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF UTAH

(D.C. No. 00-CR-524-ST)

Submitted on the briefs:

Paul M. Warner, United States Attorney, Wayne T. Dance, Assistant United States

Attorney, Salt Lake City, Utah, for Plaintiff-Appellee.

Steven B. Killpack and Scott Keith Wilson of Utah Federal Defender’s Office,

Salt Lake City, Utah, for Defendant-Appellant.

Before TACHA , Chief Judge, BALDOCK , Circuit Judge, and BRORBY , Senior

Circuit Judge.

TACHA , Chief Judge.
1 After examining the briefs and appellate record, this panel has determined

unanimously to grant 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

ordered submitted without oral argument. 

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Defendant Gilberto Urcino-Sotello appeals from the sentence imposed after

he pleaded guilty to illegal reentry of a deported alien in violation of 8 U.S.C.

§ 1326. 1 At the sentencing hearing, defendant admitted that his reentry into the

United States constituted a violation of the conditions of the term of supervised

release imposed after his prior violation of § 1326. Defendant’s counsel

requested concurrent sentences on the illegal reentry and supervised release

violations and gave defendant’s reasons for this request. The court asked counsel

whether it had that option. When counsel said yes, the court responded: “I think

you and I may learn something here in just a minute.” R., Vol. III at 7. The

government advised the court that USSG § 7B1.3(f) called for consecutive

sentences, but that because § 7B1.3(f) was a policy statement rather than a

guideline, “paragraph 3 [of Chapter 7 of the guidelines] indicates that that gives

the Court more flexibility, whatever that means.” R., Vol. III at 10. 

Section 7B1.3(f) states, in part, 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.” The district court, considering

this policy statement, commented:
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The dilemma I may have is what to do with the additional sentence

for the violation of supervised release, and the range is 12 to 18

months, and the Court does not believe that there is a justification in

this case to violate the policy statement of the guidelines and impose

a sentence that would run concurrently. I believe that my discretion

is very limited unless there is some particularly outstanding reason

given to have it run concurrently, and I don’t hear it.

R., Vol. III at 12. The district court sentenced defendant to twenty-one months in

prison and thirty-six months of supervised release on the substantive offense and

twelve months in prison on the supervised release violation, and ordered the two

sentences to run consecutively. 

On appeal, defendant contends that the district court erred in concluding

that its discretion to impose a concurrent sentence for the substantive offense and

a supervised release violation based upon the same conduct was limited. “We

review the district court’s legal interpretation and application of the sentencing

guidelines de novo.” United States v. Henry , 164 F.3d 1304, 1310 (10th Cir.

1999). 

A district court generally has broad discretion to order concurrent or

consecutive sentences when multiple terms of imprisonment are imposed on a

defendant at the same time. 18 U.S.C. § 3584(a); United States v. Contreras ,

210 F.3d 1151, 1152 (10th Cir. 2000). The policy statements concerning

sentencing for supervised release violations contained in Chapter 7 of the

guidelines are advisory only and do not limit a district court’s discretion to
-4-

impose sentence. See USSG Ch. 7, Pt. A; see, e.g. , United States v. Burdex ,

100 F.3d 882, 884 (10th Cir. 1996). The district court, however, was required to

consider the factors listed in 18 U.S.C. § 3553(a) before it imposed a concurrent

or consecutive sentence, see § 3584(b), and was not free to disregard the policy

statements in the guidelines, see § 3553(a)(4)(B), (b). Rather, defendant had the

burden to come forward with a reason upon which the district court could exercise

its discretion to impose concurrent sentences in spite of § 7B1.3(f).

The district court was mistaken in stating that its discretion to impose

concurrent or consecutive sentences was “very limited.” R., Vol. III at 12. But it

is clear from the court’s language that it knew that it had discretion to impose

concurrent sentences, assuming a sufficient reason was advanced by the

defendant. The district court made a finding in this regard: “I don’t hear it.” Id. 

The government’s motion to dismiss for lack of jurisdiction is denied as

moot. Its motion to supplement the record on appeal is granted. The judgment of

the United States District Court for the District of Utah is AFFIRMED.