## F I L E D United States Court of Appeals Tenth Circuit 

### April 3, 2006
Elisabeth A. Shumaker Clerk of Court PUBLISH UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.ROBERTO RODRIGUEZQUINTANILLA,

Defendant - Appellant. No. 05-2043

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW MEXICO (D. Ct. No. CR-04-1880 JC)
Brian A. Pori, Inocente, P.C., Albuquerque, New Mex ico, appearing for Appellant. Norman Cairns, Assistant United States Attorney (David C. Iglesias, United States Attorney, with him on the brief), Office of the United States Attorney for the District of New Mexico, Albuquerque, New Mexico , appearing for Appellee.

Before TACHA , Chief Circuit Judge, ANDERSON , and HARTZ , Circuit Judges.

TACHA , Chief Circuit Judge.

On September 15, 2004, Defendant-Appellant Roberto RodriguezQuintanilla pleaded guilty to illegal reentry subse quent to deportation for an-2-

aggravated felony in violation of 8 U.S.C. §§ 1326( a) and (b)(2) and was sentenced to thirty months’ imprisonment. When Mr. Rodriguez-Quintanilla committed this reentry violation, he was already se rving a period of supervised release pursuant to a prior conviction for illegal reentry into the United States. The most recent reentry violated the conditions of his supervised release. Accordingly, Mr. Rodriguez-Quintanilla’s supervisedrelease for the prior offense was revoked and he was ordered to serve an addition al fifteen months’ imprisonment for violating the terms of his supervi sed release, to be served consecutively to the thirty-month term imposed for the instant illegal reentry. See U.S.S.G. § 7B1.3(f). On appeal, Mr. Rodriguez-Quintanilla argues that the District Court erred in imposing a consecutive, rat her than concurrent, sentence for the violation of his supervised release. We ta ke jurisdiction under 28 U.S.C. § 1291 and AFFIRM. I. BACKGROUND In October 1999, Mr. Rodriguez-Quintanilla pleaded guilty in the Southern District of Texas to reentering the United States a fter he had previously been deported for committing an aggravated felony. See 18 U.S.C. § 1326(b)(2). Mr. Rodriguez-Quintanilla was sentenced to fifty-seven months’ imprisonment, followed by a three-year term of supervised release which included a provision that he not return to the United States. After serving the prison sentence, Mr. Rodriguez-Quintanilla was deported to Mexico on Aug ust 27, 2003, where he1 The Government notes that this release was actuallyunsupervised as Mr.

Rodriguez-Quintanilla had been deported. -3- began serving his term of supervised release. 1 Less than one year later, Mr. Rodriguez-Quintanillawas arrested in New Mexico after he was again found to be in the United States illegally. He once again pleaded guilty to illegal reentry subsequent to deportation for an aggravated felony, and, this time, he was sentenced to thirty months’ imprisonment by the District of New Mexico. Thereafter, a probation of ficer in the Southern District of Texas filed a petition with the District of New Mexico to revoke Mr. Rodriguez-Quintanilla’s supervised release. The Di strict of New Mexico assumed jurisdiction over the petition and held a hearing o n the matter. Mr. RodriguezQuintanilla admitted at the hearing that he had ree ntered the country in violation of the terms of his supervised release. The Distri ct Court then granted the petition and imposed a fifteen-month sentence to ru n consecutively to the thirtymonth sentence for the instant reentry offense. See U.S.S.G. § 7B1.3(f). On appeal, Mr. Rodriguez-Quintanilla argues the Distri ct Court abused its discretion in imposing a consecutive sentence and that the con secutive sentence is unreasonable after the Supreme Court’s decision in United States v. Booker , 543 U.S. 220 (2005). II. DISCUSSION Under 18 U.S.C. § 3584(a), a district court has the discretion to impose-4-

consecutive or concurrent sentences. United States v. Russell , 905 F.2d 1450, 1457 (10th Cir. 1990). The district court’s discre tion is guided by the factors delineated by 18 U.S.C. § 3553(a), see id. (citing 18 U.S.C. § 3584(b)), which include the characteristics of the offense and the defendant, the need for deterrence and the protection of the public, and, i n cases involving a violation of supervised release, “the applicable guidelines or p olicy statements issued by the Sentencing Commission.” 18 U.S.C. § 3553(a). Like the post- BookerGuidelines, policy statements regarding supervised release are advisory in nature. United States v. Contreras-Martinez , 409 F.3d 1236, 1240 (10th Cir. 2005). The applicable policy statement contained in § 7B1.3(f) recommends that: Any term of imprisonment imposed upon the revocatio n of probation or supervised release shall be ordered to be servedconsecutively to any sentence of imprisonment that the defendant is serving, whether or not the sentence of imprisonment being served re sulted from the conduct that is the basis of the revocation of prob ation or supervised release. Therefore, the District Court’s order requiring Mr. Rodriguez’s fifteenmonth sentence to run consecutively with the thirty -month sentence is in accordance with the advisory policy statement conta ined in § 7B1.3(f). In such a case, the defendant bears the burden to demonstrate that the District Court should exercise its discretion to impose concurrent senten ces in spite of that statement. United States v. Urcino-Sotello , 269 F.3d 1195, 1197 (10th Cir. 2001). This Court, prior to Booker , has applied two different standards of review2 Under this standard of review, “we will not reverse [a sentence] if it can be

determined from the record to have been reasoned an d reasonable.” Kelley , 359 F.3d at 1304 (quotations omitted). -5- to determine whether a district court erred in fash ioning a sentence for violation of supervised release. Generally, multiple sentenc es imposed consecutively should be reviewed for an abuse of discretion. See, e.g., United States v. Williams , 46 F.3d 57, 58 (10th Cir. 1995). But a sentence imposed after a defendant violates a term of supervised release sho uld be reviewed under the “plainly unreasonable” standard set forth at 18 U.S .C. § 3742(e). See United States v. Kelley , 359 F.3d 1302, 1304 (10th Cir. 2004). 2Because these two scenarios may coexist, we have at times applied the “plainly unreasonable” standard of review—rather than an abuse of discreti on standard—to the imposition of consecutive sentences for immigrationand supervised release violations. See Contreras-Martinez , 409 F.3d at 1239, 1240–41. Despite this apparent incongruence in our precedenton the matter, the two standards of review are quite similar. As in a rev iew for abuse of discretion, in determining whether a sentence imposed after revocation of a term of supervised release is “plainly unreasonable” under § 3742(e), the district court is required to consider the factors set forth in § 3553(a). Kelley , 359 F.3d at 1304. Accordingly, we have held that following the policystatement set forth in § 7B1.3(f) and sentencing a defendant to consecutiv e sentences following the revocation of supervised release is not unreasonabl e. Contreras-Martinez , 409-6-

F.3d at 1241. In the time after the sentences were handed down in Russell , Kelley , and Contreras-Martinez , however, the Supreme Court in United States v. Booker determined that the Sentencing Guidelines are uncon stitutional. 543 U.S. 220, 245 (2005). In the remedial portion of Booker , the Court excised § 3742(e), as well as the section of the Guidelines making their application mandatory. Id. at 258–262. In so doing, it announced a new standard of review—that of “reasonableness.” Id. at 262; United States v. Kristl , 437 F.3d 1050, 1053 (10th Cir. 2006). This standard of review, like the two standards aforementioned, also mandates district courts to consider the § 3553(a) factors in sentencing criminal defendants. Id. at 261. A sentence in accord with the now-discret ionary Guidelines is entitled to a rebuttable presumption of reasonableness. Kristl , 437 F.3d at 1054. Given the excision of § 3742(e) and the similarity among all three standards of review, it is not surprising that at l east two courts of appeals have held that Booker requires appellate courts to apply Booker ’s new reasonableness standard even in revocation of supervised release c ases where the imposition of new sentences has always been discretionary. See United States v. Edwards , 400 F.3d 591, 593 (8th Cir. 2006) (per curiam); United States v. Cotton , 399 F.3d 913, 916 (8th Cir. 2005); United States v. Fleming , 397 F.3d 95, 97–99 (2nd Cir. 2005); see also United States v. Johnson , 403 F.3d 813, 816 (6th Cir. 2005)-7-

(discussing the appropriate standard of review afte r Booker ). This Court has not heretofore discussed the effect of Bookerin the present situation. We have hinted, however, that the priorstandards of review survive Booker . For example, in a case presenting an appeal as t o the length of a single sentence imposed after the revocation of supervisedrelease—as opposed to a case involving whether a sentence imposed after the revo cation of supervised release should run consecutively to another sentence—this Court stated: Although the Supreme Court’s decision in United States v. Booker altered our standard of review for most sentencing cases, the standard of review for cases where the defendant challenges the revocation of her supervised release remains the same. See United States v. Booker , [543] U.S. [220] (citing United States v. Tsosie , 376 F.3d 1210, 1218–19 (10th Cir.2004), as an example of an application of the reasonableness standard of review). Hence, in this case, we will follow the law as articulated by Tsosie , wherein we stated that imposition of a sentence in excess of that recommen ded by the Chapter 7 policy statements of the Sentencing Guide lines will be upheld “if it can be determined from the record to have been reasoned and reasonable.” Tsosie , 376 F.3d at 1218 (internal quotation omitted). United States v. Tedford, 405 F.3d 1159, 1161 (10th Cir. 2005). Similarly, in Conteras-Martinez , we did not specifically apply the abuse of discre tion standard in a review of the imposition of consecutive senten ces for immigration and supervised release violation. Instead, we stated t hat we would affirm if the sentence was “reasoned and reasonable.” 409 F.3d at 1241. Nevertheless, we repeatedly referred to the district court’s discret ion to impose concurrent sentences. We stated that the district court “comm itted no error in exercising its-8-

discretion and sentencing Mr. Contreras to consecutive terms o f imprisonment,” id. (emphasis added), “[t]he district court was well within its discretion to order Mr. Contreras’ sentence for violation of his superv ised release to run consecutively to his sentence for illegal reentry,” id. (emphasis added), “[a] court faced with a violation of supervised release is req uired to ‘consider’ various factors . . . in exercising its discretion in sentencing,” id. at 1242 (emphasis added), and that “in exercising its discretion to impose consecutive sentences, the district court committed no error,” id. at 1243 (emphasis added). As it now stands, the relationship between the abus e of discretion standard, the “plainly unreasonable” standard and the post- Booker“reasonableness” standard is less than crystal clear. See id. at 1241 (“The district court was well within its discretion to order Mr. Contreras’ sente nce for violation of his supervised release to run consecutively to his sent ence for illegal reentry. In other words, the court’s election to apply the Chap ter 7 advisory policy statement exactly as written was not unreasonable.”). At thi s time, however, we need not establish the exact contours of our post- Booker standard of review when reviewing a district court’s decision to impose con secutive sentences after the revocation of supervised release pursuant to § 7B1. 3(f). Given the facts of this case, we are satisfied that the District Court neit her abused its discretion in applying Chapter 7 exactly as written, nor did it i mpose an unreasonable sentence in doing so. See Contreras-Martinez , 409 F.3d at 1241 (“the court’s election to-9-

apply [§ 7B1.3(f)] exactly as written was not unrea sonable”) (citing Tsosie , 376 F.3d at 1218); United States v. Cruz-Mendez , 86 Fed. App’x 392, 2004 WL 103559 (10th Cir. 2004) (unpublished) (holding thatthe district court acted “well within its discretion” to impose consecutive senten ces because § 7B1.3(f) recommends such an approach). Mr. Rodriguez-Quintanilla also argues that he is entitled to a remand for resentencing because the District Court failed to a dequately explain why it declined to order his fifteen-month sentence to run concurrently with his thirtymonth sentence. See 18 U.S.C. § 3553(c). We disagree. We have emphasi zed that “the sentencing court is not required to consi der individually each factor listed in § 3553(a) before issuing a sentence.” Contreras , 409 F.3d at 1242 (quotations omitted). In addition, we do not “dema nd that the district court ‘recite any magic words’ to show us that it fulfill ed its responsibility to be mindful of the factors that Congress has instructedit to consider.” Id. (quotation omitted). In this case, the District Court specifically invit ed counsel for Mr. Rodriguez-Quintanilla to address this issue prior t o its ruling. During the sentencing hearing, counsel pointed out that “[u]nd er the policy statements of guideline 7B1.3(f) it indicates that the Court shal l impose any sentence for a violation of [supervised release] consecutive to th e term of what I will call the underlying offense.” Counsel nonetheless argued th at the § 3553(a) factors warranted a concurrent, rather than consecutive, se ntence because the thirty--10-

month sentence for illegal reentry already accounte d for Mr. RodriguezQuintanilla’s violation of the terms of supervised release, because Mr. RodriguezQuintanilla had accepted responsibility for his con duct, and because Mr. Rodriguez-Quintanilla had promised not to return to the United States upon release. Thereafter, the District Court stated that § 7B1 governed the case and imposed a consecutive term. We conclude that doing so did not run afoul of § 3553(c)’s mandate. See id. at 1242 n.4 (finding no error under § 3553(c) “because § 7B1.3(f) explicitly recommends consecuti ve sentences, and . . . the record indicates the district court made clear it w as following this recommendation in imposing its sentences consecutiv ely.”). III. CONCLUSION For the reasons stated above, we AFFIRM.