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 Mexico, 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 subsequent 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 serving 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 supervised release for the prior offense

was revoked and he was ordered to serve an additional fifteen months’

imprisonment for violating the terms of his supervised 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, rather than concurrent, sentence

for the violation of his supervised release. We take 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 after 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 August 27, 2003, where he
1The Government notes that this release was actually unsupervised as Mr.

Rodriguez-Quintanilla had been deported.

-3-

began serving his term of supervised release.1

Less than one year later, Mr. Rodriguez-Quintanilla was 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 officer in the Southern District

of Texas filed a petition with the District of New Mexico to revoke Mr.

Rodriguez-Quintanilla’s supervised release. The District of New Mexico assumed

jurisdiction over the petition and held a hearing on the matter. Mr. RodriguezQuintanilla admitted at the hearing that he had reentered the country in violation

of the terms of his supervised release. The District Court then granted the

petition and imposed a fifteen-month sentence to run 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 District Court abused its discretion

in imposing a consecutive sentence and that the consecutive 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 discretion 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, in cases involving a violation of

supervised release, “the applicable guidelines or policy statements issued by the

Sentencing Commission.” 18 U.S.C. § 3553(a). Like the post-Booker Guidelines,

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 revocation of probation

or supervised release shall be ordered to be served consecutively to

any sentence of imprisonment that the defendant is serving, whether

or not the sentence of imprisonment being served resulted from the

conduct that is the basis of the revocation of probation 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 contained 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 sentences 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 review
2Under this standard of review, “we will not reverse [a sentence] if it can be

determined from the record to have been reasoned and reasonable.” Kelley, 359

F.3d at 1304 (quotations omitted). 

-5-

to determine whether a district court erred in fashioning a sentence for violation

of supervised release. Generally, multiple sentences 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 should 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).2 Because these two

scenarios may coexist, we have at times applied the “plainly unreasonable”

standard of review—rather than an abuse of discretion standard—to the

imposition of consecutive sentences for immigration and supervised release

violations. See Contreras-Martinez, 409 F.3d at 1239, 1240–41. 

Despite this apparent incongruence in our precedent on the matter, the two

standards of review are quite similar. As in a review 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 policy statement set forth in

§ 7B1.3(f) and sentencing a defendant to consecutive sentences following the

revocation of supervised release is not unreasonable. 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 unconstitutional. 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-discretionary

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 least two courts of appeals have

held that Booker requires appellate courts to apply Booker’s new reasonableness

standard even in revocation of supervised release cases 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 after Booker). 

This Court has not heretofore discussed the effect of Booker in the present

situation. We have hinted, however, that the prior standards of review survive

Booker. For example, in a case presenting an appeal as to the length of a single

sentence imposed after the revocation of supervised release—as opposed to a case

involving whether a sentence imposed after the revocation 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 recommended by the

Chapter 7 policy statements of the Sentencing Guidelines 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 discretion standard

in a review of the imposition of consecutive sentences for immigration and

supervised release violation. Instead, we stated that we would affirm if the

sentence was “reasoned and reasonable.” 409 F.3d at 1241. Nevertheless, we 

repeatedly referred to the district court’s discretion to impose concurrent

sentences. We stated that the district court “committed no error in exercising its
-8-

discretion and sentencing Mr. Contreras to consecutive terms of imprisonment,”

id. (emphasis added), “[t]he district court was well within its discretion to order

Mr. Contreras’ sentence for violation of his supervised release to run

consecutively to his sentence for illegal reentry,” id. (emphasis added), “[a] court

faced with a violation of supervised release is required 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 abuse 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’ sentence for violation of his

supervised release to run consecutively to his sentence for illegal reentry. In

other words, the court’s election to apply the Chapter 7 advisory policy statement

exactly as written was not unreasonable.”). At this 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 consecutive 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 neither abused its discretion in

applying Chapter 7 exactly as written, nor did it impose 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 unreasonable”) (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 that the district court acted “well

within its discretion” to impose consecutive sentences 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 adequately 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 emphasized

that “the sentencing court is not required to consider individually each factor

listed in § 3553(a) before issuing a sentence.” Contreras, 409 F.3d at 1242

(quotations omitted). In addition, we do not “demand that the district court

‘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.” Id. (quotation

omitted). In this case, the District Court specifically invited counsel for Mr.

Rodriguez-Quintanilla to address this issue prior to its ruling. During the

sentencing hearing, counsel pointed out that “[u]nder the policy statements of

guideline 7B1.3(f) it indicates that the Court shall impose any sentence for a

violation of [supervised release] consecutive to the term of what I will call the

underlying offense.” Counsel nonetheless argued that the § 3553(a) factors

warranted a concurrent, rather than consecutive, sentence because the thirty-
-10-

month sentence for illegal reentry already accounted for Mr. RodriguezQuintanilla’s violation of the terms of supervised release, because Mr. RodriguezQuintanilla had accepted responsibility for his conduct, 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 consecutive sentences, and . . . the

record indicates the district court made clear it was following this

recommendation in imposing its sentences consecutively.”).

III. CONCLUSION

For the reasons stated above, we AFFIRM.