UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

_________________________________ UNITED STATES OF AMERICA, Plaintiff - Appellee,

v. JAIME FLORES-MARTINEZ, Defendant - Appellant. No. 19-2074 (D.C. No. 1:18-CR-01144-JB-1) (D. New Mexico)

_________________________________ ORDER AND JUDGMENT *

_________________________________ Before BRISCOE , McHUGH , and MORITZ , Circuit Judges.

_________________________________ After Jaime Flores-Martinez (“Mr. Flores -Martinez”) pleaded guilty to reentry by a removed alien, the United States petitione d to revoke his supe rvised release in a prior reentry case. The district court se ntenced Mr. Flores-Martinez to 46 months’ imprisonment on the guilty plea and to 10 months’ imprisonment on the supervised release violation, with the se ntences to run consecutively. Mr. Flores-Martinez appeals from th e sentence imposed on the supervised release violation, arguing that the district court committe d two procedural errors and that imposing consecutive terms of impr isonment was substan tively unreasonable.

* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judica ta, and collateral estoppel. It may be cited, however, for its persuasive value consiste nt with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. FILED United States Court of Appeals Tenth Circuit 

### February 5, 2020 Christopher M. Wolpert Clerk of Court2 Because the district court did not commit plain error with re spect to either procedural issue, and because imposing consecutive term s of imprisonment wa s not an abuse of discretion, we affirm Mr. Flores-Martinez’s 10-month sentence. I. BACKGROUND On March 13, 2018, United States Cust oms and Border Patrol agents found Mr. Flores-Martinez just north of the Me xican border in Sunland Park, New Mexico. The agents determined that Mr. Flores-Mar tinez did not have legal authorization to enter or remain in the Unite d States and arrested him. This was not Mr. FloresMartinez’s first illegal reentry into the United States and, at the time of his arrest, he was serving a term of supervised rele ase for a June 21, 2012 illegal reentry conviction (“the J une 2012 reentry”). 1 On April 10, 2018, the United States file d an information charging Mr. FloresMartinez with reentry of a re moved alien, in violation of 8 U.S.C. § 1326. That same day, Mr. Flores-Martinez pleaded guilty . The presentence investigation report (“PSR”) on the new illegal reentry convicti on calculated Mr. Flores-Martinez’s total offense level as 27 and crimin al history category as VI, fo r an imprisonment range of

1 On June 14, 2014, Mr. Flores-Martin ez was sentenced fo r a reentry that violated his supervised re lease based on the June 2012 reentry. That revocation proceeding resulted in a new term of impr isonment, followed by an additional 2 years of supervised release that commenced on May 12, 2016. Consequently, Mr. FloresMartinez was serving a second term of supervised release in connection with the June 2012 reentry when he was arrested on Marc h 13, 2018. All told, Mr. Flores-Martinez had been removed from the United States seven times prior to March 13, 2018.3 130 to 162 months under the United States Sentencing Guidelines (“Sentencing Guidelines” or “Guidelines”). The United States petitioned to revoke Mr. Flores-Martinez’s supervised release imposed for the June 2012 reentr y based on his new conviction for illegal reentry. On January 29, 2019, the district court held a hearing to adjudicate the revocation petition stemming from the violati on of conditions of supervised release imposed for the June 2012 reentry and to impose a sentence on the new reentry conviction. At that hearing, Mr. Flores-Martinez admi tted to the allegations in the petition. The United States and Mr. Flores-Martinez also agreed with the Guidelines calculations in the PSR. With respect to Mr. Flores-Martinez’s new reentry conviction, the district court found that a downward departure from the applicable Guidelines range was appropriate under U.S.S.G. § 4A1.3. 2 The district court consequently reduced Mr. Flores-Martinez’s offense level to 17 and reduced his criminal history category to V, resulting in an app licable Guidelines range of 46 to 57 months. The district court sentenced Mr. Flores-Martinez at the low end of the Guidelines to 46 months’ imprisonment, followed by a three-year term of superv ised release. Next, the district court addressed Mr . Flores-Martinez’s violation of the conditions of supervised release on the June 2012 reentry convi ction. Mr. Flores-

2 The district court made clear that it would, in the altern ative, also grant a downward variance under 18 U.S.C. § 3553(a).4 Martinez asked that any sentence imposed for the supervised release violation run concurrently with the sentence imposed on the new reentry conviction. The United States disagreed, arguing that a concurrent sentence woul d “essentially nullify” the “deterrent effect” of supervised release. ROA, Vol. V at 29. The district court found that Mr. Flores -Martinez had admitted to a Grade B supervised release violation and had a crimin al history category of III, resulting in an applicable Guidelines range of 8 to 14 months. After observing that the Sentencing Guidelines are “advisory,” the district court sentenced Mr. Flores-Martinez to 10 months’ imprisonment on the supervised releas e violation, to run consecutively to the 46-month sentence for the new reentry conv iction. The district court explained, “[Mr. Flores-Martinez has] been warned time and time again, and he hasn’t received that warning, and I don’t believe in two-for-ones.” ROA, Vol. V at 33. Mr. Flores-Martinez objected that imposing “another ten months of consecutive . . . imprisonment” for hi s supervised release violation was “unreasonable and unsupporte d by the goals of” § 3553 because he “did plead guilty . . . and has been sentenced to a term of 46 months already.” ROA, Vol. V at 34. The district court overruled that objection, observing that “ under the Guidelines it is recommended and directed that it be run consecutiv e, and until the Sentencing Commission wishes to change its stance on that, I believe that it’s an appropriate sentence.” ROA, Vol. V at 34. The dist rict court further determined that, “considering the totality of th e circumstances[,] . . . the 3553 factors are met.” ROA, Vol. V at 34.5 The district court entered judgment on March 29, 2019. After obtaining an extension of time under Fed. R. App. P. 4(b)(4), Mr. Flores-M artinez timely filed a notice of appeal on April 30, 2019. II. DISCUSSION Mr. Flores-Martinez challenges the la wfulness of his sentence on three grounds: (1) the district cour t incorrectly treated the Guidelines as mandatory; (2) the district court exhibited pers onal bias against the impositi on of concurrent terms of imprisonment; and (3) the sentence imposed was substantively unreasonable. We disagree with each of thes e arguments and therefore a ffirm Mr. Flores-Martinez’s

sentence. A. Standard of Review “We consider the substantive reasonabl eness of the length of a sentence under an abuse-of-discretion standard.” United States v. Ortiz-Lazaro , 884 F.3d 1259, 1265 (10th Cir. 2018) (quotation ma rks omitted). “A district court abuses its discretion when it renders a judgment that is arbitr ary, capricious, whimsical, or manifestly unreasonable.” Id. (quotation marks omitted). “When a party challenges a sentence fo r procedural reasonableness, our standard of review is ordi narily abuse of discretion, under which we review de novo the district court’s legal c onclusions regarding the guide lines and review its factual findings for clear error.” United States v. Gantt , 679 F.3d 1240, 1246 (10th Cir. 2012). “If, however, [a] [d]efe ndant did not preserve the pr ocedural challenge below, we review only for plain error.” Id.6 A defendant “can obtain relief under the plain-error doctrine only if four requirements are satisfied: (1) the district court committed error; (2) the error was plain—that is, it was obvious under current well-settled law; (3) the error affected the [d]efendant’s substan tial rights; and (4) the error seri ously affect[ed] the fairness, integrity, or public reputation of judicial proceedings.” Id. (second alteration in original) (internal quotation marks omitted). B. Analysis 1. The District Court Did Not Treat the Guidelines as Mandatory. Mr. Flores-Martinez first argues that th e district court erred by treating the Sentencing Guidelines as mandatory. But he did not object to the district court’s treatment of the Guidelines at the sentencing hearing. Rather, his objection focused on whether “another ten mont hs of consecutive” impris onment was “unreasonable and unsupported by the goals of 3553.” ROA, Vol. V at 34. We therefore review this argument under the plain error standard. Becau se we conclude the district court did not commit an error, we do not address the second, third, or fourth components of the plain error test. The Supreme Court has explained that “t reating the Guidelin es as mandatory” is a “significant procedural error.” Gall v. United States , 552 U.S. 38, 51 (2007). Mr. Flores-Martinez argues that the district court treated the Guid elines as mandatory when it stated that “under th e Guidelines it is recomme nded and directed” that the sentence for a supervised release violati on run consecutive to any other sentence. ROA, Vol. V at 34. Specifically, Mr. Flores -Martinez points to the word “directed”7 as evidence that the district court believed it lacked di scretion to impose concurrent sentences. We disagree. The district court properly treated the Guid elines as advisory. First, the district court explicitly referred to the Guidelines as “advisory” at the sentencing hearing. ROA, Vol. V at 32–33. Second, the dist rict court correctly observed that the Guidelines “recommend[]” that Mr. Flores -Martinez’s sentences run consecutively. ROA, Vol. V at 34. Third, the district c ourt’s use of the term “directed” logically refers to the unusually strong language of U.S.S.G. § 7B 1.3(f), which states that terms of imprisonment “shall be or dered to be served consecutively.” 3 Fourth, the district court—in the course of overruli ng Mr. Flores-Martinez’s objection—applied the § 3553 factors to “the totality of the ci rcumstances,” a step th at would have been unnecessary if it were bound by a manda tory guideline. ROA, Vol. V at 34. In effect, Mr. Flores-Martinez asks us to infer that the district court committed a significant procedural error based only on its single use of the term “directed.” But such an inference would contradict our us ual presumption that district court judges “know the law and apply it in making their decisions.” United States v. Chavez-Meza , 854 F.3d 655, 659 (10th Cir. 2017) (quotation marks omitted), aff’d , 138 S. Ct. 1959 (2018). We have no reason to doubt that the district c ourt here was aware of the

3 U.S.S.G. § 7B1.3(f) provi des, in full, that “[a] ny term of imprisonment imposed upon the revocation of probation or supervised releas e shall be ordered to be served consecutively to any sentence of impr isonment that the defe ndant is serving, whether or not the sentence of imprisonmen t being served resu lted from the conduct that is the basis of the revocation of probation or supervised release.”8 advisory nature of the Guidelines and co rrectly exercised its discretion in imposing consecutive sentences. 2. Mr. Flores-Martinez Cannot Establish Plain Error with Respect to the District Court’s Imposition of Consecutive Sentences. Mr. Flores-Martinez next contends that th e district court erred at sentencing by exhibiting an impermissible bias against c oncurrent sentences. We are not convinced. To begin, we must frame the issue unde r the proper standard of review. Mr. Flores-Martinez made no objection at the sent encing hearing to the district court’s comment that it does not “b elieve in two-for-ones.” ROA, Vol. V at 33. As previously noted, Mr. Flores-Martinez ar gued only that consecutive terms of imprisonment were “unreasona ble and unsupported by the goals of 3553.” ROA, Vol. V at 34. Because that substantive obj ection does not encompass Mr. FloresMartinez’s argument on appeal, we re view this claim for plain error. See Gantt , 679 F.3d at 1246. As discussed, Mr. Flores-M artinez can prevail only if he establishes: “(1) the district court committed erro r; (2) the error was plain— that is, it was obvious under current well-settled law; (3) the error affected the [d]efendant’s substantial rights; and (4) the error seriously a ffect[ed] the fairness, integr ity, or public reputation of judicial proceedings.” Id. (second alteration in origin al) (internal quotation marks omitted). For the reasons we now explain, even if the district cour t plainly erred, we cannot conclude the alleged error affected Mr. Flores-Martinez’s substantial rights.9 According to Mr. Flores-Martinez, the di strict court’s reference to two-forones “ignore[d] the individualized consider ation mandated by 18 U. S.C. § 3553(a).” Opening Br. at 9. He claims the district court’s decision to impose consecutive terms of imprisonment was driven by its personal opposition to c oncurrent terms and thus constitutes plain error. Mr. Flores-Martinez analogizes his case to the facts in United States v. Haggerty , 731 F.3d 1094 (10th Cir. 2013). In Haggerty , the government moved for a decrease in the defendant’s offense le vel under U.S.S.G. § 3E1.1(b). Section 3E1.1(b) provides, that under certain ci rcumstances, the government may file a motion “stating that the defendant has assi sted authorities in th e investigation or prosecution of his own misconduct by timely notifying authorities of his intention to enter a plea of guilty, thereby permitting th e government to avoid preparing for trial and permitting the government and the court to allocate their res ources efficiently.” At the sentencing hearing in Haggerty , the district court stated: I will never agree that avoidance of tria l is a more efficient or appropriate allocation of resources. On the contrary , I think trials are the way that our system wants us to resolve these cases and that they are a good thing, not a bad thing. I do not think that saving the Government the task of preparing for trial is a benefit that’s entitled to any weight, nor do I think that saving the Court the trouble of presiding over a trial is a positive that is entitled to any credit at all. Haggerty , 731 F.3d at 1097. On appeal, the United States and Haggert y each asked this court to reverse, and we did so. Specifically, we held “a sentencing judge’s personal view that one should not be rewarded with a lesser senten ce for pleading guilty is an impermissible10 reason for denying a § 3E1.1( b) reduction and constitutes an abuse of discretion resulting in a procedura lly unreasonable sentence.” Id. at 1101. Unlike the district court in Haggerty , however, the district court here expressed agreement—not disagreement—with the Guidelines stat ement. And rather than disregard the policy position articu lated by the Sentencing Commission, the district court implemented it fa ithfully. We are not convinced that the district court’s comments reflect impermissible bias. But even if we agreed w ith Mr. Flores-Martinez that the district court plainly erred, he has not shown that the asserted error affected his substantial rights. To satisfy the third component of the plain error standard, Mr. Flores-Martinez must demonstrate “a reasonable proba bility that, but for the error claimed, the result of the proceeding would have been different.” United States v. Gonzalez-Huerta , 403 F.3d 727, 733 (10th Cir. 200 5) (en banc) (quoting United States v. Dominguez Benitez , 542 U.S. 74, 82 (2004)). Here, Mr. Flores-Martinez asse rts in a single sentence that , if the district court had not acted on its personal be liefs, it might have sentenced him to concurrent terms of imprisonment. Reply Br. at 7–8. But ther e is nothing in the reco rd to support that assertion. To the contrary, th e district court was clear th at its consideration of the § 3553 factors would independently le ad it to impose consecutive terms of imprisonment. To be sure, § 3553 requires judges to c onsider policy statements issued by the Sentencing Commission. See 18 U.S.C. § 3553(a)(4)(B). In other words, “district11 courts must begin their analysis with th e Guidelines and remain cognizant of them throughout the sentencing process.” Gall , 552 U.S. at 50 n.6. Here, the relevant policy statement appears at U.S.S.G. § 7B1.3(f), which expresses an unequivocal preference for consecutive terms of imprisonment for violations of supervised release. See United States v. Zamora-Solorzano , 528 F.3d 1247, 1250 –51 (10th Cir. 2008) (explaining that nothing in “our cas e law suggests that a district court is precluded from, in its individualized judgment, attributing considerable weight to a Guidelines sentence in a given case”). 4 But the district court did not rely solely on the Guidelines pr eference. Instead, after making its “two-for-ones” comment, th e district court considered the § 3553 factors, explaining that th ey independently supported th e imposition of consecutive sentences. Thus, even if th e district court plainly erre d in considering § 7B1.3(f), Mr. Flores-Martinez cannot show that it af fected his substantia l rights. For these reasons, Mr. Flores-Martinez’s bias cl aim fails under our plain error test.

4 Mr. Flores-Martinez also points to th e judicial disqualification statute, 28 U.S.C. § 455, and this court’s decision in United States v. Cooley , 1 F.3d 985 (10th Cir. 1993), for the proposition that a “sen tence selected because of a sentencing judge’s personal belief is an abuse of discretion.” Opening Br. at 13. But Cooley did not address sentencing. Ther e, we reached the unsurpris ing holding that a judge who had discussed anti-abortion pr otests during a television interview must disqualify himself from criminal prosecutions ar ising out of those same protests. See 1 F.3d at 995. Here, the district cour t did not say or do anything at the sentencing hearing to create an appearance of impropriety.12 3. The District Court’s Imposition of Co nsecutive Terms of Imprisonment is Substantively Reasonable. Finally, Mr. Flores-Martinez argues th at the district court’s consecutive sentences are substantively unreasonable. “Under 18 U.S.C. § 358 4(a), a district court has the discretion to impose consecutiv e or concurrent sent ences . . . guided by the factors delineated by 18 U.S.C. § 3553(a).” United States v. RodriguezQuintanilla , 442 F.3d 1254, 1256 (10th Cir. 2006). We apply a rebuttable presumption of reasonableness to “a revocat ion-of-supervised-rel ease sentence within the range suggested by the Co mmission’s policy statements.” United States v. McBride , 633 F.3d 1229, 1233 (10th Cir. 2011). In line with that presumption, we have repeatedly upheld the imposition of consecutive sentences for reentry by removed persons where that same reentr y also violated the conditions of the defendant’s supervised release. See, e.g. , Ortiz-Lazaro , 884 F.3d at 1265; RodriguezQuintanilla , 442 F.3d at 1258; United States v. Contreras-Martinez , 409 F.3d 1236, 1242 (10th Cir. 2005). Here, the district court explained th at it was imposing c onsecutive terms of imprisonment based on its analysis of the § 3553 factors. It acknowledged the advisory Guidelines range of 8 to 14 months’ imprisonment and remarked on Mr. Flores-Martinez’s many unlawful reentries. In response to Mr. Flores-Martinez’s objection, the district court also consider ed U.S.S.G. § 7B1.3(f), which calls for consecutive sentences under these circumstan ces. This analysis evidences a reasoned13 exercise of discretion by the district court in imposing consecutive terms of imprisonment. Mr. Flores-Martinez argues that the di strict court failed to “adequately balance” three facts. Op ening Br. at 14. First, most of his family lives in the United States. Second, he has no major criminal hist ory. And third, he has secured work in Mexico and acknowledged to the district c ourt that he is barred from visiting his family in the United States in the future. Mr. Flores-Martinez—through counsel a nd on his own behalf—presented each of these mitigating facts to the district court at the sentencing hearing. When a district court entertains arguments a bout why terms of im prisonment should run concurrently, it is not an abuse of discre tion to then reject those arguments based on the defendant’s “offense, his criminal hi story, and all other relevant factors.” Contreras-Martinez , 409 F.3d at 1242; see also Rodriguez-Quintanilla , 442 F.3d at 1257 (explaining that “sentenc ing a defendant to consecutiv e sentences following the revocation of supervised release is not unreasonable”). Considering Mr. FloresMartinez’s seven prior ille gal reentries, the district court concluded consecutive sentences were appropriate despite these arguments. Mr. Flores-Martinez next argues that im posing a term of imprisonment for a supervised release violation contravenes U.S.S.G. § 5D1. 1(c). That provision states that a “court ordinarily shoul d not impose a term of superv ised release in a case in which supervised release is not required by statute and th e defendant is a deportable14 alien who likely will be de ported after imprisonment.” The application note that accompanies subsection (c ) further clarifies: In a case in which the defendant is a deportable alien specified in subsection (c) and supervised release is not required by statute, the court ordinarily should not im pose a term of supervised release. Unless such a defendant legally return s to the United States, supervised release is unnecessary. If such a defendant illegally returns to the United States, the need to afford adequate deterrence a nd protect the public ordinarily is adequately served by a new prosecution. The court should, however, consider imposing a term of supervis ed release on such a defendant if the court determines it would provide an added measure of deterrence and protection based on the facts and ci rcumstances of a particular case. U.S.S.G. § 5D1.1 cmt. n.5 (emphasis added). Mr. Flores-Martinez argues that § 5D1. 1(c) implicitly disf avors imprisonment for the same reason that it explicitly disfavor s supervised release. In other words, he believes that § 5D1.1(c)’s statement disfavoring supe rvised release implicitly contradicts § 7B1.3(f)’s st atement favoring consecutive terms of imprisonment imposed upon the revocation of supervised release. We have rejected this precise argument in at least three unpublished decisions. See United States v. Rosales-Trujillo , 781 F. App’x 688, 692 (10th Cir. 2019); United States v. Perez-Ramos , 525 F. App’x 868, 871 (10th Cir. 2013); United States v. Gutierrez-Sierra , 513 F. App’x 767, 770 (10th Cir. 2013). As we recently explained, § 5D1.1(c) “is not based on a view that there is no need to punish recidivism by aliens.” Rosales-Trujillo , 781 F. App’x at 692. Rather, the “rationale is that there is no real need for a separate proceeding to increase the punishment by imposing a15 sentence for violating conditio ns of supervised release, since the court can just impose a harsher sentence for the new violation itself.” Id. In this case, the distri ct court’s decision to im pose consecutive terms of imprisonment must be understood together with Mr. Flores-Martinez’s sentence on the new reentry conviction. To reiterate, the district court granted Mr. FloresMartinez a downward departure with respect to that sentence. Th en, consistent with the application note accompanying § 5D1.1(c), the district court analyzed the facts and circumstances of this ca se and found that an added term of imprisonment for the supervised release violation would best ef fectuate the § 3553 factors. Although the district court could have sentenced Mr. Flores-Martin ez more harshly on the new reentry conviction and not imposed a sent ence for violation of the conditions of supervised release from his June 2012 r eentry conviction, it wa s not required to do so. Thus, none of Mr. Flores-Martinez’s arguments rebut the presumption of reasonableness we attach to the district court’s imposi tion of consecutive terms of imprisonment. III. CONCLUSION Because the district court did not comm it any plain procedural error, and because the district court’s imposition of a 10-month, consecutive sentence for16 Mr. Flores-Martinez’s supervised release vi olation was substantiv ely reasonable, we AFFIRM Mr. Flores-Martinez’s sentence. Entered for the Court
Carolyn B. McHugh Circuit Judge