FILED 

United States Court of Appeals 

Tenth Circuit 

PUBLISH 

June 1, 2005 

PATRICK FISHER 

UNITED STATES COURT OF APPEALS Clerk 

TENTH CIRCUIT 

UNITED ST ATES OF AMERICA, 

Plaintiff-Appellee, 

V. 

JUAN CARLOS CONTRERASMARTINEZ, 

Defendant-Appellant. 

No. 04-2072 

Appeal from the United States District Court 

for the District of New Mexico 

(D.C. No. CR-03-2495-WPJ) 

Vicki Mandell-King, Assistant Federal Public Defender (Raymond P. Moore, 

Federal Public Defender, with her on the briefs), Denver, Colorado, for 

Defendant-Appellant. 

Reeve Swainston, Assistant United States Attorney (David C. Iglesias, United 

States Attorney, and David N. Williams, Assistant United States Attorney, on the 

brief), Albuquerque, New Mexico, for Plaintiff-Appellee. 

Before SEYMOUR, BALDOCK and BRISCOE, Circuit Judges. 

SEYMOUR, Circuit Judge. 

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Juan Carlos Contreras-Martinez appeals the district court's imposition of a 

consecutive sentence for his violation of supervised release. We affirm. 

I. 

On April 17, 1999, Mr. Contreras pled guilty in Arizona district court to 

one count of illegally reentering the United States after deportation subsequent to 

an aggravated felony conviction, in violation of 8 U.S.C. §§ 1326(a) and (b)(2). 

The court sentenced him to 51 months imprisonment followed by a 24-month term 

of supervised release. Mr. Contreras was released from federal custody on 

January 13, 2003, and deported to Mexico. His period of supervised release was 

to run from the date of his release until January 12, 2005. 

On May 6, 2003, Mr. Contreras was arrested in New Mexico after he was 

again found to be in the United States illegally. He pied guilty once again, this 

time in the District of New Mexico, to illegal reentry after deportation subsequent 

to an aggravated felony conviction. An Arizona probation officer filed a petition 

to revoke Mr. Contreras' supervised release, contending he had violated his 

conditions of release by committing a federal offense during his term of 

supervision. Jurisdiction on the revocation petition was subsequently transferred 

to the District of New Mexico. 

The New Mexico district court sentenced Mr. Contreras to a term of 30 

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months imprisonment on the illegal reentry charge. The court thereafter held a 

hearing on the revocation petition and found Mr. Contreras had violated his 

conditions of supervised release. The court sentenced him to 21 months for the 

violation of supervised release pursuant to U.S.S.G. § 7B1, to be served 

consecutively to the 30-month term the court had ordered for his most recent 

illegal reentry. On appeal, Mr. Contreras contends the district court erred by 

failing to impose concurrent sentences for his immigration and supervised release 

violations. 

II. 

In sentencing for a violation of supervised release, the court must consider 

"the applicable guidelines or policy statements issued by the Sentencing 

Commission .... " 18 U .S.C. § 3553(a)( 4 )(B). One relevant guideline, U .S.S.G. 

§ 5G 1.3, is applicable to "Imposition of a Sentence on a Defendant Subject to an 

Undischarged Term of Imprisonment." 

At the time of Mr. Contrearas' sentencing, § 5G l .3(a) required a 

consecutive sentence when the defendant committed the instant offense while 

serving a term of imprisonment, or before the defendant began serving such a 

term. Section 5G l.3(b) required a concurrent sentence when "a term of 

imprisonment resulted from another offense that is relevant conduct to the instant 

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offense of conviction." Section 5Gl.3(c), a policy statement, applied in any other 

case involving an undischarged term of imprisonment, and authorized the district 

court to impose a sentence to run concurrently, partially concurrently, or 

consecutively to the undischarged sentence "to achieve a reasonable punishment." 

The parties agree subsection (a) did not apply here. Rather, Mr. Contreras 

contends subsection (b) mandated the imposition of a concurrent sentence because 

his illegal reentry and violation of supervised release sentences were based on the 

same underlying relevant conduct. 

Because Mr. Contreras failed to argue at sentencing that the court was 

required, as a matter of law, to order the sentence it imposed for the supervised 

release violation to run concurrently with the sentence imposed for his illegal 

reentry, we review this claim for plain error. United States v. Hurlich, 348 F .3d 

1219, 1220 (10th Cir. 2003). The plain error test requires Mr. Contreras to 

demonstrate the district court (1) committed error, (2) that is plain, and (3) affects 

substantial rights. United States v. Olano, 507 U.S. 725, 732 (1993). IfMr. 

Contreras meets his burden of establishing the first three prongs of the plain error 

test, we may exercise discretion to correct the error if it "seriously affect[ s] the 

fairness, integrity or public reputation of judicial proceedings." Johnson v. 

United States, 520 U.S. 461, 469-70 (1997) (quoting Olano, 507 U.S. at 736). 

Here, however, we need not examine the second, third, or fourth prongs of the 

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plain error test because we conclude the district court committed no error. 

·'U.S. S. G. § 5 G 1.3 (b )' s central aim is to ensure no defendant is punished 

twice for the same crime." United States v. Moyer, 282 F .3d 1311, 1316 (10th 

Cir. 2002) (internal quotation omitted). Accordingly, § SG l.3(b) provides 

'•credit[] for guidelines purposes [to] defendants who have already served time -

generally in another jurisdiction - for the same conduct or course of conduct." 

United States v. Johnson, 40 F.3d 1079, 1082 (10th Cir. 1994) (internal 

quotations omitted). We thus declined in Moyer to apply§ 5Gl.3(b) where a 

defendant's conduct resulted in revocation of a term of probation plus an 

additional sentence, because the original term of probation stemmed from a 

separate offense. 282 F .3d at 1317; see also United States v. Tisdale, 248 F .3d 

964,974, 976-77 (10th Cir. 2001) (holding that§ 5Gl.3(c) provides a district 

court with discretion to sentence defendant consecutively or concurrently where 

conduct giving rise to the instant offense resulted in revocation of probation). 

Similarly, Mr. Contreras' conduct, his 2003 illegal reentry, resulted in revocation 

of his term of supervised release and an additional sentence because the original 

term of supervised release stemmed from a separate offense: his 1999 illegal 

reentry. Consequently,§ 5Gl.3(b) simply did not apply in the instant case. 

Moreover, at the time of Mr. Contreras' sentencing, application note 3(C) 

to§ 5Gl.3(c) specifically provided that 

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[ s ]ubsection ( c) applies in cases in which the defendant was on federal or 

state probation, parole, or supervised release at the time of the instant 

offense and has had such probation, parole, or supervised release revoked. 

Consistent with the policy set forth in Application Note 4 and subsection (j) 

of §7Bl.3 (Revocation of Probation or Supervised Release), the 

Commission recommends that the sentence for the instant offense be 

imposed consecutively to the sentence imposed for the revocation. 

U.S.S.O.§501.3, cmt. n.3(C) (emphasis added). 1 This cross-reference makes it 

clear that § 7B 1.3(f) is the more appropriate sentencing provision when a 

defendant's supervised release has been revoked. 

In the Introduction to Chapter 7, Part A, of the guidelines, the Sentencing 

Commission states: 

Under 28 U.S.C. § 994(a)(3), the Sentencing Commission is required to 

issue guidelines or policy statements applicable to the revocation of 

probation and supervised release. At this time, the Commission has chosen 

to promulgate policy statements only. These policy statements will provide 

1

Under § 50 l.3(c), the sentencing court has the discretion to impose a 

sentence concurrently, partially concurrently, or consecutively to the prior 

undischarged term of imprisonment. U.S.S.O. § 501.3(c). As this court has held: 

§ 501.3 ( c) imposes no duty on the sentencing court but merely provides 

that, in any case not covered by the other two sections, the sentence "may 

be imposed to run concurrently, partially concurrently, or consecutively to 

the prior undischarged term of imprisonment to achieve a reasonable 

punishment for the instant offense." The use of the permissive word "may" 

and the reference to the need to achieve a reasonable punishment clearly 

contemplate an individualized examination of particular factors and an 

exercise of sentencing discretion by the sentencing court in assessing those 

factors. 

United States v. Tisdale, 248 F.3d 964, 978 (10th Cir. 2001) (internal citation 

omitted). 

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guidance while allowing for the identification of any substantive or 

procedural issues that require further review. The Commission views these 

policy statements as evolutionary and will review relevant data and 

materials concerning revocation determinations under these policy 

statements. Revocation guidelines will be issued after federal judges, 

probation officers, practitioners, and others have the opportunity to 

evaluate and comment on these policy statements. 

U.S.S.G. Ch. 7, pt. A. Consistent with this statement, we have recognized that the 

Chapter 7 provisions dealing with violations of supervised release are not 

mandatory sentencing guidelines; rather, they merely constitute "advisory" policy 

statements. United States v. Tsosie, 376 F.3d 1210, 1218 (10th Cir. 2004). 

"Although the policy statements regarding revocation of supervised release are 

advisory rather than mandatory in nature, they must be 'considered by the trial 

court in its deliberations concerning punishment for violation of conditions of 

supervised release."' Id. (quoting United States v. Lee, 957 F.2d 770, 774 (10th 

Cir. 1992)). We made clear in Tsosie that "we will not reverse [a revocation 

sentence imposed by the district court] if it can be determined from the record to 

have been reasoned and reasonable." Id. 2 See also United States v. Tedford, No. 

04-7079, 2005 WL 1023434, at *2 (10th Cir. May 3, 2005) 

2

This is the precise analysis now required for the application of all 

sentencing guidelines by the Supreme Court's recent decision in United States v. 

Booker, 125 S. Ct. 738, 766 (2005) (citing United States v. Tsosie, 376 F.3d 1210, 

1218-19 (10th Cir. 2004), for an example of the "reasonableness" standard of 

review); see also United States v. Cotton, 399 F .3d 913, 916 (8th Cir. 2005) 

(holding new standard of review under Booker same as one used on review of 

supervised release revocation). 

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Our review of the record convinces us the district court in this case 

committed no error in exercising its discretion and sentencing Mr. Contreras to 

consecutive terms of imprisonment. The court received a memorandum from the 

Arizona probation office which stated: "Provisions of Chapter Seven, including 

the revocation range, are policy statements intended to provide guidance and are 

not binding on the Court. § 7 A 1." Rec., vol. II at 16. The memorandum stated on 

the next page: 

In the case of a Grade B violation, any term of imprisonment 

imposed upon the revocation of 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 supervised release. § 7B l .3(f). 

Id. at 17. Notwithstanding the seemingly mandatory language of§ 7B l .3(f), 

when the memorandum and the Chapter 7 provisions are read as a whole it is clear 

the sentencing court was informed that § 7B l .3(f) is merely an advisory policy 

statement. In addition, at Nlr. Contreras' sentencing hearing, the court entertained 

an argument from defense counsel detailing why the court should impose 

concurrent rather than consecutive sentences, further indicating the court knew 

the Chapter 7 policy statements were not binding. In fact, nothing on the record 

before us suggests the district court was unaware of the advisory nature of§ 

7B 1.3(f). 

The Chapter 7 policy statements applicable to Mr. Contreras recommend 

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revocation of supervised release and a term of imprisonment from 21 to 27 

months because Mr. Contreras' conduct violating supervised release was a "Grade 

B" violation and he was in Criminal History Category VI at the time of his 

original sentencing. U.S.S.G. §§ 7Bl.l(a)(2), 7Bl.3(a)(l), 7Bl.4(a). Thus, it 

was Mr. Contreras' criminal history category and his commission of a Class B 

violation - not relevant conduct - that resulted in the 21 to 27 month guideline 

range. U.S.S.G. § 7B l .4(a). 

The violation of a condition of supervised release is a breach of trust and, 

while the sentencing court at revocation takes into account the seriousness of the 

underlying crime, it is primarily the breach of trust that is sanctioned. U.S.S.G. 

Ch. 7, pt. A, introductory cmt. 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. See Tsosie, 3 76 F. at 1218 (applying reasonableness standard 

to revocation sentence). 

Mr. Contreras argues that because the district court gave no reasons for its 

discretionary decision to impose consecutive sentences, we cannot determine 

whether the sentences were reasoned and reasonable. We disagree. A court faced 

with a violation of supervised release is required to "consider" various factors set 

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forth in 18 U.S.C. § 3553(a) in exercising its discretion in sentencing. Id. § 

3583(e)(3); see also United States v. Kelley, 359 F.3d 1302, 1304 (10th Cir. 

2004 ). 3 In Kelley, we "made it quite clear that the sentencing court is not 

required to consider individually each factor listed in § 3553(a) before issuing a 

sentence." Id. at 1305. Moreover, 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. at 1305 

(internal quotation omitted). 4 

As we previously noted, prior to sentencing the district court reviewed a 

memorandum from the probation office stating that the provisions of Chapter 7 

3

Those factors include: the nature and circumstances of the offense; the 

history and characteristics of the defendant; the need for the sentence imposed to 

afford adequate deterrence, protect the public, and provide the defendant with 

needed educational or vocational training, medical care or other correctional 

treatment in the most effective manner; pertinent guidelines; pertinent policy 

statements; the need to avoid unwanted sentence disparities; and the need to 

provide restitution. See 18 U.S.C. § 3553(a). 

4

ln United States v. Rose, we noted that§ 3553(c) imposes a general burden 

on the district court, which extends to all cases, to "state in open court the reasons 

for its imposition of the particular sentence." See 185 F.3d 1108, 1111-12 (10th 

Cir. 1999) ( quoting 18 U .S.C. § 3553( c )). As a result, we held it was error for the 

district court to impose consecutive terms under 18 U.S.C. § 3584 without any 

statement in the record of the court's reasoning because it left the panel in the 

"zone of [appellate] speculation." Id. at 1112-13. The present case is 

distinguishable from Rose because § 7B l .3(f) explicitly recommends consecutive 

sentences, and as we discuss above, the record indicates the district court made it 

clear it was following this recommendation in imposing its sentences 

consecutively. Consequently, we are not in the "zone of appellate speculation." 

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applied to Mr. Contreras' sentence and that these provisions were "not binding on 

the Court.,. Moreover, at the revocation hearing the court entertained arguments 

from both Mr. Contreras and his counsel concerning concurrent sentencing. 

Ultimately, the court stated on the record it was sentencing Mr. Contreras 

pursuant to U.S.S.G. § 7B1, and then imposed a consecutive sentence that is 

consistent with the guidelines and policy statements. We are thus convinced the 

court properly considered the nature and circumstances of Mr. Contreras' offense, 

his criminal history, and all other relevant factors when it sentenced him to 

consecutive terms of imprisonment. Under these circumstances, we have no 

difficulty concluding the court's sentence was reasoned and is reasonable. 

Finally, Mr. Contreras contended for the first time at oral argument that the 

Supreme Court's decision in United States v. Booker, 125 S. Ct. 738 (2005), 

applies to his appeal and warrants a remand for resentencing. Specifically, Mr. 

Contreras argues that the district court erroneously sentenced him to consecutive 

sentences under a mandatory guidelines system. Because Mr. Contreras did not 

raise his Booker argument in the district court, we review for plain error. Id. at 

7 69 ( emphasizing whether a new sentencing hearing is required depends on 

"ordinary prudential doctrines," such as "whether the issue was raised below and 

whether it fails the 'plain-error' test"). 

In Booker, the Court held the appropriate remedy for any Sixth Amendment 

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violation resulting from the guidelines' mandatory nature was to sever and excise 

18 U.S.C. § 3553(b)(l), rendering the guidelines advisory. Id. at 756-57. The 

Court also made clear the new advisory-guidelines system applies retroactively on 

direct review, whether or not a Sixth Amendment violation is present in any given 

case. Id. at 769 ("we must apply today's holdings - both the Sixth Amendment 

holding and our remedial interpretation of the Sentencing Act - to all cases on 

direct review") (citing Griffith v. Kentucky, 479 U.S. 314, 328 (1987)). Because 

the guidelines governing revocation of supervised release are policy statements, 

however, the district court was functioning under a sentencing regime that even 

before Booker was advisory with respect to violations of supervised release. See 

United States v. Fleming, 397 F.3d 95, 101 (2d Cir. 2005). The district court 

knew that it was not bound by the Chapter 7 policy statements. Mr. Contreras' 

Booker claim fails the first prong of plain error analysis precisely because in 

exercising its discretion to impose consecutive sentences, the district court 

committed no error. 

For the reasons stated above, we AFFIRM. 

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