* After examining the briefs and appellate record, th is panel has determined

unanimously to honor the parties’ request for a dec ision 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. 

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

### April 18, 2006
Elisabeth A. Shumaker Clerk of Court PUBLISH
UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v. No. 05-2274ROBERTO ALEJANDRO LOPEZFLORES, Defendant - Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW MEXICO * (D.C. NO. CR-05-906 JC)

Peter E. Edwards, Assistant Federal Public Defender , Las Cruces, New Mexico, for the Defendant - Appellant. David C. Iglesias, United States Attorney and LauraFashing, Assistant United States Attorney, Albuquerque, New Mexico, for the P laintiff - Appellee.

Before HARTZ , EBEL, andTYMKOVICH , Circuit Judges.

HARTZ , Circuit Judge.-2-

Roberto Alejandro Lopez-Flores appeals his sentence . He contends that his sentence was unreasonable because the district court failed to explain its reasons for imposing the sentence. We affirm.
I. BACKGROUND On April 27, 2005, Mr. Lopez-Flores pleaded guilty to illegally reentering the United States after being deported following a conviction for aggravated battery. See 8 U.S.C. § 1326(a)(1), (2); 8 U.S.C. § 1326(b)(2). United States Sentencing Guidelines (USSG) § 2L1.2(a) establishes a base offense level of 8 for illegal reentry, and § 2L1.2(b)(1)(A)(ii) requires a 16-level increase when the defendant was previously deported following a felony conviction for a crime of violence. The presentence report (PSR) recommended a three-level downward adjustment for acceptance of responsibility, see USSG § 3E1.1, leading to a total offense level of 21. Additionally, the PSR calculated that Mr. Lopez-Flores’s prior convictions placed him in criminal history category III. The resulting sentencing range was 46 to 57 months’ imprisonment. At the sentencing hearing counsel for Mr. Lopez-Flo res told the court that his client has never had any involvement with the federal courts or never had counsel to advise him of the consequences of his pr evious conviction and the immigration laws. He has had that counsel this time. I have advised him that he’s been banished from the United States and never allowed back here. I have advised him that next ti me he could be-3-

looking at—as with this time, he could be looking at 20 years, and he’s not ever allowed to enter the United States. He’s 21 years old, your Honor. We would ask the court to impose a rea sonable sentence for Mr. Lopez, allow him to get on with his life, g et back to Mexico and stay there. R. Vol. IV at 2. Mr. Lopez-Flores added only that he was “sorry for the harm I have caused here and I apologize for having come ba ck to the United States. That’s all.” Id . at 3. No objections were made to the Guidelines calculation in the PSR, nor were any other arguments made in favorof a lower sentence. The district court then indicated that it had “reviewed the Presentence Report factual findings and ha[d] considered the sentencing guidel ine applications.” Id . The district court accepted those findings and sentence d Mr. Lopez-Flores to 46 months’ imprisonment—the bottom of the Guidelines r ange. The district court made no reference to the non-Guidelines sentencing factors in 18 U.S.C. § 3553(a). Mr. Lopez-Flores appeals his sentence o n the ground that it was unreasonable because the district court did not exp lain its reasoning under § 3553(a) for imposing the sentence.
II. DISCUSSION 1. Booker
In United States v. Booker , 543 U.S. 220 (2005), the Supreme Court held that mandatory application of the United States Sen tencing Guidelines violated the Sixth Amendment. By striking down 28 U.S.C. § 3553(b)(1) (the court-4-

“shall” impose a sentence within the Guidelines ran ge), and 28 U.S.C. § 3742(e) (de novo appellate review), id . at 245, the Court made the Guidelines but one factor among others to be considered at sentencing. In § 3553(a), entitled “Factors to be considered in imposing a sentence,” only paragraphs (4) and (5) refer to the Guidelines or the Sentencing Commissio n. Bookersaid that “[s]ection 3553(a) remains in effect,” 543 U.S. at 261, so the factors listed in paragraphs (1), (2), (3), (6), and (7) also play a role. As stated by the Court:

[T]he [Federal Sentencing] Act . . . requires judge s to take account of the Guidelines together with other sente ncing goals . . . [, including] the need to avoid unwarranted sentencing disparities, and the need to provide restitution to victims, . . . And the Act . . . requires judges to impose sentences that reflect th e seriousness of the offense, promote respect for the law, provide just punishment, afford adequate deterrence, protect the public, and effect ively provide the defendant with needed educational or vocational tra ining and medical care. Id . at 259-60. After Booker a sentence, rather than having to comply with the G uidelines, must be reasonable. See id. at 261. We require reasonableness in two respects—“the length of the sentence, as well as th e method by which the sentence was calculated.” United States v. Kristl , 437 F.3d 1050, 1055 (10th Cir. 2006). Mr. Lopez-Flores challenges the method by w hich his sentence was set. He contends that his sentence is unreasonable becau se the district court failed to-5-

explain the sentence on the record with reference t o any factor other than the Guidelines.
2. Standard of Review The parties disagree whether we should review Mr. L opez-Flores’s sentence under the plain-error standard. Mr. Lopez -Flores acknowledges that he failed to argue in district court that his sentence was unreasonable. Ordinarily, when a claim of error was not raised below, we revi ew only for plain error. See United States v. Gonzalez-Huerta , 403 F.3d 727, 732 (10th Cir. 2005) (en banc) (citing Fed. R. Crim. P. 52(b)). Mr. Lopez-Flores argues, however, that a challenge to the reasonableness of a sentence shoul d be treated differently. He relies on a recent decision by the Seventh Circuit, United States v. Castro-Juarez , 425 F.3d 430 (7th Cir. 2005), which he describes as holding that it is unnecessary to raise a reasonableness challenge at sentencing. We think he reads that opinion too broadly. Castro-Juarezsaid that requiring a defendant to object to the reasonableness of a sentence after it has been anno unced would create a trap for unwary defendants and saddle busy district courts with the burden of sitting through an objection—pro bably formulaic—in every criminal case. Since the distri ct court will already have heard argument and allocution from the parties and weighed the relevant § 3553(a) factors before prono uncing sentence, we fail to see how requiring the defendant to then protest the term handed down as unreasonable will further the senten cing process in any meaningful way. Certainly we do not mean to di scourage district courts from entertaining argument about the reasona bleness of a sentence after its pronouncement, nor do we suggestthat our-6-

longstanding insistence on proper objections as to other sentencing issues, e.g., the application of a guideline adjust ment, should be relaxed. All we conclude here is that our review o f a sentence for reasonableness is not affected by whether the defen dant had the foresight to label his sentence “unreasonable” befo re the sentencing hearing adjourned. Id . at 433-34. Thus, Castro-Juarez addresses only challenges to the reasonableness of the length of a sentence that are based on the record before the district court. That is not the challenge here. As we recently stated, “th e reasonableness standard of review set forth in Bookernecessarily encompasses both the reasonableness of the length of the sentence, as well as the method by which the sentence was calculated.” Kristl , 437 F.3d at 1055. Mr. Lopez-Flores’s challenge o n appeal is to the method

by which the district court arrived at his sentenc e. Although
Castro-Juarezexplains why it is unnecessary to argue to the dis trict court after imposition of the sentence that the sentence is unr easonably long, the usual reasons for requiring a contemporaneous objection apply to challenges to the district court’s method of arriving at a sentence. A timely objection to the method can alert the district court and opposing counsel, so that a potential error can be corrected, obviating any need for an appeal. Here, for example, an objection that the sentencing court had not adequately explained t he sentence under the factors set forth in 18 U.S.C. § 3553(a) would have enabled the court either to correct a failure to consider those factors or to state affir matively that the factors had been-7-

considered. In this circumstance plain-error revie w is appropriate. See United States v. Whitney , 229 F.3d 1296, 1308 (10th Cir. 2000) (alleged err or in sentencing not raised below); see also United States v. Dominguez Benitez , 542 U.S. 74, 82 (2004) (the plain-error standard “encou rage[s] timely objections and reduce[s] wasteful reversals by demanding strenuous exertion to get relief for unpreserved error”). “Plain error occurs when there is (1) error, (2) th at is plain, which (3) affects substantial rights, and which (4) seriously affects the fairness, integrity, or public reputation of judicial proceedings.” Gonzalez-Huerta , 403 F.3d at 732 (internal quotation marks omitted). Here, we need not go past the first prong because the district court committed no error.
3. Merits Mr. Lopez-Flores contends that the district court e rred by not stating on the record how it weighed the § 3553(a) sentencing fact ors other than the Guidelines. He relies on 18 U.S.C. § 3553(c), which requires th e district court to state “the reasons for its imposition of the particular senten ce.” In addition, if the sentence is greater than 24 months, subsection (c)(1) requir es that the district court also state “the reason for imposing a sentence at a part icular point within the [Guidelines] range.” When the sentence imposed is outside the Guidelines range, subsection (c)(2) requires that the district court give “the specific reason for the-8-

imposition” of the sentence, and must also state th e reason in the written order of judgment. Section 3553 (c)(2) has no bearing on this case bec ause the sentence was within the Guidelines range. Subsection (c)(1) doe s apply, because the sentence exceeded 24 months, but for obvious reasons Mr. Lop ez-Flores does not challenge the district court’s failure to state why it was imposing a sentence at the bottom of the Guidelines range. See United States v. Underwood, 938 F.2d 1086, 1088 (10th Cir. 1991) (“Although it is clear that the di strict court did not comply with subsection (c)(1), remand on this issue alone would be pointless because the defendant could not have received a more lenient se ntence within the applicable guideline range.”). Thus, his challenge rests on t he more general requirement of § 3553(c). But we held pre- Booker that when the sentencing court imposes a sentence within the calculated Guidelines range, § 3553(c) r equires only “a general statement noting the appropriate guideline range an d how it was calculated.” Id

. at 1092. See United States v. Georgiadis , 933 F.2d 1219, 1223 (3d Cir. 1991) (general requirement of § 3553(c) “is satisfied whe n a district court indicates the applicable Guidelines range, and how it was chosen” ). Although the district court here omitted to recite how the Guidelines range was calculated, the calculation was obvious and Mr. Lopez-Flores is not complaining of the omission.-9-

Consequently, Mr. Lopez-Flores’s appeal would have had no merit before Booker . Indeed, he could not have brought this appeal be fore Bookerbecause review of a sentence “within an admittedly appropri ate guideline range [was] . . . precluded.” Underwood, 938 F.2d at 1089. His argument must therefore be that after Booker more is required of district courts by § 3553(c). We disagree. When the defendant has not raised any substantial c ontentions concerning non-Guidelines § 3553(a) factors and the district c ourt imposes a sentence within the Guidelines range, our post-Booker precedents do not require the court to explain on the record how the § 3553(a) factors jus tify the sentence. “We do not require a ritualistic incantation to establish cons ideration of a legal issue, nor do we demand that the district court recite any magic words to show us that it fulfilled its responsibility to be mindful of the f actors that Congress has instructed it to consider.” United States v. Kelley , 359 F.3d 1302, 1305 (10th Cir. 2004) (internal quotation marks omitted); see also United States v. Rines , 419 F.3d 1104, 1107 (10th Cir. 2005) (“It is true that the d istrict court did not march through § 3553(a)’s sentencing factors, but we have never imposed such a requirement.”); United States v. Dean , 414 F.3d 725, 729 (7th Cir. 2005) (“Judges need not rehearse on the record all of the considerations that 18 U.S.C. § 3553(a) lists; it is enough to calculate the rang e accurately and explain why (if the sentence lies outside it) this defendant deserv es more or less.”); United States-10-

v. Mares , 402 F.3d 511, 519 (5th Cir. 2005) (“When the judg e exercises her discretion to impose a sentence within the Guidelin e range and states for the record that she is doing so, little explanation is required.”); United States v. Simpson , 430 F.3d 1177, 1186 (D.C. Cir. 2005) (“It is true that the district court did not specifically refer to each factor listed in § 3553(a). But we have not required courts to do so.”); cf. Kristl , 437 F.3d at 1054 (“[A]ny sentence that is properly calculated under the Guidelines is entitle d to a rebuttable presumption of reasonableness.” (internal quotation marks omitted) ). At sentencing, counsel for Mr. Lopez-Flores perfunc torily raised only runof-the-mill contentions. A response by the distric t court was not required.
III. CONCLUSION We AFFIRM the judgment of the district court.