Filed: Jun. 29, 2016
Latest Update: Mar. 02, 2020
Summary: FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit FOR THE TENTH CIRCUIT June 29, 2016 _ Elisabeth A. Shumaker Clerk of Court UNITED STATES OF AMERICA, Plaintiff - Appellee, v. No. 16-1045 (D.C. No. 1:15-CR-00460-PAB-1) (D. Colo.) JAVIER ROCHA-RODRIGUEZ, Defendant - Appellant. _ ORDER AND JUDGMENT* _ Before LUCERO, MATHESON, and BACHARACH, Circuit Judges. _ Javier Rocha-Rodriguez challenges the substantive reasonableness of his sentence. Exercising jurisdiction und
Summary: FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit FOR THE TENTH CIRCUIT June 29, 2016 _ Elisabeth A. Shumaker Clerk of Court UNITED STATES OF AMERICA, Plaintiff - Appellee, v. No. 16-1045 (D.C. No. 1:15-CR-00460-PAB-1) (D. Colo.) JAVIER ROCHA-RODRIGUEZ, Defendant - Appellant. _ ORDER AND JUDGMENT* _ Before LUCERO, MATHESON, and BACHARACH, Circuit Judges. _ Javier Rocha-Rodriguez challenges the substantive reasonableness of his sentence. Exercising jurisdiction unde..
More
FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT June 29, 2016
_________________________________
Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 16-1045
(D.C. No. 1:15-CR-00460-PAB-1)
(D. Colo.)
JAVIER ROCHA-RODRIGUEZ,
Defendant - Appellant.
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before LUCERO, MATHESON, and BACHARACH, Circuit Judges.
_________________________________
Javier Rocha-Rodriguez challenges the substantive reasonableness of his sentence.
Exercising jurisdiction under 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291, we affirm.
After multiple convictions and deportations, Mr. Rocha-Rodriguez returned to the
United States without authorization in January 2015 and was sentenced three times.
First, after he committed a drug offense and was convicted in state court, he was
sentenced to four years in prison. Second, after he was charged and convicted in federal
*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination of this
appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered
submitted without oral argument. This order and judgment is not binding precedent,
except under the doctrines of law of the case, res judicata, and collateral estoppel. It may
be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and
10th Cir. R. 32.1.
court for illegal reentry, he was sentenced to 63 months in prison, to run concurrently
with the state sentence. Third, after he admitted to violating the terms of his supervised
release based on his 2008 illegal reentry conviction, the federal court revoked his
supervised release and sentenced him to 24 months, the top of the Guidelines range, with
12 months to be served consecutively to the other sentences. ROA, Vol. I at 19.
On appeal, Mr. Rocha-Rodriguez argues the 12-month consecutive sentence,
which the district court based on his criminal history, is substantively unreasonable.
A. Legal Background and Standard of Review
District courts may impose either concurrent or consecutive sentences. 18 U.S.C.
§ 3584(a). When making this determination, the district court “shall consider, as to each
offense for which a term of imprisonment is being imposed, the factors set forth in
section 3553(a).” Id. § 3584(b).
Substantive reasonableness addresses “whether the length of the sentence is
reasonable given all the circumstances of the case in light of the factors set forth in 18
U.S.C. § 3553(a).” United States v. Verdin-Garcia, 516 F.3d 884, 895 (10th Cir. 2008)
(quotations omitted). We “review the substantive reasonableness of a sentence for abuse
of discretion.” United States v. Chavez,
723 F.3d 1226, 1233 (10th Cir. 2013). This
review includes the district court’s decision to impose a consecutive sentence. United
States v. Rodriguez-Quintanilla,
442 F.3d 1254 (10th Cir. 2006). We find no abuse of
discretion “unless [the sentence] is arbitrary, capricious, whimsical, or manifestly
unreasonable.” United States v. Munoz-Nava,
524 F.3d 1137, 1146 (10th Cir. 2008)
(quotations omitted).
-2-
When, as here, a defendant is sentenced within a properly calculated United States
Sentencing Guidelines range, the sentence “is entitled to a rebuttable presumption of
reasonableness.” United States v. Kristl, 437 F.3d 1050, 1054 (10th Cir. 2006)
(quotations omitted). Mr. Rocha-Rodriguez has not argued this presumption does not
extend to whether a sentence should be consecutive or concurrent. Even without the
presumption of reasonableness, Mr. Rocha-Rodriguez has not demonstrated that the
district court abused its discretion.
Although we generally review the imposition of a consecutive sentence for abuse
of discretion, we have reviewed consecutive sentences imposed for immigration and
supervised release violations under the “plainly unreasonable” standard.
Rodriguez-Quintanilla, 442 F.3d at 1256-57. Abuse of discretion and plainly
unreasonable are “quite similar” standards of review.
Id. at 1256. Under either standard,
we affirm.
B. Substantive Unreasonableness
Mr. Rocha-Rodriguez makes two substantive unreasonableness arguments.
First, he argues his consecutive sentence “was unreasonably harsh.” Aplt. Br. at 5.
He “acknowledges that the sentencing guidelines call for consecutive sentences in this
situation,” id., but argues the state drug sentence and the federal illegal reentry sentence
“overlapped by only about a year,” and he thus “was already serving over eight years in
prison,” so the consecutive sentence “was manifestly unreasonable,”
id. at 6.
Although the Government does not address this argument in its brief, the record
does not support it. In January 2015, Mr. Rocha-Rodriguez was incarcerated on a state
-3-
drug charge and later was convicted and sentenced to four years in prison. ROA, Vol. II
at 38. The federal sentence for illegal reentry was imposed in December 2015, to run
concurrently with the state sentence. ROA, Vol. I at 14. When he received his federal
sentence, Mr. Rocha-Rodriguez had served up to 11 months of his state sentence, leaving
approximately 37 months—not “about a year”—to be served concurrently with his 63-
month federal sentence, for a total of 74 months (11 plus 63). Had the federal sentence
not been concurrent, the two sentences would have totaled about 111 months (48 plus
63).1
Because Mr. Rocha-Rodriguez’s argument that the consecutive sentence “was
manifestly harsh” significantly understates the effect of the concurrent federal sentence in
the illegal reentry case and significantly overstates the overall length of the state drug and
federal illegal reentry sentences, he has failed to show the 12-month consecutive sentence
for his supervised release violations was substantially unreasonable.
Second, Mr. Rocha-Rodriguez argues his sentence creates an unwarranted
disparity because, unlike in 2008 when he was sentenced to 70 months in prison followed
by three years of supervised release, the Sentencing Guidelines now state a court
“ordinarily should not impose a term of supervised release” when deportation is likely
after imprisonment. U.S.S.G. § 5D1.1(c); see Aplt. Br. at 6. He argues that if § 5D1.1(c)
had been on the books when he was sentenced in 2008, the court “may well have
1
Although the district court said at the revocation sentencing hearing that the
effect of running the illegal reentry sentence concurrently with the state sentence “was
maybe a year shaved off,” ROA Vol. 3 at 13, the actual numbers indicate the concurrent
federal sentence saved Mr. Rocha-Rodriguez slightly more than three years.
-4-
declined” to impose a term of supervised release, in which case he may not have been put
on supervised release, there may have been no revocation, and the additional 12 months
at issue here may not have been imposed. Aplt. Br. at 6.
Mr. Rocha-Rodriguez has failed to demonstrate an unwarranted disparity. An
illegal reentry defendant may receive a term of supervised release under Application Note
5 to § 5D1.1, which states that in applying subsection (c), a court “should . . . consider
imposing a term of supervised release . . . if the court determines it would provide an
added measure of deterrence and protection based on the facts and circumstances of a
particular case.” Because Mr. Rocha-Rodriguez has not shown that he or a defendant
similarly situated to him—especially as to criminal history and multiple deportations—
would not have received a term of supervised release under § 5D1.1(c) even if it existed
when he was sentenced for illegal reentry in 2008, his substantive reasonableness
argument based in alleged unwarranted disparity fails.
* * * *
As to both of his substantive reasonableness arguments, Mr. Rocha-Rodriguez has
not overcome the presumptive reasonableness of his sentence or otherwise shown that the
district court abused its discretion or that the consecutive sentence was plainly
-5-
unreasonable. We therefore affirm.
ENTERED FOR THE COURT,
Scott M. Matheson, Jr.
Circuit Judge
-6-
