United States v. Montero-Montero

• Court: Court of Appeals for the Tenth Circuit
• Decided: March 27, 2007
• Docket: 06-3300
• Status: Unpublished

Opinion

F I L E D United States Court of Appeals Tenth Circuit UNITED STATES CO URT O F APPEALS March 27, 2007 TENTH CIRCUIT Elisabeth A. Shumaker Clerk of Court

U N ITED STA TES O F A M ER ICA,

Plaintiff - Appellee, No. 06-3300 v. (D. Kansas) JO SE C RU Z M O N TER O-M O NTERO, (D.C. No. 06-CR-20019-CM )

Defendant - Appellant.

OR D ER AND JUDGM ENT *

Before BR ISC OE, HA RTZ, and GORSUCH, Circuit Judges.

On January 25, 2006, Jose Cruz M ontero-M ontero (M ontero) was indicted

in the United States District Court for the District of Kansas on one count of

unlawful reentry into the United States after deportation. See 8 U.S.C. § 1326(a)

and (b)(2). He pleaded guilty and on August 7 w as sentenced to 70 months’

imprisonment. On appeal he argues that the court improperly “double-counted”

one of his previous criminal offenses by using it in calculating both his offense

* After examining the briefs and appellate record, this panel has determined unanimously to honor the parties’ request for a decision 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. This order and judgment is not binding precedent except under the doctrines of law of the case, res judicata, and collateral estoppel.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. level and his criminal history. He also contends that his sentence is unreasonably

long under 18 U.S.C. § 3553(a). W e have jurisdiction under 28 U.S.C. § 1291

and affirm.

I. B ACKGR OU N D

The presentence report (PSR ) computed M r. M ontero’s offense level of 22

by starting with a base offense level of eight, see United States Sentencing

Guidelines (USSG) § 2L1.2(a), adding 16 for being previously deported after a

drug-trafficking conviction for which he received a sentence of five years’

imprisonment, see id. § 2L1.2(b)(1)(A)(I), and subtracting two for accepting

responsibility, see id. § 3E1.1(a). His criminal-history category of V was based

on three previous drug convictions and an outstanding bench warrant that issued

when he failed to complete alcohol treatment after a D UI conviction. In

particular, he received three criminal-history points for the conviction used to

increase his base offense level by 16.

M r. M ontero objected to the PSR at sentencing, contending that his prior

felony conviction was unreasonably “double-counted.” He also argued that each

of the sentencing factors in 18 U.S.C. § 3553(a) supported a below-Guidelines

sentence. The district court overruled his objection to double counting, but

further reduced M r. M ontero’s offense level by one for acceptance of

responsibility and sentenced him to 70 months’ imprisonment.

-2- II. D ISC USSIO N

M r. M ontero challenges the reasonableness of his sentence. See United

States v. Booker, 543 U.S. 220, 261 (2005) (reviewing sentences for

unreasonableness). “[T]he reasonableness standard of review set forth in Booker

necessarily encompasses both the reasonableness of the length of the sentence, as

well as the method by which the sentence was calculated.” United States v.

Kristl, 437 F.3d 1050, 1055 (10th Cir. 2006). “Reasonableness review is guided

by the factors set forth in 18 U.S.C. § 3553(a), which include the nature of the

offense and characteristics of the defendant, as well as the need for the sentence

to reflect the seriousness of the crime, to provide adequate deterrence, to protect

the public, and to provide the defendant with needed training or treatment.” Id. at

1053 (internal citation omitted). W e review the district court’s “factual findings

for clear error and legal determinations de novo.” Id. at 1054.

W e recently rejected a contention that a previous conviction may not be

used to calculate both an illegal reentrant’s criminal history as well as his offense

level. See United States v. Ruiz-Terrazas, No. 06-2138, 2007 W L 576034 (10th

Cir. Feb. 26, 2007). W e similarly reject M r. M ontero’s argument. W e “are

mindful of the general rule that the Sentencing Commission plainly understands

the concept of double counting, and expressly forbids it where it is not intended.”

United States v. Groves, 369 F.3d 1178, 1186 (10th Cir. 2004) (internal quotation

marks omitted). No such prohibition is present here.

-3- In the context of illegal-reentry crimes, not only has the Sentencing

Commission declined to forbid double counting expressly, it has expressly

approved of it. See USSG § 2L1.2 cmt. 6 (conviction used for an offense-level

enhancement under § 2L1.2(b)(1) is “not excluded from consideration of whether

that conviction receives criminal history points . . . .”); see also United States v.

Hernandez-Fierros, 453 F.3d 309, 313 (6th Cir. 2006) (“[B]ecause the

Application Note 6 explicitly allows for double counting under this Guideline,

defendant’s primary rationale for why this Guideline is unreasonable is not

persuasive.”).

W e also reject M r. M ontero’s claim that his sentence is unreasonably long.

The district court consulted the advisory Sentencing Guidelines and saw no

reason to vary from them. Although there were some extenuating factors, the

sentence was appropriate for someone who had twice been deported, had been

convicted of three drug crimes, and was wanted on an outstanding bench warrant

at the time of his arrest.

III. C ON CLU SIO N

W e A FFIR M the judgment below.

ENTERED FOR THE COURT

Harris L Hartz Circuit Judge

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