F I L E D United States Court of Appeals Tenth Circuit UNITED STATES CO URT O F APPEALS March 22, 2007 TENTH CIRCUIT Elisabeth A. Shumaker __________________________ Clerk of Court
U N ITED STA TES O F A M ER ICA,
Plaintiff-Appellee, No. 06-2271 v. (D.Ct. No. CR-05-2768 JC) (D . N.M .) GIDEO N M ICH AEL R OBLES,
Defendant-Appellant. ____________________________
OR D ER AND JUDGM ENT *
Before TA CH A, Chief Circuit Judge, and BARRETT and BROR BY, Senior Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1.9(G). The case is
therefore ordered submitted without oral argument.
Appellant Gideon M ichael Robles pled guilty to one count of assault with a
* This order and judgment is not binding precedent except under the doctrines of law of the case, res judicata and collateral estoppel.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. dangerous weapon within Indian country in violation of 18 U.S.C. §§ 113(a)(3)
and 1153. He now appeals his sentence, contending the district court erred in
failing to sentence him below the applicable United States Sentencing Guidelines
(“Guidelines” or “U.S.S.G.”) range, based on certain sentencing factors under 18
U.S.C. § 3553(a) which he raised during sentencing. W e exercise jurisdiction
pursuant to 28 U.S.C. § 1291 and affirm M r. Robles’s conviction and sentence.
I. Factual Background
On December 11, 2005, M r. Robles and a fifteen-year-old companion
attended a late-night party at a home located on the Navajo Indian Reservation in
Church Rock, New M exico. W itness accounts differed on what occurred that
evening, but all agreed that during an altercation between Aaron Begay and the
fifteen-year-old, M r. Robles intervened by picking up a knife from the kitchen
counter and inflicting a half-inch-deep stab wound in M r. Begay’s chest. 1 A local
medical center treated M r. Begay and released him six days later.
1 M r. Begay and his sister claimed M r. Robles also intentionally stabbed her in the side before he stabbed M r. Begay. In contrast, M r. Robles, who was drinking that night, claimed he accidently stabbed M s. Begay when he passed through the sliding glass door when leaving the house and that he believed he stabbed her after he stabbed M r. Begay, but admitted he did not remember the sequence of events. Regardless of which version of events is correct, M r. Robles admitted he stabbed both of them and ultimately pled guilty to assaulting M r. Begay with a dangerous weapon with intent to do bodily harm. Counts in the indictment against M r. Robles for assault on M s. Begay with a deadly weapon and for causing her serious bodily injury were dropped as part of the plea agreement.
-2- II. Procedural Background
Following a four-count indictment, M r. Robles pled guilty to one count of
assaulting M r. Begay with a dangerous w eapon with intent to do bodily harm in
violation of 18 U.S.C. §§ 113(a)(3) and 1153, and in return, the government
agreed to dismiss the remaining counts against him and recommend a sentence at
the low end of the Guidelines range. Following M r. Robles’s guilty plea and
dismissal of the other counts against him, a probation officer prepared a
presentence report calculating his base offense level at fourteen, but
recommending a four-level increase because M r. Robles used a dangerous weapon
in committing the crime, and an additional three-level increase because M r.
Begay sustained bodily injuries. After reducing M r. Robles’s offense level by
three levels for acceptance of responsibility, the probation officer calculated his
total offense level at eighteen, which, together with his criminal history category
of I, resulted in a Guidelines range of twenty-seven to thirty-three months
imprisonment.
M r. Robles, through counsel, filed a sentencing memorandum in which he
did not oppose the presentence report, including the Guidelines range
calculations, but argued a twelve-month sentence, rather than a twenty-seven- to
thirty-three-month Guidelines-range sentence, was warranted based on the
sentencing factors in 18 U.S.C. § 3553(a). In support of his argument, M r. Robles
-3- asked the district court to consider the nature and circumstances of his offense,
including the fact he was attempting to defend the fifteen-year-old from an armed
attack; his lack of a prior criminal record, which showed a reduced risk of
recidivism; and his history and characteristics, including a childhood spent in a
series of foster homes, his young age of eighteen, his lack of, and need for,
educational and vocational training, and his stable relationship with the woman
bearing his child.
At the sentencing hearing, M r. Robles’s counsel again did not object to the
sentencing range calculations in the presentence report but reiterated the same
arguments in support of a below -Guidelines-range sentence. Follow ing these
arguments and M r. Robles’s statement regarding his remorse for his conduct, the
district court stated it had “reviewed the presentence report factual findings and ...
considered the sentencing guideline applications and the factors set forth in 18
United States Code Section 3553(a)(1) through (7).” It acknowledged the
Guidelines range was twenty-seven to thirty-three months imprisonment and
further noted M r. Robles assaulted the victim and caused him bodily harm. It
then sentenced M r. Robles at the low end of the Guidelines range to twenty-seven
months imprisonment followed by three years supervised release. M r. Robles and
his counsel raised no contemporaneous objection to the district court’s calculation
or explanation of his sentence and a judgment was entered on August 30, 2006.
-4- III. Discussion
On appeal, M r. Robles argues the district court erred by: 1) failing to
meaningfully consider his meritorious arguments under 18 U.S.C. § 3553(a) for a
below-Guidelines sentence; 2) failing to give adequate weight to the non-
Guidelines § 3553(a) factors; 3) failing to explain its reasons for the sentence
imposed; and 4) unreasonably imposing a sentence greater than necessary to
achieve the sentencing goals in § 3553(a). In support, he contends the district
court only “perfunctorily” stated it considered the § 3553(a) factors, but did not
address the application of those factors nor explain why a “27-month sentence ...
was necessary to achieve the purposes of sentencing.” He also suggests the
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F I L E D United States Court of Appeals Tenth Circuit UNITED STATES CO URT O F APPEALS March 22, 2007 TENTH CIRCUIT Elisabeth A. Shumaker __________________________ Clerk of Court
U N ITED STA TES O F A M ER ICA,
Plaintiff-Appellee, No. 06-2271 v. (D.Ct. No. CR-05-2768 JC) (D . N.M .) GIDEO N M ICH AEL R OBLES,
Defendant-Appellant. ____________________________
OR D ER AND JUDGM ENT *
Before TA CH A, Chief Circuit Judge, and BARRETT and BROR BY, Senior Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1.9(G). The case is
therefore ordered submitted without oral argument.
Appellant Gideon M ichael Robles pled guilty to one count of assault with a
* 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. dangerous weapon within Indian country in violation of 18 U.S.C. §§ 113(a)(3)
and 1153. He now appeals his sentence, contending the district court erred in
failing to sentence him below the applicable United States Sentencing Guidelines
(“Guidelines” or “U.S.S.G.”) range, based on certain sentencing factors under 18
U.S.C. § 3553(a) which he raised during sentencing. W e exercise jurisdiction
pursuant to 28 U.S.C. § 1291 and affirm M r. Robles’s conviction and sentence.
I. Factual Background
On December 11, 2005, M r. Robles and a fifteen-year-old companion
attended a late-night party at a home located on the Navajo Indian Reservation in
Church Rock, New M exico. W itness accounts differed on what occurred that
evening, but all agreed that during an altercation between Aaron Begay and the
fifteen-year-old, M r. Robles intervened by picking up a knife from the kitchen
counter and inflicting a half-inch-deep stab wound in M r. Begay’s chest. 1 A local
medical center treated M r. Begay and released him six days later.
1 M r. Begay and his sister claimed M r. Robles also intentionally stabbed her in the side before he stabbed M r. Begay. In contrast, M r. Robles, who was drinking that night, claimed he accidently stabbed M s. Begay when he passed through the sliding glass door when leaving the house and that he believed he stabbed her after he stabbed M r. Begay, but admitted he did not remember the sequence of events. Regardless of which version of events is correct, M r. Robles admitted he stabbed both of them and ultimately pled guilty to assaulting M r. Begay with a dangerous weapon with intent to do bodily harm. Counts in the indictment against M r. Robles for assault on M s. Begay with a deadly weapon and for causing her serious bodily injury were dropped as part of the plea agreement.
-2- II. Procedural Background
Following a four-count indictment, M r. Robles pled guilty to one count of
assaulting M r. Begay with a dangerous w eapon with intent to do bodily harm in
violation of 18 U.S.C. §§ 113(a)(3) and 1153, and in return, the government
agreed to dismiss the remaining counts against him and recommend a sentence at
the low end of the Guidelines range. Following M r. Robles’s guilty plea and
dismissal of the other counts against him, a probation officer prepared a
presentence report calculating his base offense level at fourteen, but
recommending a four-level increase because M r. Robles used a dangerous weapon
in committing the crime, and an additional three-level increase because M r.
Begay sustained bodily injuries. After reducing M r. Robles’s offense level by
three levels for acceptance of responsibility, the probation officer calculated his
total offense level at eighteen, which, together with his criminal history category
of I, resulted in a Guidelines range of twenty-seven to thirty-three months
imprisonment.
M r. Robles, through counsel, filed a sentencing memorandum in which he
did not oppose the presentence report, including the Guidelines range
calculations, but argued a twelve-month sentence, rather than a twenty-seven- to
thirty-three-month Guidelines-range sentence, was warranted based on the
sentencing factors in 18 U.S.C. § 3553(a). In support of his argument, M r. Robles
-3- asked the district court to consider the nature and circumstances of his offense,
including the fact he was attempting to defend the fifteen-year-old from an armed
attack; his lack of a prior criminal record, which showed a reduced risk of
recidivism; and his history and characteristics, including a childhood spent in a
series of foster homes, his young age of eighteen, his lack of, and need for,
educational and vocational training, and his stable relationship with the woman
bearing his child.
At the sentencing hearing, M r. Robles’s counsel again did not object to the
sentencing range calculations in the presentence report but reiterated the same
arguments in support of a below -Guidelines-range sentence. Follow ing these
arguments and M r. Robles’s statement regarding his remorse for his conduct, the
district court stated it had “reviewed the presentence report factual findings and ...
considered the sentencing guideline applications and the factors set forth in 18
United States Code Section 3553(a)(1) through (7).” It acknowledged the
Guidelines range was twenty-seven to thirty-three months imprisonment and
further noted M r. Robles assaulted the victim and caused him bodily harm. It
then sentenced M r. Robles at the low end of the Guidelines range to twenty-seven
months imprisonment followed by three years supervised release. M r. Robles and
his counsel raised no contemporaneous objection to the district court’s calculation
or explanation of his sentence and a judgment was entered on August 30, 2006.
-4- III. Discussion
On appeal, M r. Robles argues the district court erred by: 1) failing to
meaningfully consider his meritorious arguments under 18 U.S.C. § 3553(a) for a
below-Guidelines sentence; 2) failing to give adequate weight to the non-
Guidelines § 3553(a) factors; 3) failing to explain its reasons for the sentence
imposed; and 4) unreasonably imposing a sentence greater than necessary to
achieve the sentencing goals in § 3553(a). In support, he contends the district
court only “perfunctorily” stated it considered the § 3553(a) factors, but did not
address the application of those factors nor explain why a “27-month sentence ...
was necessary to achieve the purposes of sentencing.” He also suggests the
compelling circumstances previously raised warrant a below-Guidelines sentence
based on § 3553(a). In so doing, he argues the record is inadequate to determine
whether the sentence is “greater than necessary to achieve the statutory
purposes.”
W e review for reasonableness the sentence imposed and have determined a
presumption of reasonableness attaches to a sentence, like here, which is w ithin
the correctly-calculated Guidelines range. See United States v. Kristl, 437 F.3d
1050, 1053-54 (10th Cir. 2006) (per curiam). W e require reasonableness in tw o
respects – “the length of the sentence, as well as the method by which the
sentence was calculated.” Id. at 1055 (emphasis omitted). This involves an
-5- assessment of the procedural and substantive reasonableness of the sentence. See
United States v. Cage, 451 F.3d 585, 591 (10th Cir. 2006). If the district court
“properly considers the relevant Guidelines range and sentences the defendant
within that range, the sentence is presumptively reasonable,” but “[t]he defendant
may rebut this presumption by demonstrating that the sentence is unreasonable in
light of the other sentencing factors laid out in § 3553(a).” Kristl, 437 F.3d at
1055. In determining whether the district court properly considered the
applicable G uidelines range, we review its legal conclusions de novo and its
factual findings for clear error. Id. at 1054.
W e have held “[t]here is no question that, in addition to guiding our
reasonableness review on appeal, the sentencing factors set forth in 18 U.S.C.
§ 3553(a) must be considered by the district court itself when imposing a
sentence.” United States v. Sanchez-Juarez, 446 F.3d 1109, 1115 (10th Cir.
2006). W hen the district court allows a defendant to make an argument that any
of these factors warrant a below -Guidelines-range sentence and then imposes a
sentence at the low end of the Guidelines range, we have said this “may fairly be
read as a functional rejection of [his] arguments and a denial of his request for a
below-Guidelines sentence.” Id. W hen addressing a district court’s consideration
of the § 3553(a) factors, “[w ]e do not require a ritualistic incantation to establish
consideration of a legal issue, nor do we demand that the district court recite any
-6- magic words to show us that it fulfilled its responsibility to be mindful of the
factors that Congress has instructed it to consider.” United States v. Lopez-
Flores, 444 F.3d 1218, 1222 (10th Cir. 2006) (quotation marks and citation
omitted), petition for cert. filed (Jul. 7, 2006) (No. 06-5217). W hile “we will not
demand that the district court recite any magic words” to support its conclusions,
neither will we “presume the district court weighed a party’s arguments in light of
the § 3553(a) factors where the record provides no indication that it did so and no
clear explanation of the sentence imposed.” Sanchez-Juarez, 446 F.3d at 1115-16
(quotation marks and citations omitted).
[W ]here a defendant has raised a nonfrivolous argument that the § 3553(a) factors warrant a below-Guidelines sentence and has expressly requested such a sentence, we must be able to discern from the record that the sentencing judge did not rest on the guidelines alone, but considered whether the guidelines sentence actually conforms, in the circumstances, to the statutory factors.
Id. at 1117 (quotation marks, alteration, and citation omitted).
W ith these principles in mind, we note the district court in this case
explicitly considered the factors in § 3553(a). 2 Thus, the record provides a clear
2 18 U.S.C. § 3553(a) provides, in part, that the court shall consider:
(1) the nature and circumstances of the offense and the history and characteristics of the defendant; (2) the need for the sentence imposed-- (A) to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense; (continued...)
-7- “indication” it considered these requisite factors, together with M r. Robles’s
argument for a below-G uidelines-range sentence. See Sanchez-Juarez, 446 F.3d
at 1115-16. W hen the district court imposed a sentence at the low end of the
Guidelines range, it was “a functional rejection of [his] arguments and a denial of
his request for a below-Guidelines sentence.” Id. at 1115. M oreover, we note
M r. Robles and his counsel raised no contemporaneous objection to the district
court’s calculation or explanation of his sentence. Finally, because the district
court properly considered the relevant Guidelines range and sentenced M r. Robles
within that range, his sentence is presumptively reasonable and he clearly has not
rebutted this presumption by demonstrating the sentence is unreasonable in light
of the sentencing factors in § 3553(a). See Kristl, 437 F.3d at 1055. In other
words, he has not shown that the circumstances delineated by him, when viewed
in light of the § 3553(a) factors, are sufficient to transform his presumptively
reasonable sentence into one that is unreasonable.
2 (...continued) (B) to afford adequate deterrence to criminal conduct; (C) to protect the public from further crimes of the defendant; and (D) to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner; (3) the kinds of sentences available; ... (6) the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct; and (7) the need to provide restitution to any victims of the offense.
-8- IV. Conclusion
For these reasons, we A FFIRM M r. Robles’s conviction and sentence.
Entered by the C ourt:
W ADE BRO RBY United States Circuit Judge
-9-