United States v. Tenorio-Viafara

• Court: Court of Appeals for the Tenth Circuit
• Decided: July 2, 2024
• Docket: 24-2003
• Status: Unpublished

Opinion

Appellate Case: 24-2003 Document: 010111073842 Date Filed: 07/02/2024 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT July 2, 2024 _________________________________ Christopher M. Wolpert Clerk of Court UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v. No. 24-2003 (D.C. No. 2:23-CR-01565-MIS-1) EDINSON TENORIO-VIAFARA, (D. N.M.)

Defendant - Appellant. _________________________________

ORDER AND JUDGMENT* _________________________________

Before TYMKOVICH, MATHESON, and McHUGH, Circuit Judges. _________________________________

Edinson Tenorio-Viafara, a citizen of Colombia, illegally reentered the United

States in 2023 while serving a term of supervised release on a prior reentry

conviction. The government filed two separate criminal cases against him, one

charging him with unlawful reentry after removal, and a second charging him with a

supervised release violation in the prior reentry case. After he pleaded guilty to the

reentry charge and admitted the supervised release violation, the district court

* 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 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 This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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. Appellate Case: 24-2003 Document: 010111073842 Date Filed: 07/02/2024 Page: 2

sentenced him to consecutive ten-month prison terms. He now appeals the sentence

imposed on the supervised release violation.1 Exercising jurisdiction under 18 U.S.C.

§ 3742(a) and 28 U.S.C. § 1291, we affirm.

I. Background

In November 2022, immigration agents learned that Mr. Tenorio was in

custody in Florida following an arrest for battery. He was charged with illegal

reentry of a removed alien under 8 U.S.C. § 1326 in the Southern District of Florida.

He was convicted of that charge and sentenced to time-served followed by a two-year

term of supervised release. He was removed from the United States in May 2023.

Three months later, Mr. Tenorio was found in New Mexico without legal

authorization and was again charged with reentry of a removed alien, this time in the

District of New Mexico. After the government filed a petition in the Southern

District of Florida to revoke his supervised release, the revocation case was

transferred to the District of New Mexico.

Mr. Tenorio pleaded guilty to the charge in the reentry case. The probation

department prepared a presentence report (PSR) for that case detailing his criminal

history. The PSR listed his numerous convictions and arrests that did not result in

convictions—including the 2022 battery charge and a 2006 aggravated battery

charge—and described the facts involved in each case.

1 Mr. Tenorio does not appeal the sentence imposed in the reentry case because he waived his right to do so in his plea agreement. 2 Appellate Case: 24-2003 Document: 010111073842 Date Filed: 07/02/2024 Page: 3

For the revocation case, the probation department prepared a violations report

describing the facts relevant to Mr. Tenorio’s illegal reentry and adjustment to

supervision, and outlining the relevant sentencing provisions. Other than the prior

reentry conviction, the violation report did not discuss his criminal history.

The court held a combined revocation/sentencing hearing for both cases. After

Mr. Tenorio admitted the supervised release violation, the court proceeded to

sentencing in the reentry case. The court confirmed that he and counsel had “read

and discussed” the PSR and asked whether they had any objections to its contents.

R., vol. 3 at 8-9. Counsel responded, “No, . . . we do not.” Id. at 9. During

allocution for that case, Mr. Tenorio said “[i]t was not [his] intention to violate the

law,” id. at 10, and when the court responded by listing his convictions and arrests,

he minimized his responsibility for some of the convictions and took issue with the

PSR’s description of the facts underlying the 2022 and 2006 battery arrests. In

particular, he said that the 2006 charge was dismissed because the alleged victim

“was lying,” id. at 13, and that the PSR erroneously indicated that the victim of the

2022 battery was his girlfriend when he actually committed the offense “[a]gainst

another person,” id. at 11. The court then stated that as to the reentry case, “the

Court adopts the [PSR’s] factual findings.” Id. at 14. Mr. Tenorio did not object.

The court then determined the guidelines range was four to ten months and sentenced

him to ten months, noting that he “reentered the United States after having been

previously removed, subsequent to a felony reentry conviction.” Id.

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Next, the court turned to sentencing for the supervised release violation. It

adopted the same guidelines range and stated: “As to the supervised release violation

. . . [t]he Court finds the defendant did violate conditions of supervision by

committing another federal crime; reentry of a removed alien. The Court [has]

reviewed the violation report and the relevant [18 U.S.C. §] 3553(a) factors.”

R., vol. 3 at 15. The court then sentenced Mr. Tenorio to another ten-month term, to

be served consecutive to the reentry sentence. The court made no other sentencing

findings.

II. Discussion

Mr. Tenorio challenges the procedural reasonableness of the sentence imposed

for the supervised release violation. Specifically, he argues that in sentencing him

for the supervised release violation, the district court procedurally erred by relying on

contested facts contained in the PSR from the reentry case.

A. Standard of Review

“When a party challenges a sentence for procedural reasonableness, our

standard of review is ordinarily abuse of discretion, under which we review de novo

the district court’s legal conclusions regarding the guidelines and review its factual

findings for clear error.” United States v. Gantt, 679 F.3d 1240, 1246 (10th Cir.

2012). However, the government argues Mr. Tenorio’s colloquy with the court about

the facts underlying the battery arrests did not preserve the argument he makes on

appeal and that we should therefore review only for plain error. We agree.

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A defendant “must object to any procedural flaws or receive, on appeal, only

plain error review.” United States v. Jackson, 82 F.4th 943, 949 (10th Cir. 2023)

(internal quotation marks omitted). “[A]n objection must be definite enough to

indicate to the district court the precise ground for a party’s complaint”; “a blanket

objection to [a] PSR . . . lacks the specificity required to preserve the precise

issue . . . raise[d] on appeal.” United States v. Winder, 557 F.3d 1129, 1136

(10th Cir. 2009) (internal quotation marks omitted). Likewise, a vague or ambiguous

objection is insufficient to preserve an issue. United States v. Ansberry, 976 F.3d

1108, 1125 (10th Cir. 2020). “[T]he test is whether the district court was adequately

alerted to the issue.” United States v. Harrison, 743 F.3d 760, 763 (10th Cir. 2014).

Under Federal Rule of Criminal Procedure 32(i)(3), “the district court may

rely on facts stated in the presentence report unless the defendant has objected to

them.” United States v. McDonald, 43 F.4th 1090, 1095 (10th Cir. 2022) (internal

quotation marks omitted).2 An objection to a PSR must be made in writing within

14 days after receiving it. Fed. R. Crim. P. 32(f)(1). If the defendant “properly

objects to a fact in a PSR,” the district court cannot rely on that fact unless the

government proves it. McDonald, 43 F.4th at 1095. “To invoke the district court’s

Rule 32 fact-finding obligation, the defendant is required to make specific allegations

2 “[T]he sentencing phase of a revocation hearing is governed by the rule surrounding normal sentencing, Rule 32, not Rule 32.1.” United States v. Ruby, 706 F.3d 1221, 1226 (10th Cir. 2013). 5 Appellate Case: 24-2003 Document: 010111073842 Date Filed: 07/02/2024 Page: 6

of factual inaccuracy.” United States v. Chee, 514 F.3d 1106, 1115 (10th Cir. 2008)

(brackets and internal quotation marks omitted).

Mr. Tenorio did not file written objections to the PSR before the hearing, and

he did not interject when defense counsel told the court they had no objections to the

PSR. Later, during allocution, he challenged the PSR’s description of the facts

relating to his 2022 and 2006 arrests, but his statements did not rise to the level of a

clear objection to the PSR. Here, unlike in Harrison, the district court did not

respond to Mr. Tenorio’s comments as objections to the PSR—it did not, for

example, ask him or his attorney to clarify their prior denial of objections or make a

ruling regarding his remarks before adopting the PSR’s factual findings. See id.

at 762-63. Moreover, Mr. Tenorio did not object when the court imposed his

sentence, and defense counsel did not ask the court to further explain the basis for its

sentencing decision. If Mr. Tenorio thought the court considered the reentry PSR in

imposing the revocation sentence and thought that doing so was improper, he should

have made a specific objection “at a time and in such a way as to afford the

[sentencing] judge an opportunity to correct any error, clarify any ambiguity or

elaborate as necessary,” United States v. Steele, 603 F.3d 803, 807 (10th Cir. 2010).

Because he did not do so, we review his procedural objection only for plain error.

See United States v. Ruby, 706 F.3d 1221, 1225 (10th Cir. 2013); see also United

States v. McBride, 633 F.3d 1229, 1233 (10th Cir. 2011) (reviewing for plain error

when the defendant did not contemporaneously object to the district court’s

consideration of “allegations that had neither been stipulated to, nor proven by the

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presentation of evidence” at the revocation hearing (internal quotation marks

omitted)).

B. Analysis

At the outset, we note that Mr. Tenorio insists he preserved his argument for

appeal and has not argued in the alternative for plain error review. Accordingly, we

could deem his argument waived and decline to review it at all. See United States v.

Leffler, 942 F.3d 1192, 1196 (10th Cir. 2019). Nevertheless, we elect not to rest our

decision on waiver and instead review for plain error. See United States v. Walker,

918 F.3d 1134, 1153 (10th Cir. 2019) (noting that “whether issues should be deemed

waived is a matter of discretion”).

“Under plain error review, the defendant must demonstrate (1) there is error,

(2) that is plain, (3) which affects substantial rights, and (4) which seriously affects

the fairness, integrity, or public reputation of judicial proceedings.” Ruby, 706 F.3d

at 1226. For our proposes, the first step of the plain-error analysis comprises two

sequential inquiries—determining whether the district court relied on disputed facts

from the reentry PSR in imposing Mr. Tenorio’s revocation sentence, and if it did,

then determining whether doing so was error.

Mr. Tenorio argues that “[b]y stating it adopted the PSR’s findings and

considered the relevant § 3553 factors, the court signaled that it relied on the

statements in the PSR about [his] criminal history.” Aplt. Opening Br. at 13. He

also insists that the court’s “questioning of [him] on his criminal history and arrests

demonstrated that the court determined that these matters were salient and shows it

7 Appellate Case: 24-2003 Document: 010111073842 Date Filed: 07/02/2024 Page: 8

relied on them for his sentence.” Id. at 14. But the colloquy between the court and

Mr. Tenorio about his criminal history occurred in the context of sentencing on the

reentry case, not the revocation case. And in any event, nothing in the court’s

explanation for the revocation sentence suggested it relied on his criminal history,

much less the facts underlying the two battery arrests. Rather, the court’s comments

indicate that it based the revocation sentence on Mr. Tenorio having violated the

conditions of his prior reentry sentence by committing yet another reentry offense. It

was appropriate for the district court to focus on this breach of trust and the

underlying crime. See United States v. Contreras–Martinez, 409 F.3d 1236, 1241

(10th Cir. 2005) (“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.”); see

also U.S. Sent’g Comm’n, Guidelines Manual (U.S.S.G.) Ch.7, Pt. A, intro.

comment 3(b) (Nov. 2023) (stating that revocation sentences “should sanction

primarily the defendant’s breach of trust, while taking into account, to a limited

degree, the seriousness of the underlying violation”).

Mr. Tenorio may be right that the court’s statement that it considered the

relevant § 3553 factors suggests it considered his criminal history. See United States

v. Nunez-Carranza, 83 F.4th 1213, 1222-23 (10th Cir. 2023) (concluding, in context

of challenge to adequacy of court’s explanation for unlawful-reentry sentence, that

court likely considered defendant’s criminal history based on the discussion at the

sentencing hearing and the court’s statement that it considered the § 3553 factors and

8 Appellate Case: 24-2003 Document: 010111073842 Date Filed: 07/02/2024 Page: 9

the PSR). And it would have been entirely appropriate for the district court to do so.

See 18 U.S.C. § 3553(a)(1) (listing “the history and characteristics of the defendant”

as a factor to be considered in imposing sentence); U.S.S.G. Ch. 7, Pt. A, intro.

comment 3(b) (including criminal history as appropriate secondary factor to be

considered). But the court’s comments do not suggest it considered the disputed

facts underlying his battery arrests in imposing his sentence, and we will not infer

that it did.3

Because we determine that Mr. Tenorio has not shown the district court

considered those facts at all, he cannot show the court procedurally erred by doing so.

His argument thus fails at the first step of plain-error review, and we need not

analyze the remaining elements. See Gantt, 679 F.3d at 1246 (“Because all four

[plain error] requirements must be met, the failure of any one will foreclose relief and

the others need not be addressed.”). We note, however, that because the record does

not establish the district court considered the disputed facts, Mr. Tenorio would be

hard-pressed to show that any error in doing so was clear or obvious. See United

States v. Robertson, 946 F.3d 1168, 1173 (10th Cir. 2020) (“Given the ambiguity in

the court’s statements, if there was error, it was not clear or obvious and would not

3 Mr. Tenorio does not argue the district court procedurally erred by failing to adequately explain the basis for the sentence. See United States v. Sanchez-Leon, 764 F.3d 1248, 1261 (10th Cir. 2014) (recognizing that procedural error includes “failing to adequately explain the chosen sentence” (internal quotation marks omitted)). He has thus waived any argument he may have had regarding the adequacy of the district court’s explanation for the sentence. See Walker, 918 F.3d at 1151 (failure to raise issue in opening brief results in waiver).

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satisfy the second element of the plain error test.” (internal quotation marks

omitted)); United States v. Fonseca, 744 F.3d 674, 684 (10th Cir. 2014) (concluding

that ambiguity in district court’s ruling was not “plainly or obviously improper”).

III. Conclusion

We affirm Mr. Tenorio’s sentence. We grant his unopposed motion to

supplement the record with the PSR in the reentry case.

Entered for the Court

Carolyn B. McHugh Circuit Judge