United States v. Montes-Cano, 10th Cir. (2007)

F I L E D
United States Court of Appeals

Tenth Circuit
UNITED STATES CO URT O F APPEALS
TENTH CIRCUIT
March 19, 2007

Elisabeth A. Shumaker
Clerk of Court
U N ITED STA TES O F A M ER ICA,

Plaintiff - Appellee,
No. 05-3482
v.
D. Kansas
JO SE A N TO N IO M O N TES-C ANO,
(D.C. No. 05-CR-10112-01-W EB)
Defendant - Appellant.
OR D ER AND JUDGM ENT *
Before H E N RY, BR ISC OE, and OBRIEN, Circuit Judges.
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.
Jose Antonio M ontes-Cano pled guilty to illegal reentry after deportation
subsequent to an aggravated felony conviction. He appeals from the sentence,
This order and judgment is not binding precedent except under the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.
claim ing it is unreasonable. Exercising jurisdiction under 28 U.S.C. 1291, w e

affirm.
Background
On June 15, 2005, M ontes-Cano was indicted for illegal re-entry after
deportation subsequent to an aggravated felony conviction, in violation of 8
U.S.C. 1326(a), (b)(2). M ontes-Cano pled guilty to the indictment.
The pre-sentence report (PSR ) applied 2L1.2 of the United States
Sentencing Guidelines. Under 2L1.2(a), the base offense level was 8. 1 Because
M ontes-Cano was previously deported following a felony drug-trafficking
conviction for which the sentence exceeded 13 months, the PSR increased the
base offense level by 16 levels. See 2L1.2(b)(1)(A)(I). Applying a 2 level
downward adjustment for acceptance of responsibility, see USSG 3E1.1(a), the
PSR calculated a total offense level of 22. Using the same felony conviction used
to enhance the base offense level by 16, the PSR calculated a criminal history
category of III. Based on a total offense level of 22 and a criminal history
category of III, the guideline range was 51-63 months imprisonment. See USSG
5(A). At sentencing, the government moved for an additional 1 point reduction
in the base offense level for acceptance of responsibility. See USSG 3E1.1(b).
The district court granted the motion, resulting in a new guideline range of 46-57
1
Appellant M ontes-Cano was sentenced under the 2005 edition of the

United States Sentencing Guidelines M anual. All citations to the guidelines in
this opinion refer to the 2005 guidelines unless otherw ise indicated.
-2-
months. Given this advisory range, the district court sentenced M ontes-Cano to
51 months imprisonment.
Discussion
M ontes-Cano challenges his sentence under United States v. Booker,
arguing it is unreasonable because it is based on double counting. See 543 U.S.
220, 261 (2005). Specifically, he argues the district court improperly used his
prior felony drug-trafficking conviction in the calculation of both his total offense
level and criminal history category.
Since M ontes-Cano concedes he did not raise this issue before the district
court, we review for plain error. United States v. Pursley, 474 F.3d 757, 769
(2007). Plain error occurs when there is (1) error, (2) that is plain, which (3)
affects substantial rights, and which (4) seriously affects the fairness, integrity, or
public reputation of judicial proceedings. United States v. Gonzalez-Huerta, 403
F.3d 727, 732 (10th Cir.) (en banc) (quotations omitted), cert. denied, 126 S.Ct.
495 (2005). [T]he error must be particularly egregious, as well as obvious and
substantial, and we will reverse solely in those circumstances in which a
miscarriage of justice would otherwise result. United States v. Gilkey, 118 F.3d
702, 704 (10th Cir. 1997) (quotations omitted).
[A] sentence that is properly calculated under the Guidelines is entitled to
a rebuttable presumption of reasonableness. United States v. Kristl, 437 F.3d
1050, 1054 (10th Cir. 2006) (per curiam). In this case, the guidelines explicitly
-3-
permitted the allegedly improper double counting. See USSG 2L1.2,

comm ent. n.6 (A conviction taken into account under subsection (b)(1) is not
excluded from consideration of w hether that conviction receives criminal history
points pursuant to Chapter Four, Part A (Criminal History).). Thus, M ontesCanoss sentence is presumptively reasonable. To rebut the presumption of
reasonableness, a defendant must show the sentence imposed is unreasonable
using the factors set forth in 18 U.S.C. 3553(a). Id. at 1055. M ontes-Cano has
failed to do so.
M ontes-Cano contends the district courts double counting rendered his
sentence unreasonable. But we recently upheld double counting in a case
addressing the same guideline provision challenged here. United States v.
Ruiz-Terrazas, -- F.3d --, 2007 W L 576034 (10th Cir. 2007). As Ruiz observed,
we have routinely upheld as reasonable the use of prior convictions to calculate
both the criminal history category and a sentence enhancement where . . . the
Guidelines authorize it. Id. at *6. Thus, the district court was permitted to
double count, since the guidelines expressly permitted it to do so. The district
court stated it considered the factors of 18 U.S.C. 3553(a) to determine a
reasonable sentence. United States v. Sanchez-Juarez, 446 F.3d 1109, 1117 (10th
Cir. 2006). It was not unreasonable for the sentencing judge to choose the
guidelines approach.
-4-
The first prong of the plain error analysis requires us to find an error; yet,
we discern no error at all. The matter is concluded.
A FFIR ME D.
ENTERED FOR THE COURT
Terrence L. OBrien
Circuit Judge
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F I L E D

United States Court of Appeals

March 19, 2007

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

(D.C. No. 05-CR-10112-01-W EB)

OR D ER AND JUDGM ENT *

Before H E N RY, BR ISC OE, and OBRIEN, Circuit Judges.

claim ing it is unreasonable. Exercising jurisdiction under 28 U.S.C. 1291, w e

Appellant M ontes-Cano was sentenced under the 2005 edition of the

permitted the allegedly improper double counting. See USSG 2L1.2,

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