U.S. v. Lucero, (10th Cir. 2007)

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UNITED

STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

No. 06-2207

v.

(D. New Mexico)

DONALD RAY LUCERO,

Defendant - Appellant.

(D.C. No. CR-05-2261 JC)

ORDER AND JUDGMENT
name="txt*">(*)

Before MURPHY,
name="9">SEYMOUR, and
name="10">McCONNELL, Circuit Judges.

After examining the briefs and appellate record, this court 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(G). The case is

therefore ordered submitted without oral argument.

I. INTRODUCTION

Donald Ray Lucero pleaded guilty to a single count of being a felon in

possession of a firearm in violation of 18 U.S.C. 922(g). The district court

imposed a sentence of thirty-three months' imprisonment, a sentence at the very

low end of the properly calculated range set out in the advisory Sentencing

Guidelines. On appeal, Lucero contends both that (1) the district court failed to

sufficiently explain its sentence by reference to the factors set out in 18 U.S.C. 3553(a) (i.e., the district court's sentence is procedurally unreasonable); and (2)

the sentence ultimately imposed by the district court was unduly harsh (i.e., the

sentence is substantively unreasonable). Upon review, this court concludes

Lucero's arguments are without merit. Accordingly, exercising jurisdiction

pursuant to 28 U.S.C. 1291 and 18 U.S.C. 3742, this court

affirms the

sentence imposed by the district court.

II. BACKGROUND

A. Factual Background

The string of events leading to Lucero's arrest and eventual prosecution

begin on the shoulder of a highway in Albuquerque, New Mexico. A police

officer with the Albuquerque Police Department observed Lucero's vehicle

parked on the shoulder of the highway; the vehicle's windshield was badly

damaged and a man was standing by its passenger side. Believing the vehicle

had struck something, possibly a pedestrian, the officer pulled over and called for

assistance. The man standing beside the vehicle told the officers he was

hitchhiking when he was "flagged down" by Lucero. He further indicated Lucero

appeared to be extremely intoxicated and had open bottles of liquor in the

vehicle.

A DWI unit was dispatched to the scene. At some point thereafter, an

officer saw a gun holster on the front passenger seat and the muzzle of a handgun

sticking out between the front passenger seat and the passenger door. The

officers arrested Lucero for negligent use of a firearm. A search of Lucero's

person revealed two rounds of ammunition. An inventory search of the vehicle

revealed a loaded nine millimeter handgun(1)

with ten rounds of ammunition,

including one in the chamber; a spent casing in the back passenger floorboard; a

body armor vest; nine bottles of beer, one of which was open; an opened bottle of

cognac; and approximately two grams of methamphetamine.

During the investigation, Lucero's pregnant girlfriend, Felicia Orona,

arrived at the scene with her parents. Orona told the officers Lucero had arrived

intoxicated at her place of employment and had caused a scene. Orona convinced

Lucero to let her drive him home. During that drive home, Lucero apparently

became upset with her and started kicking the windshield from the passenger

seat, breaking it. Fearing for her safety, Orona pulled the car over and fled on

foot. Orona further indicated the gun and methamphetamine officers found in the

vehicle belonged to Lucero.

B. Procedural Background

After Lucero pleaded guilty to a single count of being a felon in possession

of a firearm in violation of 18 U.S.C. 922(g), a United States Probation Officer

prepared a Presentence Investigation Report ("PSR"). The PSR set Lucero's base

offense level at fourteen. USSG § 2K2.1(a)(6). The PSR enhanced Lucero's

offense level by two levels because the firearm he illegally possessed was stolen.

Id. § 2K2.1(b)(4). Lucero's adjusted offense level was then reduced by three

levels for acceptance of responsibility, id. § 3E1.1, resulting in a total offense

level of thirteen. Lucero had a total of twenty criminal history points, seven

more than necessary to place him in the most serious criminal history category,

e.g., VI. With a total offense level of thirteen and a criminal history category of

VI, the PSR noted Lucero's advisory Sentencing Guidelines range was thirty-three to forty-one

months' imprisonment.

In response to the PSR, Lucero filed a "Request for Downward Departure

and Non-Guideline Sentence" (the "Motion"). In the Motion, Lucero

acknowledged the PSR correctly calculated his criminal history points and his

placement in criminal history category VI was "technically" correct, but argued

the criminal history category significantly over-represented the seriousness of his

criminal history and the likelihood he would commit other crimes in the future.

Lucero requested that the district court reduce his criminal history points from

twenty to nine, resulting in a criminal history category IV and an advisory

Guidelines range of twenty-four to thirty months.

At the sentencing hearing, Lucero advanced the same arguments he had set

out in the Motion. He again acknowledged his criminal history category of VI

was a "correct application of the guidelines." He nevertheless argued a criminal

history category of VI overrepresented his criminal history for the following

reasons: (1) he had not been convicted of a felony crime of violence or a felony

drug trafficking crime; (2) he amassed a significant number of criminal history

points within a relatively short six-week period; and (3) it was unfair to place

him in the same criminal history category as an armed career criminal or a career

offender, or one criminal history category above that of a sex offender.

The district court rejected Lucero's requests for a downward departure or

variance and, instead, imposed a sentence of thirty-three months, a sentence at

the very bottom of the advisory Guidelines range. In so doing, the district court

stated that its sentence "reflect[ed] the seriousness of the offense, a lot of respect

for the law, and provide[d] just punishment for the offense." The court further

noted that in arriving at a sentence of thirty-three months' imprisonment, it had

"considered the sentencing guideline applications and the factors set forth in 18

United States Code Section 3553 (a)(1) through (7)." Finally, the district court

indicated it had intended to impose a sentence of forty-one months, the top of the

advisory Guideline range, but had instead chosen the thirty-three-month sentence

based on the arguments presented by defense counsel.

III. DISCUSSION

"Under Booker, we are required to review district court sentencing

decisions for 'reasonableness.'" United States v. Cage, 451 F.3d 585, 591 (10th

Cir. 2006). This court applies a two-step approach to review the procedural and

substantive components of sentences. United States v. Kristl, 437 F.3d 1050

(10th Cir. 2006). First, if raised on appeal, this court considers whether the

district court properly calculated the defendant's Guidelines sentence and

considered the factors set forth in 18 U.S.C. 3553(a). See United States v.

Chavez-Diaz, 444 F.3d 1223, 1229 (10th Cir. 2006). If the district court did not

commit any procedural errors in arriving at a sentence, this court reviews whether

the sentence imposed is reasonable in light of the factors set forth in § 3553(a).

Kristl, 437 F.3d at 1054-55.

In this case, Lucero does not challenge the district court's application of

the Guidelines. Instead, he argues his thirty-three-month sentence is procedurally

unreasonable because the district court failed to adequately state on the record,

with specific reference to the § 3553(a) factors, its reasons for rejecting his

request for a sentence outside of the advisory Guidelines range. Lucero's

procedural reasonableness claim is resolved by this court's recent decision in

United States v. Ruiz-Terrazas, 477 F.3d 1196, 1199-1203 (10th Cir. 2007).

Ruiz-Terrazas held that "a specific discussion of Section 3553(a) factors is not

required for sentences falling within the ranges suggested by the Guidelines." Id.

at 1202. In so doing, the Ruiz-Terrazas court specifically distinguished United

States v. Sanchez-Juarez, 446 F.3d 1109 (10th Cir. 2006), the primary case relied

upon by Lucero on appeal, harmonizing that decision with the earlier decision in

United States v. Lopez-Flores, 444 F.3d 1178 (10th Cir. 2006). 477 F.3d at

1199-1203. As was the case in Ruiz-Terrazas, the district court here entertained

extensive arguments relating to the § 3553(a) factors, specifically noted it had

considered Lucero's arguments for a below-Guidelines sentence,
name="txt2a">(2) indicated on

the record that it had considered the § 3553(a) factors, and ultimately imposed a

sentence within the properly calculated Guidelines range. See id. 1202-03. Thus,

the process employed by the district court in imposing Lucero's sentence was

reasonable. See id.

For many of the same reasons he advanced before the district court in

requesting a sentence below the range set out in the advisory Guidelines, Lucero

asserts the sentence ultimately imposed by the district court is substantively

unreasonable. Because the district court imposed a sentence within the range set

out in the properly calculated advisory Guidelines range, the district court's

sentence is "entitled to a rebuttable presumption of reasonableness." Kristl, 437

F.3d at 1054. Lucero has failed to rebut that presumption.

At their base, Lucero's arguments both before the district court and before

this court on appeal boil down to an assertion the advisory Sentencing Guidelines

overstate the seriousness of his criminal history and the likelihood he will engage

in recidivist conduct. This contention is simply inconsistent with the record.

Lucero's criminal history has persisted for fifteen years and is the paradigmatic

example of recidivism. Although Lucero is correct in noting that his criminal

history is void of violent felonies, the government is likewise correct in noting

his criminal history is not void of violence. Lucero has been convicted of (1)

conspiracy to commit robbery, which involved the use or threatened use of force

to take a purse from the person of another; (2) battery and assault on a household

member; and (3) assault involving the threatened use of a knife. In light of

Lucero's extensive and nearly continuous involvement in criminal activity, we

are completely unconvinced by Lucero's claim that the advisory Sentencing

Guidelines overstate the seriousness of his criminal history or his potential for

recidivism. Lucero has failed to overcome the Kristl presumption that his

sentence of thirty-three months' imprisonment, a sentence at the very bottom of

the advisory Guidelines range, is reasonable.

As a final salvo, Lucero asserts this court's precedents, which accord a

presumption of reasonableness to sentences within the advisory Guidelines range,

are inconsistent with the Supreme Court's decision in Booker. The Supreme

Court recently heard oral argument in two cases which will very likely impact the

way federal appellate courts review sentences after Booker. See United States

v.

Rita, 177 F. App'x 357 (4th Cir.), cert. granted, 127 S. Ct. 551 (2006) (No.

06-5754); United States v. Claiborne, 439 F.3d 479 (8th Cir.), cert.

granted, 127

S. Ct. 551 (2006) (No. 06-5168). This uncertainty is, however, of absolutely no

help to Lucero. Even completely setting aside Kristl's presumption of

reasonableness and reviewing Lucero's sentence anew in light of the § 3553(a)

factors, we conclude the sentence imposed by the district court is reasonable in

light of Lucero's extensive and unrelenting criminal history.

IV. CONCLUSION

For those reasons set out above, the sentence imposed by the United States

District Court for the District of New Mexico is hereby AFFIRMED.

ENTERED FOR THE COURT

Michael R. Murphy

Circuit Judge

FOOTNOTES

Click footnote number to return to corresponding location in the text.

*.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.

1.A subsequent investigation revealed the

weapon found in Lucero's

possession was stolen during a burglary. The owner of the weapon indicated to

officers that he did not know Lucero and had not given him permission to possess

the weapon.

2.In fact, as noted above, the district court

specifically stated that based on

the arguments presented by Lucero it had decided to impose a sentence at the

bottom of the advisory Guidelines range instead of one at the top of that range.

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