United States v. Rodriguez , 500 F. App'x 773 ( 2012 )

FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
October 26, 2012
TENTH CIRCUIT
Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee, No. 12-8003
(D.C. No. 1:11-CR-00075-NDF- 1)
v. D. Wyoming
ROBERT ALLEN RODRIGUEZ, JR.,
Defendant - Appellant.
ORDER AND JUDGMENT *
Before MURPHY, ANDERSON, and HARTZ, 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.
I. Introduction
Appellant Robert Allen Rodriguez, Jr. pleaded guilty to one count of
possession with intent to distribute methamphetamine, in violation of 21 U.S.C.
*
This order and judgment is not binding precedent except under the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.
§§ 841(a)(1) and (b)(1)(C). The district court sentenced him to eighty-four
months’ imprisonment, the bottom of the advisory guidelines range. Rodriguez
appeals the sentence imposed by the district court, arguing it is substantively
unreasonable because the district court failed to properly consider the factors set
out in 18 U.S.C. § 3553(a). Exercising jurisdiction pursuant to 28 U.S.C. § 1291and 18 U.S.C. § 3742(a), we affirm Rodriguez’s sentence.
II. Background
Rodriguez’s conviction arose from a 2011 traffic stop in Laramie County,
Wyoming. Two sheriff’s deputies found methamphetamine during a search of his
vehicle. He was charged in a single-count indictment with possession with intent
to distribute a mixture or substance containing a detectable amount of
methamphetamine. He pleaded guilty to the charge and entered into a written
plea agreement with the Government.
The district court accepted Rodriguez’s plea and the United States
Probation Office prepared a Presentence Investigation Report (“PSR”). The PSR
calculated Rodriguez’s base offense level at thirty-two, concluding total relevant
conduct included 1474 kilograms of marijuana equivalency. The PSR
recommended a three-level reduction in the base offense level for acceptance of
responsibility, resulting in a total offense level of twenty-nine. See U.S.S.G.
§ 3E1.1. Rodriguez’s countable criminal history points totaled seven, which
correspond to a criminal history category of IV. The prior convictions used to
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calculate his criminal history score included a residential burglary, a battery, and
a larceny but did not include twelve other adult criminal convictions. The
recommended offense level combined with the criminal history category resulted
in an advisory guidelines range of 121 to 151 months’ imprisonment.
Rodriguez objected to the calculation of his offense level, arguing the
PSR’s relevant conduct recommendation was erroneous. He also requested both a
departure and a variance from the advisory guidelines range. Relying on U.S.S.G.
§ 4A1.3, Rodriguez argued a category IV criminal history over-represented the
seriousness of his criminal past. He also argued a downward variance from the
advisory guidelines range was justified based on his personality disorder
diagnosis and the low scores he received on intellectual functioning tests.
At the sentencing hearing, the district court found Rodriguez’s relevant
conduct placed him at a base offense level of twenty-eight, not thirty-two as
recommended in the PSR. The court deducted three levels for acceptance of
responsibility and applied a category IV criminal history to arrive at an advisory
guidelines range of 84-105 months’ imprisonment. The court also considered
Rodriguez’s arguments in support of his request for either a downward departure
or a downward variance. The court concluded a below-guidelines sentence was
not justified on the basis of Rodriguez’s diagnosis of personality disorder,
specifically commenting that “[m]any, if not most, individuals involved in a life
of crime have either a diagnosis or traits of antisocial personality disorder.” The
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court also rejected Rodriguez’s argument that his low level of intellectual
functioning justified a downward variance, noting the evaluator’s subjective view
that during testing, Rodriguez did not exert “the type of sustained effort that the
evaluator expected from a defendant undergoing intellectual functioning capacity
testing.” The district court sentenced Rodriguez to eighty-four months’
incarceration, the bottom of the advisory guidelines range.
III. Discussion
This court reviews a defendant’s challenge to the substantive
reasonableness of his sentence under a deferential abuse of discretion standard.
United States v. Alapizco-Valenzuela, 546 F.3d 1208, 1214 (10th Cir. 2008). In
his opening brief, Rodriguez disavows any appellate challenge to the procedural
reasonableness of his sentence. He does, however, challenge the substantive
reasonableness of the sentence. “Substantive reasonableness involves whether the
length of the sentence is reasonable given all the circumstances of the case in
light of the factors set forth in 18 U.S.C. § 3553(a).” United States v. Conlan,
500 F.3d 1167, 1169 (10th Cir. 2007). Sentences falling within a properly
calculated guidelines range are entitled to a rebuttable presumption of substantive
reasonableness. United States v. Parker, 553 F.3d 1309, 1322 (10th Cir. 2009).
Because Rodriguez does not challenge the calculation of the advisory guidelines
range employed by the district court, he bears the burden of demonstrating his
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sentence is outside the range of sentences the record can “fairly support.” United
States v. McComb, 519 F.3d 1049, 1053 (10th Cir. 2007).
Repeating the arguments he presented to the district court, Rodriguez
asserts his low intellectual functioning and antisocial personality disorder entitle
him to a downward variance from the advisory guidelines range. He argues the
district court failed to consider these two personal characteristics. The district
court, however, considered Rodriguez’s arguments and fully explained its
reasoning for rejecting them. Our review of the record reveals no reversible error
in the district court’s analysis. As the Government points out, Rodriguez has
never explained why these two personality traits entitle him to a variant sentence.
Rodriguez also argues he was entitled to a downward variance because his
criminal history category overstates the seriousness of his criminal history and his
family history includes parental alcoholism and physical abuse. After reviewing
the record and considering these arguments, we conclude Rodriguez has failed to
rebut the presumption his sentence is reasonable. The district court concluded
Rodriguez’s criminal history was not over-represented and any mitigating factors
were not outweighed by the high likelihood of recidivism. See United States v.
Algarate-Valencia, 550 F.3d 1238, 1244 (10th Cir. 2008). In sum, the district
court considered Rodriguez’s arguments, weighed the § 3553(a) factors, explained
its reasoning, and imposed a sentence at the bottom of a correctly calculated
advisory guidelines range.
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IV. Conclusion
Because Rodriguez has not shown the sentence imposed by the district
court is outside the range of sentences the record can fairly support, McComb,
519 F.3d at 1053, that sentence is affirmed.
ENTERED FOR THE COURT
Michael R. Murphy
Circuit Judge
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