United States of America v. Rolando Mar-Lopez

UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT
_________________________________
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ROLANDO MAR-LOPEZ,
Defendant - Appellant.
No. 20-1261
(D.C. No. 1:19-CR-00217-RM-1)
(D. Colo.)
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before PHILLIPS, McHUGH, and MORITZ, Circuit Judges.
_________________________________
Defendant-Appellant Rolando Mar-Lopez challenges his sentence as
procedurally unreasonable based on the district court’s purported use of an
impermissible factor at sentencing. Exercising jurisdiction under 28 U.S.C. § 1291,
we reject Mar-Lopez’s argument and affirm his sentence.
BACKGROUND
Mar-Lopez is a citizen of Mexico without lawful immigration status in the
United States. Since 2016, he has been removed from the country three times, but he
has illegally reentered after each deportation.
* This order and judgment is not binding precedent, except under the doctrines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.
FILED
United States Court of Appeals
Tenth Circuit
October 26, 2021
Christopher M. Wolpert
Clerk of Court
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In August 2018, he pleaded guilty to child abuse and attempted child sexual
assault in Colorado state court. He was sentenced to eight years’ imprisonment. 1 A
few months after that conviction, federal officials indicted Mar-Lopez for illegally
reentering the country under 8 U.S.C. § 1326(a).
Mar-Lopez pleaded guilty to that charge through a Rule 11(c)(1)(C) plea
agreement. This type of agreement binds a district court to a specific sentence or
range if the district court accepts the agreement. Fed. R. Crim. P. 11(c)(1)(C). Under
the proposed plea agreement, the parties agreed that Mar-Lopez’s sentence for illegal
reentry would be served consecutively to his state sentence and would not exceed six
months. The district court accepted Mar-Lopez’s guilty plea but deferred its decision
on whether to accept the Rule 11(c)(1)(C) agreement.
At Mar-Lopez’s sentencing hearing, the district court noted that Mar-Lopez’s
advisory guidelines range was 21 to 24 months. But it focused on whether the
sentence imposed would run concurrently or consecutively to his state-prison
sentence. The district court then gave the parties the chance to argue why it should
accept the Rule 11(c)(1)(C) agreement.
Ultimately, the district court rejected the Rule 11(c)(1)(C) agreement, not
wanting to restrict itself to a range of zero to six months of additional consecutive
1 The victim, Mar-Lopez’s stepdaughter, accused Mar-Lopez of digitally
penetrating her when she was in first grade and fondling her breasts when she was in
second grade. Mar-Lopez was also originally charged with child sexual assault by a
person in a position of trust and sexual assault of a child under fifteen. But these
charges were dismissed as part of his plea deal.
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prison time. Though the district court gave Mar-Lopez the chance to withdraw his
guilty plea under Fed. R. Crim. P. 11(c)(5), Mar-Lopez declined to do so and
proceeded to sentencing that same day.
Given the conduct underlying his Colorado state conviction, the district court
remained “concerned about the danger” Mar-Lopez would pose if he returned to the
United States. R. vol. 4 at 109. But it noted that a 21- or 24-month sentence for his
first immigration conviction would be “ridiculous.” R. vol. 4 at 108–10. So it gave
him an “eight-month sentence, consecutive, and that’s it.” R. vol. 4 at 110.
The district court acknowledged that the sentence was only a two-month
increase from the top end of the parties’ agreed imprisonment range in their proposed
Rule 11(c)(1)(C) agreement. But the district court explained to Mar-Lopez:
I want it clear to you, that if you come back, you should not believe that you
can have your lawyer work it out with the government lawyer, and that
whatever gets worked out between the lawyers is going to be good enough.
I want it to be clear to you that you are always at risk of a judge saying, “I
don’t care what the lawyers think, I’m going to give him more time.” And I
don’t need to send a consecutive 12-month sentence to send that message.
R. vol. 4 at 110–11. The district court emphasized to Mar-Lopez that “lawyers can’t
save [him] from a Judge.” R. vol. 4 at 112.
The district court entered judgment. Mar-Lopez timely appealed.
DISCUSSION
I. Standard of Review
Because Mar-Lopez did not object to his sentence, we review for plain error.
United States v. Henson, 9 F.4th 1258, 1289 (10th Cir. 2021).
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Under plain-error review, we will reverse only 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.
Malone, 937 F.3d 1325, 1327 (10th Cir. 2019). The party seeking relief bears the
burden of satisfying these elements. United States v. Finnesy, 953 F.3d 675, 684
(10th Cir. 2020).
II. Merits
“Section 3553(a) mandates consideration of its enumerated factors, and
implicitly forbids consideration of factors outside its scope.” United States v. Smart,
518 F.3d 800, 803–04 (10th Cir. 2008). Thus, “[a] sentence is procedurally
unreasonable if it is based on consideration of an impermissible factor.” United
States v. Story, 635 F.3d 1241, 1244 (10th Cir. 2011).
Mar-Lopez argues that the district court impermissibly imposed an eight-
month sentence—two months above the parties’ Rule 11(c)(1)(C) agreement—to
convey that judges, not parties and their attorneys, decide the sentence. Mar-Lopez
contends that the district court erred by relying on a factor outside those listed in
18 U.S.C. § 3553(a). And, as Mar-Lopez sees it, the district court’s sentence
“punish[ed him] for the lawyers’ attempt to bind the district court into a particular
sentence, through the use of a (c)(1)(C) plea agreement.” Opening Br. at 7.
The government counters that the district court was not punishing Mar-Lopez
for reaching a plea agreement. Rather, it argues, the district court’s comments were
simply meant to deter Mar-Lopez from illegally reentering the country again.
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Our review of the record aligns with the government’s interpretation. The
district court twice emphasized the need to dissuade Mar-Lopez from reentering
because of the danger he posed to the public if he returned. R. vol. 4 at 109 (“I am
concerned about the danger you pose to the public if you return . . . .”); R. vol. 4
at 113 (“I am giving an eight-month sentence[] due to the seriousness of the risk that
is faced by the public, were he to return.”). The district court’s remarks demonstrate
that its sentence focused on deterrence and protecting the public—designated
§ 3553(a) factors—not punishment for entering a Rule 11(c)(1)(C) plea agreement.
18 U.S.C. § 3553(a)(2)(B) and (C).
Even if the district court erred in its sentence, any error would not be plain.
“An error is ‘plain’ if it is ‘clear or obvious’ under ‘current, well-settled law.’”
United States v. Thornburgh, 645 F.3d 1197, 1208 (10th Cir. 2011) (quoting United
States v. Whitney, 229 F.3d 1296, 1308–09 (10th Cir. 2000)). “In general, for an error
to be contrary to well-settled law, either the Supreme Court or this court must have
addressed the issue.” United States v. Ruiz-Gea, 340 F.3d 1181, 1187 (10th Cir.
2003).
Mar-Lopez cites no cases suggesting that the Supreme Court, this circuit, or
any other circuit have tackled this issue. We recognize that the “the plain terms of a
statute or regulation in certain instances can provide the basis for a plain-error
finding.” Finnesy, 953 F.3d at 697. But taking the district court’s comments in
context, we cannot conclude that § 3553(a)’s text so obviously prohibits the district
court’s basis for sentencing that it would meet the second prong of plain-error
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review. Id. In other words, Mar-Lopez has failed to carry his burden of establishing
that the district court’s error, assuming there was one, was plain.
Thus, we decline to reverse Mar-Lopez’s sentence based on procedural
unreasonableness.
CONCLUSION
For these reasons, we AFFIRM.
Entered for the Court
Gregory A. Phillips
Circuit Judge
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