from the United States District Court for the District of New
Mexico (D.C. No. 1:16-CR-02006-TM-1)
J. Padilla, Assistant Federal Public Defender, Albuquerque,
New Mexico, for Defendant-Appellant.
R. W. Braun, Assistant United States Attorney (Damon P.
Martinez, United States Attorney, with him on the brief),
Albuquerque, New Mexico, for Plaintiff-Appellee.
BRISCOE, SEYMOUR, and McHUGH, Circuit Judges.
SEYMOUR, CIRCUIT JUDGE.
Ortiz-Lazaro pled guilty to illegal reentry after deportation
in violation of 18 U.S.C. § 1326(a)(1) and (b)(1), and
he admitted that he violated the supervised release terms of
his prior illegal reentry charge. He appeals his
above-guidelines sentence for the supervised release
violation as procedurally and substantively unreasonable. We
September 4, 2015, Mr. Ortiz-Lazaro pled guilty to one count
of reentry of a deported alien, in violation of 8 U.S.C.
§ 1326(a). He was sentenced to eight months in prison
and three years of supervised release, and upon his release
from prison he was deported to Mexico. One of his release
conditions was that he not illegally reenter the United
States. Mr. Ortiz-Lazaro disregarded that condition and on
March 19, 2016, he was apprehended by U.S. Border Patrol
agents in New Mexico and ultimately charged with reentry
after deportation in violation of 8 U.S.C. § 1326(a)(1)
Ortiz-Lazaro pled guilty to the § 1326 charge pursuant
to a fast track plea agreement. On June 14, 2016, he appeared
before the district court for sentencing concerning his most
recent illegal reentry charge, and also for a hearing on
revocation of his supervised release relating to his prior
illegal reentry charge. Regarding the § 1326 charge, the
court noted that Mr. Ortiz-Lazaro had illegally reentered the
United States a little over a month after his most recent
deportation and stated, "I mean, it's obvious to me
that you don't respect the law of the United
States." Supp. ROA vol. 1 at 12. The court sentenced him
to twelve months imprisonment, the high end of the guideline
range for the illegal reentry charge.
district court then held a hearing on revocation of Mr.
Ortiz-Lazaro's supervised release. He admitted to
violating the supervised release terms. With respect to
sentencing, the court noted that the Grade B violation with a
criminal history category of II equated to an advisory
guideline range of six to twelve months. But the court found
that several factors warranted a departure from that range,
including that Mr. Ortiz-Lazaro had illegally reentered the
United States barely a month after his term of supervised
release commenced, had been deported twice before, had also
been voluntarily returned to Mexico on three prior occasions,
and had previously been convicted of serious violent
district court ultimately sentenced Mr. Ortiz-Lazaro to
twenty-four months imprisonment on his supervised release
violation, to run consecutively to the twelvemonth sentence
for his current violation of § 1326. Mr. Ortiz-Lazaro
did not lodge any objection to the court's explanation of
reasons, nor did he ask for clarification of the material on
which the court relied in imposing the sentences. The court
entered judgment on June 17, 2016, and Mr. Ortiz-Lazaro
Ortiz-Lazaro makes multiple arguments on appeal. He contends
that (1) his sentence for violation of supervised release
condition was both procedurally and substantively
unreasonable; (2) his due process rights were violated by the
court's consideration of sentencing information that was
not provided to him; and (3) his double jeopardy rights were
violated because the district court punished him twice for
the same reentry. We address each argument in turn.
Reasonableness of Sentences
the Supreme Court's decision in Booker, which
relegated the Sentencing Guidelines to an advisory status,
district courts have been free to apply any sentence that is
'reasonable' under the sentencing factors listed at
18 U.S.C. § 3553(a)." United States v.
Smart, 518 F.3d 800, 803 (10th Cir. 2008) (citing
United States v. Booker, 543 U.S. 220, 261 (2005)).
When we review for reasonableness, our review "includes
both a procedural component, encompassing the method by which
a sentence was calculated, as well as a substantive
component, which relates to the length of the resulting
sentence." Id. Mr. Ortiz-Lazaro argues that his
sentence for the supervised release violation was both
procedurally and substantively unreasonable.