Appellate Case: 24-2097 Document: 56-1 Date Filed: 05/13/2025 Page: 1 FILED United States Court of Appeals PUBLISH Tenth Circuit
UNITED STATES COURT OF APPEALS May 13, 2025
Christopher M. Wolpert FOR THE TENTH CIRCUIT Clerk of Court _______________________________________
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 24-2097
WILSON RENE CALDERON- PADILLA,
Defendant - Appellant. ___________________________________________
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW MEXICO (D.C. No. 2:23-CR-01805-KG-1) _________________________________________
Shira Kieval, Assistant Federal Public Defender (Virginia L. Grady, Federal Public Defender, with her on the briefs), Office of the Federal Public Defender, Denver, Colorado, on behalf of the Defendant-Appellant.
James R.W. Braun, Assistant United States Attorney (Alexander M.M. Uballez, United States Attorney, with him on the briefs), District of New Mexico, Albuquerque, New Mexico, on behalf of the Plaintiff-Appellee. _________________________________________
Before BACHARACH, BALDOCK, and McHUGH, Circuit Judges. ___________________________________________
BACHARACH, Circuit Judge. ___________________________________________
This appeal involves a challenge to a criminal sentence. When
sentencing a defendant, the district court must consider certain factors, Appellate Case: 24-2097 Document: 56-1 Date Filed: 05/13/2025 Page: 2
including the maximum prison term authorized by Congress. 18 U.S.C.
§ 3553(a); see United States v. Turner, 55 F.4th 1135, 1144 (7th Cir. 2022)
(stating that the district court must consider the statutory maximum when
selecting the sentence). Invoking this requirement, the defendant argues
that the district court erred in determining the statutory maximum. If the
defendant is right, how should we assess the possibility of prejudice? The
parties give different answers: The defendant says that we should presume
prejudice from the error itself; the government says that the defendant
should bear the burden to show prejudice. We agree with the government.
1. The government and probation office apparently err about what the statutory maximum is.
The defendant was convicted of illegally reentering the United
States. See 8 U.S.C. § 1326(b). For this conviction, the maximum sentence
would turn on the defendant’s criminal history. Absent a prior felony
conviction, the statutory maximum would be two years. 8 U.S.C. § 1326(a).
If the defendant had at least one prior conviction for a felony, the
maximum would be ten years. 8 U.S.C. § 1326(b)(1). If a prior conviction
had involved an aggravated felony, the maximum would be twenty years. 8
U.S.C. § 1326(b)(2).
2 Appellate Case: 24-2097 Document: 56-1 Date Filed: 05/13/2025 Page: 3
The defendant had two prior felony convictions. 1 In district court, the
government and probation office apparently assumed that one of the
convictions had involved an aggravated felony, which would trigger a 20-
year statutory maximum. But the parties agree on appeal that the prior
convictions didn’t constitute aggravated felonies. So the statutory
maximum should have been only 10 years.
The parties disagree over whether the district court made the same
mistake as to the statutory maximum. We need not resolve this
disagreement; we instead assume for the sake of argument that the district
court mistakenly thought that the statutory maximum was 20 years. 2
2. The defendant must show prejudice.
With this assumption, we consider whether the district court’s error
would have been prejudicial. We assess prejudice differently based on
whether the defendant preserved the argument by timely objecting in
district court. When the defendant doesn’t timely object, we consider the
1 These convictions involved
illegal reentry and
criminal possession of a weapon. 2 Unless the district court had looked beyond the record, the court couldn’t have known whether either of the defendant’s prior convictions had involved an aggravated felony. Moreover, the court adopted the presentence report even though it had noted a prior conviction for an aggravated felony.
3 Appellate Case: 24-2097 Document: 56-1 Date Filed: 05/13/2025 Page: 4
appellate argument forfeited and require the defendant to show an effect on
a substantial right. United States v. Benford, 875 F.3d 1007, 1016 (10th
Cir. 2017).
The defendant admittedly failed to object in district court. So he
would ordinarily need to show an effect on a substantial right. But the
defendant argues that we should presume prejudice from the nature of the
district court’s error.
a. A presumption may exist when an error is inherently prejudicial.
The defendant generally bears the burden to show prejudice. United
States v. Bustamante-Conchas, 850 F.3d 1130, 1138 (10th Cir. 2017) (en
banc). But for some errors, courts occasionally presume prejudice based on
an inherent risk of prejudice. E.g., United States v. White, 405 F.3d 208,
218 (4th Cir. 2005). 3
An example exists with errors involving calculation of the guideline
range. This range provides the “starting point” and “lodestar” for every
3 Sometimes courts also presume prejudice when the nature of an error makes it virtually impossible to assess the impact. E.g., United States v. Adams, 252 F.3d 276, 287–88 (3d Cir. 2001). An example exists when a district court mistakenly thought that it couldn’t sentence outside the guideline range. Given the inherent need to speculate about what the district court would have done if it had recognized its options, some courts have presumed prejudice. E.g., United States v. Barnett, 398 F.3d 516, 529 (6th Cir. 2005). But the defendant doesn’t urge a presumption of prejudice based on the virtual impossibility of showing that his sentence would have been lighter without the error.
4 Appellate Case: 24-2097 Document: 56-1 Date Filed: 05/13/2025 Page: 5
sentence. Molina-Martinez v. United States, 578 U.S. 189, 199–200 (2016).
So when a sentencing court starts and continues with the wrong guideline
range, we presume that the error will create a reasonable probability of a
different outcome. Id. at 191–92, 198.
b. Other circuits decline to presume prejudice when the sentencing court makes a mistake about the statutory maximum.
The defendant likens the district court’s mistaken view of the
statutory maximum to an error involving the guideline range, arguing that
we should treat the situations the same way. Three circuits have addressed
this argument, and all have rejected it. United States v. Payano, 930 F.3d
186, 193–96 (3d Cir. 2019); United States v. Dominguez, 128 F.4th 226,
233 (4th Cir. 2025); United States v. McCloud, 730 F.3d 600, 603 (6th Cir.
2013). 4 We generally hesitate to create a circuit split out of judicial
4 The defendant downplays McCloud, suggesting that the Supreme Court didn’t presume prejudice for guideline errors until its 2016 decision in Molina-Martinez v. United States. But the Sixth Circuit decided McCloud only after
that court had recognized a presumption of prejudice for guideline errors, United States v. Story, 503 F.3d 436, 441 (6th Cir. 2007), and
the Supreme Court had recognized the anchoring effect of guideline ranges, Peugh v. United States, 569 U.S. 530, 541, 549 (2013).
5 Appellate Case: 24-2097 Document: 56-1 Date Filed: 05/13/2025 Page: 6
modesty, respecting the thoughtful approaches taken elsewhere on the same
issue. United States v. Thomas, 939 F.3d 1121, 1131 (10th Cir. 2019).
c. Sentencing courts can treat the guidelines and statutory ranges differently.
The sentencing court must consider the statutory range. See pp. 1–2,
above. But this consideration can take place at various stages. For
example, the court might start by considering the statutory range. Or the
court might decide on the sentence and check it against the statutory
range. 5
Depending on the approach taken by an individual judge, the impact
of the error could vary. For example, if the judge considers the statutory
range early in the process, an error could easily taint the outcome just like
a guideline error. But if the judge decides on a tentative sentence and then
checks it against the statutory range, the error may be far less likely to
affect the outcome.
Consider, for instance, the impact if the district court decided on a
42-month sentence and checked it against the statutory range. The 42-
month sentence would have fallen far below the parties’ mistaken view
about the maximum (20 years). But the sentence would also have fallen far
below the correct statutory maximum of 10 years.
5 The Sixth Circuit views this approach as the typical approach taken at sentencing. United States v. McCloud, 730 F.3d 600, 603 (6th Cir. 2013). 6 Appellate Case: 24-2097 Document: 56-1 Date Filed: 05/13/2025 Page: 7
Sentencing courts must take a different approach when considering
the guideline range, starting with that range and “remain[ing] cognizant of
[it] throughout the sentencing process.” Molina-Martinez v. United States,
578 U.S. 189, 198 (2016) (quoting Peugh v. United States, 569 U.S. 530,
541 (2013)). So the Supreme Court presumes prejudice when the
sentencing court starts and continues “throughout the sentencing process”
with the wrong guideline range. Id. at 198–99, 204.
The defendant argues that the district court might view the same
sentence differently depending on its closeness to the statutory maximum.
Under this argument, a judge might view a 42-month sentence as more
lenient if the statutory maximum is 20 years rather than 10 years.
But the same is true of many other sentencing errors. For example, if
a sentencing court fails to resolve a factual dispute, the failure could taint
consideration of a key factor affecting the sentence. But appellate courts
would still require the defendant to show prejudice from the sentencing
court’s failure to resolve the factual dispute. United States v. Wagner-
Dano, 679 F.3d 83, 95 (2d Cir. 2012).
Here too, the nature of the error doesn’t inherently lead to prejudice.
As a result, the defendant’s arguments don’t persuade us that the other
7 Appellate Case: 24-2097 Document: 56-1 Date Filed: 05/13/2025 Page: 8
circuits are wrong in requiring the defendant to show prejudice when the
sentencing court has relied on an incorrect statutory maximum. 6
d. The cited snippets of case law don’t support a presumption of prejudice.
Though the wrong statutory maximum might or might not affect the
actual sentence, the defendant relies on snippets from two cases referring
to an error in the statutory minimum as an aggravating factor and an
anchor:
Alleyne v. United States, 570 U.S. 99 (2013) and
United States v. Currie, 739 F.3d 960 (7th Cir. 2014).
Those snippets are cited out of context.
First, the defendant argues that the Supreme Court has said that an
increase in the statutory range “‘aggravates the punishment’” and
“‘increase[s]’ a defendant’s ‘expected’ sentence.” Appellant’s Reply Br. at
10 (quoting Alleyne v. United States, 570 U.S. 99, 108, 113 (2013)). But
the defendant takes this language out of context. The Supreme Court was
addressing a seven-year sentence arising from the district court’s erroneous
6 We have held that a mistake about the statutory maximum doesn’t constitute plain error when the sentence fell within the correct statutory range. United States v. Gonzalez-Coronado, 419 F.3d 1090, 1096–97 (10th Cir. 2005). But in that opinion, we didn’t address an argument for a rebuttable presumption of prejudice. So our prior opinion doesn’t help us in considering the defendant’s argument for a presumption. See United States v. Cantu, 964 F.3d 924, 935 (10th Cir. 2020) (stating that our precedents are “not in point” beyond the arguments being discussed). 8 Appellate Case: 24-2097 Document: 56-1 Date Filed: 05/13/2025 Page: 9
belief that the statutory minimum was seven years when the minimum was
actually only five years. Alleyne, 570 U.S. at 112, 117. So the district
court’s use of the wrong statutory minimum obviously aggravated the
punishment and increased the expected sentence.
The equivalent here would involve a 20-year sentence. If the
statutory maximum were only 10 years, a sentence of 20 years would
reflect obvious prejudice from the district court’s mistake. But these
obvious examples of prejudice tell us little about the need to presume
prejudice when a sentence falls within the right statutory range.
Second, the defendant quotes part of a statement in United States v.
Currie, 739 F.3d 960 (7th Cir. 2014). There the Seventh Circuit addressed
an error involving the statutory minimum. Id. at 964. The statutory
minimum was actually five years, but the district court thought that the
minimum was ten years. Id. The Seventh Circuit declined to presume
prejudice, opting instead to remand for the district court to decide whether
it would have imposed a different sentence with a correct understanding of
the statutory minimum. Id. at 965, 967. In explaining the remand, the
Seventh Circuit noted that the statute created the range of permissible
sentences: “Statutory minima and maxima have an obvious anchoring
effect on the judge’s determination of a reasonable sentence in the sense
that they demarcate the range within which the judge may impose a
sentence.” Id. at 966.
9 Appellate Case: 24-2097 Document: 56-1 Date Filed: 05/13/2025 Page: 10
Seizing on the term anchoring effect, the defendant points to
scholarship in cognitive science identifying an anchor as a basis for bias.
For example, the defendant argues that the 42-month sentence might appear
lenient to a judge who mistakenly thought that the statutory maximum was
twenty years rather than ten years. See p. 7, above. But this argument has
nothing to do with the Seventh Circuit’s use of the term anchoring effect.
There the court was simply noting the “anchoring effect” of the statutory
minimum and maximum only “in the sense that they demarcate the range
within which the judge may impose a sentence.” Id.
In any event, the defendant’s reliance on Alleyne and Currie doesn’t
support a presumption of prejudice. To the contrary, reliance on these
cases suggests that defendants often can prove prejudice from errors
involving the statutory maximum. For example, if the sentence had been
eleven years, few would question the existence of prejudice from a
mistaken belief that the statutory maximum had been twenty years rather
than ten years.
The same is true when the district court says that it’s relying on its
understanding about the statutory maximum. Pointing to this situation, the
defendant relies on United States v. Watson, where the D.C. Circuit
recognized prejudice based on the district court’s statement that it was
imposing a sentence considerably below the statutory maximum. 476 F.3d
1020, 1023 (D.C. Cir. 2007). There too, the appeals court didn’t presume
10 Appellate Case: 24-2097 Document: 56-1 Date Filed: 05/13/2025 Page: 11
prejudice, relying instead on evidence to determine whether the district
court would likely have imposed a more lenient sentence without the error
involving the statutory maximum. Id. The defendant’s ability to prove
prejudice suggests that a rebuttable presumption is unnecessary for errors
involving the statutory maximum.
e. The perceived importance of a statutory maximum doesn’t support a presumption of prejudice.
Finally, the defendant argues that the statutory range is “first, both in
time and importance,” providing the “‘starting point’” for the eventual
sentence. Appellant’s Reply Br. at 13 (quoting United States v. McCloud,
730 F.3d 600, 610–12 (6th Cir. 2013) (Borman, J., concurring in part &
dissenting in part)). For this argument, the defendant observes that
the statutory ranges came from Congress and the guideline ranges came from a mere agency (the Sentencing Commission) and
the statutory ranges are mandatory and the guideline ranges aren’t.
But we decline to presume prejudice based on the importance of the
statutory range. After all, courts base the presumption of prejudice on the
risk of prejudice rather than “the gravity of the right at stake.” United
States v. White, 405 F.3d 208, 219 (4th Cir. 2005).
Granted, the statutory range is important, and a sentence above a
statutory maximum would automatically require reversal. See United States
v. Archuleta, 865 F.3d 1280, 1292 (10th Cir. 2017) (stating that a sentence 11 Appellate Case: 24-2097 Document: 56-1 Date Filed: 05/13/2025 Page: 12
above the statutory maximum constitutes “per se, reversible, plain error”
(quoting United States v. Gonzalez-Huerta, 403 F.3d 727, 739 n.10 (10th
Cir. 2005) (en banc))). But we aren’t addressing a sentence above the
statutory maximum; we’re instead considering whether a mistake about the
statutory maximum would inherently create a likelihood of prejudice. We
see no reason that the source or mandatory nature of a statutory maximum
would create a likelihood of prejudice.
3. The defendant hasn’t shown prejudice.
The defendant argues in the alternative that he showed prejudice. But
he didn’t make this argument until his reply brief. 7 That was too late. See
United States v. Hernandez, 104 F.4th 755, 762 n.3 (10th Cir. 2024).
But the argument would fail on the merits anyway because
the district court didn’t refer to the statutory maximum,
the sentence matched the bottom of the guideline range, and
the sentence fell far below the correct statutory maximum.
See United States v. Trujillo, 4 F.4th 287, 291 (5th Cir. 2021) (concluding
that the defendant hadn’t shown prejudice from the district court’s reliance
on the wrong statute in part because the court didn’t cite that statute when
explaining the sentence).
7 In his opening brief, the defendant stated only that the district court hadn’t said that it would have imposed the same sentence absent the error. Appellant’s Opening Br. at 8, 10.
12 Appellate Case: 24-2097 Document: 56-1 Date Filed: 05/13/2025 Page: 13
Granted, the district court did say that the defendant’s sentence could
have been higher. But this statement didn’t suggest reliance on the wrong
statutory maximum. Supp. R. vol. 1, at 20. After all, the 42-month sentence
fell at the bottom of the guideline range and didn’t come close to the
correct statutory maximum.
We addressed similar circumstances in United States v. Gonzalez-
Coronado, where the district judge relied on the wrong statute at
sentencing. 419 F.3d 1090, 1093–94 (10th Cir. 2005). There the actual
sentence fell within the maximum allowable under the right statutory
maximum. Id. at 1094. We held that the error was harmless. Id.
Though the error was harmless in Gonzalez-Coronado, circumstances
can sometimes signal a likely effect on the sentence. For example, the D.C.
Circuit concluded that the defendant had shown prejudice when the
sentencing court tried to show leniency by imposing a prison term near
what the court had mistakenly thought was the statutory minimum. United
States v. Watson, 476 F.3d 1020, 1024 (D.C. Cir. 2007); see pp. 10–11,
above. Similarly, the Third Circuit recognized prejudice when the district
court had relied on the wrong criminal history and statutory maximum,
mistakenly ordering the probation office to revise the presentence report
by increasing what it had said was the statutory maximum. United States v.
Payano, 930 F.3d 186, 196 (3d Cir. 2019).
13 Appellate Case: 24-2097 Document: 56-1 Date Filed: 05/13/2025 Page: 14
These kinds of circumstances are absent here. Unlike the D.C. and
Third Circuits, we lack anything in the record to suggest that the
defendant’s sentence would have been lighter if the district court had
realized that the statutory maximum was ten years (rather than twenty
years). The district court did refer to the defendant’s criminal history, but
didn’t tie that concern to the legal classification of his prior felonies.
In his reply brief, the defendant suggests that the district court might
have tried to avoid a sentencing disparity by examining sentences for
persons convicted of allegedly reentering the country after an aggravated
felony. This suggestion rests on speculation because the district court
never mentioned other sentences involving defendants with past
convictions for aggravated felonies. The court instead applied the
sentencing guidelines, which are designed to avoid unwarranted disparities.
See United States v. Blagojevich, 854 F.3d 918, 921 (7th Cir. 2017)
(stating that “the Sentencing Guidelines are themselves an anti-disparity
formula”). And these guidelines provide a single offense level for illegal
reentry regardless of whether the defendant had a prior conviction for an
aggravated felony. U.S.S.G. § 2L1.2. We thus reject the argument asserted
in the defendant’s reply brief.
14 Appellate Case: 24-2097 Document: 56-1 Date Filed: 05/13/2025 Page: 15
* * *
We conclude that the defendant hasn’t shown an effect on a
substantial right. And in the absence of such a showing, we affirm the 42-
month sentence.