FILED United States Court of Appeals Tenth Circuit
UNITED STATES COURT OF APPEALS April 17, 2019
Elisabeth A. Shumaker FOR THE TENTH CIRCUIT Clerk of Court _________________________________
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. Nos. 18-1125 & 18-1126 (D.C. Nos. 1:14-CR-00500-MSK-1, JULIAN GALLARDO-MEDINA, a/k/a 1:17-CR-00296-MSK-1) Julian Gallardo-Garcia, a/k/a Raul (D. Colo.) Hernandez-Garcia,
Defendant - Appellant. _________________________________
ORDER AND JUDGMENT * _________________________________
Before BACHARACH, BALDOCK, and EBEL, Circuit Judges. _________________________________
In these consolidated direct criminal appeals, Defendant Julian Gallardo-
Medina challenges his sentences for 1) a 2017 conviction for unlawfully re-entering
the United States after a prior removal, and 2) violating the terms of his supervised
release imposed on a 2015 unlawful re-entry conviction. In a joint sentencing, the
district court imposed within-guideline sentences of twenty-seven months for the
2017 conviction and fifteen months for the supervised release violation, to run
* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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. consecutively. On appeal, Gallardo-Medina argues that the district court
procedurally erred when it imposed those sentences because, having denied Gallardo-
Medina a downward departure under the sentencing guidelines, the district court did
not realize it still had discretion to vary below the advisory guideline range based on
the sentencing factors listed in 18 U.S.C. § 3553(a). The sentencing record makes
clear, however, that the district court knew it had discretion to vary downward, but
decided against doing so. Therefore, having jurisdiction under 28 U.S.C. § 1291 and
18 U.S.C. § 3742(a), we AFFIRM both sentences.
I. BACKGROUND
Gallardo-Medina, a Mexican citizen, was convicted in 2015 of unlawfully re-
entering the United States after a prior removal. He was sentenced to twenty-one
months in prison and three years of supervised release. One of the conditions of his
release was that he not again reenter the United States illegally.
After serving his prison sentence on the 2015 conviction, Gallardo-Medina
was removed from the United States in October 2016. He returned three weeks later,
joining his wife and three children in Colorado. He was arrested there in 2017.
Gallardo-Medina thereafter pled guilty to a new unlawful re-entry charge and
admitted to violating the terms of his earlier supervised release. His advisory
guideline ranges were 24 to 30 months in prison for the new conviction and 12 to 18
months for the supervised release violation. Gallardo-Medina requested, instead, a
below-guideline sentence of nine months for the new conviction and three months
and one day for violating his supervised release, to run consecutively. In support of
2 this request, Gallardo-Medina sought, for each of his sentences, both a downward
departure under the sentencing guidelines and a downward variance under the 18
U.S.C. § 3553(a) sentencing factors. He grounded these requests on his assertion that
the reason he returned to the United States was to earn money to send to his mother
in Mexico so she could pay medical bills. The district court denied Gallardo-
Medina’s requests for a below-guideline sentence and, instead, imposed mid-range
within-guideline sentences of twenty-seven months for the new conviction and fifteen
months on the supervised release violation, to run consecutively, for a total of forty-
two months in prison.
II. DISCUSSION
On appeal, Gallardo-Medina argues that the district court procedurally erred in
sentencing him because, after denying his motion for a downward departure under
the sentencing guidelines, the court did not realize that it still had discretion to vary
downward for each sentence based on the § 3553(a) factors. 1 Gallardo-Medina
concedes that, because he did not raise this objection at sentencing, our review is for
plain error. See Fed. R. Crim. P. 52(b); see also United States v. Lymon, 905 F.3d
1149, 1152 (10th Cir. 2018). We conclude, at the first step of the plain-error
analysis, that the district court did not err.
1 While all of the § 3553(a) factors are relevant to Gallardo-Medina’s sentence for his new conviction, most but not all the § 3553(a) factors are relevant to determining his sentence for the supervised release violation. See 18 U.S.C. § 3583(e) (identifying as relevant factors set forth in § 3553(a)(1), (a)(2)(B), (a)(2)(C), (a)(2)(D), (a)(4), (a)(5), (a)(6), and (a)(7)). 3 “Departures and variances are analytically distinct, and courts must be careful
not to confuse them.” United States v. Martinez-Barragan, 545 F.3d 894, 901 (10th
Cir. 2008). Here, however, the court, like the parties, carefully treated Gallardo-
Medina’s requests for a downward departure separate from his request for a
downward variance.
Gallardo-Medina asked for a downward departure under U.S.S.G. § 5K2.11,
which provides that “a reduced sentence may be appropriate” when a defendant
commits a crime “in order to avoid a perceived greater harm,” so long as “the
circumstances significantly diminish society’s interest in punishing the conduct.”
The district court denied Gallardo-Medina such a departure because “[i]llegally
reentering the United States is not a specific-intent crime; and therefore, specific
intent cannot be nullified by a different motivation,” but to the extent § 5K2.11 does
apply, there is nothing in this case that significantly diminishes society’s interest in
punishing Gallardo-Medina’s conduct. (1 R. 209.)
Gallardo-Medina also asked for a downward departure under U.S.S.G.
§ 5K2.0, for “exceptional” circumstances. The district court denied that request,
ruling that the fact that Gallardo-Medina was motivated to return unlawfully to the
United States due to family and financial reasons was “not unusual. That falls within
the heartland of cases in this court’s experience, and there is nothing unusual here.”
(1 R. 209-10.) On appeal, Gallardo-Medina does not challenge the district court’s
decision to deny his requests for a downward departure.
4 The sentencing court then separately addressed and denied Gallardo-Medina’s
request for a downward variance under the § 3553(a) factors. In doing so, the
sentencing court indicated it “appreciate[d] that the defendant wanted to pay for his
mother’s medical bills and he didn’t want to incur any violations [of the law] while
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FILED United States Court of Appeals Tenth Circuit
UNITED STATES COURT OF APPEALS April 17, 2019
Elisabeth A. Shumaker FOR THE TENTH CIRCUIT Clerk of Court _________________________________
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. Nos. 18-1125 & 18-1126 (D.C. Nos. 1:14-CR-00500-MSK-1, JULIAN GALLARDO-MEDINA, a/k/a 1:17-CR-00296-MSK-1) Julian Gallardo-Garcia, a/k/a Raul (D. Colo.) Hernandez-Garcia,
Defendant - Appellant. _________________________________
ORDER AND JUDGMENT * _________________________________
Before BACHARACH, BALDOCK, and EBEL, Circuit Judges. _________________________________
In these consolidated direct criminal appeals, Defendant Julian Gallardo-
Medina challenges his sentences for 1) a 2017 conviction for unlawfully re-entering
the United States after a prior removal, and 2) violating the terms of his supervised
release imposed on a 2015 unlawful re-entry conviction. In a joint sentencing, the
district court imposed within-guideline sentences of twenty-seven months for the
2017 conviction and fifteen months for the supervised release violation, to run
* 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. consecutively. On appeal, Gallardo-Medina argues that the district court
procedurally erred when it imposed those sentences because, having denied Gallardo-
Medina a downward departure under the sentencing guidelines, the district court did
not realize it still had discretion to vary below the advisory guideline range based on
the sentencing factors listed in 18 U.S.C. § 3553(a). The sentencing record makes
clear, however, that the district court knew it had discretion to vary downward, but
decided against doing so. Therefore, having jurisdiction under 28 U.S.C. § 1291 and
18 U.S.C. § 3742(a), we AFFIRM both sentences.
I. BACKGROUND
Gallardo-Medina, a Mexican citizen, was convicted in 2015 of unlawfully re-
entering the United States after a prior removal. He was sentenced to twenty-one
months in prison and three years of supervised release. One of the conditions of his
release was that he not again reenter the United States illegally.
After serving his prison sentence on the 2015 conviction, Gallardo-Medina
was removed from the United States in October 2016. He returned three weeks later,
joining his wife and three children in Colorado. He was arrested there in 2017.
Gallardo-Medina thereafter pled guilty to a new unlawful re-entry charge and
admitted to violating the terms of his earlier supervised release. His advisory
guideline ranges were 24 to 30 months in prison for the new conviction and 12 to 18
months for the supervised release violation. Gallardo-Medina requested, instead, a
below-guideline sentence of nine months for the new conviction and three months
and one day for violating his supervised release, to run consecutively. In support of
2 this request, Gallardo-Medina sought, for each of his sentences, both a downward
departure under the sentencing guidelines and a downward variance under the 18
U.S.C. § 3553(a) sentencing factors. He grounded these requests on his assertion that
the reason he returned to the United States was to earn money to send to his mother
in Mexico so she could pay medical bills. The district court denied Gallardo-
Medina’s requests for a below-guideline sentence and, instead, imposed mid-range
within-guideline sentences of twenty-seven months for the new conviction and fifteen
months on the supervised release violation, to run consecutively, for a total of forty-
two months in prison.
II. DISCUSSION
On appeal, Gallardo-Medina argues that the district court procedurally erred in
sentencing him because, after denying his motion for a downward departure under
the sentencing guidelines, the court did not realize that it still had discretion to vary
downward for each sentence based on the § 3553(a) factors. 1 Gallardo-Medina
concedes that, because he did not raise this objection at sentencing, our review is for
plain error. See Fed. R. Crim. P. 52(b); see also United States v. Lymon, 905 F.3d
1149, 1152 (10th Cir. 2018). We conclude, at the first step of the plain-error
analysis, that the district court did not err.
1 While all of the § 3553(a) factors are relevant to Gallardo-Medina’s sentence for his new conviction, most but not all the § 3553(a) factors are relevant to determining his sentence for the supervised release violation. See 18 U.S.C. § 3583(e) (identifying as relevant factors set forth in § 3553(a)(1), (a)(2)(B), (a)(2)(C), (a)(2)(D), (a)(4), (a)(5), (a)(6), and (a)(7)). 3 “Departures and variances are analytically distinct, and courts must be careful
not to confuse them.” United States v. Martinez-Barragan, 545 F.3d 894, 901 (10th
Cir. 2008). Here, however, the court, like the parties, carefully treated Gallardo-
Medina’s requests for a downward departure separate from his request for a
downward variance.
Gallardo-Medina asked for a downward departure under U.S.S.G. § 5K2.11,
which provides that “a reduced sentence may be appropriate” when a defendant
commits a crime “in order to avoid a perceived greater harm,” so long as “the
circumstances significantly diminish society’s interest in punishing the conduct.”
The district court denied Gallardo-Medina such a departure because “[i]llegally
reentering the United States is not a specific-intent crime; and therefore, specific
intent cannot be nullified by a different motivation,” but to the extent § 5K2.11 does
apply, there is nothing in this case that significantly diminishes society’s interest in
punishing Gallardo-Medina’s conduct. (1 R. 209.)
Gallardo-Medina also asked for a downward departure under U.S.S.G.
§ 5K2.0, for “exceptional” circumstances. The district court denied that request,
ruling that the fact that Gallardo-Medina was motivated to return unlawfully to the
United States due to family and financial reasons was “not unusual. That falls within
the heartland of cases in this court’s experience, and there is nothing unusual here.”
(1 R. 209-10.) On appeal, Gallardo-Medina does not challenge the district court’s
decision to deny his requests for a downward departure.
4 The sentencing court then separately addressed and denied Gallardo-Medina’s
request for a downward variance under the § 3553(a) factors. In doing so, the
sentencing court indicated it “appreciate[d] that the defendant wanted to pay for his
mother’s medical bills and he didn’t want to incur any violations [of the law] while
he was here in the United States illegally on his most immediate illegal reentry.” (1
R. 210.) Notwithstanding these facts, however, the court ruled that Gallardo-
Medina’s
case [fell] squarely within the heartland of similar cases. And consistent with the Court’s objective in employing the factors found in 18 U.S.C. Section 3553, to serve the sentencing objectives, [made] particular note of the obligation to avoid unwarranted sentence disparities among defendants with similar records found guilty of [similar] conduct.
(1 R. 210 (referencing 18 U.S.C. § 3553(a)(6).)
Accordingly, we conclude that the sentencing record makes clear that the
district court separately considered Gallardo-Medina’s requests for a downward
departure and for a downward variance. Furthermore, the court did not deny those
requests for identical reasons. To the extent the sentencing court relied on similar
reasoning to reject both the departure and variance requests, that was due to the fact
that Gallardo-Medina’s ground for each was the same—he returned to the United
States in order to earn money to send to his mother to help her pay medical expenses.
Moreover, the fact that the district court deemed Gallardo-Medina’s case to fall
within the “heartland” of cases involving similar defendants convicted of the same
conduct is relevant to both departures and variances. See Martinez-Barragan, 545
F.3d at 900. The sentencing court clearly realized that, even after denying Gallardo-
5 Medina’s requests for a downward departure, the court still had discretion to vary
downward based on the § 3553(a) factors. Nonetheless, the court chose not to do so.
That choice was not in error.
III. CONCLUSION
We, therefore, AFFIRM each of Gallardo-Medina’s sentences.
Entered for the Court
David M. Ebel Circuit Judge