United States v. Salayandia-Reyes

• Court: Court of Appeals for the Tenth Circuit
• Decided: March 8, 2024
• Docket: 22-2088
• Status: Unpublished

Opinion

Appellate Case: 22-2088 Document: 010111012298 Date Filed: 03/08/2024 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT March 8, 2024 _________________________________ Christopher M. Wolpert Clerk of Court UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v. No. 22-2088 (D.C. No. 2:22-CR-00547-MIS-1) ALFREDO SALAYANDIA-REYES, (D.N.M.)

Defendant - Appellant. _________________________________

ORDER AND JUDGMENT* _________________________________

Before HOLMES, Chief Judge, BACHARACH, and EID, Circuit Judges. _________________________________

After pleading guilty to unlawful reentry into the United States in violation of

8 U.S.C. § 1326, the U.S. District Court for the District of New Mexico sentenced

Defendant Alfredo Salayandia-Reyes to twenty-seven months’ imprisonment. On

appeal, Mr. Salayandia-Reyes argues that the district court plainly erred in failing to

explain why it denied his motion for a variance and why it imposed that sentence.

Exercising jurisdiction under 28 U.S.C. § 1291, we conclude that Mr. Salayandia-

* 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. This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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. Appellate Case: 22-2088 Document: 010111012298 Date Filed: 03/08/2024 Page: 2

Reyes has failed to establish any error, let alone plain error, and thus affirm his

sentence.

I

A

The following facts are drawn from Mr. Salayandia-Reyes’s presentence

investigation report, the transcripts of his sentencing and change-of-plea hearings,

and other portions of the record. See United States v. Bellamy, 925 F.3d 1180, 1182

n.2 (10th Cir. 2019).

Mr. Salayandia-Reyes, a citizen of Mexico, had previously been removed from

the United States in 2003, 2004, 2006, and 2017. Following that last deportation, he

lived in Anapra, Chihuahua, Mexico, just over the border from the United States.

Shortly before the Christmas holiday, in December 2021, Mr. Salayandia-Reyes’s

romantic partner ended their relationship. Mr. Salayandia-Reyes then drank heavily

for two days. On the night of December 25, 2021, Mr. Salayandia-Reyes, who was

quite intoxicated, decided to attempt to enter the United States, apparently to seek

employment and residence in El Paso. Without bringing any money or a phone, he

climbed a mountain, presumably Mount Cristo Rey, and fell down into United States

territory. He was found shortly thereafter by United States Border Patrol in Doña

Ana County, New Mexico.

2 Appellate Case: 22-2088 Document: 010111012298 Date Filed: 03/08/2024 Page: 3

B

Mr. Salayandia-Reyes was charged by information with unlawfully reentering

the United States after he had previously been removed, in violation of 8 U.S.C.

§ 1326(a) and (b). He waived indictment, and he then pleaded guilty on April 6,

2022.

The presentence investigation report (“PSR”) laid out the basic facts of

Mr. Salayandia-Reyes’s offense, discussed his personal characteristics and criminal

history, and calculated his advisory sentencing range under the U.S. Sentencing

Guidelines Manual (“U.S.S.G.” or “Guidelines”).1 The PSR calculated Mr.

Salayandia-Reyes’s total offense level under the Guidelines as fifteen.

The PSR went on to discuss Mr. Salayandia-Reyes’s criminal history. Mr.

Salayandia-Reyes, who was forty-two years old at the time the PSR was prepared,

had a number of criminal convictions from when he was in his twenties. In

particular, he had (1) a conviction from 2001 for unlawful possession of a controlled

substance; (2) a conviction from 2001 for harassment involving a strike, shove, or

kick; (3) a conviction from 2002 for criminal impersonation; (4) a conviction from

2002 for theft/larceny; (5) convictions from 2003 for false imprisonment and

1 In preparing the PSR, the U.S. Probation Office relied on the 2021 edition of the Guidelines. We do the same. See United States v. Ellis, 23 F.4th 1228, 1233 n.4 (10th Cir. 2022). 3 Appellate Case: 22-2088 Document: 010111012298 Date Filed: 03/08/2024 Page: 4

harassment involving a strike, shove, or kick; (6) a conviction from 2003 for illegal

reentry into the United States; (7) a conviction from 2005 for driving under the

influence; (8) convictions from 2005 for obstructing an officer and third-degree

assault; and (9) convictions from 2007 for felony menacing and possession of a

controlled substance.

Several aspects of these convictions bear noting. According to the PSR,

Mr. Salayandia-Reyes’s 2002 conviction for harassment involved an argument where,

during a domestic quarrel, Mr. Salayandia-Reyes “grabbed the victim on her upper

arms, causing bruising; covered her mouth with his hand which caused difficulty

breathing, and threatened to kill her if he ever caught her talking to another man.”

Supp. R., Vol. II, at 9 (PSR, filed June 2, 2022). Mr. Salayandia-Reyes’s 2003

conviction for harassment was similar: it involved the same victim and, again, Mr.

Salayandia-Reyes “threatened to kill the victim[] . . . and was holding onto her arms

and refusing to let her go.” Id. at 10. And, although the PSR does not describe the

details of his offenses, Mr. Salayandia-Reyes’s 2007 convictions for felony menacing

and possession of a controlled substance resulted in a substantial thirteen-year

sentence. Finally, Mr. Salayandia-Reyes had been previously removed from the

United States to Mexico on four occasions, and he served a one-year sentence for

illegal reentry after unlawfully returning to the United States in 2003.

Based on this criminal history, the PSR determined Mr. Salayandia-Reyes’s

criminal history category to be II. This criminal history category, along with the total

offense level of fifteen, resulted in an advisory imprisonment range of twenty-one

4 Appellate Case: 22-2088 Document: 010111012298 Date Filed: 03/08/2024 Page: 5

months to twenty-seven months under the Guidelines. The PSR identified no factors

that would warrant a departure or variance.

Mr. Salayandia-Reyes had no objections to the PSR.

Mr. Salayandia-Reyes filed a motion requesting that the district court vary

downward from the Guidelines advisory imprisonment range and impose a sentence

of time-served with a three-year term of supervised release. According to Mr.

Salayandia-Reyes, the nature and circumstances of the offense weighed in favor of a

downward variance because he entered the United States on “a spur-of-the-moment

drunken whim.” R., Vol. I, at 17 (Mot. for Variance, filed July 14, 2022). He also

argued that his history and circumstances supported a downward variance because,

although he had gotten into trouble when he was a younger man, his record was

unblemished for the past fifteen years. Furthermore, he suggested that he had

received the lengthy thirteen-year sentence for felony menacing and possession of a

controlled substance because he insisted on taking that matter to trial.

The government opposed Mr. Salayandia-Reyes’s request for a variance and

argued that he should receive a sentence at the “low-end” of the Guidelines range.

Id. at 19 (Resp. to Mot. for Variance, filed July 21, 2022). As to the argument about

the nature and circumstances of the offense, the government simply noted that

drunkenness was no excuse for criminal activity. And in response to Mr. Salayandia-

Reyes’s arguments about his criminal history, the government observed that (1) Mr.

Salayandia-Reyes’s claims about his “unblemished record” for the past fifteen years

5 Appellate Case: 22-2088 Document: 010111012298 Date Filed: 03/08/2024 Page: 6

were not particularly persuasive given that he had been imprisoned or deported for

most of that time; (2) Mr. Salayandia-Reyes already had a prior conviction for illegal

reentry; (3) Mr. Salayandia-Reyes had a pattern of deceitful conduct; and (4) Mr.

Salayandia-Reyes had a pattern of “both assaultive conduct and issuing violent

threats,” especially to his domestic partners. Id. at 22–23. The government also

made arguments on the other 18 U.S.C. § 3553(a) sentencing factors and why those

factors supported the requested sentence.

The district court held a sentencing hearing on July 27, 2022. At the

beginning of the hearing, the district court announced that “[h]aving reviewed all of

the materials,” it was “considering giving a high-end sentence in this case because of

the criminal history, especially the last charge for which the defendant received the

13-year sentence,” but that it would “hear first from the parties.” R., Vol. II, at 2:24–

3:3 (Sentencing Tr., dated July 27, 2022).

The government, relying on Mr. Salayandia-Reyes’s “history of assaultive

conduct and menacing behavior” as well as his “pattern of deceitful conduct,”

requested a within-Guidelines sentence. Id. at 3:5–19. And Mr. Salayandia-Reyes

reiterated his request for a downward variance and gave an allocution.

The district court questioned Mr. Salayandia-Reyes about his history of violent

convictions. Mr. Salayandia-Reyes explained that he abused drugs and alcohol and

made poor decisions when he was younger, but he asserted that he “never hurt

anyone physically” and it “never came [] . . . down to actually throwing a punch.” Id.

6 Appellate Case: 22-2088 Document: 010111012298 Date Filed: 03/08/2024 Page: 7

at 7:15–25. The district court pointed out that Mr. Salayandia-Reyes had a 2001

conviction for “striking a victim, causing bruises on her and covering her mouth with

[his] hand.” Id. at 8:5–7. It allowed Mr. Salayandia-Reyes to respond, and he

contended that the victim had attacked him.

The district court then pronounced Mr. Salayandia-Reyes’s sentence:

The Court adopts the Presentence Report’s factual findings. It’s considered the Sentencing Guideline applications and the factors set forth in 18 U.S.C. [§] 3553(a). The Offense Level is 15. The Criminal History Category is III. The Guideline range is 21 to 27 months. The Court notes the defendant illegally reentered the U.S. after having previously been deported, subsequent to a felony conviction. As to the Information, the defendant is committed to the custody of the Bureau of Prisons for a term of 27 months. The Court will not impose supervised release.

Id. at 9:7–17.2 The twenty-seven-month sentence was at the top of the Guidelines

range. Mr. Salayandia-Reyes did not object to the reasons given by the district court

in support of the sentence.

Judgment was entered on July 27, 2022. Mr. Salayandia-Reyes timely

appealed. See FED. R. APP. P. 4(b)(1)(A)(i).

2 The district court seemingly misspoke when it stated that Mr. Salayandia-Reyes’s criminal history category was III. The PSR, which the district court adopted, makes clear that his criminal history category was in fact II. The Guidelines range actually calculated by the district court is also consistent with a criminal history category of II. No party contemporaneously objected to this misstatement. And although Mr. Salayandia-Reyes mentions this misstatement in his appellate briefing, he does not base any arguments on it. He has thus waived any argument based on this issue, see Toevs v. Reid, 685 F.3d 903, 911 (10th Cir. 2012), and we decline to discuss it further. 7 Appellate Case: 22-2088 Document: 010111012298 Date Filed: 03/08/2024 Page: 8

II

Typically, “we review sentences for reasonableness under a deferential abuse-

of-discretion standard.” United States v. Begaye, 635 F.3d 456, 461 (10th Cir. 2011)

(quoting United States v. Alapizco-Valenzuela, 546 F.3d 1208, 1214 (10th Cir.

2008)). “Reasonableness review is a two-step process comprising a procedural and a

substantive component.” Id. (quoting United States v. Verdin-Garcia, 516 F.3d 884,

895 (10th Cir. 2008)). “Procedural reasonableness addresses whether the district

court incorrectly calculated or failed to calculate the Guidelines sentence, treated the

Guidelines as mandatory, failed to consider the § 3553(a) factors, relied on clearly

erroneous facts, or failed to adequately explain the sentence.” United States v.

Reyes-Alfonso, 653 F.3d 1137, 1144 (10th Cir. 2011) (quoting United States v.

Huckins, 529 F.3d 1312, 1317 (10th Cir. 2008)). Because this case involves a

challenge to the district court’s explanation for the sentence imposed, it presents a

challenge to only the procedural reasonableness of the sentence. See United States v.

Hamilton, 510 F.3d 1209, 1218 (10th Cir. 2007).

But, as Mr. Salayandia-Reyes concedes, he raised no objection to the district

court’s method of determining the sentence. See Aplt.’s Opening Br. at 10 (“Because

Mr. Salayandia-Reyes did not object, this Court reviews for plain error.”). When a

defendant does “not object to the procedure by which his sentence was determined

and explained, we may reverse the district court’s judgment only in the presence of

plain error.” United States v. Ruiz-Terrazas, 477 F.3d 1196, 1199 (10th Cir. 2007);

8 Appellate Case: 22-2088 Document: 010111012298 Date Filed: 03/08/2024 Page: 9

see also United States v. Wireman, 849 F.3d 956, 961–62 (10th Cir. 2017); United

States v. Garcia, 757 F. App’x 708, 711–12 (10th Cir. 2018).3

“A party seeking relief under the plain-error rubric bears the burden of

showing ‘(1) an error, (2) that is plain, which means clear or obvious under current

law, and (3) that affects substantial rights.’” United States v. Finnesy, 953 F.3d 675,

684 (10th Cir. 2020) (quoting United States v. McGehee, 672 F.3d 860, 876 (10th

Cir. 2012)). “If these factors are met, [this court] may exercise discretion to correct

the error if (4) it seriously affects the fairness, integrity, or public reputation of

judicial proceedings.” Id. (alteration in original) (quoting United States v. Cordery,

656 F.3d 1103, 1105 (10th Cir. 2011)).

III

Mr. Salayandia-Reyes raises two related, but distinct, arguments. First, he

argues that the district court was required to explain its reasons for rejecting his

request for a downward variance. Second, he argues that even if the district court did

not have such a duty, the district court failed to adequately explain the sentence it

imposed. For the reasons given below, both arguments are unavailing.4

3 We cite to unpublished cases only for their persuasive value and do not treat them as binding authority. See Ellis, 23 F.4th at 1238 n.6. 4 Mr. Salayandia-Reyes raises a third argument: that the statute making illegal reentry a federal crime, 8 U.S.C. § 1326, is unconstitutional because that statute was enacted “with a racially discriminatory intent . . . in violation of the Fifth Amendment’s guarantee of equal protection.” Aplt.’s Opening Br. at 24. Mr. Salayandia-Reyes concedes that he did not raise this argument to the district court and that he makes the argument for preservation purposes only because it cannot survive plain-error review. See id. at 24–25. In light of these concessions, we 9 Appellate Case: 22-2088 Document: 010111012298 Date Filed: 03/08/2024 Page: 10

Mr. Salayandia-Reyes first argues that because he raised non-frivolous

arguments in support of a downward variance, the district court procedurally erred

because it was required to explain why it rejected his request. Mr. Salayandia-Reyes

asserts that our prior precedent in United States v. Sanchez-Juarez, 446 F.3d 1109

(10th Cir. 2006), required such an explanation.

Mr. Salayandia-Reyes is mistaken. In a recently issued decision, United States

v. Nunez-Carranza, 83 F.4th 1213 (10th Cir. 2023), we opined on this precise issue.5

In that case, we addressed the defendant’s identical argument that, based on Sanchez-

Juarez, the district court “erred procedurally by not explaining adequately why the

court rejected his request for a downward variance and instead imposed a within-

guideline sentence.” Nunez-Carranza, 83 F.4th at 1218.

We rejected the defendant’s argument, noting that “we have clarified that

Sanchez-Juarez does not require a sentencing court to address every argument a

defendant asserts for a more lenient sentence.” Id. at 1221. In particular, we

explained that we have, in a number of decisions, delineated the proper scope of

decline to address the merits of this argument. See United States v. Nunez-Carranza, 83 F.4th 1213, 1218 n.3 (10th Cir. 2023). 5 In recognition of the similarity of the issues presented in Nunez- Carranza and this case, we cancelled oral argument and abated this case pending resolution of Nunez-Carranza. See Order, No. 22-2088, at *1–2 (10th Cir., filed July 31, 2023). We lifted the abatement after the issuance of the mandate in Nunez- Carranza, and we asked the parties to file supplemental briefs addressing the impact of Nunez-Carranza on this case. See Order, No. 22-2088, at *1 (10th Cir., filed Nov. 2, 2023). 10 Appellate Case: 22-2088 Document: 010111012298 Date Filed: 03/08/2024 Page: 11

Sanchez-Juarez. See id. at 1221–22 (citing Wireman, 849 F.3d at 958–59); United

States v. Algarate-Valencia, 550 F.3d 1238, 1244 (10th Cir. 2008); United States v.

Jarrillo-Luna, 478 F.3d 1226, 1229–30 (10th Cir. 2007), overruled on other grounds

by United States v. Lopez-Macias, 661 F.3d 485, 489 (10th Cir. 2011); accord United

States v. Martinez-Barragan, 545 F.3d 894, 903 (10th Cir. 2008). We opined that

Sanchez-Juarez “‘merely stands for the proposition that a sentencing judge

confronted with a nonfrivolous argument for leniency must somehow indicate that he

or she did not “rest on the guidelines alone, but considered whether the guideline

sentence actually conforms, in the circumstances, to the statutory [section 3553(a)]

factors.”’” Nunez-Carranza, 83 F.4th at 1221 (alteration in original) (quoting

Jarrillo-Luna, 478 F.3d at 1229–30).

Reading our precedents together, including Sanchez-Juarez, we set forth the

following test:

[W]e will uphold a sentencing court’s decision to reject a defendant’s non-frivolous request for a downward variance if we can determine from the record that the sentencing court 1) entertained the defendant’s argument for a downward variance; 2) considered the 18 U.S.C. § 3553(a) sentencing factors, which include the calculation of the advisory sentencing range under the guidelines; and 3) concluded that a within-guideline sentence is appropriate in light of the § 3553(a) factors.

Nunez-Carranza, 83 F.4th at 1222.

Applying that test, we concluded that “[a]lthough the sentencing court . . . did

not expressly state why it rejected Nunez-Carranza’s argument for a below-guideline

sentence, the court adequately complied with its obligations to explain the within-

11 Appellate Case: 22-2088 Document: 010111012298 Date Filed: 03/08/2024 Page: 12

guideline sentence it imposed.” Id. In particular, we noted that the district court

(1) entertained the defendant’s motion for a variance; (2) clearly treated the

Guidelines as advisory; and (3) did not rest solely on the Guidelines and instead

considered the § 3553(a) factors. See id. at 1222–23. Given that the district court

“met its obligation of adequately explaining why it imposed a sentence at the bottom

of the advisory guideline range and in the process inevitably rejecting Nunez-

Carranza’s request for a downward variance,” we concluded that “the district court

did not err by failing to explain adequately why it imposed a within-guideline

sentence instead of the below-guideline sentence Nunez-Carranza requested.” Id.

at 1223.

Our decision in Nunez-Carranza squarely forecloses Mr. Salayandia-Reyes’s

argument that Sanchez-Juarez required the district court to explain on the record why

it denied his request for a downward variance. Nunez-Carranza makes pellucid that

when a district court imposes a within-Guidelines sentence, it need not expressly

reject all non-frivolous arguments for a variance so long as it is clear that the district

court entertained the parties’ arguments, considered the § 3553(a) factors, and did not

view the Guidelines as binding.6 See id. at 1221–23. As explained in more detail

below, the district court discharged that duty here.

6 Nunez-Carranza does involve at least one distinguishing feature: in that case, the district court sentenced the defendant at the bottom of the Guidelines range, as the government had requested. See 83 F.4th at 1217–18. Here, in contrast, the district court sentenced Mr. Salayandia-Reyes at the top of the Guidelines range after the government originally requested a sentence at the bottom of that range. Mr. 12 Appellate Case: 22-2088 Document: 010111012298 Date Filed: 03/08/2024 Page: 13

Mr. Salayandia-Reyes recognizes the import of Nunez-Carranza, but

“maintains it was wrongly decided” because it conflicts with Sanchez-Juarez, and he

argues that we must follow Sanchez-Juarez as the earlier precedent. See Aplt.’s

Supp. Br. at 4. In support, he points to isolated language from Sanchez-Juarez that

he contends is in conflict with Nunez-Carranza. See id.

Mr. Salayandia-Reyes is correct that if there were an actual conflict between

Sanchez-Juarez and Nunez-Carranza, we would be obligated to follow the former.

See United States v. Suggs, 998 F.3d 1125, 1137 (10th Cir. 2021) (“In cases of

conflicting circuit precedent our court follows earlier, settled precedent over a

subsequent deviation therefrom.” (quoting United States v. Sabillon-Umana,

772 F.3d 1328, 1334 n.1 (10th Cir. 2014))). But there is no conflict here: Nunez-

Carranza only clarified the standard laid out in Sanchez-Juarez and developed by

subsequent cases. Indeed, we rejected a similar argument in Nunez-Carranza itself:

there, the defendant argued that we need not follow decisions issued after Sanchez-

Juarez because those decisions conflicted with Sanchez-Juarez, the earlier precedent.

See 83 F.4th at 1222 n.5. We rejected this argument, noting that “this is not a

situation where different Tenth Circuit panels decided the same question in different

ways”—“[i]nstead, the later cases . . . expressly recognized that Sanchez-Juarez was

the law of the circuit; applied it; and in doing so interpreted, explained and clarified

Sanchez-Juarez.” Id. The same holds true here, and it follows that we are bound by

Salayandia-Reyes does not argue that this circumstance makes the test set forth in Nunez-Carranza inapplicable, and we can think of no reason why it would. 13 Appellate Case: 22-2088 Document: 010111012298 Date Filed: 03/08/2024 Page: 14

Nunez-Carranza, which forecloses Mr. Salayandia-Reyes’s argument that Sanchez-

Juarez required the district court to explain why it rejected his arguments in favor of

a variance.

Mr. Salayandia-Reyes further argues that even if the district court was not

necessarily required to explain the reasons for rejecting his request for a variance

under Sanchez-Juarez, the district court erred because it failed to explain the sentence

that it actually imposed. In other words, he contends that the district court’s

explanation for the sentence would not allow this Court to “‘be able to discern from

the record that “the sentencing judge [did] not rest on the guidelines alone, but . . .

consider[ed] whether the guidelines sentence actually conforms, in the circumstances,

to the statutory factors.”’” Aplt.’s Reply Br. at 6 (omission and alterations in

original) (quoting Sanchez-Juarez, 446 F.3d at 1117). He further argues that our

opinion in Nunez-Carranza actually supports his argument because many of the

circumstances in Nunez-Carranza that we relied upon for our conclusion that the

district court adequately explained its sentence are not present here.

But Mr. Salayandia-Reyes’s challenge is unavailing under our plain-error

standard. The district court’s explanation for the sentence imposed was adequate, so

there was no procedural error and Mr. Salayandia-Reyes has not carried his burden

under the first prong of the plain-error test. This failing sounds the death knell for

his appeal. See, e.g., United States v. Rosales-Miranda, 755 F.3d 1253, 1258 (10th

Cir. 2014) (“We will not reverse a conviction for plain error unless all four prongs of

14 Appellate Case: 22-2088 Document: 010111012298 Date Filed: 03/08/2024 Page: 15

the plain-error test are satisfied.” (quoting United States v. Caraway, 534 F.3d 1290,

1299 (10th Cir. 2008))).

“In order to facilitate appellate reasonableness review and to ensure that the

§ 3553(a) factors have informed a district court’s exercise of discretion, we require

district courts to give reasons for their sentences.” United States v. Chavez-

Calderon, 494 F.3d 1266, 1268 (10th Cir. 2007). “Where . . . a district court imposes

a sentence falling within the range suggested by the Guidelines, Section 3553(c)

requires the court to provide only a general statement of ‘the reasons for its

imposition of the particular sentence.’” Ruiz-Terrazas, 477 F.3d at 1199 (quoting

18 U.S.C. § 3553(c)); see also Chavez-Calderon, 494 F.3d at 1268–69.

As we explained in Nunez-Carranza, when a district court rejects a non-

frivolous request for a downward variance, we will uphold the district court’s

decision if it is clear that the district court “1) entertained the defendant’s argument

for a downward variance; 2) considered the 18 U.S.C. § 3553(a) sentencing factors,

which include the calculation of the advisory sentencing range under the guidelines;

and 3) concluded that a within-guideline sentence is appropriate in light of the

§ 3553(a) factors.” 83 F.4th at 1222. Thus, the district court must “somehow

indicate[] that [it] did not rest on the guidelines alone, but considered whether the

guideline sentence actually conforms, in the circumstances, to the [18 U.S.C.

§ 3553(a)] statutory factors.” Wireman, 849 F.3d at 963 (second and third alterations

in original) (quoting Martinez-Barragan, 545 F.3d at 903). We do not, however,

require the district court to “recite any magic words to show us that it fulfilled its

15 Appellate Case: 22-2088 Document: 010111012298 Date Filed: 03/08/2024 Page: 16

responsibility to be mindful of the factors in [§ 3553(a).]” Chavez-Calderon,

494 F.3d at 1268 (alteration in original) (quoting Jarrillo-Luna, 478 F.3d at 1229).

For several reasons, the district court here adequately explained its rationale

for imposing the within-Guidelines sentence and effectively rejecting Mr.

Salayandia-Reyes’s request for a downward variance. First, it is evident from the

record that the district court “entertained” Mr. Salayandia-Reyes’s request for a

downward variance, even if it did not explicitly make such an announcement. The

district court stated that it had “reviewed all of the materials” and was considering

giving a high-end sentence, but that it would hear from the parties. R., Vol. II,

at 2:24–3:3. After hearing Mr. Salayandia-Reyes’s argument in support of a variant

sentence, the district court expressed concern about his history of violent convictions,

which was one of the primary arguments that the government raised against a variant

sentence. This provides sufficient evidence that the district court “entertained”

Mr. Salayandia-Reyes’s motion. Nunez-Carranza, 83 F.4th at 1222.

Second, it is evident from the record that the district court considered the

§ 3553(a) factors and did not rest solely on the Guidelines. As in Nunez-Carranza,

the district court expressly stated that it considered the § 3553(a) factors in arriving

at the appropriate sentence. See 83 F.4th at 1222; accord Chavez-Calderon, 494 F.3d

at 1269 (noting that the district court’s express invocation of the § 3553(a) factors

weighed in favor of concluding “that the sentencing decision was tethered to the

§ 3553(a) factors”); Ruiz-Terrazas, 446 F.3d at 1203 (“The record before us reveals

that the district court entertained Mr. Ruiz-Terrazas’s Section 3553(a) arguments at

16 Appellate Case: 22-2088 Document: 010111012298 Date Filed: 03/08/2024 Page: 17

length; indicated on the record that it had considered the Section 3553(a) factors; and

proceeded to explain its reliance on the range suggested by the sentencing

Guidelines. In our view, no more is required by statute or our precedents.”);

Algarate-Valencia, 550 F.3d at 1244 (“The judge also stated that he had reviewed the

§ 3553(a) factors.”).

Additionally, the district court considered and incorporated the PSR, which

contained information relevant to the § 3553(a) factors and noted that the U.S.

Probation Office had not identified any information that “would warrant a variance

from the advisory guideline range.” Supp. R., Vol. II, at 16;7 see Nunez-Carranza,

83 F.4th at 1222 (finding it relevant that the district court had considered the PSR,

which analyzed the § 3553(a) factors and recommended a within-Guidelines

sentence); United States v. Traxler, 477 F.3d 1243, 1250 (10th Cir. 2007) (same); see

also Garcia, 757 F. App’x at 713 (same).

7 Admittedly, the PSR did not expressly discuss the § 3553(a) factors even though it did include information relevant to those factors and noted that the U.S. Probation Office did not see any circumstances warranting a variance. Thus, on its own, the district court’s incorporation of the PSR arguably would not have been enough to indicate that the district court based the sentence on the § 3553(a) factors. See Sanchez-Juarez, 446 F.3d at 1115 & n.6 (concluding that the district court did not sufficiently indicate that it was basing its sentence on the § 3553(a) factors because, although it referenced the PSR, the PSR “did not refer to or discuss the § 3553(a) factors and did not make a sentencing recommendation based on its consideration of those factors”). But the PSR does not exist here in isolation—it exists alongside the district court’s colloquy with Mr. Salayandia-Reyes and the court’s express invocation of the § 3553(a) factors. These circumstances were not present in Sanchez-Juarez. See id. 17 Appellate Case: 22-2088 Document: 010111012298 Date Filed: 03/08/2024 Page: 18

Third, the district court’s colloquy with Mr. Salayandia-Reyes—in which it

expressed concern about his domestic violence convictions—implicated several of

the § 3553(a) factors. In particular, the colloquy implicated the defendant’s history

and characteristics as well as the need to protect the public from the defendant’s

further crimes. See Nunez-Carranza, 83 F.4th at 1223; Martinez-Barragan, 545 F.3d

at 903; see also Wireman, 849 F.3d at 966 (concluding that the district court’s

“concerns” about the defendant’s prior criminal history and the nature of the offense,

as well as its invocation of the Guidelines, were sufficient to explain its denial of the

defendant’s request for a more lenient sentence). Thus, “[a]lthough the sentencing

court did not explicitly identify the specific subsections of § 3553(a) that it

considered,” it is sufficient that “the facts and circumstances the district court

considered were plainly relevant to many of the § 3553(a) factors.” Nunez-Carranza,

83 F.4th at 1223; see also Martinez-Barragan, 545 F.3d at 903.

Fourth, the circumstances here are quite similar to those in Nunez-Carranza

itself—where we concluded that the district court adequately explained its reasoning.

Compare R., Vol. II, at 2:24–9:19, with Nunez-Carranza, 83 F.4th at 1216–18, 1222–

23. Mr. Salayandia-Reyes himself noted as much in his opening brief, contending

that the district court in Nunez-Carranza “plainly failed to explain the sentence in a

materially identical manner” as this case. Aplt.’s Opening Br. at vi.

For those reasons, we conclude that the district court adequately explained its

reasons for giving a sentence at the top of the Guidelines and, in the process,

18 Appellate Case: 22-2088 Document: 010111012298 Date Filed: 03/08/2024 Page: 19

rejecting Mr. Salayandia-Reyes’s request for a variance. See Nunez-Carranza,

83 F.4th at 1223.

Mr. Salayandia-Reyes’s arguments to the contrary are unpersuasive.

According to him, Nunez-Carranza actually supports his argument because there

were more indicia in that case that the district court knew that it was not bound by the

Guidelines. Mr. Salayandia-Reyes is correct that, unlike here, the district court in

Nunez-Carranza was originally inclined to give a below-Guidelines sentence—a

circumstance that clearly indicated an awareness that the Guidelines were advisory

only. See 83 F.4th at 1222. But ultimately, the sentencing transcript here evinces the

district court’s concern with the § 3553(a) factors, even if all of the circumstances

present in Nunez-Carranza are not necessarily present here.

In sum, viewing the record as a whole, we cannot say that the district court

committed a procedural error by failing to explain the sentence imposed. It

necessarily follows that Mr. Salayandia-Reyes has not met his burden to show that

the district court erred—the first prong of our plain-error test. To secure reversal,

however, Mr. Salayandia-Reyes must satisfy each prong of the plain error test. See,

e.g., Rosales-Miranda, 755 F.3d at 1258. Accordingly, he cannot prevail here.

19 Appellate Case: 22-2088 Document: 010111012298 Date Filed: 03/08/2024 Page: 20

IV

For the foregoing reasons, we affirm the judgment of the district court.

Entered for the Court

Jerome A. Holmes Chief Judge