United States v. Valdez

128 F.4th 1314

• Court: Court of Appeals for the Tenth Circuit
• Decided: February 24, 2025
• Docket: 24-2025
• Status: Published

Opinion

Appellate Case: 24-2025 Document: 49-1 Date Filed: 02/24/2025 Page: 1 FILED United States Court of Appeals PUBLISH Tenth Circuit

UNITED STATES COURT OF APPEALS February 24, 2025 Christopher M. Wolpert FOR THE TENTH CIRCUIT Clerk of Court _________________________________

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v. No. 24-2025

TED JOSEPH VALDEZ,

Defendant - Appellant. _________________________________

Appeal from the United States District Court for the District of New Mexico (D.C. No. 2:23-CR-01488-MIS-1) _________________________________

Kurt J. Mayer, Assistant Federal Public Defender, Albuquerque, New Mexico for Defendant-Appellant Ted Joseph Valdez.

Tiffany L. Walters, Assistant United States Attorney, Albuquerque, New Mexico (Alexander M.M. Uballez, United States Attorney, with her on the brief) for Plaintiff- Appellee United States of America. _________________________________

Before MATHESON, BACHARACH, and CARSON, Circuit Judges. _________________________________

CARSON, Circuit Judge. _________________________________

Although the United States Sentencing Guidelines give district courts an

advisory imprisonment range when sentencing a defendant, it is exactly that:

advisory. We reiterate our longstanding holding that the Guideline-imprisonment Appellate Case: 24-2025 Document: 49-1 Date Filed: 02/24/2025 Page: 2

range is not mandatory. If the district court determines that a within-guidelines

sentence will not accomplish the sentencing’s goals, it may impose a substantively

reasonable sentence outside the Guideline-imprisonment range so long as it offers

significant explanation.

Here, the district court sentenced Defendant Ted Joseph Valdez to twenty-four

months’ imprisonment when his Guideline-imprisonment range was four to ten

months’ imprisonment. The district court thoroughly explained the 18 U.S.C.

§ 3553(a) factors and gave Defendant a sentence well within the bounds of

permissible choice. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.

I.

Defendant worked in South Dakota on solar windmills. He was in a serious

car accident and claims he sustained a traumatic brain injury. After the accident, he

moved to Mexico and worked at a food stand for less income. He accepted an offer

to drive two aliens from southern New Mexico to another part of the southwest. He

transported them in his own vehicle.

A border patrol agent followed Defendant’s truck for twenty-seven miles.

Defendant crossed road lines and varied his speed from forty-five to seventy miles

per hour. Defendant immediately pulled over when signaled. Defendant confessed at

the border patrol station that he’d been asked to pick up the two immigrants, whom

he knew to be illegally in the United States, and take them further into the country for

$1,000.

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Defendant pleaded guilty to an information. He admitted at the guilty-plea

hearing that he conspired with others to transport two aliens inside the United States

in violation of 8 U.S.C. § 1324(a)(1)(A)(ii). Defendant’s base offense level for alien

transporting was 12. U.S.S.G. § 2L1.1. In drafting Defendant’s Presentence Report,

United States Probation and Pretrial Services (“Probation”) applied no aggravating

offense characteristics. Probation subtracted two levels because Defendant had a

minor role in the conspiracy. It subtracted another two levels for acceptance of

responsibility. This resulted in a total offense level of 8 and a criminal history of II.

The Guidelines calculations recommended an imprisonment range of four to ten

months, and placement in Zone B.

Defendant requested a time-served sentence of six months. The government

requested a high-end sentence.

The district court sentenced Defendant to twenty-four months’ imprisonment

and thoroughly explained the § 3553(a) factors. It considered all of Defendant’s

arguments and that the government did not offer him a Fasttrack plea. The district

court did not consider the underlying facts of any of the prior arrests. It considered

Defendant’s work history, health issues, and family issues. And then, the district

court considered the following § 3553(a) factors: the nature and circumstances of the

offense and the history and characteristics of the defendant. The district court said

that Defendant conspired to transport undocumented people within the United States,

going seventy miles per hour in a fifty-five-mile per hour zone. Defendant had

multiple prior convictions, some of which were recent. The district court looked at

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his false-reporting case, spousal-assault case, and two DWIs. Defendant’s

explanations for his prior criminal history troubled the district court, including that

his wife didn’t want to testify against him in the assault case and his explanations for

his DWIs. The district court considered that at forty-four years of age, Defendant

continued committing notable crimes, most recently at age forty-two. The district

court considered the sentence’s need to reflect the seriousness of the offense,

promote respect for the law, and provide just punishment. The district court also

considered the need to afford adequate deterrence to criminal conduct. The district

court noted that other courts’ prior lenient sentences did not deter Defendant from

engaging in criminal activity. The district court considered the need to protect the

public from Defendant’s further crimes. The district court also considered the need

to provide Defendant with educational/vocation training, medical care, and other

correctional treatment.

The district court acknowledged the presumptively reasonable Guideline-

imprisonment range of four to ten months but it explained that the specific facts of

the case overcame the presumption. The district court found that no sentencing

disparity exists in this case. And even if a disparity existed, Defendant’s continuing

criminal activity warranted his sentence.

Defendant objected. The district court inquired as to which part Defendant

objected:

Counsel: Regarding the explanation of the deviation from the guidelines. The Court: Of the what? Counsel: The deviation from the guidelines.

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The Court: The upward variance? Counsel: Yes, Your Honor The Court: You want more of an explanation than going through every single 3553(a) factor?

The district court provided further support for its sentence. The district court said

that the particular facts of the case warranted any disparity: a forty-four-year-old

defendant who continues to commit crimes involving vehicles with two recent DWIs

about which he had troubled explanations and another crime with a vehicle in which he

exceeded the speed limit. Counsel then asked whether the upward variance was a result

of the DWIs. The district court said, “no.” The sentence resulted from consideration of

all the 3553(a) factors.

On appeal, Defendant contends that the district court did not explain its

sentence and how it complied with the statutory sentencing purposes in 18 U.S.C.

§ 3553(a). Defendant contends his sentence is substantively unreasonable because

the district court accepted that his transporting offense was unremarkable and no

enhancements applied. Thus, the Guideline-imprisonment range accurately

accounted for the offense conduct. Defendant believes his criminal history is not

uniquely problematic in relation to the transporting offense, so the variance was

unreasoned and legally unsound. Finally, Defendant contends the district court failed

to give any plausible ground for the “unwarranted” disparity its sentence created.

II.

Defendant challenges his sentence’s substantive reasonableness—an issue we

review for abuse of discretion. United States v. Pena, 963 F.3d 1016, 1024 (10th Cir.

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2020) (citing Gall v. United States, 552 U.S. 38, 51 (2007)). We thus “give

‘substantial deference’ to the district court and will only overturn a sentence that is

‘arbitrary, capricious, whimsical, or manifestly unreasonable.’” Id. (quoting United

States v. Sayad, 589 F.3d 1110, 1116 (10th Cir. 2009)). This does not mean that we

simply rubber stamp the district court’s decision. Id. (citing United States v. Pinson,

542 F.3d 822, 836–37 (10th Cir. 2008)). Rather we “determine if the district court’s

proffered rationale, on aggregate, justifies the magnitude of the sentence.” Id. (citing

Pinson, 542 F.3d at 837).

“Substantive reasonableness involves whether the length of the sentence is

reasonable given all the circumstances of the case in light of the factors set forth in

18 U.S.C. § 3553(a).” Id. (quoting United States v. Conlan, 500 F.3d 1167, 1169

(10th Cir. 2007)). If the district court decides that an outside-Guidelines sentence is

warranted, the court “must consider the extent of the deviation and ensure that the

justification is sufficiently compelling to support the degree of the variance.” Id. at

1028–29 (quoting Gall, 552 U.S. at 50). On review, we “give due deference to the

district court’s decision that the 3553(a) factors, on a whole, justify the extent of the

variance.” Id. at 1029 (quoting Gall, 552 U.S. at 51).

For many years, our precedents have advised that the Guidelines are not

mandatory. E.g., United States v. Martinez-Barragan, 545 F.3d 894, 901 (10th Cir. 2008)

(acknowledging that because the Guidelines are only advisory, no mandatory

requirements exist as to when a district court may sentence a defendant to an “above- or

below-Guidelines sentence”); United States v. Booker, 543 U.S. 220, 245 (2005)

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(concluding that the Guidelines are advisory and permitting courts to tailor sentences in

light of other statutory concerns). The Guidelines are advisory because certain

defendants deserve more or less time in prison based on their cases’ individual

circumstances. The district court here was justifiably concerned about several § 3553(a)

factors and this individual defendant. It believed Defendant’s past sentences were lenient

and that those sentences failed to deter his criminal conduct. The district court expressed

concern for public safety. Defendant had two DWIs and a record of failing to follow

traffic laws. Defendant did not accept responsibility but made excuses for his prior

convictions—as demonstrated by his exchange with the district court at the sentencing

hearing.

Sentencing is not a one-size-fits-all for every crime. The district court’s

sentencing decision in this case was not some random, unthoughtful, unexplained

sentence. The district court was thorough and considered the statutory-sentencing

objectives. The district court’s sentence was well-reasoned and within the bounds of

permissible choice.

Defendant argues that the district court’s variance unreasonably lacked grounding

in the Guidelines’ departure requirements. That argument lacks merit. The Guidelines

set forth certain departures. A district court bases variances, unlike departures, entirely

on the sentencing court’s discretionary authority so long as the court considers the

§ 3553(a) factors and justifies its sentence based on them. United States v. Barnes, 890

F.3d 910, 920 n.1 (10th Cir. 2018).

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Additionally, Defendant posits the district court erred by considering facts for

which he contends the Guidelines already accounted such as his criminal history. But

this argument lacks merit as well, because district courts may consider particular facts in

fashioning sentences under § 3553(a), even when the advisory-Guidelines range already

accounted for them. Id. at 921.

The Sentencing Commission removed “recency” points from a criminal history

score. But that doesn’t mean a district court cannot consider the timing of a defendant’s

convictions. Indeed, we affirm today what we’ve said in an unpublished opinion after the

Sentencing Commission’s change: the Guidelines do not necessarily “take into account

the trends of a defendant’s criminal conduct, either in terms of the recency or seriousness

of that criminal conduct.” United States v. Garrett, 2024 WL 2860071, at *2 (10th Cir.

June 6, 2024) (unpublished). Thus, a court may vary upward based on recent and serious

criminal conduct. Id.

Defendant also points to Judiciary Sentencing Information (JSIN) data for those

sentenced under the same Guideline at the same offense level and criminal history

category within the last five fiscal years to point out an alleged sentence disparity. We’ve

held that “bare national statistics do not shed light on the extent to which the sentences

that the statistics pertain to involve defendants that are similarly situated to [Defendant].”

United States v. Garcia, 946 F.3d 1191, 1215 (10th Cir. 2020). Here, the JSIN statistics

Defendant cites could not alone resolve the district court’s concerns. The district court

carefully considered the Guidelines range and expressly considered the need to avoid

unwarranted disparities.

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In sum, the district court carefully addressed each of the 3553(a) factors,

provided compelling reasons for its upward variance, and thereby maintained the

connection between Defendant’s conduct and the sentence imposed. Pena, 963 F.3d

at 1030. Given the district court’s detailed explanation of Defendant’s sentence, he

cannot meet his burden of showing the district court imposed an arbitrary, whimsical,

or substantively unreasonable sentence.

AFFIRMED.