                                                                         F IL E D
                                                              United States Court of Appeals
                                                                      Tenth Circuit

                      U N IT E D ST A T E S C O U R T O F A PP E A L S April 30, 2008
                                                                 Elisabeth A. Shumaker
                                    T E N T H C IR C U IT            Clerk of Court


 U N ITED STA TES O F A M ER ICA ,

          Plaintiff-Appellee ,
 v.
                                                      Nos. 06-2099 and 06-2216
                                                      (D.C. No. CR-05-377-BB )
 CA RLA ERICA GO NZA LES
                                                              ( D. N.M .)
 SA N CH EZ and C AR LO S A D A N
 A LV A RA D O ,

          Defendants-Appellants .



O R D E R O N R E M A N D FR O M T H E U N IT ED ST A T ES SU PR E M E C O U R T *


Before B R ISC O E , Circuit Judge, M cW ILL IA M S , Senior Circuit Judge, and
G O R SU C H , Circuit Judge.


      This case is before us on remand from the United States Supreme Court.

Carla Erica Gonzales Sanchez and Carlos A dan Alvarado were convicted in

federal district court for possession and distribution of methamphetamine. On

appeal, we affirmed the convictions and rejected M s. Gonzales’s challenge to her

sentence. See United States v. Gonzales, 252 F. App’x 900 (10th Cir. 2007). M s.

Gonzales pursued certiorari from the Supreme Court on her sentencing appeal,




      *
         This order is not binding precedent except under the doctrines of law of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.
and on M arch 24, 2008, the Court granted her petition and remanded the matter

for further consideration in light of its intervening decision in Gall v. United

States, 128 S. Ct. 586 (2007).

      Because our reconsideration is limited to M s. Gonzales’s sentencing appeal,

our disposition and analysis affirming M s. Gonzales’s and M r. Alvarado’s

convictions stand unaffected, and we therefore reinstate all of our prior Order and

Judgment in this case with the exception of Part IV.2. 1

      In Part IV.2, we addressed M s. Gonzales’s argument that certain statem ents

by the district court indicated that, when sentencing M s. Gonzales, the court

considered itself unduly bound by the Guidelines, and, in particular, its policy

judgments about the appropriate length of sentences for certain drug offenses.

See Gonzales, 252 F. App’x at 907. In rejecting her argument, we explained that

our disposition was dictated by our precedents, citing by way of example United

States v. Terrell, 445 F.3d 1261, 1263-64 (10th Cir. 2006), and United States v.

Paredes, 461 F.3d 1190, 1194-95 (10th Cir. 2006). See Gonzales, 252 F. App’x

at 908 (“W e see no principled way to reach a different conclusion in this case.”).

In Terrell, the district court announced that it gave “heavy weight” to the




      1
         Although Part IV.1 of our Order and Judgment also addressed an issue
relating to M s. Gonzales’s sentence – namely, whether she was entitled to a
“minor participant” reduction under the Guidelines – our holding in that Part was
not affected by the Supreme Court’s decision in Gall.

                                         -2-
Guidelines, and we affirmed, explaining that “giv[ing] a high degree of weight to

the G uidelines,” w hile perhaps not required, was not error. 445 F.3d at 1265. In

Paredes, the district court stated that it considered itself “stuck with the

[G ]uidelines,” and we again found no error. 461 F.3d at 1194-95. These

decisions, in turn, owed much to our then-existing rule that sentencing courts

could not vary from the Guidelines based on a disagreement with the policy

preferences expressed in them. See, e.g., United States v. M cCullough, 457 F.3d

1150, 1171-72 (10th Cir. 2006).

      Since we decided M s. Gonzales’s case, however, two decisions from the

Supreme Court have dramatically changed the landscape of sentencing law. In

Gall, the C ourt made clear that, while the Guidelines are important and must be

considered as a starting point for sentencing decisions, they should not be treated

by district courts as presumptively reasonable, let alone entitled to controlling

weight, at the expense of the court’s own determination of an appropriate

sentence in light of all Section 3553(a) factors. Gall, 128 S. Ct. at 596-97. In

Kimbrough v. United States, 128 S. Ct. 558, 570 (2007), the Court stressed that,

“while [Section 3553(a)] still requires a court to give respectful consideration to

the G uidelines,” district courts are not categorically bound by the G uidelines’

policy choices and are instead “permit[ted] . . . to tailor the sentence in light of

other statutory concerns as well.” As we recently observed, Gall and Kimbrough



                                          -3-
did a very great deal to alter our circuit’s preexisting sentencing precedent. See

United States v. Sm art, 518 F.3d 800, 807 (10th Cir. 2008) (“It is clear that Gall

and Kimbrough cannot be reconciled with [various] features of our circuit’s

standard of review” case law, proceeding to list five such examples.).

      In light of the Court’s new guidance in Gall and Kimbrough, and following

the example of several other recent cases both within and without this circuit

faced with similar situations, 2 we believe the most appropriate course in this case

is to vacate M s. Gonzales’s sentence and remand the m atter to the district court

for resentencing. If, on remand, M s. Gonzales again requests a variance and the

district court believes such a variance ought to be denied, it may not do so on

grounds now made impermissible by Gall and Kimbrough – for example, because

of a belief that it lacks authority to vary from the Guidelines, that it has to treat

the Guidelines as presumptively reasonable, or that it is categorically forbidden

from disagreeing with the policy judgments the Guidelines reflect. The court is to

conduct resentencing in light of, and consistent w ith, Gall and Kimbrough,

“consider[ing] all of the § 3553(a) factors” and making “an individualized




      2
         See, e.g., United States v. Trotter, 518 F.3d 773 (10th Cir. 2008); United
States v. Trotter, 2008 W L 565431 (10th Cir. 2008); United States v. Santillanes,
2008 W L 1790381 (10th Cir. 2008); United States v. Stratton, --- F.3d ----, 2008
W L 656514 (11th Cir. 2008); United States v. Peterson, 2008 W L 647032 (11th
Cir. 2008); United States v. Pankey, 2008 W L 723990 (4th Cir. 2008).

                                          -4-
assessment based on the facts presented.” Gall, 128 S. Ct. at 596, 597. 3

      The mandate which issued originally from this court on November 19, 2007

in number 06-2099 is recalled. A new mandate shall reissue forthwith in that

matter.




                                       ENTERED FOR THE COURT




                                       Neil M . Gorsuch
                                       Circuit Judge




      3
        In light of our decision to vacate and remand M s. Gonzales’s sentence,
her motion to file new briefing with this court is denied as moot.

                                         -5-
                                                                              F IL E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit

                     U N IT E D ST A T E S C O U R T O F A PP E A L SOctober 26, 2007
                                                                      Elisabeth A. Shumaker
                                     T E N T H C IR C U IT                Clerk of Court



 U N ITED STA TES O F A M ER ICA,

          Plaintiff-Appellee,

 v.                                                     Nos. 06-2099 and 06-2216
                                                        (D.C. No. CR 05-377 BB)
 CA RLA ERICA GO NZA LES                                        (D . N.M .)
 SA N CH EZ and C AR LO S A D AN
 A LV A RA D O ,

          Defendants-Appellants.



                                O R D E R A N D JU D G M E N T *


Before B R ISC O E , Circuit Judge, M cW IL L IA M S, Senior Circuit Judge, and
G O R SU C H , Circuit Judge.


      Carla Erica Gonzales Sanchez and Carlos A dan Alvarado were arrested in

their hotel room after narcotics agents, believing they had M s. Gonzales’s consent

to enter, found in plain view in the room a variety of drug paraphernalia. After

conviction on federal charges, M s. Gonzales and M r. Alvarado challenge the

district court’s denial of their motion to suppress, contending that they did not




      *
         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.
give consent to enter the hotel room. They also contest the district court’s denial

of a motion for mistrial after a government witness commented on their

invocation of the right to counsel. We reject the former claim because the facts

reasonably found by the district court indicate that M s. Gonzales invited the

officers to enter. W e reject the latter claim because the district court immediately

offered a curative instruction sufficient to address any prejudice. Finally, M s.

Gonzales challenges her sentence, arguing that she should have received a two-

level Guidelines reduction for being only a minor participant in the drug crimes,

and also that the district court erroneously believed itself bound by the

Guidelines. W e hold that the district court properly applied the law and imposed

a reasonable sentence.

                                           I

                                           A

      Taking the facts in the light most favorable to the government as the

prevailing party before the district court, as we are obliged to do, they reveal that,

at around 7:00 p.m. one evening in January 2005, Agent Brice Current, a member

of the Region II Narcotics Task Force in the San Juan County Sheriff’s Office,

received a telephone call from an employee at the Best W estern Hotel in

Bloomfield, New M exico, tipping him off to suspected drug-related activity in the

hotel. Agent Current, along with Agent Jacob Schmidt, promptly drove to the



                                          -2-
hotel. The manager identified Room 112, registered to M s. Gonzales, as the

source of his suspicions. He based his concern on the fact that M s. Gonzales was

a local resident (her identification listed a residential address across the street

from the hotel); she and M r. Alvarado were in the room for long periods of time

and did not pick up the phone when calls were transferred to them; and various

visitors came to the room throughout the day, often using the side entrance of the

hotel rather than the lobby, despite the fact that the lobby entrance was closest to

Room 112.

      After meeting with the hotel manager and at approximately 9:00 p.m., the

agents approached Room 112. Both wore plain clothes with their firearms

concealed. After knocking on the door, the agents saw the peep hole darken and

heard movement inside, as if drawers w ere being opened and closed. The agents

knocked again with the same result. After knocking a third time, a female voice

asked in English, “W ho is it?” to w hich Agent Current replied “Brice” (his first

name). Dist. Ct. Order at 2. M s. Gonzales then opened the door partially. Agent

Current displayed his badge and explained that he w as w ith the R egion II

Narcotics Task Force, and he asked if he and Agent Schmidt could come in the

room to talk. According to Agent Current’s testimony, M s. Gonzales responded

by opening the door the rest of the way, stepping back, nodding her head

affirmatively, and motioning the agents in with her hand. Id. at 3.



                                          -3-
      The agents entered the room, where they encountered both M s. Gonzales

and M r. Alvarado, apparently M s. Gonzales’s boyfriend at the time. They

explained to the pair that there had been complaints about drugs being sold from

the hotel room, to which M s. Gonzales responded simply “no drugs.” Id. W hile

in the room, however, the agents saw in plain view on the dresser a bag of what

appeared to be methamphetamine (later determined to be methyl sulfonyl methane

(“M SM ”) – a common cutting agent for preparing methamphetamine), an

electronic scale on a desk, and off-white powder on the toilet seat in the adjacent

bathroom. The agents called in officers w ho had been on standby near the hotel,

who assisted in arresting the defendants.

      After the room was secured, a search warrant was obtained and executed.

During the search, agents found on the windowsill six bags of methamphetamine

(each bag containing slightly less than one ounce), additional amounts of M SM in

the toilet, various scales and empty bags, and a pay/ow e ledger inside M s.

Gonzales’s purse. They also searched M r. Alvarado’s car, parked in the hotel lot,

and found another container of M SM .

                                            B

      M r. Alvarado and M s. Gonzales were charged with one count of possession

with intent to distribute 50 grams or more of a mixture containing

methamphetamine, see 21 U.S.C. § 841(a)(1) & (b)(1)(B), and one count of



                                         -4-
conspiracy to possess with intent to distribute 50 grams or more of a mixture

containing methamphetamine, see 21 U.S.C. § 846. A superseding indictment

increased the penalty provision for each charge based on the purity of the seized

drugs, pursuant to 21 U.S.C. § 841(b)(1)(A).

      Both defendants pled not guilty and moved to suppress the evidence seized,

contending that the agents’ entry into their hotel room was nonconsensual and

thus unreasonable under the Fourth Amendment. In a written order, the district

court denied the motion, finding that M s. Gonzales had consented to the agents’

entry. See Dist. Ct. Order at 5-12.

      W hile testifying during the trial that followed, Agent Current was asked by

M r. Alvarado’s counsel whether police obtained any fingernail scrapings from

defendants to determine the presence of methamphetamine on their persons.

Agent Current replied, “No sir. I believe they had requested to speak to an

attorney during the interview process.” See Trial Tr. at 142. M r. Alvarado and

M s. Gonzales immediately moved for a mistrial, arguing that the agent

impermissibly commented on their invocation of the right to counsel and the right

to remain silent.

      In response, the district court found that the comment by Agent Current was

an inadvertent mistake and a result of the agent trying to recount chronologically

what had happened. The court did, however, instruct the jury that M r. Alvarado



                                        -5-
and M s. Gonzales were entitled to an attorney and that the jury should not draw

any conclusion or inference from their invocation of that right. Defense counsel

urged that this curative instruction was insufficient and renewed their motion for

mistrial; the district court denied the request and the trial continued. After three

days of proceedings, the jury found M r. Alvarado guilty on both counts, and

found M s. Gonzales guilty of possession but not conspiracy. The district court

sentenced M r. Alvarado to 262 months imprisonment and M s. Gonzales to 151

months.

      Both defendants now appeal the district court’s denial of the motion to

suppress and the district court’s refusal to grant a mistrial. Additionally, M s.

Gonzales appeals her sentence. W e address each contention in turn.

                                          II

      M s. Gonzales and M r. Alvarado do not dispute that the agents saw drug

paraphernalia in plain view in the hotel room, but they do argue that the agents’

entry was unlaw ful. The reasonableness of the agents’ actions under the Fourth

A mendm ent is a legal question and thus one we review de novo. In cases

challenging a warrantless entry leading to an arrest, the burden is on the

government to (1) “present clear and positive testimony that consent was

unequivocal and specific and freely and intelligently given”; and (2) “show that

the police did not coerce the defendant into granting [her] consent.” United



                                         -6-
States v. Pena, 143 F.3d 1363, 1366 (10th Cir. 1998) (internal quotation marks

omitted). W hile approaching these legal tests de novo, we must take the facts in

the light most favorable to the prevailing party, here the government, accepting

the district court’s factual findings unless clearly erroneous. See United States v.

Cheromiah, 455 F.3d 1216, 1220 (10th Cir. 2006). And, indeed, the primary

challenge in this case concerns those factual findings.

      1.   According to the district court, after Agent Current asked M s.

Gonzales if he and Agent Schmidt could enter the room to talk, M s. Gonzales

responded by opening the door more fully, standing back, nodding her head, and

gesturing the agents in with a sweep of her hand. See Dist. Ct. Order at 8.

Although M s. Gonzales never vocalized her consent, the district court found that

she expressed it unequivocally through her actions in response to Agent Current’s

question. See United States v. Gordon, 173 F.3d 761, 766 (10th Cir. 1999)

(“N on-verbal conduct, considered with other factors, can constitute voluntary

consent to search.”). M oreover, the district court found that M s. Gonzales

understands English well enough to have understood Agent Current’s request to

enter the room and to have given free and voluntary consent in response to that

request. See Dist. Ct. Order at 9.

      M s. Gonzales and M r. A lvarado dispute most of these and other findings.

For example, according to M s. Gonzales, she never answered “Who is it?” when



                                         -7-
the agents knocked on the door. M s. Gonzales likewise claims that she

understands little English and that she did not understand anything Agent Current

said to her at the door. Finally, she contends that she only stepped behind the

door and opened it wider to prevent the agents from seeing her in her pajamas,

and in no way gestured to invite the agents to enter the room. At bottom then, the

dispute before us boils dow n to the simple question whether to believe appellants’

account of events or the agents’: W ho is lying? W ho is telling the truth?

Resolving such credibility disputes is treacherous in the best of circumstances.

The task is made all the harder at the remove at which we work, without the

benefit of being able to watch M s. Gonzales and Agent Current testify in person.

      This, of course, is precisely why our standards of review dictate such

substantial deference to the trial judge in this arena. And, indeed, on the record

before us, we cannot say the district court’s credibility and factual determinations

are clearly erroneous. As the district court noted, M s. Gonzales’s testimony

contains various inconsistencies and implausibilities that rendered her account

less plausible than Agent Current’s. See Dist. Ct. Order at 7-8. W hile testifying

that she was in the process of moving from one home to another, she could not

remember the address of the home to which she was moving, or even the street on

which it was located. She attested that the only visitors to her room were M r.

Alvarado, her son, and her siblings – yet, the hotel manager registered the names



                                         -8-
of several others w ho visited the room. Though professing to be unable to

understand the agents speaking English at the door, M s. Gonzales admitted she

understood Agent Current to be asking about “drugs” after entering the room and

that she said the words “no drugs” in response. She also used a number of other

English phrases on the day of her arrest and shortly thereafter.

      2.   Even if M s. Gonzales did consent to the agents’ entry, appellants urge

us to find that her consent was coerced. W e cannot agree, especially in light of

our holding in Pena.

      In Pena, four police officers visited a motel room after receiving

complaints of drug activity. 143 F.3d at 1365. The officers knocked on the door,

explained in English to the man w ho answered the door that they had received

complaints, and asked whether they could enter and look around, though they did

not specifically inform the defendant that he could decline to cooperate. Id. The

defendant later argued coercion, emphasizing that he lacked sufficient English to

understand the officers. The district court rejected this argument, finding, among

other things, that the defendant “understood more than enough English to know

what [the officers] asked him” and that he had freely given his consent. Id. W e

affirmed. The facts here are virtually identical to those in Pena. Indeed, if

anything, Pena involved an arguably more coercive situation. There, four (not

two) officers asked to enter the room. All four officers were uniformed with guns



                                         -9-
holstered (rather than in plain clothes w ith guns concealed). Holding an unduly

coercive situation existed here would thus defy our responsibility to precedent.

      3.   M r. Alvarado makes an additional, though similar, argument –

contending that, under the totality of the circumstances and especially given the

time of day (9:00 pm), no reasonable person would have felt free to end the

encounter w ith police officers at the door. See Florida v. Bostick, 501 U.S. 429,

439 (1991) (“[I]n order to determine w hether a particular encounter constitutes a

seizure, a court must consider all the circumstances surrounding the encounter to

determine whether the police conduct would have communicated to a reasonable

person that the person was not free to decline the officers’ requests or otherwise

terminate the encounter.”).

      W e are constrained to disagree. Once again, this court has already rejected

a highly analogous claim. In United States v. Spence, we found nothing aw ry

with a “knock and talk” encounter where, just as here, “the agents w ere dressed in

plain clothes and did not display their weapons at any time, . . . their tone and

demeanor w ere professional, and . . . there was no evidence that they raised their

voices or physically touched or restrained [defendant].” 397 F.3d 1280, 1284

(10th Cir. 2005). M r. Alvarado’s insistence that the hour of the “knock and talk”

encounter (9:00 p.m.) distinguishes this case and renders the agents’ conduct

unreasonable is unpersuasive. W hile w e agree that police waking people in their



                                         - 10 -
hom es in the middle of the night can well contribute to a coercive atmosphere, w e

cannot help but agree with the district court that no such coercion is inherently

and always present at 9:00 p.m., an hour at which “the vast majority of people are

still aw ake,” D ist. Ct. Order at 11, perhaps especially in a hotel setting where it

is not unknown for guests, visitors, room service attendants, and others to come

and go regularly at that hour. Compare United States v. Cormier, 220 F.3d 1103,

1107, 1109-10 (9th Cir. 2000) (finding no detention where an officer conducted a

“knock and talk” at a motel room after 8:00 p.m.) with Harless v. Turner, 456

F.2d 1337, 1338-39 (10th Cir. 1972) (per curiam) (finding unlawful search where

police aw akened defendants in their home at 1:45 am) and Fontenot v. Cormier,

56 F.3d 669, 671, 675-76 (5th Cir. 1995) (finding unlawful seizure where police

came to home at 2:30 am).

                                           III

      M s. Gonzales and M r. Alvarado next challenge the district court’s denial of

their motion for mistrial following Agent Current’s reference at trial to the

defendants’ invocation of the right to counsel. A trial court may grant a motion

for mistrial when, in its discretion, it concludes that the defendant’s right to a fair

and impartial trial has been impaired. W e review such decisions for an abuse of

discretion, see United States v. Nash, 482 F.3d 1209, 1217 (10th Cir. 2007), and

we discern none here.



                                          - 11 -
      After entertaining defense counsel’s objections regarding Agent Current’s

testimony, the district court stated to the jury:

      Ladies and Gentlemen, the O fficer just referred to the defendant’s
      request for counsel. As you probably know , from watching TV, one
      who is accused of a crime or who is a suspect, is entitled to have an
      attorney. And there is nothing in that that should be used to infer guilt
      or innocence. That is a constitutional right for which each of us are
      guaranteed, and you should not draw any conclusion from that or any
      inference from their request to have an attorney to consult with.

Trial Tr. at 145-46. The district court, thus, hardly ignored appellants’ concern

but sought to allay it. To be sure, defense counsel argued that this instruction was

insufficient to cure the prejudice to their clients and that only a new trial w ould

suffice. But the district court, with the advantage (unlike us) of being able to

observe and discern the impact of Agent Current’s comment and the curative

instructions given to the jury, determined that such a course of action was

unnecessary to ensure appellants a fair trial.

      As best we can tell from our vantage, the district court’s course was

entirely reasonable. The agent’s answer came in response to a question from M r.

Alvarado’s attorney, not in response to an invitation from the government. The

district court found, based on its assessment of the witness, that Agent Current

did not intend any impropriety but was simply “trying to relate chronologically

what happened,” and explain why no fingernail scraping was taken upon arrest.

Trial Tr. at 144-45. And the prosecution made no subsequent effort to exploit the



                                          - 12 -
comment. All of these facts combine to suggest the district court acted well

within its discretion in choosing the course it did, and our review of the trial as a

whole and the strength of the evidence presented only serve to strengthen our

conviction on this score.

                                          IV

      Two issues relating to M s. Gonzales’s sentence merit our attention.

      1.   M s. Gonzales argues that the district court should have granted her a

two-level “minor participant” reduction when calculating her Guidelines offense

level. See U.S.S.G. § 3B1.2. W ith such a reduction, her Guidelines-

recommended sentencing range would have been 121 to 151 months, rather than

the 151 to 188 months the district court employed. W e review the district court’s

interpretation of the sentencing guidelines de novo, though its factual findings

applying the guidelines may be disturbed only in the presence of clear error. See

United States v. Onheiber, 173 F.3d 1254, 1258 (10th Cir. 1999).

      M s. Gonzales has a point. At sentencing, the government seemed to argue

that, in order to qualify for a minor role reduction, she had to admit her guilt. See

Sent. Tr. at 11-12. This argument was erroneous; the admission of guilt is not a

categorical prerequisite to earning a minor participation reduction. But the

government also argued that the evidence M s. Gonzales adduced about her

participation “completely failed” to suggest she was only a minor participant.



                                         - 13 -
Sent. Tr. at 11-12. In denying the minor participation reduction, the district court

stated simply that it “agree[d]” generally with the government and, thus,

presumably with both of its arguments. Sent. Tr. at 12.

      Accordingly, aside from the question of admission of guilt, we understand

the government to have argued, and the district court to have agreed, that M s.

Gonzales failed, as a matter of fact, to establish that her conduct rendered her a

minor participant. Given ample evidence in the record supporting such a finding,

and M s. Gonzales’s burden to establish her eligibility for a minor participant

reduction, we cannot deem the district court’s decision to be clearly erroneous.

For example, M s. Gonzales rented and paid in cash for the hotel room in which

police found her and M r. Alvarado with significant amounts of drugs. Trial

testimony indicates that police recovered from M s. Gonzales’s purse drug-related

pay/owe sheets that were similar to one found in M r. A lvarado’s wallet. See Trial

Tr. at 101. And police discovered “unreal” amounts of air freshener, often used

to mask the odor of drugs, in M s. Gonzales’s car. Id. at 156-58. The district

court itself, in responding to M s. Gonzales’s argument in favor of a minor

participant reduction, noted that the jury had “found it was [M r. Alvarado’s]

methamphetamine, and [that] [M s. Gonzales] was helping him distribute it.”

Sent. Tr. at 11. Thus, even if we interpret the district court’s statement that it

“agree[d]” with the government to mean that the court accepted an erroneous



                                         - 14 -
characterization of the minor participant reduction, its decision to deny the

reduction is supported by alternative, non-erroneous reasons.

      As such, we disagree with M s. Gonzales that the district court’s (possible)

error requires that we remand this case for resentencing, as any such error was

harmless in this instance. See United States v. Wilken, 498 F.3d 1160, 1169 (10th

Cir. 2007) (“Even where we find an error in calculating the Guidelines range, . . .

we need not vacate and remand the sentence if the error w as harmless.”). A

district court’s error in applying the Guidelines is harmless unless it “affect[ed]

the district court’s selection of the sentence imposed.” United States v.

M ontgomery, 439 F.3d 1260, 1263 (10th Cir. 2006) (internal quotations omitted).

Because the district court found that M s. Gonzales had not established, in light of

the evidence against her and regardless of any non-admission of guilt, that she

was only a minor participant, we have no doubt that the court would have denied

the sentencing reduction even in the absence of the government’s erroneous

description about the requirements for a minor role reduction.

      2.   M s. Gonzales also argues that the district court considered itself

bound to impose a sentence within the range suggested by the Guidelines. If true,

this would be error. See, e.g., United States v. Gonzalez-Huerta, 403 F.3d 727,

731 (10th Cir. 2005) (en banc).




                                         - 15 -
      After hearing M s. Gonzales’s arguments in favor of varying below the

Guidelines range, the district court stated, in relevant part:

      I don’t agree with the level of penalties imposed for drugs under the
      guidelines as a general proposition, but I do think it’s important to
      honor the concept of the guidelines and try to have some uniformity
      within the system and not depart widely for reasons of sympathy,
      passion, or prejudice.
      ....
      I w ill impose a sentence which I think is sufficient, although arguably
      greater than necessary to support the goals of the guidelines. I think the
      nature and circum stances of the offense and the facts brought out at
      trial, along with the quantity of m ethamphetamine and the way
      Congress has characterized methamphetamine . . . as an extremely
      dangerous drug, and [sic] indicate that a significant sentence would be
      appropriate.
       ....
      The Court has reviewed the presentence report factual findings and
      considered the Sentencing Guidelines. The Court has also reviewed the
      factors set forth in 18 United States Code, Section 3553(a), and indeed,
      if those were the only factors, I w ould have a different sentence. The
      Guidelines, however, hold me to a bedrock sentence that is longer than
      I would choose to give, if it were solely discretionary with me.

Id. at 15-16, 18.

      W e do not doubt that certain portions of this statement, read in isolation,

could appear to imply a reluctant acquiescence to the Guidelines. See id. at 18.

(indicating that the court was held “to a bedrock sentence that is longer than [it]

would choose to give, if it were solely discretionary”). But reading the district

court’s statements as a whole and in context, we think that the court properly

understood the discretionary nature of the Guidelines and simply chose to apply

its discretion to impose a within-Guidelines sentence. Indeed, had the district

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court truly thought it bound by the Guidelines, it would have had no need to

entertain M s. Gonzales’s argument for a variance in light of the Section 3553(a)

factors, and no need to indicate that it had reviewed and considered those factors.

To us, the district court’s statements, considered in full, bespeak an

understandable and valid effort to strike a balance between, on the one hand,

paying appropriate heed to the Guidelines as an expression of congressional

sentencing intentions and an effort at sentencing uniformity and, on the other

hand, the trial judge’s discretion to impose a reasonable sentence in light of

Section 3553(a), regardless of any Guidelines range and according to every

defendant’s unique circumstances.

      Our conclusion is bolstered by a review of our precedents. Trial judges

“are presumed to know the law and apply it in making their decisions.” United

States v. Ruiz-Terrazas, 477 F.3d 1196, 1201 (10th Cir. 2007) (internal citations

omitted). And we have found the presumption that trial judges are aware of their

(w ell known) discretion in sentencing remains undisturbed in cases markedly

similar to this one. For example, in United States v. Terrell, we affirmed a

sentencing determination where the district court expressly “announc[ed] that it

would give ‘heavy weight’ to the Guidelines ‘because they were designed to meet

the objectives of 3553(a).’” 445 F.3d 1261, 1263-64 (10th Cir. 2006). Similarly,

in United States v. Paredes, we upheld a sentence where the district court stated



                                        - 17 -
that “I think otherwise I’m basically stuck with the guidelines.” 461 F.3d 1190,

1194-95 (10th Cir. 2006). W e determined that the language in both cases, when

considered in context of the courts’ full remarks and actions at sentencing, simply

reflected the courts’ recognition of their obligation to consider the Guidelines, not

an obligation to follow the Guidelines blindly. W e see no principled way to reach

a different conclusion in this case.

                                       *     *      *

      The judgments of the district court are affirmed.




                                       ENTERED FOR THE COURT




                                       Neil M . Gorsuch
                                       Circuit Judge




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