                                                                       FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                                                                 February 4, 2015
                   UNITED STATES COURT OF APPEALS
                                                                Elisabeth A. Shumaker
                                TENTH CIRCUIT                       Clerk of Court



 UNITED STATES OF AMERICA,

              Plaintiff-Appellee,

 v.                                                      No. 13-3259
                                              (D.C. No. 2:09-CR-20119-JWL-9)
 ESTEBAN MAGALLON-                                        (D. Kan.)
 MALDANADO,

              Defendant-Appellant.


                           ORDER AND JUDGMENT *


Before HOLMES, BACHARACH, and McHUGH, Circuit Judges.


      Esteban Magallon-Maldanado pleaded guilty to one count of conspiracy to

distribute and possess with intent to distribute various controlled substances, in

violation of 21 U.S.C. §§ 841(a)(1) and 846. He was sentenced to 262 months’

imprisonment. Mr. Magallon-Maldanado, who is Hispanic, alleges on appeal that

he established during his sentencing proceeding a prima facie case of a race-based

disparity in the severity of the sentences received by his Hispanic and non-



      *
             This order and judgment is not binding precedent, except under the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 Federal Rule of Appellate
Procedure 32.1 and Tenth Circuit Rule 32.1.
Hispanic coconspirators—suggesting that race played an invidious part in his own

sentencing—and that the district court violated his rights under the Equal

Protection Clause by failing to require the government to offer a race-neutral

justification for the alleged disparity. Exercising jurisdiction under 18 U.S.C.

§ 3742(a) and 28 U.S.C. § 1291, we reject Mr. Magallon-Maldanado’s equal-

protection argument and affirm the district court’s judgment.

                                         I

      On January 4, 2011, Mr. Magallon-Maldanado was indicted on several

counts relating to his participation in a multimember drug-trafficking conspiracy.

He pleaded guilty to one count of conspiracy to distribute and possess with intent

to distribute drugs on December 17, 2012.

      The Presentence Investigation Report (“PSR”)—prepared by the United

States Probation Office using the 2010 version of the United States Sentencing

Guidelines Manual (“U.S.S.G.” or “Guidelines”)—determined that Mr. Magallon-

Maldanado’s total offense level was thirty-eight, 1 which, combined with his

criminal history category of II, produced an advisory Guidelines range of 262 to

      1
              The Probation Office determined that Mr. Magallon-Maldanado’s
base offense level was thirty-six under U.S.S.G. § 2D1.1 because of the quantity
of drugs involved in the conspiracy to which he pleaded guilty. It then added two
levels under § 2D1.1(b)(1) because he possessed a dangerous weapon, and added
a further three levels because he was a “manager or supervisor . . . [of] criminal
activity involv[ing] five or more participants” under U.S.S.G. § 3B1.1(b). The
Probation Office subtracted three levels under § 3E1.1, however, because Mr.
Magallon-Maldanado entered into a plea agreement and accepted responsibility,
thus yielding a total offense level of thirty-eight.

                                         2
327 months. On July 15, 2013, the district court entered an order directing the

parties to file any objections to the PSR by August 2, 2013, and further requiring

that any motions related to sentencing be filed by August 16, 2013.

      Mr. Magallon-Maldanado belatedly filed a Sentencing Memorandum on

August 22, 2013, raising various objections to the PSR and moving for a

downward variance based on the sentencing factors listed in 18 U.S.C. § 3553(a).

Among other downward-variance arguments, 2 Mr. Magallon-Maldanado relied on

an alleged race-based sentencing disparity. A Hispanic man himself, Mr.

Magallon-Maldanado contended that his Hispanic codefendants had received more

severe sentences than his non-Hispanic codefendants. His sole support for this

sentencing-disparity assertion was a chart showing that codefendants with

Hispanic surnames appeared to have frequently received longer sentences than

those with non-Hispanic surnames. He argued that this “[e]xtreme disparity

between codefendants’ sentences fail[ed] to serve the legislative intent of 18

U.S.C. § 3553(a)(6).” R., Vol. I, at 267 (Sentencing Mem., filed Aug. 22, 2013).

      The government moved to strike the Sentencing Memorandum as untimely,

and the district court granted this motion. In doing so, however, the district court

stated that its ruling did not “preclude any arguments on behalf of Mr. Magallon-

Maldanado” relating to the PSR, id., Vol. II, at 28 (Tr. Sentencing Proceedings,

      2
             Mr. Magallon-Maldanado also raised, as grounds for a downward
variance, his drug addiction and remorse, and argued that the § 3553(a) factors
should trump the mandatory minimum sentence in his case.

                                         3
dated Oct. 10, 2013), and noted that it had “read and underst[ood] the basis of the

argument” for a downward variance, id. at 86. But the court did not specifically

address the sentencing-disparity claim. And, when given the opportunity, Mr.

Magallon-Maldanado’s counsel did not raise the issue. 3

      The district court determined that the PSR was accurate and overruled Mr.

Magallon-Maldanado’s objections to the contrary. The court declined to exercise

its discretion to vary downward. It sentenced Mr. Magallon-Maldanado to a

prison term of 262 months, the bottom of the advisory Guidelines range. This

appeal followed.

                                         II

      Mr. Magallon-Maldanado claims that he provided prima facie evidence

during his sentencing that race played a constitutionally impermissible role in the

sentencing decisions regarding his codefendants; this evidence, he reasons,

suggested that race might have been at work in his sentencing as well.

Consequently, according to Mr. Magallon-Maldanado, the district court was

obliged under the U.S. Constitution’s Equal Protection Clause to require the

government to offer a race-neutral explanation for this disparity. Stated



      3
              After listing what it understood to be Mr. Magallon-Maldanado’s
objections in the Sentencing Memorandum, the district court inquired whether
there were “any other issues which need[ed] to be resolved” or if it had “missed
an objection that [Mr. Magallon-Maldanado] ha[d] made.” R., Vol. II, at 30.
Counsel for Mr. Magallon-Maldanado did not bring up the sentencing-disparity
issue at this point, or at any subsequent juncture in the proceedings.

                                         4
concisely, in his own words, Mr. Magallon-Maldanado contends on appeal that

the issue before us is

             whether a criminal defendant, who has presented facts sufficient
             to make out a prima facie case of an unconstitutional sentencing
             disparity based on race, must immediately bear the full burden of
             proving that race played a role in the sentencing of himself and
             co-defendants, or whether—as in the context of racially
             motivated preemptive challenges in voir dire—the government
             first is obligated to proffer a race-neutral justification for the
             sentencing disparity.

Aplt. Opening Br. at 1. Because we conclude, however, that Mr. Magallon-

Maldanado failed to raise this theory before the district court—that is, he

forfeited the issue for purposes of appeal—we review this constitutional claim

only for plain error. 4 And, under the rigorous plain-error standard, we determine

that Mr. Magallon-Maldanado cannot prevail because he cannot establish that any

error by the district court was clear or obvious.

                                          A

      Generally, a litigant has a difficult path to travel in seeking reversal of a

district court’s judgment based upon a legal theory that is presented for the first

time on appeal. See, e.g., Richison v. Ernest Grp., Inc., 634 F.3d 1123, 1127

      4
              Given the district court’s comments at sentencing about reading and
digesting the arguments in Mr. Magallon-Maldanado’s Sentencing Memorandum,
we are willing to assume (without deciding) that Mr. Magallon-Maldanado did
adequately preserve the sentencing-disparity argument made in his memorandum,
despite the court’s decision to strike that memorandum as untimely. However,
this assumption offers Mr. Magallon-Maldanado no succor because, as explicated
infra, the sentencing-disparity argument in his Sentencing Memorandum is not the
same one that is before us on appeal.

                                          5
(10th Cir. 2011) (“Where, as here, a plaintiff pursues a new legal theory for the

first time on appeal, that new theory suffers the distinct disadvantage of starting

at least a few paces back from the block.”); cf. Lyons v. Jefferson Bank & Trust,

994 F.2d 716, 721 (10th Cir. 1993) (“In the main, however, we have consistently

refused invitations to consider new issues on appeal.”). It is not sufficient for a

party to present a theory for relief on appeal that falls under the same general

legal category as the theory that it asserted to the district court; instead, it must

present the same legal theory to us that it advanced before the district court. See,

e.g., U.S. Aviation Underwriters, Inc. v. Pilatus Bus. Aircraft, Ltd., 582 F.3d

1131, 1142 (10th Cir. 2009) (“A party does not preserve an issue merely by

advancing a related theory before the district court . . . .”); Bancamerica

Commercial Corp. v. Mosher Steel of Kan., Inc., 100 F.3d 792, 798–99 (10th Cir.

1996) (“‘[W]here a litigant changes to a new theory on appeal that falls under the

same general category as an argument presented at trial’ or presents ‘a theory that

was discussed in a vague and ambiguous way[,]’ the theory will not be considered

on appeal.” (first alteration in original) (quoting Lyons, 994 F.2d at 722)); Lyons,

994 F.2d at 722 (“[W]e have consistently turned down the argument that the

raising of a related theory was sufficient.”). This principle stems from our desire

to “preserve the integrity of the appellate structure” and to encourage parties to be

diligent in their arguments at the trial level. Tele-Commc’ns, Inc. v. Comm’r, 104

F.3d 1229, 1233 (10th Cir. 1997).


                                            6
      Where the failure to raise a theory is the result of neglect, a party has

forfeited its claim. See, e.g., Abernathy v. Wandes, 713 F.3d 538, 551 (10th Cir.

2013) (noting that the plaintiff “failed to raise this argument before the district

court—thus, forfeiting it”), cert. denied, --- U.S. ----, 134 S. Ct. 1874 (2014);

accord United States v. Lamirand, 669 F.3d 1091, 1100 n.7 (10th Cir. 2012). As

discussed further below, “we will entertain forfeited theories on appeal, but we

will reverse a district court’s judgment . . . only if failing to do so would entrench

a plainly erroneous result.” Richison, 634 F.3d at 1128.

      On appeal, Mr. Magallon-Maldanado casts the alleged racial disparity in

the sentencing of Hispanic and non-Hispanic coconspirators as prima facie

evidence of a constitutional violation under the Equal Protection Clause. Before

the district court, however, he only alleged a statutory violation of 18 U.S.C.

§ 3553(a)(6). In his Sentencing Memorandum, Mr. Magallon-Maldanado

presented the sentencing-disparity argument as part of his claim that “a variance

is warranted in light of all 18 U.S.C. § [3553(a)] factors.” R., Vol. I, at 263

(capitalization altered). He argued that the disparity “fails to serve the legislative

intent of 18 U.S.C. § 3553(a)(6).” Id. at 267. He also cited to United States v.

Lazenby, 439 F.3d 928 (8th Cir. 2006), an extra-circuit case 5 which involved the

      5
              Mr. Magallon-Maldanado’s reference to precedent from one of our
sister circuits in no way persuades us to alter our view of his circumstances.
“Even if we were bound by opinions handed down in other circuits, which we are
not, we would agree with the district court . . . .” Hill v. Kan. Gas Serv. Co., 323
                                                                       (continued...)

                                           7
unreasonableness of a sentence under § 3553(a) and turned on the relative

culpability of two coconspirators. See 439 F.3d at 932.

      At bottom, Mr. Magallon-Maldanado’s arguments to the district court

evinced a deliberate choice to frame his sentencing-disparity claim under the

rubric of § 3553(a)’s factors, and we should (and do) afford this decision

significance. Although the alleged race-based sentencing disparity among his

codefendants could seemingly have provided the basis for Mr. Magallon-

Maldanado to assert a constitutional claim under the Equal Protection Clause

before the district court, he asserted no such claim. Accordingly, for purposes of

appellate review, we treat Mr. Magallon-Maldanado’s equal-protection claim

arising from the purported sentencing disparity as forfeited.

                                         B

      “[I]n order to prevail in an appellate challenge regarding [a forfeited] issue,

a defendant must make a sufficient showing of error under the plain-error

standard.” United States v. McGehee, 672 F.3d 860, 873 (10th Cir. 2012). A

party seeking to establish plain error faces a high burden; it must demonstrate

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

and (3) that affects substantial rights.” United States v. Banks, 761 F.3d 1163,

1186 (10th Cir.) (quoting McGehee, 672 F.3d at 876) (internal quotation marks



      5
       (...continued)
F.3d 858, 869 (10th Cir. 2003).

                                         8
omitted), cert. denied, --- U.S. ----, 135 S. Ct. 308 (2014). Even if a party meets

these demanding requirements, we will only exercise our discretion to correct the

error if “it seriously affects the fairness, integrity, or public reputation of judicial

proceedings.” McGehee, 672 F.3d at 876 (internal quotation marks omitted).

      We conclude that Mr. Magallon-Maldanado’s claim stalls at the second

plain-error prong—i.e., he cannot show that the district court committed a clear or

obvious error in failing to require the government to offer a race-neutral

justification for the alleged race-based sentencing disparity. To be clear or

obvious, the error must be contrary to “current, well-settled law.” United States v.

Weeks, 653 F.3d 1188, 1198 (10th Cir. 2011). Ordinarily, this means that “either

the Supreme Court or this court must have addressed the issue.” United States v.

Fishman, 645 F.3d 1175, 1193 (10th Cir. 2011) (quoting United States v. Ruiz-

Gea, 340 F.3d 1181, 1187 (10th Cir. 2003)) (internal quotation marks omitted).

      Yet, Mr. Magallon-Maldanado admits that the issue of “[w]hether a

sentencing court must require the government to proffer a race-neutral

justification . . . after the defendant has presented prima facie evidence of an Equal

Protection violation” is “an open question of law.” Aplt. Opening Br. at 1. In his

brief, he does not cite to a single case from the Supreme Court, our court, or even

any of our sister circuits, that has resolved this particular question, much less

resolved it favorably to Mr. Magallon-Maldanado. And we are not aware of any.

Instead, he attempts to establish the existence, in the sentencing context, of a race-


                                            9
neutral-justification requirement based upon Batson v. Kentucky, 476 U.S. 79

(1986), which imposed such a justification requirement on prosecutors in the

context of their use of peremptory challenges in jury selection for trials.

      With commendable candor, at oral argument, however, Mr. Magallon-

Maldanado’s counsel conceded (on the assumption that we found the equal-

protection challenge to be forfeited) that—given the lack of any precedent

extending the Batson framework to the sentencing context—the district court’s

failure to order the government to proffer a race-neutral justification could not

amount to the kind of error that would satisfy the second prong of the plain-error

test—viz., could not qualify as clear or obvious error. Our survey of the law gives

us no reason to doubt this acknowledgment: Mr. Magallon-Maldanado’s equal-

protection challenge—his sole challenge on appeal—cannot survive the second

prong of plain-error review; therefore, the district court’s sentencing judgment

must be upheld.




                                          10
                                        III

      For the foregoing reasons, we AFFIRM the district court’s sentencing

judgment. 6




                                      ENTERED FOR THE COURT


                                      Jerome A. Holmes
                                      Circuit Judge




      6
              Mr. Magallon-Maldanado filed a motion to seal his opening brief on
the grounds that it makes repeated references to the PSR. While “[p]resentence
reports are confidential,” 10th Cir. R. 11.3(E), the mere fact that PSR information
is referenced in a brief is not a sufficient basis (without more) for sealing the
entire brief. Mr. Magallon-Maldanado does not point to any specific PSR-derived
information that he references that would justify sealing his entire opening brief
(nor does he seek to seal portions of it). Therefore, his motion to seal is
DENIED.

                                        11
