                                                                                  FILED
                                                                      United States Court of Appeals
                                                                              Tenth Circuit

                        UNITED STATES COURT OF APPEALS                       April 17, 2019

                                                                          Elisabeth A. Shumaker
                              FOR THE TENTH CIRCUIT                           Clerk of Court
                          _________________________________

    UNITED STATES OF AMERICA,

         Plaintiff - Appellee,

    v.                                                  Nos. 18-1125 & 18-1126
                                                   (D.C. Nos. 1:14-CR-00500-MSK-1,
    JULIAN GALLARDO-MEDINA, a/k/a                       1:17-CR-00296-MSK-1)
    Julian Gallardo-Garcia, a/k/a Raul                         (D. Colo.)
    Hernandez-Garcia,

         Defendant - Appellant.
                        _________________________________

                              ORDER AND JUDGMENT *
                          _________________________________

Before BACHARACH, BALDOCK, and EBEL, Circuit Judges.
                 _________________________________

         In these consolidated direct criminal appeals, Defendant Julian Gallardo-

Medina challenges his sentences for 1) a 2017 conviction for unlawfully re-entering

the United States after a prior removal, and 2) violating the terms of his supervised

release imposed on a 2015 unlawful re-entry conviction. In a joint sentencing, the

district court imposed within-guideline sentences of twenty-seven months for the

2017 conviction and fifteen months for the supervised release violation, to run



*
 This order and judgment is not binding precedent, except under the doctrines of law
of the case, res judicata, and collateral estoppel. It may be cited, however, for its
persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
consecutively. On appeal, Gallardo-Medina argues that the district court

procedurally erred when it imposed those sentences because, having denied Gallardo-

Medina a downward departure under the sentencing guidelines, the district court did

not realize it still had discretion to vary below the advisory guideline range based on

the sentencing factors listed in 18 U.S.C. § 3553(a). The sentencing record makes

clear, however, that the district court knew it had discretion to vary downward, but

decided against doing so. Therefore, having jurisdiction under 28 U.S.C. § 1291 and

18 U.S.C. § 3742(a), we AFFIRM both sentences.

                                  I. BACKGROUND

      Gallardo-Medina, a Mexican citizen, was convicted in 2015 of unlawfully re-

entering the United States after a prior removal. He was sentenced to twenty-one

months in prison and three years of supervised release. One of the conditions of his

release was that he not again reenter the United States illegally.

      After serving his prison sentence on the 2015 conviction, Gallardo-Medina

was removed from the United States in October 2016. He returned three weeks later,

joining his wife and three children in Colorado. He was arrested there in 2017.

Gallardo-Medina thereafter pled guilty to a new unlawful re-entry charge and

admitted to violating the terms of his earlier supervised release. His advisory

guideline ranges were 24 to 30 months in prison for the new conviction and 12 to 18

months for the supervised release violation. Gallardo-Medina requested, instead, a

below-guideline sentence of nine months for the new conviction and three months

and one day for violating his supervised release, to run consecutively. In support of

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this request, Gallardo-Medina sought, for each of his sentences, both a downward

departure under the sentencing guidelines and a downward variance under the 18

U.S.C. § 3553(a) sentencing factors. He grounded these requests on his assertion that

the reason he returned to the United States was to earn money to send to his mother

in Mexico so she could pay medical bills. The district court denied Gallardo-

Medina’s requests for a below-guideline sentence and, instead, imposed mid-range

within-guideline sentences of twenty-seven months for the new conviction and fifteen

months on the supervised release violation, to run consecutively, for a total of forty-

two months in prison.

                                     II. DISCUSSION

       On appeal, Gallardo-Medina argues that the district court procedurally erred in

sentencing him because, after denying his motion for a downward departure under

the sentencing guidelines, the court did not realize that it still had discretion to vary

downward for each sentence based on the § 3553(a) factors. 1 Gallardo-Medina

concedes that, because he did not raise this objection at sentencing, our review is for

plain error. See Fed. R. Crim. P. 52(b); see also United States v. Lymon, 905 F.3d

1149, 1152 (10th Cir. 2018). We conclude, at the first step of the plain-error

analysis, that the district court did not err.



1
  While all of the § 3553(a) factors are relevant to Gallardo-Medina’s sentence for his
new conviction, most but not all the § 3553(a) factors are relevant to determining his
sentence for the supervised release violation. See 18 U.S.C. § 3583(e) (identifying as
relevant factors set forth in § 3553(a)(1), (a)(2)(B), (a)(2)(C), (a)(2)(D), (a)(4),
(a)(5), (a)(6), and (a)(7)).
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      “Departures and variances are analytically distinct, and courts must be careful

not to confuse them.” United States v. Martinez-Barragan, 545 F.3d 894, 901 (10th

Cir. 2008). Here, however, the court, like the parties, carefully treated Gallardo-

Medina’s requests for a downward departure separate from his request for a

downward variance.

      Gallardo-Medina asked for a downward departure under U.S.S.G. § 5K2.11,

which provides that “a reduced sentence may be appropriate” when a defendant

commits a crime “in order to avoid a perceived greater harm,” so long as “the

circumstances significantly diminish society’s interest in punishing the conduct.”

The district court denied Gallardo-Medina such a departure because “[i]llegally

reentering the United States is not a specific-intent crime; and therefore, specific

intent cannot be nullified by a different motivation,” but to the extent § 5K2.11 does

apply, there is nothing in this case that significantly diminishes society’s interest in

punishing Gallardo-Medina’s conduct. (1 R. 209.)

      Gallardo-Medina also asked for a downward departure under U.S.S.G.

§ 5K2.0, for “exceptional” circumstances. The district court denied that request,

ruling that the fact that Gallardo-Medina was motivated to return unlawfully to the

United States due to family and financial reasons was “not unusual. That falls within

the heartland of cases in this court’s experience, and there is nothing unusual here.”

(1 R. 209-10.) On appeal, Gallardo-Medina does not challenge the district court’s

decision to deny his requests for a downward departure.



                                            4
      The sentencing court then separately addressed and denied Gallardo-Medina’s

request for a downward variance under the § 3553(a) factors. In doing so, the

sentencing court indicated it “appreciate[d] that the defendant wanted to pay for his

mother’s medical bills and he didn’t want to incur any violations [of the law] while

he was here in the United States illegally on his most immediate illegal reentry.” (1

R. 210.) Notwithstanding these facts, however, the court ruled that Gallardo-

Medina’s

      case [fell] squarely within the heartland of similar cases. And consistent
      with the Court’s objective in employing the factors found in 18 U.S.C.
      Section 3553, to serve the sentencing objectives, [made] particular note
      of the obligation to avoid unwarranted sentence disparities among
      defendants with similar records found guilty of [similar] conduct.

(1 R. 210 (referencing 18 U.S.C. § 3553(a)(6).)

      Accordingly, we conclude that the sentencing record makes clear that the

district court separately considered Gallardo-Medina’s requests for a downward

departure and for a downward variance. Furthermore, the court did not deny those

requests for identical reasons. To the extent the sentencing court relied on similar

reasoning to reject both the departure and variance requests, that was due to the fact

that Gallardo-Medina’s ground for each was the same—he returned to the United

States in order to earn money to send to his mother to help her pay medical expenses.

Moreover, the fact that the district court deemed Gallardo-Medina’s case to fall

within the “heartland” of cases involving similar defendants convicted of the same

conduct is relevant to both departures and variances. See Martinez-Barragan, 545

F.3d at 900. The sentencing court clearly realized that, even after denying Gallardo-

                                           5
Medina’s requests for a downward departure, the court still had discretion to vary

downward based on the § 3553(a) factors. Nonetheless, the court chose not to do so.

That choice was not in error.

                                III. CONCLUSION

      We, therefore, AFFIRM each of Gallardo-Medina’s sentences.


                                           Entered for the Court


                                           David M. Ebel
                                           Circuit Judge




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