                                                           FILED
                                               United States Court of Appeals
                UNITED STATES COURT OF APPEALS         Tenth Circuit

                       FOR THE TENTH CIRCUIT                        June 11, 2018
                       _________________________________
                                                                 Elisabeth A. Shumaker
                                                                     Clerk of Court
UNITED STATES OF AMERICA,

       Plaintiff - Appellee,

v.                                                   No. 17-1433
                                          (D.C. No. 1:17-CR-00133-MSK-1)
RODOLFO ANASTACIO VARGAS-                             (D. Colo.)
ORTEGA, a/k/a Rodolfo Anastacio
Vargas,

       Defendant - Appellant.
                      _________________________________

                        ORDER AND JUDGMENT *
                        _________________________________

Before BACHARACH, KELLY, and MORITZ, Circuit Judges.
                 _________________________________

      Mr. Rodolfo Anastacio Vargas-Ortega pleaded guilty to unlawful

reentry and possession of a firearm and ammunition by an alien who is

illegally in the United States. 8 U.S.C. § 1326(a); 18 U.S.C. § 922(g)(5).

Prior to sentencing, Mr. Vargas-Ortega filed a motion for a downward

variance, urging a sentence below the floor of the guideline range based on

his personal history and characteristics, including his family

circumstances. The district court denied the motion. The court could have

*
      This order and judgment does not constitute binding precedent except
under the doctrines of law of the case, res judicata, and collateral estoppel.
But this order and judgment may be cited for its persuasive value under
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
denied the motion based on an exercise of discretion. But the court didn’t.

Instead, the court reasoned that family circumstances were not a proper

basis to grant a variance. This reasoning entailed a legal error on the scope

of the court’s authority, requiring us to reverse and remand for

resentencing.

I.    Interpreting the District Court’s Explanation

      We must first interpret the district court’s explanation for declining

to vary downward. The government contends that the district court

recognized that it could vary downward based on family circumstances but

simply declined to do so. We disagree.

      The district court stated:

      I do not consider his family circumstances, and I don't for
      several reasons. It's not because it isn't important to him. It's
      because it is not a factor or an objective under 18 U.S.C.
      Section 3553. Some defendants are fortunate to have loving
      families. Other defendants are not so fortunate. Some
      defendants who have loving families behave in ways that [are]
      destructive to their family members. Other defendants, such as
      this defendant, [have] behaved in a responsible fashion in
      taking care of his family. But the existence of his family and
      the importance of his family to him do not bear upon any of the
      sentencing objectives or sentencing factors. I think he's
      fortunate to have a loving family, and I’m hopeful that they
      will be able to work something out once he is relocated in
      Mexico.

R., vol. 3 at 73.

      This language reflects the district court’s understanding that family

circumstances could not support a variance because they did not relate to


                                      2
the statutory sentencing factors. This understanding is apparent in the

court’s statement that “the existence of [Mr. Vargas-Ortega’s] family and

the importance of his family to him do not bear upon any of the sentencing

objectives or sentencing factors.” Id. Based on this understanding, the

court stated that it would not consider family circumstances when selecting

the sentence. Id. Through this statement, the district court expressed its

understanding that a variance could not be based on the defendant’s family

circumstances.

II.   Preservation

      Before addressing whether this understanding is correct, we must

consider whether Mr. Vargas-Ortega preserved his appellate challenge.

According to the government, Mr. Vargas-Ortega failed to preserve this

challenge because he did not object after the district court announced the

sentence. We disagree. In his motion, Mr. Vargas-Ortega argued that the

district court should vary downward based on his family circumstances. 1

      We consider the sufficiency of this argument under the standard in

Federal Rule of Criminal Procedure 51(b). This rule states that a party

preserves a claim “by informing the court-when the court ruling or order is

made or sought-of the action the party wishes the court to take.” Fed. R.


1
     The government concedes that the motion for a downward variance
was “based on several factors, including [Mr. Vargas-Ortega’s] ‘family
circumstances.’” Appellee’s Resp. Br. at 8.

                                      3
Crim. P. 51(b). To comply with this requirement, Mr. Vargas-Ortega

contended in his motion that the court should impose a sentence below the

guideline range based on his family circumstances. Through this

contention, he informed the district court of the action that he wanted;

because this contention satisfied Rule 51(b), he didn’t need to do anything

further to preserve his objection. See Fed. R. Crim. P. 51(a) (“Exceptions

to rulings or orders of the court are unnecessary.”). Preservation does not

require redundancy.

      The government relies on a line of case law requiring a

contemporaneous objection when the appeal involves a district court’s

failure to adequately explain the sentence. United States v. Romero, 491

F.3d 1173, 1176-78 (10th Cir. 2007); United States v. Mendoza, 543 F.3d

1186, 1190–92 (10th Cir. 2008). We require a contemporaneous objection

in this circumstance because the sentencing court would not otherwise have

an opportunity to consider the party’s argument. See United States v.

Gantt, 679 F.3d 1240, 1247 (10th Cir. 2012).

      But we have not required a contemporaneous objection when the

defendant is appealing the district court’s categorical refusal to consider an

argument previously made in a motion for a downward variance. United

States v. Lopez-Avila, 665 F.3d 1216, 1217–19 (10th Cir. 2011). To require

a contemporaneous objection in this circumstance would simply require a

defendant to repeat what had already been stated in the motion. See id.; see

                                      4
also Gantt, 679 F.3d at 1247 (explaining that a contemporaneous objection,

after the denial of a motion for downward variance, would needlessly

require the party to repeat what it had already argued in the motion).

      We addressed a similar situation in United States v. Lopez-Avila, 665

F.3d 1216, 1217–19 (10th Cir. 2011). There the defendant moved for a

downward variance, urging a sentence below the guideline range based on

disparities in the availability of “fast-track” programs. Lopez-Avila, 665

F.3d at 1217. In denying this motion, the district court concluded that it

could not consider these disparities as a ground to vary downward. Id. The

defendant did not renew his objection. But we held that the issue had been

preserved, reasoning that the issue had been properly raised prior to the

sentencing and that the district court had understood the argument and

addressed it. Id. at 1217–18.

      The government contends that Lopez-Avila is distinguishable because

there the defendant moved for a downward variance, arguing that the

district court “could legally consider” whether to vary downward based on

disparities in the availability of fast-track programs. Letter from the

Government to the Court Clerk at 1 (May 22, 2018). The government’s

interpretation is questionable. There is no reference in the Lopez-Avila

opinion to the defendant’s argument that the court had the power to vary

downward; we stated only that the defendant had moved for a downward

variance based on disparities in fast-track programs. Lopez-Avila, 665 F.3d

                                      5
at 1217. Nonetheless, the government has submitted the motion for a

variance filed by the defendant in Lopez-Avila. In this motion, the

defendant argued that the district court could vary downward based on the

disparities caused by the availability of fast-track programs. Letter from

the Government to the Court Clerk, Attachment A at 42–44, 51–65, 81–87

(May 22, 2018). In the opinion itself, the court never referred to this aspect

of the defendant’s motion.

      Nonetheless, the government contends that “Lopez-Avila stands for

the following: Where parties have already raised and argued an issue, the

losing party is not also required to object after the court decides the issue.”

Letter from the Government to the Court Clerk at 2 (May 22, 2018). Even

if we were to look beyond the opinion itself and consider the defendant’s

motion for a variance, Lopez-Avila’s holding on preservation would apply

here. In the motion, Mr. Vargas-Ortega argued that his “personal history

and characteristics warrant[ed] a downward variance.” R., vol. 1 at 113. He

then discussed his family circumstances and explained how they showed

that he “does not belong in prison.” Id. In arguing that the district court

should consider his family circumstances, Mr. Vargas-Ortega alerted the

court to his argument that family circumstances could be considered. Thus,

even if we were to expand our inquiry beyond the opinion itself, Mr.

Vargas-Ortega preserved his argument that a court can vary downward

based on family circumstances.

                                       6
III.   Merits

       Because he preserved the issue, we engage in de novo review. United

States v. Lopez-Avila, 665 F.3d 1216, 1218 (10th Cir. 2011). Exercising de

novo review, we conclude that the district court erred in determining that it

could not vary downward based on Mr. Vargas-Ortega’s family

circumstances.

       The government concedes that the district court could vary downward

on this basis, for

           a district court can vary downward based on anything relating
            to the defendant’s background, character, or conduct and

           we have acknowledged that family circumstances bear on a
            defendant’s “history and characteristics,” which courts must
            consider under 18 U.S.C. § 3553(a)(1).

18 U.S.C. § 3661; United States v. Muñoz-Nava, 524 F.3d 1137, 1148 (10th

Cir. 2008). Thus, the district court erred in stating that it could not vary

downward based on family circumstances.

IV.    Disposition

       We reverse the sentence and remand for resentencing. In selecting

the new sentence, the district court has discretion whether to vary

downward based on Mr. Vargas-Ortega’s family circumstances.




                                       7
The Court directs the Clerk to issue the mandate forthwith.


                                Entered for the Court


                                Robert E. Bacharach
                                Circuit Judge




                               8
