                                                                       FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                                                                 February 3, 2009
                     UNITED STATES COURT OF APPEALS
                                                  Elisabeth A. Shumaker
                                                                    Clerk of Court
                                   TENTH CIRCUIT



 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,
 v.                                                      No. 08-1208
 JUAN CARLOS ALMANZA-                            (D.C. No. 07-CR-506-WYD)
 MARTINEZ, a/k/a Michael Verdin-                        (D. Colorado)
 Bektzar,

          Defendant-Appellant.



                                ORDER AND JUDGMENT *


Before BRISCOE, BALDOCK, and HOLMES, Circuit Judges.



      Defendant Juan Carlos Almanza-Martinez appeals the district court’s denial

of his motion for a downward variance at sentencing. He contends the district

court rejected, out of hand, any policy arguments made by him in support of a

variance, and thereby ruled contrary to the Supreme Court’s directives in

Kimbrough v. United States, 128 S. Ct. 558 (2007). We have jurisdiction


      *
        This order and judgment is not binding precedent, except under the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.
pursuant to 28 U.S.C. § 1291 and affirm.

                                           I

      Almanza-Martinez was found in Colorado without permission to be in the

United States. 1 Almanza-Martinez pleaded guilty to his illegal reentry charge, 8

U.S.C. § 1326(a) and (b), and a presentence investigative report was prepared for

the district court. Almanza-Martinez’s United States Sentencing Guidelines

(“Guidelines”) sentencing range was 46 to 57 months.

      Almanza-Martinez made no objections to the presentence report, but

requested a variance from the applicable Guideline sentencing range pursuant to

18 U.S.C. § 3553(a). Almanza-Martinez submitted a sentencing memorandum

wherein he argued that a Guideline sentence was “far greater than necessary”

because: (1) the Guideline sentence overstated the seriousness of the offense (i.e.,

the punishment for being in the United States without permission should not be as

high as the punishment for more serious crimes) and a shorter than Guideline

sentence would still promote respect for the law and deter the behavior; (2) the

Guideline sentence failed to take into account any of Almanza-Martinez’s

personal characteristics, other than his criminal history (i.e., the district court

should consider other aspects of Almanza-Martinez’s character); (3) Almanza-



      1
        Two years previously, Almanza-Martinez pleaded guilty in Wisconsin
state court to second degree sexual assault of a child. He was deported to Mexico
following this offense.

                                           2
Martinez would be deterred by a below-Guideline sentence because he had not

served much prison time before (i.e., because he had not served more than two

months in prison previous to his current offense, any longer amount of time

would be a real deterrent); and (4) because the district court was not a “fast-

track” 2 jurisdiction, a lower than Guideline sentence would not create

unwarranted sentencing disparities with other defendants who were in “fast-track”

jurisdictions. As is relevant to the issue now raised on appeal, Almanza-

Martinez’s sentencing memorandum did not cite any case authority to the district

court. ROA Vol. IV at Addendum p. 1-8.

      At the sentencing hearing, Almanza-Martinez’s counsel briefly reiterated

his argument that “sentences are higher than they should be on these cases.” 3 Id.

      2
         For a detailed description of “fast-track” programs, see United States v.
Martinez-Trujillo, 468 F.3d 1266, 1267 (10th Cir. 2006). The programs expedite
handling large volumes of immigration offense cases by granting downward
departures in exchange for waivers by the defendant of certain motion and
appellate rights.
      3
       Almanza-Martinez’s counsel stated later in the sentencing hearing,
however:

                     The government suggests that any variant on a
             Guideline sentence disproportionate on a reentry case
             [sic], I’m not arguing this, but I do think in many, if not
             all, cases, these Guidelines sentences are disproportionate.
             And I intend to make that argument frequently and
             forcefully in the future until some court tells me, just don’t
             make it, I’ve heard enough.

                    No, I’m not arguing that. It is case-specific and I
                                                                      (continued...)

                                           3
Vol. III at 6. Almanza-Martinez’s counsel spent the remainder of his variance

argument focused on particular characteristics of Almanza-Martinez: Almanza-

Martinez’s achievements while incarcerated; that Almanza-Martinez was a “first-

time reentrant”; that Almanza-Martinez had no real opportunity to plead to a

lesser offense or cooperate with the government because there was no “fast-track”

program in the jurisdiction; Almanza-Martinez’s prior felony conviction, which

formed the basis of his illegal reentry after prior deportation charge, carried a

sentence of only sixty days; and that Almanza-Martinez would be deterred by a

below-Guidelines sentence because he had never served much time in prison. Id.

at 6-12.

      In arguments preceding the district court’s ruling, the government’s counsel

argued that Almanza-Martinez was “asking for this Court to make a fundamental

change in the application of Guidelines to this specific type of case [illegal

reentry].” Id. at 14. After hearing from the government and Almanza-Martinez,

the district court denied Almanza-Martinez’s requested variance:


      3
          (...continued)
                think there is justification here to deviate from the
                Guidelines.

Id. Vol. III at 10.
      As a result, it is difficult to determine whether Almanza-Martinez made a
policy-based, generalized argument about the sentencing range under the
Guidelines, or a defendant-specific argument under § 3553(a) at the sentencing
hearing. Almanza-Martinez’s sentencing memorandum clearly makes the policy-
based, generalized argument, however. Id. Vol. IV at Addendum p. 1-8.

                                          4
        I don’t believe and in part I agree with [the government’s
counsel], I don’t think variance requests are appropriate if they seek to
elicit some sort of policy ruling. Requests for variance made under 18
United States Code section 3553(a) need[] to permit the Court, based on
the record before it, to determine if given the factors urged in support
of the argument, the sentence that’s sufficient but not greater than
necessary to comply with the purposes set forth in paragraph 2 of the
subsection of the statute invoked is a sentence within the advisory
Guideline range or below the advisory Guideline range.

      And just so the record is clear, there have been cases where
motions have been filed where I have granted variances because I
concluded on the record before me that such a variance was appropriate.
In other cases I’ve denied them because I found that the variance was
not appropriate.

       In this case, what troubles me about the argument is that the base
offense level for illegal reentry is eight. And the enhancement for 16
points is predicated upon this conviction in Wisconsin. And when I
look at the facts of the conviction, I don’t have a lot of sympathy for
the defendant because what it says in paragraph 25 is that according to
the criminal complaint, on July 26, 2004, police officers began an
investigation into a possible sexual assault of a 15-year-old female.
According to the victim, after a verbal argument with her mother, she
ran away from home. While staying with a friend, the two girls met
defendant and another individual at their apartment. The four drank
alcohol. The victim reported that the defendant forced himself on her
and sexually assaulted her. When officers monitored [a] telephone call
between the victim and defendant, the defendant admitted he had sexual
intercourse with her. I don’t find that to be an insignificant crime. It’s
a significant crime. It’s a crime of violence and it shouldn’t have
happened. It happened and he got convicted. I don’t have any opinion
about why the sentence was what it was. I wasn’t there and the
sentence isn’t a reflection of either the severity or lack of severity in all
cases.

       I would note that related to that offense that a violation-
investigation report was filed May 16, 2005, after the defendant’s May
7, 2005 arrest for disorderly conduct. An administrative hearing was
held and the defendant was continued on supervision with a formal
warning. A violation-investigation report was file July 20, 2006, when

                                     5
      the defendant failed to remain in compliance with the sex-offender
      registry program. A warrant was issued September 8, 2006, and
      remains active.

             So we have two things happened. We have him being found
      guilty of having sex with a minor, which is a clear violation of the law.
      He never registered for the sex-offender program, which apparently
      Wisconsin law required him to do. And a warrant still remains active
      for that. So he was in Wisconsin for a long period of time violating the
      law. I don’t find much sympathy in that, and also I think this reflects
      adversely on his personal history and characteristics.

             So in looking at the totality of his record, I don’t understand why
      a variance is appropriate. . . .

            So I just don’t find [defense counsel]’s policy arguments
      persuasive. If anything, they need to be made to legislators at the
      federal level and they can decide if the law needs to be changed.

            So on the record before me, I believe the factors that the Court
      must consider do not support a variance . . . .

Id. at 16-19. The district court then sentenced Almanza-Martinez to a bottom-of-

the-range Guidelines sentence of 46 months’ imprisonment, followed by 3 years

of supervised release. Neither Almanza-Martinez nor the government voiced any

objections to the district court’s ruling on the variance request, or the sentence

imposed.

                                          II

      Almanza-Martinez argues on appeal that the district court erred in denying

his variance motion, and that he therefore must be re-sentenced. Almanza-

Martinez argues that because the district court stated that he did not think policy

arguments were “appropriate” under § 3553(a), the district court’s ruling was

                                          6
contrary to the Supreme Court’s statements in Kimbrough. Almanza-Martinez

contends that Kimbrough authorized the consideration of policy arguments by

district courts at sentencing, and therefore the district court’s statement that it

found policy arguments were not “appropriate” was error. Aplt. Br. at 6-7.

      Before considering Almanza-Martinez’s argument, however, we must first

determine the appropriate standard of review. The government characterizes

Almanza-Martinez’s appeal as a procedural reasonableness objection, i.e., a

challenge to the method by which the district court arrived at its sentencing

decision because of the district court’s alleged misunderstanding of its sentencing

authority under Kimbrough. The government then contends that because

Almanza-Martinez did not object at sentencing when the district court allegedly

misstated the scope of its sentencing authority, and never cited the Kimbrough

decision to the district court, Almanza-Martinez’s appeal is limited to plain error

review. Aple. Br. at 15. Almanza-Martinez concedes in his reply brief that he

alleges a procedural error by the district court, because his appeal “challenges not

the length of the sentence but rather the means by which it was determined.”

Aplt. Reply Br. at 5.

      Regarding the standard of review for procedural sentencing errors when the

appellant propounds only substantive arguments before the district court, we

recently stated:




                                           7
             Ordinarily, we review a district court’s sentencing
             procedure for abuse of discretion, evaluating factual
             findings for clear error and legal determinations de novo.
             When the party alleging error has not objected in the court
             below, however, we review only for plain error. . . .

             A party must specifically object to the district court’s
             procedure in order to preserve that issue for review. The
             government argues that we should construe its repeated
             substantive objections to the proposed downward variance
             as somehow encompassing the required procedural
             objection. But because the government voiced these
             objections before the [district] court’s discussion of the §
             3553(a) factors, the objections could not have addressed
             any procedural deficiency in that explanation.

United States v. Mendoza, 543 F.3d 1186, 1190-91 (10th Cir. 2008) (internal

citations, quotations, and footnote omitted); see also United States v. Ruiz-

Terrazas, 477 F.3d 1196, 1199 (10th Cir. 2007) (“Because [the defendant] did not

object to the procedure by which his sentence was determined and explained, we

may reverse the district court’s judgment only in the presence of plain error.”);

United States v. Romero, 491 F.3d 1173, 1177 (10th Cir. 2007) (“[W]hile a

defendant need not object after pronouncement of sentence based on substantive

reasonableness, i.e.[,] the length of that sentence, he must object to any

procedural flaws or receive, on appeal, only plain error review.” (citing United

States v. Lopez-Flores, 444 F.3d 1218, 1221 (10th Cir. 2006))).

      Almanza-Martinez did not object to the alleged procedural error at the

sentencing hearing. He made substantive arguments only. We therefore review

Almanza-Martinez’s appeal of the alleged procedural error under our plain error

                                          8
standard of review. Plain error review requires Almanza-Martinez to show: (1)

error, (2) that is plain, (3) which affects the defendant’s substantial rights and (4)

which seriously affects the fairness, integrity, or public reputation of judicial

proceedings. Mendoza, 543 F.3d at 1190.

      At oral argument, Almanza-Martinez’s counsel conceded that if the plain

error standard of review applies, Almanza-Martinez cannot meet the final two

prongs of the plain error standard, thereby foreclosing his appeal. We agree.

Regardless of any finding on the first two prongs of plain error review, see id. at

1194 (noting that, regardless of whether the appellant shows plain error, the

appeal fails if the appellant does not also show that the plain error results in

prejudice to the defendant’s substantial rights), Almanza-Martinez can not show

that his “substantial rights” have been affected—“a reasonable probability that,

but for the error claimed, the result of the proceeding would have been different.”

United States v. Hasan, 526 F.3d 653, 665 (10th Cir. 2008) (quotation omitted).

      As the party that failed to raise his error below, Almanza-Martinez “bears

the burden of establishing this probability.” Mendoza, 543 F.3d at 1194 (citing

Romero, 491 F.3d at 1179). “When that party fails to advance any argument that

its substantial rights were affected, it fails to satisfy this burden.” Id.; see also

United States v. Trujillo-Terrazas, 405 F.3d 814, 819 (10th Cir. 2005) (“For an

error to have affected substantial rights, the error must have been prejudicial: It

must have affected the outcome of the district court proceedings.”).

                                            9
      In this case, the Almanza-Martinez’s specific allegation of error is that the

district court, in rejecting his motion for a downward variance, stated: “I don’t

think variance requests are appropriate if they seek to elicit some sort of policy

ruling.” ROA Vol. III at 16. The district court, however, ultimately considered

Almanza-Martinez’s policy argument that his calculated Guideline range for

illegal reentry was too severe by concluding the Guideline sentence was not too

severe as applied to Almanza-Martinez. In other words, the district court was

stating that there was nothing unusual about Almanza-Martinez that placed him

outside the heartland of cases covered by the Guidelines. It is clear from reading

the entire transcript that the district court thought that, regardless of policy

disagreements, the sentence imposed was appropriate for this defendant—the

alleged error would not have shifted the district court’s sentence.

      In this case, the record fails to provide the slightest indication that the

district court would have imposed a lower sentence had it not made the alleged

procedural error. When we review the district court’s sentencing in this case, it is

beyond dispute that the district court adequately addressed the variance factors of

18 U.S.C. § 3553(a). The district court touched upon each factor when it denied

Almanza-Martinez’s requested variance, satisfying any and all requirements set

forth in the applicable statute and case law. See Ruiz-Terrazas, 477 F.3d at 1202-

03 (“The record before us reveals that the district court entertained [the

defendant’s] Section 3553(a) arguments at length; indicated on the record that it

                                           10
had considered the Section 3553(a) factors; and proceeded to explain its reliance

on the range suggested by the sentencing Guidelines. In our view, no more is

required by statute or our precedents.”). In light of these principles, and the

district court’s ample explanation and justification of the sentence it imposed, we

have no basis upon which to conclude that the district court’s alleged procedural

error affected substantial rights.

                                          III

      The judgment of the district court is AFFIRMED.


                                                Entered for the Court


                                                Mary Beck Briscoe
                                                Circuit Judge




                                          11
