                                                                        FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit
                   UNITED STATES COURT OF APPEALS
                                                                   April 16, 2013
                                TENTH CIRCUIT                   Elisabeth A. Shumaker
                                                                    Clerk of Court


 UNITED STATES OF AMERICA,

              Plaintiff - Appellee,                     No. 12-1061
                                             (D.C. No. 1:07-CR-00188-MSK-17)
 v.                                                      D. Colorado
 OSCAR GARCIA-RUIZ,

              Defendant - Appellant.


                           ORDER AND JUDGMENT *


Before HARTZ, EBEL, and MURPHY, Circuit Judges.



      After examining the briefs and appellate record, this court has determined

unanimously that oral argument would not materially assist the determination of

this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). Accordingly, we

grant the parties’ requests and order the case submitted without oral argument.

                               I. INTRODUCTION

      A jury found Oscar Garcia-Ruiz guilty of multiple charges flowing from a

large drug conspiracy in Denver, Colorado. United States v. Garcia-Ruiz, 421 F.

      *
        This order and judgment is not binding precedent except under the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.
App’x 903, 905-06 (10th Cir. 2011). To avoid sentencing disparities between

Garcia-Ruiz and his co-defendants, the district court varied downward

significantly from the range set out in the United States Sentencing Guidelines.

Id. at 907. Despite an advisory range of 360 months to life imprisonment, the

district court sentenced Garcia-Ruiz to a term of 180 months. Id. This court

affirmed Garcia-Ruiz’s convictions, but concluded the district court erred in

calculating Garcia-Ruiz’s offense level. Id. at 912. Accordingly, we remanded

the case to the district court for resentencing. Id. at 913, 915. On remand, the

district court reimposed the same downward-variant, 180-month sentence.

Garcia-Ruiz appeals, asserting the district court’s sentence is procedurally

unreasonable. Exercising jurisdiction pursuant to 18 U.S.C. § 3742(a) and

28 U.S.C. § 1291, this court affirms.

                               II. BACKGROUND

      This court previously set out at some length the procedural background

accompanying Garcia-Ruiz’s first sentencing proceeding:

             Seventeen members of the Camacho Group were charged with
      drug possession, distribution and conspiracy charges in a 29-Count
      indictment. Garcia-Ruiz was tried on: conspiracy to distribute and
      possess with intent to distribute 5 kilograms or more of cocaine
      (Count 2); the December 7, 2006 distribution and possession with
      intent to distribute more than 500 grams but less than 5 Kilograms of
      cocaine (Count 15); the December 13, 2006 distribution and
      possession with intent to distribute more than 500 grams but less than
      5 kilograms of a Schedule II substance and aiding or abetting the
      same (Count 17); the January 28, 2007 distribution of more than 500
      grams but less than 5 kilograms of cocaine (Count 24); and

                                        -2-
possession of a firearm and ammunition which had been transported
in interstate and foreign commerce while being an alien unlawfully in
the United States (Count 26).

       By the time of trial, all but two defendants, Garcia-Ruiz and
Roberto Lopez, had pled guilty or agreed to cooperate with the
government. The evidence at trial consisted of testimony from
several co-conspirators, law enforcement officers and the tapes from
the recorded telephone conversations. The jury found Garcia-Ruiz
guilty on all counts and entered special verdicts finding the drug
quantities as charged (more than 5 kilograms in the conspiracy
charge and, in the individual possession charges, more than 500
grams but less than 5 kilograms) in each count. Eventually, Count 15
was dismissed.

       The presentence report calculated Garcia-Ruiz’s offense level
as 38 based, in part, on a drug quantity of greater than 150 kilograms
(the amount considered solely for sentencing purposes as opposed to
the 5 kilograms considered in the guilt stage) and a criminal history
category of III, resulting in a guideline range of imprisonment for
360 months to life. . . . Garcia-Ruiz . . . objected to the 150 kilogram
drug quantity. He argued his involvement in the conspiracy was
limited to November through January, when the drug trafficking all
but ended due to the government’s seizure of the shipment on
January 8, 2007. Therefore, he claimed, the evidence established he
should be held responsible for no more than 100 kilograms. He also
argued the sentences given to others in the organization in a similar
role were much lower—less than ten years—so a variance below the
Guidelines would avoid sentencing disparity. He requested a
sentence of imprisonment of no more than ten years. At his
sentencing hearing, Garcia-Ruiz testified about his failure to
cooperate with the government prior to trial explaining his failure
was only because his immediate family still lives in Mexico and he
feared retaliation against them if he cooperated.

       Pointing to Garcia-Ruiz’s involvement in the conspiracy for a
period of six months—from October 2006 through April 2007—the
government argued testimony established there were shipments from
Mexico of 25 to 30 kilograms every other week. In addition, after
the shipments were discontinued from Mexico, Garcia-Ruiz actively
collected debts for the conspiracy and assisted in attempts to find an

                                   -3-
      alternative supplier. Thus, the evidence supported an estimate (for
      sentencing purposes) holding Garcia-Ruiz responsible for 150 to 175
      kilograms moved by the conspiracy during his involvement.

            The court overruled Garcia-Ruiz’s objection to the drug
      quantity concluding the jury was given sufficient evidence to find
      Garcia-Ruiz was involved in a conspiracy distributing more than 150
      kilograms of drugs and his involvement was not insignificant. . . .

            The court stated:

            I am presented with a situation where the leader faces
            180 months. The government seeks twice the amount of
            that. The probation officer, without specific
            recommendation, believes that the Guideline sentence
            should be moderated with a variant sentence under the
            statute. And I agree. And how does one measure that in
            a fair way and come up with a sentence that is sufficient
            but not greater than necessary.

            I do take into account the reality of cooperation,
            including, as [the] government argues, that others
            perhaps [may be] threatened as well, although I agree
            with this defendant that specific locale is an obvious
            threat to this defendant and his family. But in any case,
            there is that to be taken into account.

            I feel that the highest sentence that’s been given to
            someone so far is 194 months. The involvement of that
            individual, although he cooperated, was again, much
            more extensive than this defendant. He was an
            organizer. He was involved with a gun. He purchased
            and sold large amounts of cocaine. . . . And I conclude
            that a sentence for this defendant that is essentially the
            equivalent of what the government feels is a maximum
            sentence for the kingpins sufficiently takes into account
            his lack of cooperation and I will conclude with a
            sentence of 180 months for this defendant.

Garcia-Ruiz, 421 F. App’x at 906-07 (footnotes omitted).


                                        -4-
      This court then addressed whether the district court erred in attributing to

Garcia-Ruiz, for sentencing purposes, more than 150 kilograms of cocaine. Id. at

911-13. We concluded the district court had so erred and that it should not have

attributed more than 137.226 kilograms of cocaine to Garcia-Ruiz. Id. at 912.

This court further rejected the government’s argument that the district court’s

sentencing error was harmless:

      Any error in the guidelines calculation requires a remand unless the
      error is harmless. United States v. Kristl, 437 F.3d 1050, 1054–55
      (10th Cir. 2006). A harmless error is one which we can say “did not
      affect the sentence selected.” United States v. Tom, 494 F.3d 1277,
      1282 (10th Cir. 2007). It is the government’s burden to convince us
      by a preponderance of the evidence the error is harmless. United
      States v. Conlan, 500 F.3d 1167, 1170 (10th Cir. 2007).

             “A district court must begin every sentencing proceeding by
      correctly calculating the applicable Guidelines range.” United States
      v. Scott, 529 F.3d 1290, 1300 (10th Cir. 2008) (quotations omitted).
      “A sentence cannot . . . be considered reasonable if the manner in
      which it was determined was unreasonable, i.e., if it was based on an
      improper determination of the applicable Guidelines range.” Tom,
      494 F.3d at 1282 (quoting Kristl, 437 F.3d at 1055). If the district
      court had applied a base offense level of 36, Garcia-Ruiz’s guideline
      range would have been 292 to 365 months imprisonment rather than
      the 360 month to life.

             The government argues “the question of what the applicable
      base offense level should have been is largely academic because Mr.
      Garcia-Ruiz received a much lower sentence than he would have
      received even if the drug quantity evidence had only supported a
      base offense level of 36, as opposed to 38.” It contends because “the
      district court’s variance was tied to the average sentences that were
      recommended by the Government for the leaders of the drug
      organization . . . 180 months,” there is no “assurance” Garcia-Ruiz’s
      sentence would be lower on remand. While this argument has
      obvious weight, it cannot carry the day.

                                         -5-
              At the time of sentencing, the court thought Garcia–Ruiz, like
      the “kingpins,” was responsible for the distribution of over 150
      kilograms of cocaine. It was faced with a difficult situation and
      wanted to “measure that in a fair way and come up with a sentence
      that is sufficient but not greater than necessary.” It recognized the
      disparity between the actions of the different conspirators as
      compared to those of Garcia–Ruiz (several years of distributing well
      over 150 kilograms of cocaine and Garcia–Ruiz’s active involvement
      for no more than four months) as well as the proposed sentences for
      others who had been significantly involved for a substantial period of
      time (sentences ranging from 47 months for another runner in a
      position similar to Garcia–Ruiz’s up to 194 months for Jose Muñoz,
      the main partner with Alejandro in the Camacho Group.)

             We recognize these other defendants pled guilty prior to trial,
      but we cannot know what the court would do in dealing with a
      correct drug amount. Therefore, the error in calculation cannot be
      said to be harmless in this instance and we remand for resentencing.
      It may be that the already lenient sentence would not change because
      the amount of drugs was 130+ kilograms rather than 150. But that is
      a decision for the trial judge, not this Court.

Garcia-Ruiz, 421 F. App’x at 912-13 (record citations and footnote omitted).

      Upon remand, Garcia-Ruiz filed a brief motion requesting “an additional

downward variance from the Guidelines, after reconsideration, and for sentence

at, or near, the Mandatory Minimum sentence of ten years (120 months.).” In

support of this request, Garcia-Ruiz argued, inter alia: (1) “his sentence should be

reduced because of the reduction in drug quantity mandated by the appellate

court”; and (2) the court should consider the assertedly more lenient sentences

handed out to “ring leaders” Alejandro and Luis Camacho. Because Judge

Walker Miller, the judge that presided over Garcia-Ruiz’s original sentencing

proceeding, had retired, the matter was reassigned to Judge Marcia Krieger.

                                         -6-
Judge Krieger held a hearing on Garcia-Ruiz’s motion. In support thereof,

Garcia-Ruiz relied mainly on the assertion such a sentence was necessary to

prevent unwarranted sentencing disparities. Garcia-Ruiz also argued Judge Miller

arrived at the original sentence by simply varying downward fifty percent from

the bottom of the prior, erroneously calculated Guidelines range. He asked Judge

Krieger to utilize a similar methodology and impose a sentence somewhere

between 120 months’ imprisonment (the mandatory minimum) and 146 months’

imprisonment (fifty percent below the bottom of the new, correctly calculated

Guidelines range). 1 In response, the government urged the district court to

impose the very same 180-month sentence Garcia-Ruiz had received prior to

remand. The government argued that reimposing the original sentence would not

create any unwarranted sentence disparities because none of the other defendants

were similarly situated to Garcia-Ruiz and any disparities were warranted based

on the plea agreements and substantial assistance provided by those other

co-defendants.




      1
        Judge Krieger concluded Garcia-Ruiz’s arguments in this regard were not
supported by the record. In particular, Judge Krieger noted that at no point in the
original sentencing proceeding had Judge Miller stated he was varying downward
by fifty percent in sentencing Garcia-Ruiz. Accordingly, Judge Krieger described
Garcia-Ruiz’s argument as follows: “[I]t’s a little bit hindsight . . . to say that
there was a fifty percent reduction. It’s an observation, not necessarily an
articulated calculation.”

                                        -7-
      Having listened to the attorneys’ arguments and Garcia-Ruiz’s allocution,

Judge Krieger proceeded to impose sentence. 2 She first noted that in fashioning

an appropriate sentence, she was guided by the sentencing factors and

considerations set out in 18 U.S.C. § 3553. Based on this court’s decision on

direct appeal, Judge Krieger recognized that Garcia-Ruiz’s total offense level was

38 and his criminal history category was III, resulting in an advisory Guidelines

range of 292 to 365 months’ imprisonment. She noted, however, that the parties

agreed a downward variance was appropriate “to avoid unwarranted sentence

disparities among defendants with similar records found guilty of similar

conduct.” In fact, Judge Krieger recognized the parties’ arguments focused

exclusively on the question of sentencing disparity: “There has been no evidence

and no argument presented with regard to any other factors . . . .” Therefore, she

stated her sentencing determination would likewise “focus[] on that particular

factor.”

      In so focusing, Judge Krieger made a number of observations. First, she

noted § 3553(a)(6) did not require her to “engage in a mathematical computation



      2
          In so doing, she specifically admonished the attorneys:

      Of course, Counsel, you’ll have an opportunity to make legal
      objections before judgment is entered. And should you believe that
      my reasoning is premised upon legal error or that it raises an issue
      you haven’t had adequate opportunity to consider, please request a
      continuance.

                                          -8-
that apportions among the defendants particular results.” See United States v.

Ivory, 532 F.3d 1095, 1107 (10th Cir. 2008) (“[Section] 3553(a)(6) does not

require the sentencing court to compare the sentences of codefendants; rather, it

looks to uniformity on a national scale.”). She further recognized it was

appropriate to disregard co-defendants whose sentences were reduced based on

U.S.S.G. § 5K1.1 (which allows a reduction for defendants who render substantial

assistance to the Government) and U.S.S.G. § 3E1.1 (which allows a reduction for

defendants who plead guilty). See United States v. Davis, 437 F.3d 989, 997

(10th Cir. 2006) (“While similar offenders engaged in similar conduct should be

sentenced equivalently, disparate sentences are allowed where the disparity is

explicable by the facts on the record.” (quotation omitted)).

      Keeping these considerations in mind, Judge Krieger determined Garcia-

Ruiz had identified only a single similarly situated co-defendant: Roberto Lopez.

In light of all the other sentencing factors set out in § 3553, however, Judge

Krieger concluded any disparity between sentences imposed on Garcia-Ruiz and

Lopez did not warrant a lower sentence for Garcia-Ruiz:

            There is only one defendant here who doesn’t have warranted
      sentence disparities, and that’s the other defendant who went to trial.

             Now, we do not know what his base offense level was, we
      don’t know how the calculations worked with regard to him. We do
      know that relative to this defendant, Judge Miller, believing them to
      have the same offense level and range, sentenced Mr. Roberto Lopez
      to a lower variant sentence.


                                         -9-
             We also know that Judge Miller applied all the 3553 factors in
      determining what sentence was appropriate for Mr. Garcia Ruiz, and
      that includes more than just sentence disparities.

             Since none of the other factors have been questioned at this
      juncture, I'm assuming that those are taken into account in the
      180-month sentence that was imposed by Judge Miller. And based
      on my review of all of the record here that those are taken into
      account and I would account for them there, the only question thus is
      whether or not there should be a further reduction based on a change
      in the guideline level. And the most persuasive argument that’s
      made by the defense is there was a 50 percent reduction from the
      bottom of the guideline range that Judge Miller imposed and that
      should be applied here.

            But I reject that argument. And I reject it because Judge
      Miller had at the time of sentencing of Mr. Garcia Ruiz and Mr.
      Roberto Lopez two individuals who went through trial, and he
      presumptively fashioned a sentence that took into account all of the
      3553(a) factors, and he concluded that Mr. Garcia Ruiz’s sentence
      should be longer than that of Roberto Lopez.

            Taking into account all of those same factors and the need to
      avoid unwarranted sentence disparities among defendants with
      similar records found guilty of similar conduct, as well as the
      purposes and objectives of sentencing, I see no reason to change the
      sentence that was imposed by Judge Miller.

Having stated her reasoning, Judge Krieger specifically asked the parties if there

was “any need for clarification or further explanation.” Both parties answered in

the negative. Accordingly, Judge Krieger had Garcia-Ruiz approach the lectern

and officially reimposed a sentence of 180 months’ imprisonment. Immediately

thereafter, she again asked the parties if there was “any further business to bring

before the Court before we recess.” At that point, Garcia-Ruiz offered up the




                                        -10-
following general objection: “[F]or the record and for purposes of further appeal,

I’d like to lodge an objection to the sentence that the Court has imposed.”

                                 III. DISCUSSION

      On appeal, Garcia-Ruiz now asserts the district court’s sentence is

procedurally unreasonable in the following two respects: (1) the sentence is based

on clearly erroneous facts; and (2) the district court erroneously constrained its

analysis of unwarranted sentencing disparities to Roberto Lopez. Cf. United

States v. Halliday, 665 F.3d 1219, 1222 (10th Cir. 2011) (“Procedural

reasonableness focuses on whether the district court erred in calculating or

explaining the sentence.” (quotation omitted)). In the context of a challenge to

the procedural reasonableness of a sentence, we generally review the district

court’s legal conclusions de novo and its factual findings for clear error. See

United States v. Kristl, 437 F.3d 1050, 1054 (10th Cir. 2006) (per curiam). If,

however, a defendant fails to raise a timely objection in the district court, this

court only reviews the claim of procedural unreasonableness for plain error. See

United States v. Romero, 491 F.3d 1173, 1176-77 (10th Cir. 2007). To prevail

under the plain error standard, a defendant must show an error that is plain, which

affects substantial rights, and which seriously affects the fairness, integrity, or

public reputation of judicial proceedings. Id. at 1178.




                                         -11-
A. Erroneous Factual Findings

      Garcia-Ruiz claims Judge Krieger selected a sentence “based on factual

assumptions not apparent from the record.” Appellant’s Opening Brief at 13. In

particular, he asserts Judge Krieger found Judge Miller intended that Garcia-Ruiz

serve a longer sentence than Roberto Lopez and then relied on that finding in

reimposing a 180-month sentence of imprisonment on remand. In support of this

argument, Garcia-Ruiz quotes the following portion of the sentencing transcript:

“Judge Miller had at the time of sentencing of Mr. Garcia-Ruiz and Mr. Roberto

Lopez two individuals who went through trial, and he presumptively fashioned a

sentence that took in to account all of the 3553(a) factors, and he concluded that

Mr. Garcia Ruiz’s sentence should be longer that than of Roberto Lopez.”

      Having reviewed the entire sentencing transcript, this court has no doubt

the district court did not commit the error Garcia-Ruiz attempts to attribute to it.3

Instead, the record reveals Judge Krieger arrived at Garcia-Ruiz’s 180-month

sentence after independently evaluating all of the factors set out in § 3553(a).


      3
        There is serious reason to doubt whether Garcia-Ruiz preserved this issue.
The district court gave the parties multiple opportunities to object or seek
clarification and Garcia-Ruiz merely offered up a general objection to the length
of the sentence at the close of the sentencing hearing. This is particularly true
because unlike the second issue Garcia-Ruiz raises on appeal—whether the
district court erred in refusing to consider the Camacho brothers as comparators
in considering the need to avoid unwarranted sentencing disparities—this issue
was not presented to the district court in a sentencing memorandum or during the
sentencing hearing. Nevertheless, because we conclude the district court did not
err, we need not resolve whether our review is limited to plain error.

                                        -12-
Judge Krieger first noted she had reviewed the entire record in anticipation of the

sentencing hearing. Then, after having listened to the parties’ arguments, she

explicitly stated that in arriving at an appropriate sentence, she considered the

factors set out in § 3553(a). She noted the appropriate starting point was

Garcia-Ruiz’s correctly calculated advisory guidelines range of 292 to 365

months’ imprisonment. Nevertheless, Judge Krieger recognized the parties

agreed a non-guideline sentence was necessary to “avoid unwarranted sentence

disparities among defendants with similar records found guilty of similar

conduct.” 18 U.S.C. § 3553(a)(6). Having fully ventilated the sentencing

disparity issue, she decided a sentence of 180 months’ imprisonment was

appropriate, the same sentence Judge Miller previously imposed.

      Despite Judge Krieger’s explicit statement that she reviewed the entire

record and considered each of the sentencing factors set out in § 3553(a) in

arriving at an appropriate sentence, 4 Garcia-Ruiz claims she selected a sentence

based on factual assumptions about Judge Miller’s sentencing determination not

apparent from the record. These “unwarranted assumptions,” he further asserts,



      4
        Judge Krieger’s explicit statement that she “took into account” the factors
set out in § 3553(a) is generally sufficient to demonstrate procedural
reasonableness in a circumstance like this as a district court is not required “to
recite any magic words to show us that it fulfilled its responsibility to be mindful
of the factors that Congress has instructed it to consider before issuing a
sentence.” United States v. Cordova, 461 F.3d 1184, 1189 (10th Cir. 2006)
(quotation omitted).

                                         -13-
served as a basis for Judge Krieger’s sentence. Garcia-Ruiz’s assertion in this

regard is not borne out when the portion of the sentencing transcript he identifies

is read in the context of the entire sentencing hearing. The transcript, as quoted

at length above and specifically including the portion identified by Garcia-Ruiz,

surely reveals Judge Krieger took comfort from the fact her independent

application of the § 3553(a) sentencing factors led to the same sentence Judge

Miller previously imposed. No one, however, could reasonably read the transcript

as indicating Judge Krieger set about to determine and impose the sentence Judge

Miller would have imposed had he not retired. That being the case, the district

court did not commit the error identified by Garcia-Ruiz. 5

B. Constrained Analysis of Sentencing Disparities

      Garcia-Ruiz asserts the district court erred when it refused to consider any

sentencing disparities it determined were warranted by a codefendant’s

acceptance of responsibility or substantial assistance. In so arguing, Garcia-Ruiz

cites to the Supreme Court’s decision in Gall v. United States, 552 U.S. 38, 54

(2007), and this court’s decision in United States v. Smart, 518 F.3d 800, 810



      5
       It is worth emphasizing that when this court vacated Garcia- Ruiz’s
sentence on direct appeal, we recognized the possibility that on remand the
already lenient sentence of 180 months’ imprisonment would not change. See
Garcia-Ruiz, 421 F. App’x at 913. Thus, although Garcia-Ruiz vigorously asserts
he is entitled to an even more lenient sentence and Judge Krieger’s failure to so
sentence him must be based on error, it is not surprising Judge Krieger arrived at
a sentence identical to the sentence previously imposed by Judge Miller.

                                        -14-
(10th Cir. 2008). Although we doubt these cases stand for the proposition that a

sentencing court is free to ignore entirely warranted disparities in imposing

sentences on codefendants, we need not resolve that issue because Garcia-Ruiz’s

argument suffers from a far more fundamental flaw. Even assuming sentencing

courts have the broad power Garcia-Ruiz asserts (i.e., to arbitrarily treat

dissimilar codefendants similarly), he has not identified a single case indicating a

failure to exercise that power amounts to a legal error. Instead, as this court has

previously indicated in a non-precedential decision, a sentencing “court surely

acts within it discretion when it declines [to consider the possibility of

unwarranted disparities or even warranted similarities and instead] adheres to the

text of § 3553(a).”). United States v. Rojas-Hernandez, 274 F. App’x 624, 629

(10th Cir. 2008) 6; see also United States v. Caldwell, 585 F.3d 1347, 1355-56

(10th Cir. 2009) (holding that mere fact district court had discretion to vary

downward based on crack/powder disparity did not mean district court was

obligated to do so). Thus, the district court did not commit procedural error when

it refused to consider warranted sentencing disparities in arriving at Garcia-Ruiz’s

sentence. 7

       6
        Although this panel is not bound by the decision in Rojas-Hernandez, we
find its analysis persuasive and adopt it as our own. 10th Cir. R. 32.1.
       7
       In his reply brief, Garcia-Ruiz contends for the first time that rather than
exercising its discretion, the district court “found as a legal matter that it was
unable to consider the sentences of most of Garcia-Ruiz’s codefendants.”
                                                                         (continued...)

                                         -15-
                               IV. CONCLUSION

      For those reasons set out above, the sentence imposed by the United States

District Court for the District of Colorado is hereby affirmed.

                                         ENTERED FOR THE COURT


                                         Michael R. Murphy
                                         Circuit Judge




      7
        (...continued)
Appellant’s Reply Brief at 15. Garcia-Ruiz’s argument in this regard, which is
again based on a portion of the sentencing transcript read out of context, borders
on disingenuous. The sentencing transcript, read as a whole, clearly demonstrates
the district court considered divergent “schools of thought” on how to best
account for § 3553(a)(6) in arriving at a sentence and decided the appropriate
approach was to “generally take into account those circumstances that
differentiate defendants and decide whether or not they should result in sentence
disparities.”

                                       -16-
