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

                             FOR THE TENTH CIRCUIT                              October 25, 2016
                         _________________________________
                                                                              Elisabeth A. Shumaker
                                                                                  Clerk of Court
UNITED STATES OF AMERICA,

      Plaintiff - Appellee,
                                                              No. 15-2192
v.                                                  (D.C. No. 2:15-CR-00125-KG-1)
                                                           (D. New Mexico)
ROMAN ENRIQUE DELGADO-
MONTOYA, a/k/a JOSE DELGADO-
MONTOYA,

      Defendant - Appellant.
                      _________________________________

                             ORDER AND JUDGMENT*
                         _________________________________

Before LUCERO, McHUGH, and MORITZ, Circuit Judges.
                  _________________________________


       Roman Enrique Delgado-Montoya appeals the district court’s imposition of a 120-

month sentence after he pled guilty to reentering the United States after removal, in

violation of 8 U.S.C. § 1326(a) and (b). Mr. Delgado-Montoya argues the district court

erred in imposing a 16-level enhancement based on its conclusion that his prior

conviction of arson under California state law is a crime of violence for purposes of

§ 2L1.2 of the U.S. Sentencing Guidelines. He also argues the 120-month sentence

selected by the district court is substantively unreasonable. We affirm.

       *
         This order and judgment is not binding precedent, except under the doctrines of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.
                                  I.   BACKGROUND

       Mr. Delgado-Montoya is a citizen of Mexico who was removed from the United

States on February 10, 2014. Although he was not given permission to reenter, Mr.

Delgado-Montoya was found in the United States on May 30, 2014. As a result, the

United States government charged him with one count of reentry of a removed alien

under 8 U.S.C. § 1326(a) and (b). Mr. Delgado-Montoya pled guilty to the indictment.

       After the plea, a probation officer prepared a presentence report (PSR) for Mr.

Delgado-Montoya. The PSR identified a prior felony conviction of “Arson:

Structure/Forest Land” under California state law as a crime of violence for sentencing

purposes. Accordingly, the PSR recommended Mr. Delgado-Montoya’s offense level be

increased by 16—from a base level of 8, to 24—pursuant to § 2L1.2(b)(1)(A)(ii) of the

U.S. Sentencing Guidelines (Guidelines). After other adjustments, the PSR calculated

Mr. Delgado-Montoya’s total offense level as 24, which, when combined with his

criminal history category of VI, resulted in a Guidelines imprisonment range of 100 to

125 months.

       Mr. Delgado-Montoya objected to the PSR, arguing the 16-level enhancement

should not apply because his prior arson conviction under California Penal Code § 451

did not constitute a crime of violence under § 2L1.2. Specifically, he claimed that

California’s arson statute does not qualify as a crime of violence under § 2L1.2 because

its reach is broader than the modern generic definition of arson: whereas “[t]he generic

definition of arson is a ‘willful and malicious burning’ of property,” he argued, “the



                                             2
California arson statute provides that one can commit arson in that state by attempting to,

committing an act preliminarily to, committing an act in furtherance of, and/or aiding,

counseling, or procuring the requisite burning.” He further claimed that the “statute’s

inclusion of burning ‘forest land’ also renders it broader than the generic definition of

arson.” At the sentencing hearing, Mr. Delgado-Montoya reiterated this objection,

focusing on whether the criminalization of the “procurement” of a burning caused the

California statute to sweep more broadly than the generic definition of arson.

       The district court overruled Mr. Delgado-Montoya’s objection, relying in part on

the Ninth Circuit’s decision in United States v. Perez-Tapia, which held that a conviction

under Cal. Penal Code § 451 is a crime of violence for purposes of § 2L1.2 of the

Guidelines. 241 F. App’x 416, 417–18 (9th Cir. 2007) (unpublished). The district court

sentenced Mr. Delgado-Montoya to 120 months in prison and three years of unsupervised

release. Mr. Delgado-Montoya now appeals.

                                    II.   DISCUSSION

       Mr. Delgado-Montoya raises two main arguments in this appeal:1 (1) the district

court erred in concluding his prior arson conviction was a crime of violence and imposing


       1
         Mr. Delgado-Montoya also raises a direct challenge to his reentry conviction on
the basis that he was not “found in” the United States within the meaning of § 1326
because “he was subject to ‘official restraint’ throughout the duration of the brief time in
which he was physically present in the United States prior to his apprehension.”
However, even if it was not enough that Mr. Delgado-Montoya explicitly “concedes that
the facts underlying this claim were inadequately developed in the district court to permit
him to prevail on this issue in this appeal,” we would reject this challenge because he
waived it when he pled guilty. See United States v. De Vaughn, 

, 1153
(10th Cir. 2012).

                                              3
a sentencing enhancement based on that conclusion; and (2) his sentence is substantively

unreasonable. We address and reject these contentions in turn.

    A. The District Court Did Not Plainly Err in Applying the Crime-of-Violence
                               Sentence Enhancement

       Mr. Delgado-Montoya first disputes the district court’s determination that his prior

California arson conviction qualifies as a “crime of violence” subject to a 16-level

enhancement under § 2L1.2(b)(1)(A)(ii) of the Guidelines. Specifically, he argues that

the definition of arson under Cal. Penal Code § 451 criminalizes a broader swath of

conduct than the modern generic definition of arson because § 451 does not require proof

of a purpose to cause harm, whereas generic arson does.

       The government maintains, first and foremost, that the district court correctly

determined that arson under § 451 is a crime of violence for purposes of § 2L1.2 because

§ 451’s definition of arson is not broader than the generic definition of arson. It also

argues, however, that Mr. Delgado-Montoya did not raise his current broadness argument

in the district court and that plain-error review therefore applies. Framed this way, the

government asserts that, even if the district court erred, its error was not plain. Mr.

Delgado-Montoya disagrees that plain-error review is the appropriate standard and asks

us to review the district court’s crime-of-violence determination de novo.

       Before returning to Mr. Delgado-Montoya’s substantive argument, we must first

resolve the parties’ threshold dispute over the appropriate standard of review.




                                              4
                                 1.     Standard of Review

       “Whether a conviction qualifies as a crime of violence under § 2L1.2 is a matter of

statutory interpretation that we normally would review de novo.” United States v. Juarez-

Galvan, 

, 1158 (10th Cir. 2009). However, where a defendant challenges a

district court’s interpretation of the Guidelines based on an argument the defendant did

not raise in the district court, de novo review is inappropriate and we instead review for

plain error. United States v. Ruiz-Gea, 

, 1185, 1187 (10th Cir. 2003); see

also United States v. Taylor, 

, 1096 (10th Cir. 2008) (“[W]here a party

seeks on appeal to raise an issue not squarely presented to the district court in order to

allow it to exercise its judgment in the first instance . . . we traditionally review only for

plain error.”). We conclude plain error review applies here.

       As noted above, Mr. Delgado-Montoya argued in the district court that § 451 is

broader than generic arson because, in addition to proscribing conduct amounting to the

“willful and malicious” burning of a building, the statute criminalizes the procurement of

and the aiding and abetting of that conduct. The district court rejected this argument,

largely relying on United States v. Perez-Tapia’s holding that the generic crime of arson

includes aiding-and-abetting liability. 241 F. App’x 416, 418 (9th Cir. 2007)

(unpublished). Now, on appeal, Mr. Delgado-Montoya abandons this argument and

instead seeks to show that § 451 is broader than generic arson in a different way—

namely, by arguing that generic arson requires proof of a “purpose to cause harm” while

§ 451 does not.



                                               5
       Although this latter argument was “not squarely presented to the district court,”

, Mr. Delgado-Montoya nonetheless argues de novo review

should apply. First, he contends de novo review is appropriate because his arguments

below and on appeal both relate to whether § 451 is broader than generic arson. However,

our decisions in United States v. Ventura-Perez, 

(10th Cir. 2012), and

United States v. Zuniga-Soto, 

(10th Cir. 2008)—both of which applied

plain error review in precisely analogous circumstances—foreclose this contention.

–74 (applying plain error review to district court’s

conclusion that state burglary statute was crime of violence under § 2L1.2 where

defendant argued on appeal that statute was broader than generic burglary for a different

reason than he had argued statute was broader below); 

–17,

1122–25 (same but in the context of state assault statute). See also Muse v. United States,

574 F. App’x 798, 800 (10th Cir. 2014) (“‘[I]ssues not passed on below’ and therefore

not preserved for appeal include ‘a situation where a litigant changes to a new theory on

appeal that falls under the same general category as an argument presented at trial . . . .’”

(quoting Lyons v. Jefferson Bank & Tr., 

, 722 (10th Cir. 1993))).

       Second, Mr. Delgado-Montoya argues de novo review is appropriate because the

government impeded his objection to the crime-of-violence classification by failing to

notify him of the statute under which he was previously convicted until the day before the

sentencing hearing. This argument, too, is baseless because the government identified his




                                              6
prior conviction as a violation of Cal. Penal Code § 451 three weeks before the

sentencing hearing, in its response to Mr. Delgado-Montoya’s objections to the PSR.

       In short, because Mr. Delgado-Montoya could have, but did not, raise his present

argument in the district court, we review the district court’s decision for plain error only.

See 

. Under plain error review, a defendant must demonstrate

that “(1) the district court erred; (2) the error was plain; (3) the error affects the

defendant’s substantial rights; and (4) the error seriously affects the fairness, integrity, or

public reputation of judicial proceedings.” United States v. Sabillon-Umana, 

, 1333 (10th Cir. 2014). Although an obvious error in the district court’s application

of the Guidelines is typically presumed to satisfy the third and fourth prongs of this

analysis, 

a defendant still must show there actually was an error and that

the error was plain. To show that an error was plain, the error must be “clear” or

“obvious” under current law: “If neither the Supreme Court nor the Tenth Circuit has

ruled on the subject, we cannot find plain error if the authority in other circuits is split.”

United States v. Teague, 

, 1319 (10th Cir. 2006); see also United States v.

Whitney, 

, 1309 (10th Cir. 2000) (“An error is clear and obvious when it is

contrary to well-settled law.”).

       Here, we need not decide whether the district court erred in concluding Cal. Penal

Code § 451 is a crime of violence within the meaning of § 2L1.2 of the Guidelines

because even if this conclusion was error, it was not plain. We explain why below.




                                                7
            2.     Mr. Delgado-Montoya Has Not Shown the District Court
                              Committed a Plain Error

       When a district court sentences a defendant convicted of unlawfully reentering the

United States, the Guidelines direct the court to apply a 16-level enhancement “[i]f the

defendant previously was deported . . . after . . . a conviction for a felony that is . . . a

crime of violence.” § 2L1.2(b)(1)(A)(ii). The commentary to that section defines “crime

of violence” to include, as relevant here, state-law arson offenses. § 2L1.2 application

n.1(B)(iii). However, “[t]he label that a state attaches to a crime under its laws does not

determine whether it is a Guidelines enumerated offense.” United States v. Rivera-Oros,

, 1126 (10th Cir. 2009). Rather, to determine whether a prior state-law

conviction is a crime of violence for purposes of § 2L1.2, we “apply a ‘categorical

approach,’ considering only whether the elements of the state statute of conviction

substantially correspond to the ‘uniform generic definition’ of an offense enumerated in

§ 2L1.2.” United States v. Castillo, 

, 345 (10th Cir. 2015). If they do, “then

the conviction qualifies as a crime of violence.” 

. But if

the elements of the state offense encompass a broader swath of conduct than those of the

generic offense, the state offense does not qualify as a crime of violence under the

categorical approach. See Descamps v. United States, 

, 2283, 2285–86

(2013).

       The California arson statute at issue here provides: “A person is guilty of arson

when he or she willfully and maliciously sets fire to or burns or causes to be burned or

who aids, counsels, or procures the burning of, any structure, forest land, or property.”


                                                8
Cal. Penal Code § 451. Interpreting this provision, the California Supreme Court has said

“willfully” means “a purpose or willingness to commit the act . . . . It does not require

any intent to violate law, or to injure another, or to acquire any advantage.” In re V.V.,

, 982–83 (Cal. 2011) (quoting Cal. Penal Code § 7). And “maliciously,” as

defined in the code, “imports a wish to vex, defraud, annoy, or injure another person, or

an intent to do a wrongful act, established either by proof or presumption of law.” Cal.

Penal Code § 450(e).

       Mr. Delgado-Montoya argues that arson under § 451 is broader than generic arson

because § 451 does not require proof of a purpose to cause harm or a subjective

awareness of a risk of harm, whereas generic arson does. That is, Mr. Delgado-Montoya

asserts the generic crime penalizes intentional fire-starting where the defendant himself is

aware of the highly probable consequences of his act, while the California statute

penalizes the intentional act of setting a fire “with awareness of facts that would lead a

reasonable person to realize that the direct, natural, and highly probable consequence”

would be the burning of the relevant structure or property. In re 

(emphasis added). As a result, he contends, California arson does not qualify as a crime

of violence under § 2L1.2 of the Guidelines and the district court erred in deciding

otherwise. But we need not explore the particulars of Mr. Delgado-Montoya’s argument

or determine whether he is ultimately correct. Even if the district court erred in deeming

his California arson offense a crime of violence under the Guidelines, which we do not

decide, this error was not plain.



                                              9
       “An error in a ruling is plain only if the ruling violates well-settled law.” United

States v. Baum, 

, 1135–36 (10th Cir. 2009) (internal quotation marks

omitted). Thus, as we explained above, “[w]hen no authority from the Supreme Court or

this circuit would compel a determination that there was error and there is contrary

authority in other circuits, the error can rarely be plain.” 

Such is the case

here. This circuit has not passed on the generic definition of arson, let alone assessed

whether Cal. Penal Code § 451 is a crime of violence within the meaning of § 2L1.2. And

the Supreme Court recently observed that “the elements of generic arson are themselves

so uncertain as to pose problems for a court having to decide whether they are present in

a given state law.” Torres v. Lynch, 

, 1633 (2016). In addition, the only

circuit to address the precise issue presented here reached the same conclusion as the

district court. See Perez-Tapia, 241 F. App’x at 417–18. There, the Ninth Circuit

explained:

              Perez’s California state arson conviction [under Cal. Penal Code
       § 451] was a “crime of violence” for purposes of applying the 16-level
       sentencing enhancement in U.S.S.G. § 2L1.2(b)(1)(A)(ii). . . .
              The California arson statute substantially corresponds to generic
       arson. Generic arson is defined as “a willful and malicious burning of
       property.” United States v. Velasquez-Reyes, 

, 1230 (9th Cir.
       2005). The California arson statute provides that “[a] person is guilty of
       arson when he or she willfully and maliciously sets fire to or burns or
       causes to be burned or who aids, counsels, or procures the burning of, any
       structure, forest land, or property.” Cal. Penal Code § 451. Thus, both the
       California statute and generic arson criminalize the (1) burning of (2)
       property with (3) willfulness and malice.

addition to the Ninth Circuit, the Second, Fourth, Fifth, Sixth, Seventh, and

Eighth Circuits have all concluded that the modern generic definition of arson is the


                                              10
intentional (or willful) and/or malicious burning of property. See United States v. Gatson,

, 410 (6th Cir. 2015); United States v. Misleveck, 

, 988 (7th

Cir. 2013); United States v. Whaley, 

, 907 (8th Cir. 2009); United States v.

Velez-Alderete, 

, 546 (5th Cir. 2009) (per curiam); United States v. Craig,

236 F. App’x 863, 865 (4th Cir. 2007) (per curiam) (unpublished); United States v.

Hathaway, 

, 610 (2d Cir. 1991) (per curiam). As the Perez-Tapia court

noted, this definition substantially corresponds to the language of Cal. Penal Code § 451.

241 F. App’x at 418.

       In other words, without the benefit of Mr. Delgado-Montoya’s argument that

California applies a unique definition of the language of its statute, the district court’s

categorical comparison supported its conclusion that § 451 is no broader than generic

arson. The district court’s investigation of the current law would have revealed no

Supreme Court or Tenth Circuit authority that holds otherwise, and instead would have

exposed that the Ninth Circuit in Perez-Tapia had reached the same conclusion after

comparing § 451 to generic arson. And if the district court had then expanded its research

to consider other circuit authority to ensure that Perez-Tapia got the generic definition

right, it would have learned that the majority of federal circuits have endorsed the same

generic definition. Although Mr. Delgado-Montoya may be right that, due to a

California-specific nuance, the generic definition supported by this authority does not

actually correspond with the substantially similar language in § 451, this subtle

distinction was not plain.



                                              11
       Under these circumstances, the district court did not commit plain error in

determining Mr. Delgado-Montoya’s prior conviction under § 451 was a crime of

violence triggering a 16-level enhancement under § 2L1.2 of the Guidelines “because, if

it erred at all, the error was not ‘clear or obvious.’” 

(citation omitted); see also 

(finding no plain error in part because

the district court’s decision aligned with the sole circuit decision addressing the issue).

We therefore affirm the district court’s imposition of the sentencing enhancement.

              B. Mr. Delgado-Montoya’s Sentence Is Not Unreasonable

       Mr. Delgado-Montoya next argues that his 120-month sentence is substantively

unreasonable because the district court “gave short shrift to the § 3553(a) factors” and

because his Guidelines sentencing range would be lower under the terms set forth in a

subsequently proposed amendment to the Guidelines.2 We disagree.




       2
         We note that Mr. Delgado-Montoya’s first assertion—that the district court did
not adequately consider the § 3553(a) factors—is arguably at least in part a claim that his
sentence is procedurally, not just substantively, unreasonable. See United States v. Wittig,

, 1284–85 (10th Cir. 2008) (explaining differences between procedural and
substantive unreasonableness and how a contention concerning district court’s treatment
of the § 3553(a) factors can sound in both); see also 

(“[I]t would be
procedural error if a court failed to consider the § 3553(a) factors . . . .”). We also
recognize that, unlike substantive challenges, procedural challenges are subject to plain-
error review unless they were raised in the district court. See United States v. Torres-
Duenas, 

, 1182–83 (10th Cir. 2006). For our purposes here, however, the
distinction is unimportant. Because we conclude the district court did not commit any
error under the lesser abuse-of-discretion standard generally applicable to both types of
challenges, we need not decide the extent to which Mr. Delgado-Montoya’s argument is
procedurally based nor whether plain-error review applies. See United States v. Lucero,

, 1246–47 (10th Cir. 2014).

                                             12
       We review sentences for procedural and substantive reasonableness under an

abuse-of-discretion standard. United States v. Gordon, 

, 1160 (10th Cir.

2013). Applying this deferential standard, we evaluate the district court’s factual findings

for clear error and its legal determinations de novo. 

whether a defendant’s sentence is substantively reasonable, we

examine whether the length of the sentence is reasonable given all the circumstances of

the case in light of the factors set forth in 18 U.S.C. § 3553(a).” United States v. Chavez,

, 1233 (10th Cir. 2013) (internal quotation marks omitted). Thus, although

a district court must first determine the proper Guidelines range, it should then turn to the

§ 3553(a) factors—which include the defendant’s background, the nature of the offense

at issue, and several other policy considerations—to decide whether a particular sentence

is justified. United States v. Lucero, 

, 1250 (10th Cir. 2014). Ultimately,

“[a] sentence is substantively unreasonable if, in light of the § 3553(a) factors, it ‘exceeds

the bounds of permissible choice, given the facts and the applicable law.’” 

(quoting 

). However, if a sentence falls within the correct

Guidelines range, we presume it is reasonable. 

“The defendant bears the

burden of rebutting this presumption in light of the § 3553(a) factors.” 

Delgado-Montoya does not question the fact that, absent the victory he

sought but did not win on the sentencing-enhancement issue, his 120-month sentence fell

within the proper Guidelines range of 100 to 125 months. Thus, his sentence is




                                             13
presumptively reasonable, and he bore the burden of rebutting that presumption. This he

has not done.

       After asserting that the district court “adopted the sentence recommended by the

government with little analysis” and “gave short shrift to the § 3553(a) factors,” Mr.

Delgado-Montoya simply recites facts that he believes merited leniency; he does not

actually discuss the district court’s ruling or explain how it demonstrates the district court

failed to properly consider or apply the statutory factors. And it is clear he could not have

done so convincingly even if he had tried. Before issuing its ruling, the district court gave

Mr. Delgado-Montoya ample opportunity to speak on his own behalf. Turning to its

disposition, the court expressly stated that it had “considered the Sentencing Guidelines

and the applications associated with the guidelines as well as the factors in 18 United

States Code Section 3553(a)(1) through (7).” It then explained that Mr. Delgado-

Montoya’s criminal history was the significant factor in its sentencing decision:

       [W]e don’t often see this kind of history in somebody who’s standing
       where you are. The number of aliases, the numbers of convictions, the
       numbers of arrests are impressive, and I don’t mean that in a
       complimentary way.
               . . . [M]any people come to the United States for work and for family
       reasons, but even while they’re here unlawfully, they can still be respectful
       of the laws of the United States and the people who live in the United
       States.
               Mr. Delgado, you have not been respectful . . . you have not
       assimilated into the United States no matter how many years you have been
       here, and that’s what makes you different. It’s a criminal immigration
       offense, but it’s also your criminal history that is significant.”

In light of this thorough explanation, the presumption of reasonableness that attaches

here, and Mr. Delgado-Montoya’s scant attempt to rebut that presumption, Mr. Delgado-


                                             14
Montoya has not shown his sentence “exceeds the bounds of permissible choice” and is

thus unreasonable. 

(citation omitted). We cannot say the district

court erred or abused its discretion in imposing on Mr. Delgado-Montoya a within-

Guidelines sentence of 120 months’ imprisonment.3

      Finally, contrary to Mr. Delgado-Montoya’s contention, the fact that the U.S.

Sentencing Commission subsequently proposed an amendment to § 2L1.2 that would

result in a lower Guidelines range for his offense does not make his sentence

substantively unreasonable either. See United States v. Vasquez-Alcarez, 

,

980 (10th Cir. 2011) (“The Sentencing Commission’s subsequent proposed amendment

does not change the reasonableness of the district court’s decision.”). And although the

government noted in its answer brief that the proposed amendment was approved after

Mr. Delgado-Montoya filed his opening brief, Mr. Delgado-Montoya did not mount an

argument in his reply brief based on that potential distinction—indeed, he expressly

rested on his opening brief as to his substantive unreasonableness argument. Because Mr.

Delgado-Montoya did not brief the issue of any possible difference between proposed

and adopted amendments in the context of a direct appeal, we will not consider that issue




      3
          To the extent Mr. Delgado-Montoya argues the district court did not adequately
explain its reasoning, we conclude the district court’s explanation was more than
sufficient. See United States v. Lente, 

, 1034 (10th Cir. 2011) (“When a
district court imposes a within-Guidelines sentence, the court must provide only a general
statement of its reasons, and need not explicitly refer to either the § 3553(a) factors or
respond to every argument for leniency that it rejects in arriving at a reasonable
sentence.” (internal quotation marks omitted)).

                                            15
here. See Reedy v. Werholtz, 

, 1275 (10th Cir. 2011) (“Issues not

adequately briefed will not be considered on appeal.”).

                                  III. CONCLUSION

       The district court did not plainly err in concluding that Mr. Delgado-Montoya’s

California arson conviction is a crime of violence under § 2L1.2. Accordingly, it also did

not plainly err in applying § 2L1.2’s 16-level enhancement in determining Mr. Delgado-

Montoya’s Guidelines imprisonment range. Finally, Mr. Delgado-Montoya failed to

demonstrate that his within-Guidelines sentence is unreasonable. We therefore AFFIRM

the sentence imposed by the district court.

                                               Entered for the Court


                                               Carolyn B. McHugh
                                               Circuit Judge




                                              16