FILED
                                                                   United States Court of Appeals
                                                                           Tenth Circuit

                                                                         August 26, 2008
                     UNITED STATES COURT OF APPEALS
                                                                       Elisabeth A. Shumaker
                            FOR THE TENTH CIRCUIT                          Clerk of Court



 UNITED STATES OF AMERICA,

        Plaintiff - Appellee,

 v.                                                        No. 07-1248
                                                   (D.C. No. 07-CR-00013-LTB)
 CARLOS VALLE-MARTINEZ, also                                 (D. Colo.)
 known as Carlos Martinez,

        Defendant - Appellant.


                             ORDER AND JUDGMENT *


Before HENRY, Chief Judge, TYMKOVICH, and HOLMES, Circuit Judges.


      Defendant-Appellant Carlos Valle-Martinez pleaded guilty to one count of

reentering the United States after being previously deported following a

conviction for an aggravated felony, in violation of 8 U.S.C. § 1326(a)(1) and (2)

and 8 U.S.C. § 1326(b)(2). The district court varied downward twelve months

from the bottom of the advisory Guidelines range of forty-six to fifty-seven




      * This Order and Judgment is not binding precedent, except under the doctrines of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. After
examining the briefs and the appellate record, this three-judge panel has determined
unanimously that oral argument would not be of material assistance in the determination
of this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument.
months, imposing a sentence of thirty-four months’ imprisonment. Mr. Valle-

Martinez appeals arguing that his sentence is procedurally unreasonable.

Exercising jurisdiction pursuant to 28 U.S.C. § 1291, we AFFIRM.

                               I. BACKGROUND

      Mr. Valle-Martinez was indicted on one count of unlawful reentry of a

deported alien after a conviction for an aggravated felony. He executed a plea

agreement, and pleaded guilty. Subsequently, the probation office prepared a

Presentence Investigation Report (hereinafter “PSR”). The PSR calculated a total

offense level of 17, which included a three-level reduction for acceptance of

responsibility. The offense level, together with a criminal history category of V,

resulted in an advisory Guidelines range of forty-six to fifty-seven months’

imprisonment.

      Mr. Valle-Martinez filed a motion for a downward variance pursuant to 18

U.S.C. § 3553(a) arguing that, to avoid unwarranted sentencing disparities, he

was entitled to credit for the twenty-nine months he spent under a federal

immigration detainer, after federal officials were aware of his illegal presence in

the United States until they brought him into federal custody. The government

did not object to a variance, but argued that Mr. Valle-Martinez should receive a

twelve-month rather than a twenty-nine-month variance.

      At sentencing, the district court noted that under Tenth Circuit precedent

the greater the deviation of the requested variance from the Guidelines range, the

                                         -2-
more weighty the justifications for the variance must be. In other words, there

was a proportional relationship between the extent that a requested variance

deviated from the Guidelines range and the magnitude of the reasons necessary to

justify it. Additionally, the district court expressed its view that it could not

justify more than a fifty percent variance from the bottom of the advisory

Guidelines range based on a single § 3553(a) factor. After carefully weighing the

§ 3553(a) factors, the district court adopted the factual statements and Guidelines

calculations in the PSR. The court concluded “that in consideration of all of the

factors set forth in 18 U.S.C. Section 3553(a), including proportionality and the

justness of the sentence, that a variant sentence is appropriate in this case.” R.,

Vol. II, Tr. at 16 (Sentencing Hearing Transcript, dated May 24, 2007). 1


      1
             Specifically, after asking counsel the length of the requested
variance, the district court engaged in the following dialogue with him:

                    [THE COURT:] This case I think has to be viewed in
             light of Tenth Circuit authority, which looks at variant
             sentences as to levels of how variant they may
             be—exceptional, I suppose modest, and then there is some
             range in between. . . . The further you vary from [the bottom
             of the Guidelines] range, the more exceptional the
             circumstances have to be.

                    And the Tenth Circuit has said I think most recently that
             reliance upon one of the statutory factors alone is inadequate
             to justify a variance . . . . Reliance on one statutory factor
             alone, in this case the proffered statutory factor is that of
             disparity, is inadequate reason to justify the variance.

                                                                         (continued...)

                                          -3-
       The court imposed a sentence of thirty-four months’ imprisonment, “a

sentence [the court found] and conclude[d] is sufficient but not greater than

necessary to comply with the purposes set forth in paragraph (2) of 18 U.S.C.

Section 3553(a).” 

The district court entered final judgment, and Mr.

Valle-Martinez timely appealed.

                                    II. DISCUSSION

       Mr. Valle-Martinez challenges his sentence, asserting that the district court

erred: (1) in concluding that it could not vary more than fifty percent from the

low end of the advisory Guidelines range based solely on a single § 3553(a)

factor; and (2) by engaging in a proportionality analysis in ruling on his variance




       1
           (...continued)
                       ....

                      . . . [T]he latest case seems to say to me that if I were to
                vary more than 50 percent simply on the one factor of
                disparity, it would not be a reasonable sentence.

                      ....

                       [DEFENSE COUNSEL:] I mean certainly it says that if
                you’re going to vary to an exceptional degree that it should be
                based on more than one factor or that it can’t be based on one
                factor. But I mean to the extent it doesn’t line out what an
                exceptional degree is and set forth—

                      THE COURT: More than 50 percent is approaching that.

R., Vol. II, Tr. at 3-6.

                                             -4-
request. 2

       “We review [a] sentence for reasonableness, giving deference to the district

court under the familiar abuse-of-discretion standard.” United States v. A.B., 

, 1277 (10th Cir. 2008) (internal quotation marks omitted). There are

procedural and substantive components of reasonableness. See, e.g., United

States v. Atencio, 

, 1102 (10th Cir. 2007), overruled in part on

other grounds by Irizarry v. United States, 

, 2201 n.1, 2203-04

(2008).

        In Gall v. United States, 

(2007), the Court described

instances of “significant procedural error, such as failing to calculate (or

improperly calculating) the Guidelines range, treating the Guidelines as

mandatory, failing to consider the § 3553(a) factors, selecting a sentence based on

clearly erroneous facts, or failing to adequately explain the chosen

sentence—including an explanation for any deviation from the Guidelines range.”

(emphasis added); see also United States v. Huckins, 

,


       2
             In his opening brief which was filed prior to the Supreme Court’s
opinion in Gall v. United States, 

(2007), Mr. Valle-Martinez
further argued that the district court erred by characterizing his requested variance
as “exceptional,” thus requiring extraordinary circumstances to justify it. The
nomenclature of proportionality analysis upon which this argument is premised,
however, does not survive Gall. 

Therefore, we need not address the
argument. Mr. Valle-Martinez acknowledges this. See Aplt. Reply Br. at 7 n.1
(“Because Gall eliminated such appellate court labeling of non-Guideline
sentences, this Court need not decide whether the district court was correct that
this Court would view the request as ‘exceptional.’”).

                                         -5-
1317 (10th Cir. 2008). As the Gall Court’s use of the phrase “such as” reflects,

“[t]his list of potential procedural errors is not exhaustive, and other procedural

errors may be considered, as well.” United States v. Azure, No. 07-1231, 

, at *6 (8th Cir. Aug. 6, 2008).

      The substantive component relates to the length of the sentence. See

United States v. Hamilton, 

, 1217-18 (10th Cir. 2007), cert. denied,

(2008) (“In evaluating the substantive reasonableness of a

sentence, we ask whether the length of the sentence is reasonable considering the

statutory factors delineated in 18 U.S.C. § 3553(a).”); 

(“A substantively reasonable sentence ultimately reflects the gravity of the crime

and the § 3553(a) factors as applied to the case.”).

      Mr. Valle-Martinez emphatically disclaims any intention of challenging the

substantive reasonableness of his sentence. See Aplt. Op. Br. at 17 n.2 (“Mr.

Valle-Martinez is not challenging the substantive reasonableness of his

sentence.”); Aplt. Reply Br. at 7 (“Mr. Valle-Martinez does not argue that his

sentence was substantively unreasonable . . . . [He] is only arguing that the

manner in which the sentence was arrived at involved error.”). We agree that Mr.

Valle-Martinez’s contentions of error, which relate to the allegedly improper

constraints that the district court imposed upon its sentencing discretion, are

properly reviewed under the rubric of procedural reasonableness. Cf. United

States v. Conlan, 

, 1169 (10th Cir. 2007) (recognizing so-called

                                          -6-
Begay error, a district court’s erroneous decision to limit its sentencing discretion

by a presumption of reasonableness applied to the Guidelines range, as an

instance of procedural error). 3

      Because Mr. Valle-Martinez did not object at sentencing to the district

court’s alleged procedural errors, we review for plain error. To secure relief

under this demanding standard, he “must show: (1) an error, (2) that is plain,

which means clear or obvious under current law, and (3) that affects substantial

rights. If he satisfies these criteria, this Court may exercise discretion to correct

the error if it seriously affects the fairness, integrity, or public reputation of

judicial proceedings.” United States v. Goode, 

, 681 (10th Cir.

2007) (internal quotation marks omitted) (quoting United States v. Kimler, 

, 1141 (10th Cir. 2003)).

      We turn to Mr. Valle-Martinez’s first argument. After Gall, we do not

employ a proportionality analysis in considering the propriety of variances. More

specifically, “[w]e no longer require that ‘extraordinary’ circumstances justify a

sentence outside the Guidelines range nor do we mathematically calculate the

percentage variance from the Guidelines and use that percentage ‘as the standard

for determining the strength of the justifications required.’” 

(quoting 

). Thus, United States v. Garcia-Lara,


      3
             See generally United States v. Begay, 

, 975-76 (10th
Cir. 2006), rev’d on other grounds, 

, 1588 (2008).

                                           -7-


, 1138-39 (10th Cir. 2007), petition for cert. granted and judgment

vacated by, 

(2008), and like pre-Gall variance cases from our

circuit no longer apply. See United States v. Smart, 

, 806-07 (10th

Cir. 2008). “[A]lthough a district court must provide reasoning sufficient to

support the chosen variance, it need not necessarily provide ‘extraordinary’ facts

to justify any statutorily permissible sentencing variance, even one as large as []

100% . . . .” 

      Nonetheless, the extent of the variance remains a consideration post-Gall.

The district court’s justification for a variance must be “sufficiently compelling to

support the degree of the variance.” 

128 S. Ct. at 597).

Accordingly, the district court must “includ[e] an explanation for any deviation

from the Guidelines range.” United States v. Muñoz-Nava, 

, 1147

(10th Cir. 2008) (quoting 

). However, when considering a

deviation from the Guidelines range, we “must give due deference to the district

court’s decision that the § 3553(a) factors, on a whole, justify the extent of the

variance.” 

.

      Even assuming that our pre-Gall cases intimated that a sentencing court

cannot reasonably base a sentence varying more than fifty percent from the low

end of the Guidelines range on just one § 3553(a) factor, Gall dictates otherwise.

In Gall, the Court noted that “[t]he District Court quite reasonably attached great

weight to Gall’s self-motivated rehabilitation,” a single sentencing factor. 

602. See also United States v. Williams, 

, 1322 (11th Cir. 2008)

(relying on Gall, stating: “A district court’s unjustified reliance on a single §

3553(a) factor may be a symptom of an unreasonable sentence. However, such a

sentence is not necessarily unreasonable.” (emphasis added and citation and

internal quotation marks omitted)); United States v. Pauley, 

, 476

(4th Cir. 2007) (disclaiming its prior case law in light of Gall “to the extent that

our language . . . suggests that a court cannot reasonably accord significant

weight to a single sentencing factor in fashioning its sentence”).

      Applying this precedent, we conclude that the district court committed

procedural error, and that the error was clear and obvious under current law.

Specifically, the district court erred in requiring more than one § 3553(a) factor to

justify a variance more than fifty percent below the bottom of the advisory

Guidelines range. Accordingly, Mr. Valle-Martinez has satisfied the first two

prongs of the plain error test.

      Moving to the third prong of plain error review, Mr. Valle-Martinez must

demonstrate that the error affected his substantial rights. An error does not affect

substantial rights unless it is prejudicial, meaning that there is “a reasonable

probability that, but for the error claimed, the result of the proceeding would have

been different.” United States v. Gonzalez-Huerta, 

, 733 (10th Cir.

2005). More specifically, in the sentencing context, a defendant “can make this

showing by demonstrating a reasonable probability that had the district court

                                          -9-
applied the [proper] sentencing framework, he would have received a lesser

sentence.” United States v. Trujillo-Terrazas, 

, 819 (10th Cir. 2005).



      Our review of the record does suggest that the sentencing court felt that its

discretion to grant a variance was limited by our pre-Gall case law’s admonition

to mathematically define the magnitude of the variance. And, when it determined

that the requested variance fell nearer the “exceptional” end of the numerical,

proportionality continuum, the court perceived itself to be further constrained to

limit the scope of the variance, because only one § 3553(a) factor supported it.

However, we need not definitively determine whether Mr. Valle-Martinez has

satisfied the third prong of the plain error test. Even if we assume that he has

carried his burden under this prong, Mr. Valle-Martinez cannot satisfy the fourth

prong. See United States v. Nguyen, 

, 1184 (10th Cir. 2005)

(“[A]ssuming the [district court’s] comments satisfied the third prong, which we

need not reach here—we conclude they do not support our requirements to notice

plain error under the fourth prong.”); United States v. Soderstrand, 

, 1155-56 (10th Cir. 2005) (“assuming” that defendant “could show that the

sentencing below affected his substantial rights” but concluding that defendant

failed to establish the fourth plain error prong).

      “[C]ourts have held that sentencing error meets the fourth prong of plain-

error review only in those rare cases in which core notions of justice are

                                          -10-
offended.” 

; see also United States v. Sierra-

Castillo, 

, 941-42 (10th Cir. 2005) (“Gonzalez-Huerta establishes the

principle that failing to correct non-Sixth Amendment Booker error when the

defendant has failed to preserve the error in the district court will rarely be found

to [have] seriously affected the fairness, integrity, or public reputation of judicial

proceedings.”). 4 The application of fourth-prong standards in post-Booker cases

like Gonzalez-Huerta is particularly germane here because those cases addressed

a situation that is analogous to the one alleged by Mr. Valle-Martinez—that is,

one in which the district court erroneously (under the law at the time of appeal)

viewed its sentencing discretion as being mandatorily constrained by the

Guidelines. In one such case, we stated well the very rigorous nature of the

defendant’s undertaking on plain error review:

             Our analysis under this fourth prong when an error is non-
             constitutional is not flippant or perfunctory; the standard is
             formidable, as we will only exercise our discretion when an
             error is particularly egregious and the failure to remand for
             correction would produce a miscarriage of justice. A plain
             error affecting substantial rights cannot, without more, satisfy
             the fourth prong.

(citations, internal quotation marks, and

footnote omitted) (quoting 

, and United States

v. Olano, 

, 737 (1993)). Mr. Valle-Martinez’s allegations of error do



      4
             See generally United States v. Booker, 

, 259-60 (2005).

                                          -11-
not raise constitutional issues. Accordingly these plain error principles are not

applied under a “relaxed standard.” United States v. Dazey, 

, 1178

(10th Cir. 2005); see United States v. Clark, 

, 1242 (10th Cir. 2005)

(“Because this case involves constitutional Booker error, we apply the fourth

prong standard less rigidly.”).

      Consequently, we have noted that in “a run of the mill case with non-

constitutional Booker error . . . . [e]ven if a defendant can demonstrate that the

district court felt particular sympathy for him, and might impose a lesser sentence

on remand, failing to correct this type of plain error would not impugn the

fairness, integrity, and public reputation of judicial proceedings.” Trujillo-

(emphasis added). In contrast, “[w]e have repeatedly

held that where a defendant demonstrates a strong possibility of receiving a

significantly lower sentence, the fourth prong is met.” United States v. Andrews,

, 813 (10th Cir. 2006) (emphasis added); see also 

(reversing under plain error and noting “[w]e are not prepared to say that an

unconstitutionally imposed sentence leading to three years’ additional

incarceration is fair”). Cf. United States v. Brown, 

, 1161 (10th

Cir. 2003) (“A review of federal appellate decisions considering whether to

correct unobjected-to sentencing errors reveals that the key concern has been

whether correct application of the sentencing laws would likely significantly

reduce the length of the sentence.” (emphasis added)).

                                         -12-
      Mr. Valle-Martinez makes two principal arguments in an attempt to carry

his formidable burden. First, he claims that the error affected the fairness of his

sentencing because it increased his burden of proving an entitlement to the

requested twenty-nine month variance. Second, he asserts that the district court’s

articulation of an incorrect ground for not granting the requested variance

adversely impacts the integrity of the judicial system.

      While these arguments are not without substance, we cannot conclude that

they “implicate core notions of justice” or “the kind of fundamental fairness

issues necessary to satisfy the fourth plain-error prong.” 

. Even in the more aggravated context of non-constitutional Booker

error—where the problem a defendant faced was not an erroneous, higher burden

of proof to achieve a given sentence, but rather the district court’s erroneous view

that the Guidelines put certain sentences off limits altogether—we have required

more than a generalized claim of unfairness based on the difficulty of the

defense’s forensic task. Cf. 

(noting, in the Booker

context, “several non-exclusive factors” of a more concrete sort that are relevant

to the fourth prong inquiry). Furthermore, it surely cannot be enough to satisfy

the fourth prong of the plain error test for an appellant to establish that the district

court articulated an invalid legal basis for its action. To be sure, such an

articulation would likely provide the basis for satisfying the first two prongs of

the test (i.e., that the error was clear and obvious). But it would not (without

                                          -13-
more) do anything to implicate core notions of justice associated with the fourth

prong. See 

(“A plain error affecting

substantial rights cannot, without more, satisfy the fourth prong.” (internal

quotation marks omitted)). Accordingly, Mr. Valle-Martinez’s arguments are

unavailing.

      In any event, Mr. Valle-Martinez cannot successfully carry his burden

under the fourth prong because, even if we assume that the district court would be

inclined to impose a lesser sentence on remand, Mr. Valle-Martinez cannot

establish that the district court would likely impose a significantly lesser

sentence.

      The district court indicated its “rough satisfaction with [Mr. Valle-

Martinez’s] sentence [which] weighs against noticing plain error under the fourth

prong.” United States v. Johnson, 

, 1265 (10th Cir. 2005). The

district court carefully balanced the § 3553(a) factors, considering the nature and

circumstances of the offense, and Mr. Valle-Martinez’s history and

characteristics—including the fact that, unlike other similarly situated immigrants

who have lived law-abiding lives, Mr. Valle-Martinez had committed multiple

felonies. 5 Furthermore, working to Mr. Valle-Martinez’s benefit, the district


      5
            The court observed that seven years earlier Mr. Valle-Martinez had
committed his first drug felony, at the age of nineteen. Moreover, after he was
convicted and deported, he illegally re-entered the United States and later
                                                                      (continued...)

                                         -14-
court gave salience in its § 3553(a) analysis to the possibility that had the

government immediately taken him into federal custody, Mr. Valle-Martinez

could have served his federal and state sentences concurrently. More specifically,

the district court stated:

                     It’s a very difficult decision. I think in light of what
             I’ve just reviewed a variance of 24 months 6 cannot be justified
             as reasonable. To render the sentence a just one I think—and
             this is I think peripherally related to proportionality, some
             relief is warranted because the federal government really
             waited 28, 29 months before bringing the case to this Court,
             precluding any consideration for concurrent sentencing.
             Whether or not a judge would have sentenced concurrently,
             partially concurrently, or not, is frankly an open question.

                    What the result however is, is that there has been no
             opportunity to make the case for some form of concurrent
             sentencing, and to close that door, so that the result at this
             point in time, given solely the advice of these Sentencing
             Guidelines, which takes into consideration these other factors,
             would be a sentence of 46 months on top of the time he’s
             already served in state court, without any credit that could be
             afforded by the Bureau of Prisons on the sentence to be
             imposed in this case. So to be a just sentence some relief I
             think is appropriate.

                    ....

                    I find . . . and conclude that in consideration of all of the

                    5
                 (...continued)
committed two more drug felonies prosecuted by the State of Colorado.
      6
             The government notes that “[t]he district court apparently meant 29
months, the full amount of the variance requested by Mr. Valle-Martinez.” Aplee.
Br. at 15 n.3. The government may be correct; however, the matter is immaterial
to our resolution of this appeal, so we need not express a definitive view on the
subject.

                                            -15-
             factors set forth in 18 U.S.C. Section 3553(a), including
             proportionality and the justness of the sentence, that a variant
             sentence is appropriate in this case.

R., Vol. II, Tr. at 15-16.

      The district court concluded that a sentence of thirty-four months was

“sufficient but not greater than necessary to comply with the purposes . . . of 18

U.S.C. Section 3553(a).” 

This is significant evidence that the district

court would not be inclined to impose a significantly lesser sentence were we to

remand for resentencing. See 

.

      Furthermore, because this case does not involve “obvious calculation

errors,” which “[o]ur case law shows . . . will be noticed more freely on plain

error review,” we cannot say with any precision the extent of any adverse

sentencing impact Mr. Valle-Martinez suffered because of the district court’s

erroneous view regarding the scope of its sentencing discretion. 

States v. Hill, 239 F. App’x 460, 463 (10th Cir. 2007) (unpublished)

(“exercis[ing] our discretion to correct” an error resulting in a sentence at least

twenty-two months above the Guidelines maximum); United States v. Herrera,

No. 07-2043, 

, at *14 (10th Cir. July 11, 2008) (unpublished)

(“Defendant-Appellant’s base offense level was substantially increased”; thus,

“there is a reasonable likelihood that were this court to vacate the sentence and

remand, a significantly lower sentence would result.”).

      Accordingly, under the foregoing rationale, we conclude that Mr. Valle-

                                         -16-
Martinez has failed to satisfy the fourth prong of the plain error test.

      As for his second argument that the district court erred by applying our pre-

Gall proportionality analysis in assessing his variance request, as discussed

above, under current law the district court did indeed err in performing its

variance analysis and the error is clear and obvious. However, Mr. Valle-

Martinez has acknowledged that he advanced this argument pre-Gall merely “to

preserve the issue for further review.” Aplt. Op. Br. at 18. Significantly, he has

not articulated a discrete plain error analysis as to this second argument. In

particular, apart from his contentions concerning the first argument, Mr. Valle-

Martinez had not attempted to “explain how this error meets” the third and fourth

prongs of the plain error test. 

. Thus, Mr. Valle-

Martinez “has not met his burden and we cannot conclude the district court

plainly erred.” 

Valle-Martinez argues that the aggregation of the two

sentencing errors warrants reversal under the cumulative error doctrine. “The []

point of [cumulative error] review, is to examine all the actual errors which are

individually harmless to determine if together they render” the sentencing unfair.

Hamilton v. Mullin, 

, 1196 (10th Cir. 2006). “The harmlessness of

cumulative error is determined by conducting the same inquiry as for individual

errors—courts look to see whether the defendant’s substantial rights were

affected.” United States v. Sarracino, 

, 1169 (10th Cir. 2003)

                                         -17-
(internal quotation marks omitted) (quoting United States v. Rivera, 

, 1470 (10th Cir. 1990) (en banc)). We conclude that in the aggregate the

two unrecognized plain errors identified by Mr. Valle-Martinez did not affect his

substantial rights. Mr. Valle-Martinez is simply unable to establish that the

district court would impose a significantly lighter sentence on remand. We thus

conclude that reversal is not warranted.

      Because we conclude that any procedural error by the district court should

not be recognized under plain error review, we AFFIRM Mr. Valle-Martinez’s

sentence.




                                       Entered for the Court



                                       Jerome A. Holmes
                                       Circuit Judge




                                           -18-