FILED
                                                                         United States Court of Appeals
                                        PUBLISH                                  Tenth Circuit

                      UNITED STATES COURT OF APPEALS                           August 25, 2014

                                                                             Elisabeth A. Shumaker
                                   TENTH CIRCUIT                                 Clerk of Court


 UNITED STATES OF AMERICA,

        Plaintiff - Appellee,

 v.                                                           No. 13-1401

 ABEL SANCHEZ-LEON, a/k/a Raul
 Marez-Ortiz, a/k/a Joel Lopez,

       Defendant – Appellant.


           APPEAL FROM THE UNITED STATES DISTRICT COURT
                   FOR THE DISTRICT OF COLORADO
                     (D.C. No. 1:11-CR-00412-MSK-2)


Martin J. Beres, Clinton Township, Michigan, appearing for Appellant.

J. Bishop Grewell, Assistant United States Attorney (John F. Walsh, United States
Attorney, with him on the brief), Office of the United States Attorney for the District of
Colorado, Denver, Colorado, appearing for Appellee.


Before BRISCOE, Chief Judge, MURPHY and MATHESON, Circuit Judges.


MATHESON, Circuit Judge.


       Drug Enforcement Agency (“DEA”) officers searched Mr. Sanchez-Leon’s home,

where they discovered methamphetamine, firearms, and cash. A federal grand jury

charged Mr. Sanchez-Leon with violating various federal drug laws. On the first day of
trial, he changed his plea to guilty. He later moved to withdraw his guilty plea, which the

district court denied. The district court sentenced him to 295 months in prison.

       Mr. Sanchez-Leon appeals the district court’s denial of his motion to withdraw his

guilty plea as not entered knowingly or voluntarily. He also appeals his sentence as both

procedurally and substantively unreasonable. He contends the district court committed

procedural error by relying on abrogated law. Exercising jurisdiction under 28 U.S.C.

§ 1291 and 18 U.S.C. § 3742(a), we affirm.

                                  I. BACKGROUND1

                                   A. Factual History

       During 2011, the Sinaloa drug cartel operated a drug trafficking organization

(“DTO”) in the Cortez, Colorado area. Various DTO members sold methamphetamine.

The DEA suspected Mr. Sanchez-Leon supplied drugs and sold methamphetamine or

directed others to do so.

       Between April and July 2011, a DEA confidential source allegedly purchased

methamphetamine from Mr. Sanchez-Leon on five separate occasions. As a result, DEA

agents secured a warrant and searched his home, discovering “a distribution quantity of

methamphetamine, two firearms, . . . and in excess of $20,000 U.S. currency.” ROA,

Vol. III at 28. The Government bought or seized more than two kilograms of




       1
         We provide an overview of the facts and procedural background here and add
details during our analysis.



                                           -2-
methamphetamine during their investigation of Mr. Sanchez-Leon and seven alleged co-

conspirators. [See 

                                    B. Procedural History

1. Indictment, Trial, and Plea Deal

       In October 2011, a federal grand jury indicted Mr. Sanchez-Leon and seven co-

defendants for drug possession with intent to distribute, distribution, conspiracy to

possess with intent to distribute and to distribute, and aiding and abetting. A superseding

indictment added counts of possession with intent to distribute, distribution, aiding and

abetting, and possession of a firearm during a drug crime.

       Mr. Sanchez-Leon’s trial commenced on May 6, 2013. During the lunch break,

the Government offered Mr. Sanchez-Leon a plea deal, which he accepted. The district

court scheduled a change of plea hearing for later that afternoon to allow the Government

time to prepare a written plea agreement.

2. Plea Agreement

       The plea agreement called for Mr. Sanchez-Leon to plead guilty to eight counts in

the superseding indictment, including various counts of drug possession with intent to

distribute, conspiracy, aiding and abetting, and possession of a firearm during a drug

crime.2 In exchange, the Government promised to “stipulate with this defendant that this


       2
        Mr. Sanchez-Leon initially agreed to waive his right to appeal his conviction and
sentence, but the parties later “agreed to strike . . . appellate waiver” of those issues.
ROA, Vol. III at 117 (defense counsel); see also 

(“[T]hat’s correct.”
(prosecutor)). And although Mr. Sanchez-Leon’s “§ 2255 waiver still remains in full
force and effect,” 

, it does not restrict Mr. Sanchez-Leon from bringing certain


                                            -3-
defendant should be sentenced to the following sentences: 150 months as to Counts One

through Six and Fourteen, and a consecutive 5 years as to Count Fourteen of the

Superseding Indictment, for a total sentence of 17½ years.” ROA, Vol. I at 69-70. The

plea agreement also stated it was made “pursuant to Fed. R. Crim. P. 11(c)(1)(B),” which

allows the court to impose a different sentence from what the parties recommended in the

plea agreement. ROA, Vol. I at 70.3 The Government also agreed to dismiss the

remaining counts.

3. Change of Plea Hearing

       At the change of plea hearing, an interpreter assisted Mr. Sanchez-Leon, who has

difficulty understanding and speaking English. He pled guilty to eight counts. The

district court spoke with Mr. Sanchez-Leon to ensure he understood the charges, had read

the indictment, had consulted with defense counsel, and was able to use the translator to

communicate. Although the court discovered the plea agreement was written in English

only, defense counsel explained he had conveyed its contents to Mr. Sanchez-Leon using

the interpreter.


collateral challenges under § 2255, such as “a claim that the defendant was denied the
effective assistance of counsel,” ROA, Vol. I at 70.
       3
         Rule 11(c)(1)(B) allows the Government and defendant to “recommend . . . that a
particular sentence or sentencing range is appropriate” as part of a plea agreement, but
“such a recommendation or request does not bind the [district] court.” Fed. R. Crim. P.
11(c)(1)(B).
       In contrast, Rule 11(c)(1)(C) allows the Government and defendant to “agree that
a specific sentence or sentencing range is the appropriate disposition of the case,” which
“binds the [district] court once the court accepts the plea agreement.” Fed. R. Crim. P.
11(c)(1)(C).



                                           -4-
       The district court then asked detailed questions to determine whether Mr. Sanchez-

Leon understood the plea agreement. ROA, Vol. III at 22-24, 37, 41-43. Based on his

responses, the court concluded Mr. Sanchez-Leon’s guilty plea was “voluntarily and

knowingly made” and that he “understands that the penalty to be imposed . . . may

exceed the agreement between the parties.” 

The court therefore accepted the

guilty plea and scheduled a sentencing date.

4. Letters to the Court and the Motion to Withdraw Guilty Plea

       Following the change of plea hearing, Mr. Sanchez-Leon wrote two letters

complaining about his representation. The first letter was written in English to the

Colorado Attorney Regulation Board and complained his attorney had pressured him to

accept the plea deal. ROA, Vol. I at 101. The Attorney Regulation Board responded a

few weeks later, stating it had investigated the issue and concluded no disciplinary

charges against the attorney were necessary. 

He then wrote a letter in Spanish

to the district judge, who could not read Spanish and never obtained a translation.4

       Mr. Sanchez-Leon then contacted his defense counsel and directed him to file a

motion to withdraw his guilty plea. Counsel did so, explaining the basis for withdrawal

in one paragraph:

       4
          Mr. Sanchez-Leon’s counsel obtained a translation and attached it as part of the
opening brief. Aplt. Br. Attach. 1, at 1-2.
        In the letter, Mr. Sanchez-Leon alleged his defense counsel deceived and
pressured him to accept the plea agreement. He alleged his counsel told him that the
“jury was waiting to start,” Mr. Sanchez-Leon had to accept the plea deal now or he
would “not be able to turn back,” the district court would sentence Mr. Sanchez-Leon to
“life in prison,” and he had “to be intelligent.” 

                                           -5-
              Mr. Sanchez-Leon has informed counsel he wishes to withdraw his
       plea of guilty tendered to the Court on May 6, 2013, because he believes he
       was pressured into pleading by the undersigned counsel plus he
       misunderstood the terms of the written plea agreement and the Rule 11
       advisement was contradictory to the terms of the written plea agreement.

5. Hearing on the Motion to Withdraw the Guilty Plea

       A few weeks later, the district court heard arguments on the motion. Defense

counsel represented Mr. Sanchez-Leon at the hearing. Mr. Sanchez-Leon was present

and assisted by an interpreter.

       Defense counsel raised whether he had a conflict of interest in continuing to

represent Mr. Sanchez-Leon in light of the letter to the Colorado Attorney Regulation

Board. The district court stated that although Mr. Sanchez-Leon had criticized the

effectiveness of defense counsel, “that doesn’t necessarily mean [defense counsel]

necessarily ha[s] a conflict in representing [Mr. Sanchez-Leon].” ROA, Vol. III at 49-50.

       Because the district court did not have a translation of the second letter, it asked

Mr. Sanchez-Leon to explain why he should be able to withdraw the guilty plea. He

stated his attorney had pressured him into signing the plea deal, the plea deal caught him

by surprise, and that he would rather go back to trial. 

       The district court heard arguments from counsel and then issued an order from the

bench denying Mr. Sanchez-Leon’s motion to withdraw his guilty plea. Applying the

seven-factor test from United States v. Gordon, 

, 1572 (10th Cir. 1993), the

court found three factors weighed in favor of denying the motion to withdraw the guilty

plea: (1) Mr. Sanchez-Leon had not asserted any innocence, (2) his guilty plea was given


                                            -6-
knowingly and voluntarily based on his answers to the questions posed at the change of

plea hearing, and (3) defense counsel’s performance was not constitutionally ineffective.

ROA, Vol. III at 55-57;5 see United States v. Hamilton, 

, 1214 (10th Cir.

2007) (describing the factors).

6. Sentencing

       a. PSR and the calculated Guidelines range

       The Presentence Investigation Report (“PSR”) calculated a U.S. Sentencing

Commission Guidelines range of 295 to 353 months (24.5 to 29.4 years). Neither party

objected to the calculations. See ROA, Vol. III at 63-64.6

       The U.S. Probation Office recommended the court vary downward to 248 months

based on: Mr. Sanchez-Leon’s lack of prior criminal history; his relatively short

participation in the DTO; and because 248 months satisfied 18 U.S.C. § 3553(a).

       b. First sentencing hearing

       Neither party moved for a downward variance.7 At the sentencing hearing, Mr.

Sanchez-Leon’s counsel asked for a 210-month (17.5 years) sentence as agreed upon in

the plea agreement. He relied on Mr. Sanchez-Leon’s family, employment potential, age,

and deportability as reasons to impose 17.5 years. The Government agreed with defense
       5
         The district court did not examine the other four factors because, based on the
three factors, it believed Mr. Sanchez-Leon could not establish a “fair and just reason” to
withdraw the plea. ROA, Vol. III at 57.
       6
           Nor does either party on appeal. See Aplt. Br. at 39; Aplee. Br. at 11.
       7
        Mr. Sanchez-Leon could not move for a downward variance below the stipulated
sentence because he agreed not to do so in his plea agreement. ROA, Vol. I at 70.



                                              -7-
counsel and further argued 17.5 years satisfies the sentencing factors in 18 U.S.C.

§ 3553(a).

       Unconvinced, the district court stated: “[N]obody has filed a motion for a variant

sentence, and I don’t understand what the basis is for a variant sentence here.” ROA,

Vol. III at 67. The Government responded that age and deportation weighed in favor of

17.5 years. Defense counsel responded by again discussing Mr. Sanchez-Leon’s family,

his age upon release, and his deportability. Defense counsel presented additional factors:

Mr. Sanchez-Leon had no criminal history, some of his co-defendants received shorter

sentences, and the Guidelines for methamphetamine possession and distribution are

harsh. 

       The district court said that, because the plea agreement was submitted under

Federal Rule of Criminal Procedure 11(c)(1)(B), it was not compelled to sentence Mr.

Sanchez-Leon to 17.5 years, nor was it convinced a downward variance was warranted.

It nonetheless rescheduled the sentencing hearing so the Government could file a motion

and further develop its downward variance arguments.

       c. Government’s motion for downward variance

       In its motion for variance, the Government presented arguments linked to the

§ 3553(a) factors: Mr. Sanchez-Leon (1) was involved in the DTO for only four months;

(2) had a good relationship with his parents; (3) had no prior criminal history; (4) is

married and has four young children in Mexico, as well as a girlfriend and a child located

in the United States; and (5) has no physical or mental health issues. The Government

further argued the 17.5 year sentence (6) amounted to more than four years for each


                                            -8-
month of criminal conduct and reflected the seriousness of the conduct; (7) deters future

criminal activity because Mr. Sanchez-Leon would be in his 50s at the end of his prison

time, and he would be deported and barred from reentry; (8) would protect the public

because he would be incarcerated for many years and then deported upon release;

(9) would enable him to obtain educational or vocational training while in prison; and

(10) could by statute be as low as 10 years and as high as life in prison, and this sentence

is squarely within that range.

       d. Second sentencing hearing

       The court held the second sentencing hearing on September 11, 2013. An

interpreter and the same defense counsel assisted Mr. Sanchez-Leon.

       The Government reiterated most of the arguments from its motion. Defense

counsel agreed, adding that after release, Mr. Sanchez-Leon would be able to find gainful

employment in Mexico and that a sentence longer than 17.5 years would not add

deterrence.

       The district court remained unconvinced and asked counsel to address whether Mr.

Sanchez-Leon’s deportability is a permissible basis for variance. The Government

responded that after deportation, if Mr. Sanchez-Leon tried to return, he would face

significant penalties constituting a form of “super deterrence.” ROA, Vol. III at 91.

Defense counsel added that the court is not bound by the Guidelines and can consider

facts outside the § 3553(a) factors, such as Mr. Sanchez-Leon’s alien status.




                                            -9-
       After hearing additional argument and Mr. Sanchez-Leon’s brief and remorseful

allocution, the district court said the parties had failed to provide a sufficient basis to

grant the variance motion. It therefore recessed the hearing to conduct its own research.

       After the recess, the court first considered and agreed with the PSR’s Guidelines

calculation. It then explained that during the recess, it had read United States v. Castro-

Rivas, 254 F. App’x. 742 (10th Cir. 2007) (unpublished). It recognized that although

Castro-Rivas “is not . . . binding precedent on this particular issue,” it found the case

“instructive for a number of reasons,” including for the proposition that “a non-guideline

sentence must be justified by, quote, particular characteristics of the defendant that are

sufficiently uncommon.’” ROA, Vol. III at 102, 104 (quoting Castro-Rivas, 254 F.

App’x at 751 (quoting United States v. Garcia-Lara, 

, 1140 (10th Cir.

2007), judgment vacated by 

(2008))). The district court emphasized

language from Castro-Rivas that “[‘]a sentencing court may not accord ordinary facts

extraordinary weight.[’] And a sentence is unreasonable where a [‘]court does not

distinguish the defendant or his offense from the ordinary defendant upon which the

[G]uideline[s] sentence is calculated.[’]” 

(quoting Castro-Rivas, 254 F.

App’x at 752).

       The district court also observed

       that the purpose . . . [of] variant sentences is to create an individualized
       sentence that relates to the individual characteristics of the defendant or the
       offense that are not adequately addressed under the guidelines. Booker and
       Gall and Kimbrough do not create a tabula rasa for either counsel or the
       Court in fashioning whatever sentence might subjectively be perceived as
       appropriate. Instead, the comparison between that which is calculated



                                             - 10 -
       under the guidelines must be made as to the individual circumstances of a
       given defendant.

       The district court then rejected the parties’ arguments for a downward variance,

specifically rejecting both deportability and age as permissible bases for varying. The

court said “with regard to [deportability], I take note of the Tenth Circuit’s decision in

United States v. Castro-Rivas that a variance premised upon the grouping of particular

defendants is not a permissible basis for a variance; and therefore, I do not consider it.”

It further said with regard to “the argument that Mr. Sanchez is 39 years

old,” that characteristic “is unique to him, but the guidelines address age in the

formulation of an appropriate sentence. And therefore, there is no need to address that in

the form of a variance.” 

Apart from discussing the need to avoid sentencing

disparities, Mr. Sanchez-Leon’s remorse, and his lack of prior criminal history, the court

did not acknowledge the parties’ remaining arguments for leniency. See 

       The district court concluded “the sentence imposed here should be a guideline

sentence . . . [and] there is no warranted justification for a disparity between Mr. Sanchez

and other similarly situated defendants found guilty of similar conduct with similar

criminal histories.” 

stated, “I find that a sentence at the bottom end of the

guideline range reflects the defendant’s remorse, as articulated in his allocution, and the

fact that he has no prior criminal record. And that results in a sentence of 295 months of

incarceration . . . .” 

-
       Defense counsel objected, arguing the court improperly interpreted the law and

either misapplied or failed to address various factors. The court replied:

       Let me be 100 percent clear. In the Tenth Circuit there are permissible and
       non-permissible reasons to vary. Two of the reasons offered for a variance
       here . . . are non-permissible. The defendant’s age, and . . . the fact that the
       defendant is an alien and likely will be deported.

       The other two reasons given for a variance here are that the probation
       officer recommended a variance and the parties agreed on a variance.
       Assuming that any or all of these were justifiable reasons to vary,
       permissible reasons to vary, I nevertheless would not vary because I see no
       warranted sentence disparity that can be justified by the individualized
       circumstances of the defendant or the offense conduct. And as a
       consequence, I find that the guideline calculation is the sentence that is
       sufficient but not greater than necessary to satisfy the sentencing objectives.

(emphasis added).

       The district court then pronounced Mr. Sanchez-Leon’s sentence of 295 months

and concluded the hearing.

                                     II. DISCUSSION

       We address (A) whether the district court erred by denying Mr. Sanchez-Leon’s

motion to withdraw the guilty plea; (B) whether his sentence was procedurally

reasonable; and (C) whether his sentence was substantively reasonable.

                               A. Withdrawal of Guilty Plea

       Mr. Sanchez-Leon contends the district court abused its discretion when it denied

his motion to withdraw the guilty plea. He argues he did not give his plea voluntarily or

knowingly and his counsel was ineffective.




                                            - 12 -
1. Legal Framework and Standard of Review

       a. The Gordon factors

       A defendant may withdraw a guilty plea before sentencing if he “can show a fair

and just reason for requesting the withdrawal.” Fed. R. Crim. P. 11(d)(2)(B). We have

identified seven factors to guide a court’s decision on whether to grant withdrawal:

“(1) whether the defendant has asserted his innocence, (2) prejudice to the government,

(3) delay in filing defendant’s motion, (4) inconvenience to the court, (5) defendant’s

assistance of counsel, (6) whether the plea is knowing and voluntary, and (7) waste of

judicial resources.” United States v. Hamilton, 

, 1214 (10th Cir. 2007)

(quoting United States v. Gordon, 

, 1572 (10th Cir. 1993)). We also have

“suggested an additional factor to consider: the likelihood of conviction.” United States

v. Carr, 

, 421 n.5 (10th Cir. 1996) (citing United States v. Glover, 

, 421 (10th Cir. 1990)).

       If the defendant fails to carry his or her burden on asserted innocence, validity of

the plea (whether it was given knowingly and voluntarily), and ineffective assistance of

counsel, 

, the court need not address “the remaining

factors . . . because these [remaining] factors speak to the potential burden on the

government and the court, rather than the defendant’s reason for withdrawal,” id.; see

also United States v. Byrum, 

, 1265 (10th Cir. 2009).

       b. District court discretion and standard of review

       Whether to permit withdrawal “always and ultimately lies within the sound

discretion of the district court to determine on a case by case basis when the standard is


                                           - 13 -
and isn’t met.” United States v. Soto, 

, 1267 (10th Cir. 2011) (quotations

omitted). “Our review of a district court’s denial of a motion to withdraw a guilty plea is

for abuse of discretion.” 

. “Although a motion to

withdraw a plea prior to sentencing should be freely allowed, we will not reverse a

district court’s decision unless the defendant can show that the court acted unjustly or

unfairly.” 

see also Fed. R. Crim. P. 11(d)(2)(B).

       We review legal conclusions de novo, such as whether the plea was made

knowingly and voluntarily or whether counsel was ineffective. See 

. We review factual findings for clear error. See United States v. Graves, 

, 343 (10th Cir. 1997).

2. Analysis

       Mr. Sanchez-Leon argues the district court incorrectly evaluated (a) asserted

innocence; (b) validity of the plea; and (c) ineffective assistance of counsel.

       a. Asserted innocence

       After considering the motion to withdraw, the district court found Mr. Sanchez-

Leon “has not asserted any innocence.” ROA, Vol. III at 55. To succeed on appeal, Mr.

Sanchez-Leon must demonstrate this factual finding was clearly erroneous. See 

.

       He argues he asserted his innocence at the district level by pursuing a litigation

strategy of going to trial for one-and-a-half years, rejecting multiple plea offers, and

expressing regret about entering the plea deal and losing his ability to go to trial. See

Aplt. Br at 18-19; Aplt. Reply Br. at 4. These facts may indicate he made a strategic


                                            - 14 -
decision to plead guilty and then had buyer’s remorse, but they do not show an assertion

of innocence, much less clear error. Mr. Sanchez-Leon’s appellate arguments fall short.

       b. Validity of the plea

       Mr. Sanchez-Leon claims his plea was invalid because he gave it unknowingly

and involuntarily: unknowingly because he did not understand the sentence could exceed

17.5 years [Aplt. Br. at 14-16], the plea offer was written only in English, and his counsel

did not fully explain the terms of the deal; [Aplt. Br. at 20-23; Aplt. Reply at 5-7]

involuntarily because the plea offer came as a surprise, was a limited-time offer, and his

defense counsel pressured him into signing. [Aplt. Br. at 18; Aplt. Reply at 8.]

       “The longstanding test for determining the validity of a guilty plea is whether the

plea represents a voluntary and intelligent choice among the alternative courses of action

open to the defendant.” 

(quotations omitted). Although we review

the validity of a plea de novo as a legal conclusion, “solemn declarations made in open

court carry a strong presumption of verity.” Tovar Mendoza v. Hatch, 

,

1269 (10th Cir. 2010) (quoting Blackledge v. Allison, 

, 74 (1977)).

              i. Knowingly

       Mr. Sanchez-Leon fails to overcome the presumption he entered his plea

knowingly. At the change of plea hearing, Mr. Sanchez-Leon indicated he was able to

communicate with the interpreter “without any difficulty.” ROA, Vol. III at 20. The

court verified Mr. Sanchez-Leon understood the charges, had read the indictment, and

had consulted with defense counsel. 

When the court discovered the plea

agreement was written in English only, it asked defense counsel how he had conveyed


                                            - 15 -
the contents of the plea agreement to Mr. Sanchez-Leon. Counsel responded he had used

the interpreter to do so. The court then asked “Mr. Sanchez-Leon, are you satisfied that

you understand the contents of [the plea agreement]?,” and he said, “Yes.” 

       The district court then asked questions to evaluate Mr. Sanchez-Leon’s

understanding of the plea agreement:

       THE COURT: Do you understand that the calculation of the sentence in
       this plea agreement is not binding, and there is no guaranteed sentence?

       THE DEFENDANT: Yes, my attorney explained that to me, to some
       degree.

       THE COURT: Do you have questions about that?

       THE DEFENDANT: Well, yes. I signed off on all of this for 17 and a half
       years.

       THE COURT: Do you understand that there is no guaranteed sentence? I
       may sentence you to more than 17 and a half years.
               Mr. Sanchez-Leon, in this agreement, the Government and you have
       agreed on what an appropriate sentence is. But do you understand that I’m
       going to have to independently determine that, and I may choose a sentence
       that is different than 17 and a half years?

       THE DEFENDANT: Yes.

       The court proceeded to ask about whether Mr. Sanchez-Leon had time to consider

the plea agreement, understood the sentence could be more severe than what was

contemplated in the plea agreement, was not pressured into signing, was satisfied with his

representation, and still wished to proceed with his guilty plea. He answered each

affirmatively. 

37, 41-43.




                                          - 16 -
       On appeal, Mr. Sanchez-Leon argues he did not understand the plea deal because

it was written in English and his attorney did not explain it to him—arguments that

conflict with statements he made at the plea hearing. Without more, he cannot rebut the

presumption that his statements made in court are true. Even if we assume that Mr.

Sanchez-Leon started with a misimpression, the district court’s questions and Mr.

Sanchez-Leon’s affirmative responses show that Mr. Sanchez-Leon understood the

consequences of his guilty plea. See 

37.

                ii. Voluntarily

       Nor can Mr. Sanchez-Leon overcome his statements acknowledging that he pled

guilty voluntarily. See ROA, Vol. III at 41-42. The court asked if anyone pressured Mr.

Sanchez-Leon or promised him something not in the plea agreement, to which he

responded, “No.” 

said he had reviewed the plea deal and was satisfied with

his counsel’s services. 

we assume Mr. Sanchez-Leon was surprised, scared,

or pressured—as he alleged in his letter to the district court [Aplt. Br. Attach. 1, at 1-2]—

we conclude the Government’s last-minute plea offer and defense counsel’s alleged

strong statements urging him to plea do not rise to the level of coercion. See 

(holding that defendant’s claim he was “hounded, browbeaten and

[profanely] yelled at” by defense counsel was not enough to make a guilty plea

involuntary).

                                      *       *      *

       We conclude Mr. Sanchez-Leon’s plea was given knowingly and voluntarily

based on his statements made during the change of plea hearing.


                                           - 17 -
       c. Ineffective assistance of counsel

       Mr. Sanchez-Leon argues his guilty plea was invalid because he did not receive

effective assistance from counsel when he decided to accept the plea deal and during his

motion to withdraw the guilty plea.

       “Ineffective assistance of counsel claims should be brought in collateral

proceedings, not on direct appeal. Such claims brought on direct appeal are

presumptively dismissible, and virtually all will be dismissed.” United States v.

Galloway, 

, 1240 (10th Cir. 1995) (en banc). We address ineffective

assistance claims on direct appeal only under a narrow set of circumstances, such as

when the ineffective assistance claim is “fully developed in the record.” 

(quotations omitted).

       This is not one of those cases. Although the district court held a hearing regarding

Mr. Sanchez-Leon’s motion to withdraw his plea agreement, the hearing did not focus on

his counsel’s alleged ineffective assistance and almost no evidence was submitted to that

end. Although the district court made fleeting references to counsel’s performance, it did

not meaningfully examine this issue. See ROA, Vol. III at 49-50, 56-57. We do not have

a sufficiently developed factual record to determine ineffectiveness. We have little more

than Mr. Sanchez-Leon’s allegations about what defense counsel said or did. Thus, we




                                          - 18 -
“decline to address the issue.” United States v. Samuels, 

, 1193 (10th Cir.

2007).8

                                       *     *       *

       The district court evaluated these three Gordon factors and determined that Mr.

Sanchez-Leon did not assert his innocence, gave his plea voluntarily and knowingly, and

was effectively represented. It therefore concluded Mr. Sanchez-Leon did not establish a

fair and just reason for withdrawing the guilty plea. The district court did not abuse its

discretion.

                              B. Procedural Reasonableness

       Mr. Sanchez-Leon contends the district court procedurally erred because it relied

on abrogated law during the sentencing hearing, failed to consider relevant factors, and

treated the Guidelines as mandatory.

1. Legal Framework and Standard of Review

       Our review of the reasonableness of a sentence proceeds in two steps. We first

“ensure that the district court committed no significant procedural error.” Gall v. United

States, 

, 51 (2007). If there is no reversible procedural error, we then

“consider the substantive reasonableness of the sentence.” 

Mr. Sanchez-Leon waived certain collateral challenge rights under 18
U.S.C. § 2255, he did not waive a § 2255 “claim that [he] was denied the effective
assistance of counsel.” ROA, Vol. I at 70; see also supra note 2 and accompanying text.



                                           - 19 -
       a. Procedural reasonableness

       Our review of procedural reasonableness “focuses on the manner in which the

sentence was calculated.” United States v. Masek, 

, 1290 (10th Cir. 2009).

Procedural error includes “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.”

.9

       Regarding the district court’s duty “to adequately explain the chosen sentence,”

judge should set forth enough to satisfy the appellate court that he

[or she] has considered the parties’ arguments and has a reasoned basis for exercising his

[or her] own legal decisionmaking authority,” Rita v. United States, 

, 356

(2007). When imposing a within-Guidelines sentence, as the court did here, it “must

provide only a general statement of its reasons, and need not explicitly refer to either the


       9
         The § 3553(a) factors are: (1) the nature and circumstances of the offense and
the history and characteristics of the defendant; (2) the need for the sentence imposed; (3)
the kinds of sentences available; (4) the recommended Guidelines range; (5) the policies
underlying the Guidelines; (6) the need to avoid unwarranted sentencing disparities; and,
(7) the need for restitution to any victims. See 18 U.S.C. § 3553(a); 

n.6.
        The second factor includes the need to: (A) reflect the seriousness of the offense,
promote respect for the law, and provide just punishment for the offense; (B) afford
adequate deterrence to criminal conduct; (C) protect the public from further crimes of the
defendant; and (D) provide the defendant with needed educational or vocational training,
medical care, or other correctional treatment in the most effective manner. 18 U.S.C.
§ 3553(a)(2).



                                           - 20 -
§ 3553(a) factors or respond to every argument for leniency that it rejects in arriving at a

reasonable sentence.” United States v. Lente, 

, 1034 (10th Cir. 2011)

(quotations omitted).

       b. Standard of review

       If the defendant preserved his or her procedural challenge in the trial court, we

generally review the procedural reasonableness of that defendant’s sentence using “the

familiar abuse-of-discretion standard of review,” United States v. Halliday, 

, 1222 (10th Cir. 2011) (quotations omitted), “under which we review de novo the

district court’s legal conclusions regarding the [G]uidelines and review its factual

findings for clear error,” United States v. Gantt, 

, 1246 (10th Cir. 2012).10

“An error of law is per se an abuse of discretion.” United States v. Lopez-Avila, 

, 1219 (10th Cir. 2011) (citing Koon v. United States, 

, 100 (1996) (“A

district court by definition abuses its discretion when it makes an error of law.”)).

       c. Harmless error

       The party challenging the sentence “bears the initial burden of showing that the

district court” erred. Williams v. United States, 

, 203 (1992). If we find a

procedural error, “resentencing is required only if the error was not harmless.” United

States v. Cerno, 

, 939 (10th Cir. 2008). Procedural error is harmless “if the

record viewed as a whole clearly indicates the district court would have imposed the


       10
         Mr. Sanchez-Leon contends he preserved his claims below, and the Government
does not object. We agree.



                                            - 21 -
same sentence had it not relied on the procedural miscue(s). In other words, remand is

necessary if the sentence was imposed as a result of an incorrect application of the

Guidelines.” United States v. Kieffer, 

, 1165 (10th Cir. 2012) (quotations

and citation omitted). An error is not harmless if it requires us to “speculate on whether

the court would have reached [the same] determination” absent the error. United States v.

Padilla, 

, 895 (10th Cir. 1991). “Harmlessness must be proven by a

preponderance of the evidence, and the burden of making this showing falls on the

beneficiary of the error,” 

—in this case, the Government. See also

United States v. Harrison, 

, 764 (10th Cir. 2014).

2. Analysis

       Mr. Sanchez-Leon argues the district court procedurally erred by: (a) relying on

abrogated case law; (b) failing to acknowledge and consider various relevant sentencing

factors; and (c) treating the Guidelines as mandatory.

       a. Abrogated case law

       Mr. Sanchez-Leon contends the district court procedurally erred when it relied on

United States v. Castro-Rivas, 254 F. App’x 742 (10th Cir. 2007) (unpublished), to

conclude it could “not accord ordinary facts extraordinary weight” when considering a

downward variance. See ROA, Vol. III at 104-05.

              i. Error to rely on Castro-Rivas

       During the second sentencing hearing, the district court focused on Mr. Sanchez-

Leon’s deportability, asking the parties to “help [the court] understand why an alien

should receive a different sentence than someone who is a U.S. citizen.” ROA, Vol. III at


                                           - 22 -
90. Unpersuaded by their answers, the court conducted its own research and found

Castro-Rivas.

       The Castro-Rivas decision reversed a sentencing court’s decision to vary

downward based on a defendant’s deportability. Castro-Rivas reasoned that when a

district court decides whether to grant a variance, it may not “accord ordinary facts

extraordinary weight.” 254 F. App’x at 751-52. As a result, Castro-Rivas concluded it

was error to vary downward based on the defendant’s deportability because his alienage

was “not unique or personal,” but instead reflected an “attribute[] common to all

defendants.” 

(quotations omitted).

       The district court relied on Castro-Rivas for the proposition that “a non-guideline

sentence must be justified by ‘particular characteristics of the defendant that are

sufficiently uncommon.’” ROA, Vol. III at 104 (emphasis added) (quoting Castro-Rivas,

254 F. App’x at 751-52). The court said Mr. Sanchez-Leon must “‘distinguish [himself]

or his offense from the ordinary defendant upon which the guideline sentence is

calculated.’” 

(quoting Castro-Rivas, 254 F. App’x at 752). The court then

declined to consider Mr. Sanchez-Leon’s deportability as a factor for a downward

variance because “a variance premised upon a grouping of particular defendants is not a

permissible basis for a variance.” 

(citing Castro-Rivas, 254 F. App’x 742).

       We conclude the district court procedurally erred when it relied on Castro-Rivas to

reject deportability as a permissible factor. The approach to variance described in

Castro-Rivas was no longer valid law at the time of sentencing. Castro-Rivas quoted

from and relied upon United States v. Garcia-Lara, 

(10th Cir. 2007),


                                           - 23 -
judgment vacated, 

(2008). But the Supreme Court vacated Garcia-Lara in

light of its decision in Gall v. United States, 

(2007). In Gall, the Court

rejected the “appellate rule that requires ‘extraordinary’ circumstances to justify a

sentence outside the Guidelines 

. We later relied on Gall to state

that courts are “allowed to contextually evaluate each § 3553(a) factor, including those

facts the relevant guideline(s) already purport to take into account, even if the facts of the

case are less than extraordinary.” See United States v. Smart, 

, 808 (10th

Cir. 2008). The district court’s avoidance of deportability due to Castro-Rivas does not

square with Gall and Smart. By ruling that it could not consider the “ordinary” factor of

deportability in its consideration of the motion for variance, the district court imposed a

greater burden on Mr. Sanchez-Leon than the law required.11




       11
          Although we conclude Mr. Sanchez-Leon has met his burden to show the
district court erred in relying on Castro-Rivas to exclude deportability as a variance
consideration, we do not think he has shown the court similarly erred as to other
sentencing factors he urged the court to consider, such as age. See Aplt. Br. at 31, 34; see
also 

(defendant “bears the initial burden” of showing error).
        The district court rejected age as a permissible factor for variance. ROA, Vol. III
at 114 (“Two of the reasons offered for a variance here . . . are non-permissible. The
defendant’s age and . . . the fact the defendant is an alien and likely will be deported.”),
But the court did not mention Castro-Rivas when it did so. See 

114. Instead,
it explained Mr. Sanchez-Leon’s age of 39 “is unique to him, but the guidelines address
age in the formulation of an appropriate sentence. And therefore, there is no need to
address that in the form of a variance.” 

                                            - 24 -
       Following an incorrect legal standard to decide a sentence is “per se an abuse of

discretion,” 

. The district court therefore procedurally

erred.12

              ii. Harmless error

       The Government argues that even if the district court committed procedural error

by relying on abrogated law, any such error was harmless. See United States v. Cerno,

, 939 (10th Cir. 2008). We agree.

       Although the district court improperly relied on Castro-Rivas in refusing to

consider deportability, we conclude the error was harmless. After hearing the parties’

variance arguments at the first sentencing hearing, which included references to

deportability,13 the district court asked why a “guideline sentence is [not] appropriate


       12
          Our circuit has not addressed whether a sentencing court may consider
deportation for a variance in light of Gall and Smart, which allow a court to consider
varying based on “less than extraordinary” characteristics. See 

.
        Other circuits have stated that district courts may consider deportability as a
variance factor. See United States v. Thavaraja, 

, 263 (2d Cir. 2014) (“[A]
district court may take into account the uncertainties presented by the prospect of
removal proceedings and the impact deportation will have on the defendant and his
family.”); United States v. Flores-Olague, 

, 535 (7th Cir. 2013) (“A
sentencing court is well within its prerogatives and responsibilities in discussing a
defendant’s status as a deportable alien.”); United States v. Petrus, 

, 356
(6th Cir. 2009) (noting that “immigration status” could lead the court to either vary
downward or upward, depending on the facts of the case, and stating “either approach is
within the discretion of the sentencing court”); United States v. Morales-Uribe, 

, 1287 (8th Cir. 2006) (“Arguably, the need to protect the public from a defendant
may be reduced in a case where, upon immediate release from incarceration, the
Government will deport the defendant.”).
       13
          Defense counsel argued (1) a 17.5-year sentence was appropriate because even
this sentence would be higher than his co-defendants’ sentences, some of whom were


                                           - 25 -
here when one of the factors is the need to avoid unwarranted sentence disparities among

defendants with similar records found guilty of similar conduct?” ROA, Vol. III at 68.

       After considering further arguments,14 the district court remained unconvinced,

reiterating at the second sentencing hearing “the need to avoid unwarranted sentence

disparities among defendants with similar records found guilty of similar conduct.” 

The court mentioned specifically that Mr. Sanchez-Leon’s deportation “places him in

a position where there would be a sentence disparity between him and other similarly

situated defendants with similar records found guilty of similar conduct.” 

       Although the district court wrongly relied on Castro-Rivas in ruling out Mr.

Sanchez’s deportability as a factor to justify a variant sentence, the court not only said it

would have given the same low-end-of-the-Guidelines sentence taking all individual


more culpable; (2) Mr. Sanchez has five young children, (3) a greater sentence would
make post-prison employment less likely; (4) he will be deported immediately upon
release from prison; (5) Mr. Sanchez has no criminal history; (6) he is older than the
average defendant; and (7) the Guidelines for methamphetamine offenses are severe;
ROA, Vol. III at 65-66, 69-73. The prosecution agreed, arguing that, based on Mr.
Sanchez-Leon’s “deportation, his age at this time, [and] his age upon release from
incarceration,” a 17.5-year sentence is appropriate. 

       14
         Before the second sentencing hearing, the Government, at the district court’s
suggestion, formally moved for a downward variant sentence of 17.5 years. ROA, Vol. I
at 111-20. At the hearing, the prosecutor reiterated most of the arguments raised in the
motion, including that (1) Mr. Sanchez-Leon was 39 years old; (2) he had no prior
criminal history; (3) he would be deported immediately after serving his sentence;
(4) would be liable for aggravated illegal reentry if he returned; and (5) 17.5 years is 2½
years over the statutory mandatory minimum. ROA Vol. III at 85-87. Defense counsel
agreed with these points. 

see also 

The Government added that
deportation and the risk of an aggravated illegal reentry prosecution provides a “super
deterrence” and that Mr. Sanchez-Leon’s “age upon release” would make him less likely
to cause “more trouble.” 

                                            - 26 -
characteristics into account, it stated more than once its concern that relying on factors

such as deportability to vary would run afoul of the need to avoid unwarranted sentence

disparities among defendants with similar records found guilty of similar conduct. 

89-90, 108, 114, 146.

       The combination of the court’s statements that (1) it would not have granted a

variance and would have granted the same Guidelines sentence even if it were

appropriate to consider deportability, and (2) it was concerned that reliance on

deportability would conflict with the need to avoid unwarranted sentencing disparities, is

sufficient for us to conclude that the district court’s reliance on the unpublished and

abrogated Castro-Rivas decision was error but harmless.

       The district court summed this up at the end of the second sentencing hearing:

“Assuming that any or all of these were justifiable reasons to vary, permissible reasons to

vary, I nevertheless would not vary because I see no warranted sentence disparity that can

be justified by the individualized circumstances of the defendant or the offense conduct.”

.

       Unlike cases in which we held procedural error was not cured despite the

sentencing court’s stating it would give the same sentence irrespective of the error, see

United States v. Peña-Hermosillo, 

, 1117-18 (10th Cir. 2008) (concluding

error not cured where district court failed to explain the reasoning behind alternative

sentence of same length), the record supports the district court’s reasoning. Both parties

presented arguments based on deportability and other characteristics to support a

downward variance, and the court thought variance for deportability could cause


                                           - 27 -
unwarranted disparity. See ROA, Vol. III at 85-97, 105-108 (receiving arguments about

and discussing the various reasons asserted by the Government and Mr. Sanchez-Leon

for why downward variance was appropriate).

       We are not “in the zone of speculation and conjecture” in determining the

preponderance of the evidence shows that any “error did not affect the court’s selection

of the sentence imposed.” United States v. Conlan, 

, 1170 (10th Cir. 2007)

(quotations omitted). “A remand would needlessly burden the district court and counsel

with another sentencing proceeding, which we know would produce the same result.”

United States v. Serrano-Dominguez, 

, 1224 (10th Cir. 2005).

       We conclude the court’s procedural error was harmless.

           b. Consideration of all factors

       Mr. Sanchez-Leon also argues the district court procedurally erred by failing to

acknowledge his other arguments for a variance. See supra notes 13-14. We do not find

procedural error here.

       For sentences that result in a within-Guidelines sentence, as here, the district court

needs only to provide “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.” 

(quotations omitted). Thus,

the district court is generally not required to articulate its reasoning for each of the

§ 3553(a) factors, nor does it have to respond to every argument for leniency. Id.; see

also United States v. Rodriguez-Quintanilla, 

, 1258 (10th Cir. 2006)

(noting the court does not have to address each of the factors individually or recite any


                                             - 28 -
“magic words” to show us it has fulfilled its responsibility to consider all of the § 3553(a)

categories (quotations omitted)).

       The district court correctly noted factors it should consider under § 3553(a).

ROA, Vol. III at 99. The Government and defense counsel presented the factors to

justify a variance, and the court asked clarifying questions. It referred to sentencing

disparities, criminal history, and Mr. Sanchez-Leon’s remorse. 

The district

court did not specifically address each argument, but it was not required to do so. See

.

       We cannot say the district court procedurally erred by failing to acknowledge

some of Mr. Sanchez-Leon’s arguments for leniency.

          c. Treatment of the Guidelines as mandatory

       Mr. Sanchez-Leon argues the court erred when it “essentially adopted a

presumption that the Guidelines were reasonable and challenged [the parties] to rebut the

presumption.” Aplt. Br. at 39. We disagree.

       Presuming a Guidelines recommendation is reasonable during sentencing

effectively treats the Guidelines as mandatory, which is procedural error. See United

States v. Conlan, 

, 1169 (10th Cir. 2007). But the district court did not do

that here. Instead, it correctly noted the Guidelines sentencing range is just one of many

factors it must consider under § 3553. ROA, Vol. III at 71; see 

(stating the

Guidelines calculation “is one factor in determining the appropriate sentence”). Indeed,

the district court examined other factors, such as sentencing disparities, Mr. Sanchez-

Leon’s remorse, and his lack of prior criminal history. See, e.g., 

It also


                                            - 29 -
examined—and rejected—age and deportability. As a result, we cannot conclude the

district court treated the Guidelines as mandatory.

                                      *       *       *

       For the foregoing reasons, we conclude the district court procedurally erred by

relying on abrogated law, but that error was harmless. We further conclude the sentence

was otherwise procedurally reasonable.

                             C. Substantive Reasonableness

       Mr. Sanchez-Leon argues his sentence—295 months in prison followed by 5 years

of supervised release—is substantively unreasonable because the district court “gave

undue weight to one factor over another.” Aplt. Br. at 41.

1. Legal Framework and Standard of Review

       If we determine the district court did not commit reversible procedural error, we

then consider whether the sentence is substantively reasonable. United States v. Lente,

, 1030 (10th Cir. 2011).

       As we have previously explained, “[a] substantive challenge concerns the

reasonableness of the sentence’s length and focuses on the district court’s consideration

of the § 3553(a) factors and the sufficiency of the justifications used to support the

sentence.” Id.; see Gall v. United States, 

, 51 (2007). The district court need

not afford equal weight to each of the factors. See United States v. Smart, 

,

808 (10th Cir. 2008). Courts should aim to impose a sentence “‘sufficient, but not greater

than necessary, to comply with the purposes’ of criminal punishment.” United States v.

Martinez-Barragan, 

, 904 (10th Cir. 2008) (quoting 18 U.S.C. § 3553(a)).


                                            - 30 -
       As with procedural reasonableness, we “review the substantive reasonableness of

a sentence for abuse of discretion.” United States v. Chavez, 

, 1233 (10th

Cir. 2013). We find an abuse of discretion only if the district court was “arbitrary,

capricious, whimsical, or manifestly unreasonable” when it weighed “the permissible

§ 3553(a) factors in light of the totality of the circumstances.” United States v. Sayad,

, 1116, 1118 (10th Cir. 2009) (quotations omitted). Said differently, “[a]

sentencing decision is substantively unreasonable if it exceeds the bounds of permissible

choice, given the facts and the applicable law.” 

(quotations

and alterations omitted); see also United States v. Reyes-Alfonso, 

, 1145

(10th Cir. 2011) (“In many cases there will be a range of possible outcomes the facts and

law at issue can fairly support; rather than pick and choose among them ourselves, we

will defer to the district court’s judgment so long as it falls within the realm of these

rationally available choices.” (quotations and alterations omitted)).

       Because Mr. Sanchez-Leon’s sentence was within his Guidelines range of 295 to

353 months, we must reject his claim of substantive unreasonableness unless he can

overcome the presumption that the sentence was reasonable. See United States v. Kristl,

, 1055 (10th Cir. 2006) (per curiam); see also Rita v. United States, 

, 347-56 (2007); United States v. Verdin-Garcia, 

, 898 (10th Cir.

2008). He has failed to do so.

2. Analysis

       Mr. Sanchez-Leon does not contend the sentence is outside the properly calculated

Guidelines range; we therefore presume it is reasonable. See 

.


                                            - 31 -
Mr. Sanchez-Leon therefore “bears the burden of rebutting this presumption in light of

the § 3553(a) factors.” 

.

       Mr. Sanchez-Leon argues the district court unduly relied on the Guidelines

recommendation and failed to consider a number of factors, such as the co-defendants’

sentences, the harshness of the Guidelines range, and whether the sentence would reflect

the nature of the crime, promote respect for the law, deter similar conduct, and protect the

public.15 He concludes the district court committed substantive error because it was

“overly concerned with the mechanical application of the advisory Guidelines . . . to the

exclusion of the other § 3553(a) factors that Mr. Sanchez-Leon presented for

consideration.” Aplt. Br. at 45. But he fails to explain why that “exceeds the bounds of

permissible choice.” 

(alterations omitted). As we have noted

before, the district court need not afford equal weight to each of the factors. See 

.

       Moreover, “[t]he record supports the district court’s sentencing determination as

substantively reasonable in light of the charged crimes . . . .” See United States v. Parker,

       15
          Some of Mr. Sanchez-Leon’s arguments blur the line between procedural and
substantive reasonableness. We have clarified the difference between substantive and
procedural reasonableness: procedural error is the “fail[ure] . . . to consider all the
relevant factors,” whereas substantive error is when the district court “impos[es] a
sentence that does not fairly reflect those factors.” United States v. Lopez-Macias, 

, 489 n.3 (10th Cir. 2011) (quotations omitted).
       Mr. Sanchez-Leon’s substantive unreasonableness arguments include claims that
the district court “failed to consider,” “ignored,” or “selectively disregard[ed] some
§ 3553(a) factors” such as his age, family circumstances, and likelihood of deportation.
Aplt. Br. at 44-45. Those are claims of procedural error, which we examined in our
procedural reasonableness analysis above.



                                           - 32 -


, 1323 (10th Cir. 2009). Mr. Sanchez-Leon was identified “as the major

source of supply” of high purity methamphetamine. ROA, Vol. I at 114. He sold drugs

or directed others to do so on multiple occasions. See 

officers searched his

home, they found methamphetamine (a distributable quantity), firearms, and cash. 

has not carried his “hefty” burden to overcome the presumption

of reasonableness. See 

.

                                  III. CONCLUSION

      For the foregoing reasons, we affirm the district court’s denial of Mr. Sanchez-

Leon’s motion to withdraw his guilty plea and affirm his sentence as both procedurally

and substantively reasonable.




                                         - 33 -