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

                             FOR THE TENTH CIRCUIT                           June 22, 2018
                         _________________________________
                                                                          Elisabeth A. Shumaker
                                                                              Clerk of Court
UNITED STATES OF AMERICA,

      Plaintiff - Appellee,

v.                                                          No. 17-1345
                                                 (D.C. No. 1:17-CR-00034-MSK-1)
JESUS CARLOS TENA-ARANA,                                     (D. Colo.)

      Defendant - Appellant.
                      _________________________________

                             ORDER AND JUDGMENT*
                         _________________________________

Before BRISCOE, KELLY, and BACHARACH, Circuit Judges.
                  _________________________________

      Jesus Carlos Tena-Arana has filed this direct appeal to challenge the district

court’s denial of his motion for a variant sentence based on an appellate waiver.1

Tena-Arana argues the district court “categorically barred” consideration of his


      *
         This order and judgment is not binding precedent, except under the doctrines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.
      1
         In his plea agreement, Tena-Arana agreed to “waive[ ] the right to appeal any
matter in connection with this prosecution, conviction, or sentence unless it meets
one of the following criteria: (1) the sentence exceeds the maximum penalty provided
in the statute of conviction; (2) the sentence exceeds the advisory guideline range that
applies to a total offense level of 12; or (3) the government appeals the sentence
imposed.” ROA, Vol. I, at 14. The second exception triggered Tena-Arana’s right to
appeal this case. The advisory guideline range applicable to an offense level of 12 is
15–21 months’ imprisonment, and the district court sentenced Tena-Arana to 30
months in prison.
appellate waiver, and by excluding the waiver from 18 U.S.C. § 3553 consideration,

the court committed reversible error. We exercise jurisdiction under 28 U.S.C.

§ 1291 and 18 U.S.C. § 3742, and AFFIRM the district court.

                                           I

      Tena-Arana, a native and citizen of Mexico, does not have claim to lawful

immigration status in the United States. Prior to his present conviction, Tena-Arana

had previously been removed from the United States four times. His fourth

deportation followed a conviction of illegal re-entry after deportation subsequent to

an aggravated felony conviction. For that conviction, Tena-Arana received a

24-month prison sentence and three-year term of supervised release.

      In November 2016, after his fourth deportation, Tena-Arana again illegally

re-entered the United States. On November 28, 2016, immigration officials found

Tena-Arana in Denver, Colorado, after he had been detained and charged with

interfering with a police officer and providing false information. Tena-Arana

admitted that he had illegally re-entered the United States about five days earlier.

      On May 9, 2017, Tena-Arana pleaded guilty to one count of illegal re-entry of

a previously deported alien following an aggravated felony conviction under 8 U.S.C.

§ 1326(a), (b)(2). With a criminal history category of III and a total offense level of

13, Tena-Arana’s guideline sentencing range was 18–24 months in prison.

      However, as part of his guilty plea, Tena-Arana agreed to waive almost all of

his appellate rights. In exchange, the government “agree[d] not to object to a

variance equivalent to a one-level reduction from the guideline offense level[, from

                                           2
13 to 12,] as calculated by the Court.” ROA, Vol. I, at 14. The government also

“agree[d] to recommend a term of imprisonment within the applicable guideline

range as adjusted by the one-level reduction,” which was 15–21 months in prison. 

19.

       The assigned probation officer recommended a 24-month prison sentence.

Probation was aware of Tena-Arana’s appellate waiver. However, the probation

officer excluded from her sentence calculation the one-level reduction from

Tena-Arana’s guideline offense level for the waiver.

       As contemplated by the plea agreement and prior to sentencing, Tena-Arana

filed a motion for a variant sentence,2 seeking a sentence of 15 months in prison. His

motion for a variant sentence was based only in part upon his partial appellate

waiver. In his motion, Tena-Arana presented several reasons to support a variant

sentence in addition to his partial appellate waiver: his present crime, illegal reentry,

is not a serious crime; although he has a “series of criminal convictions,” he is not a

violent person; he has a “consistent” work history and has a good relationship with

       2
         Before the district court, Tena-Arana sometimes characterized his request as
a request for a variance, and sometimes as a request for a departure. The district
court treated Tena-Arana’s request as a request for a variance, and Tena-Arana
agreed. See ROA, Vol. III, at 41 (“THE COURT: Any departures under the
guidelines? MR. GOLLA: No, Your Honor. THE COURT: Okay. Any request for
variance? MS. DOSHI: Yes, Your Honor. The United States does not object to a
one-level variance in exchange for the appellate waiver in this matter.”). We also
treat Tena-Arana’s argument as a request for a variance. See United States v.
Beltran, 

, 1018 (10th Cir. 2009) (“The district court treated
Defendant’s argument as a request for a variance and did not address the possibility
of a downward departure . . . . Therefore, we will treat Defendant’s argument . . . as a
request for a variance under the factors set forth in 18 U.S.C. § 3553(a).”).

                                            3
his son and ex-wife; and although deported several times, he was shot and wounded

while in Mexico and returned to the United States for his own safety. 

       At sentencing, the district court made the following remarks regarding

Tena-Arana’s inclusion of the plea agreement in his request for a variance:

                I don’t grant variances based on agreements between the parties.
                That’s not the function of the parties; they do not have discretion
                to vary; that is the role of the Court. Now, I’ll take your request
                for a variance under consideration in imposing a sentence; but I
                will not vary because there has been an appellate waiver. Any
                variance is because the guideline calculation does not satisfy the
                sentencing objectives of 18 U.S.C. Section 3553.

at 42.

       The district court continued:

                [T]he variance that is requested was something the parties had
                anticipated in their plea agreement. Some of the judges on this
                court require specific consideration to be stated for an appellate
                waiver, I do not. I view consideration in the plea agreement to be
                global consideration, a promise for a promise. And as a
                consequence, there is no specific consideration that I require for a
                plea agreement that contains an appeal limitation.

                But moreover and more importantly, departures and variances are
                different. Departures, under the guidelines, can be agreed to by
                counsel based on particular facts. Variances cannot. Variances
                are, in my view, something that the Court must consider in the
                context of application of 18 U.S.C. Section 3553. And I note
                with particularity that none of the objectives and none of the
                factors in that statute concern appeals. So while it is a benefit to
                the Government to have an appellate waiver, it is not something
                that figures into a variance, which is the mismatch between a
                guideline calculation and a statutory calculation.

                Consequently, I deny the motion for a non-guideline sentence at
                Docket No. 23 based upon an appellate waiver.

                                              4
       Then, considering § 3553 sentencing factors and objectives, the district court

declined to vary downward. In fact, the district court varied upward from the

sentencing guideline range corresponding to Tena-Arana’s unadjusted offense level.

The district court noted that Tena-Arana’s previous 24-month sentence, with a

three-year term of supervised release, “did nothing . . . to deter [his] reentry into the

United States.” 

Moreover, the district court was troubled by the fact that

“every time” Tena-Arana was present in the United States, he was “convicted of

crimes.” 

Thus, due to the “combination of illegal reentry plus”

Tena-Arana’s “violati[ons] of the law here in the United States,” the district court

decided a 30-month prison sentence, followed by three years of supervised release,

would be “sufficient but not greater than necessary to[:]” (i) “promote respect for the

law,” (ii) “provide just punishment,” (iii) “deter criminal conduct,” and (iv) “protect

the public.” 

Upon imposition of Tena-Arana’s sentence, his counsel

objected by simply stating, “I’m objecting to the variance.” 

                                            II

       The parties disagree regarding the applicable standard of review. The

government contends that we should review for plain error. The government believes

the plain error standard of review applies because Tena-Arana did not object and

raise the argument he now urges on appeal. Although Tena-Arana generally objected




                                            5
when the court imposed an upward variance, he did not state that the basis for his

objection was the court’s refusal to consider his appellate waiver.3

      Tena-Arana claims our review should be de novo. Tena-Arana contends that

he preserved his challenge to the district court’s alleged legal error by arguing in his

motion for a variant sentence that the “benefits of an appellate waiver” are a proper

basis for a downward variance under § 3553(a), thereby “informing the court . . . of

the action” he “wishe[d] the court to take” and “the legal basis for doing so.” Reply,

at 2–3 (quoting Fed. R. Civ. P. 51(b)). Tena-Arana contends he did all he was

required to do to preserve the issue for appeal. We conclude the government

articulates the correct standard of review.

      Tena-Arana only challenges the procedural reasonableness of his sentence.

See United States v. Almanza-Martinez, 309 F. App’x 277, 280 (10th Cir. 2009)

(describing a “procedural reasonableness objection” as “a challenge to the method by

which the district court arrived at its sentencing decision because of the district


      3
         The government also argues that “[b]y failing to object to the district court’s
statements below and failing to argue plain error review on appeal, Tena-Arana has
waived any claim of procedural unreasonableness,” Aple. Br., at 6, and we may
dismiss his appeal, see United States v. Wright, 

, 1281 (10th Cir. 2017)
(“[W]e have repeatedly declined to consider arguments under the plain-error standard
when the defendant fails to argue plain error.”). Whether an appellant must argue for
plain error in his opening brief or whether arguing for plain error in reply is sufficient
remains an unresolved question in our circuit. However, Tena-Arana “adequately
addressed the issue of plain error review in his reply to the government’s brief, after
arguing in his opening brief that his objections below were sufficiently raised to be
preserved for review on appeal.” United States v. Zander, 

, 1233 n.5
(10th Cir. 2015). In Zander, we concluded this was enough. 

review
Tena-Arana’s argument here.

                                              6
court’s alleged misunderstanding of its sentencing authority”). “[W]hile a defendant

need not object after pronouncement of sentence based on substantive

reasonableness,” United States v. Romero, 

, 1177 (10th Cir. 2007), to

preserve a procedural error at sentencing, he “must specifically object to the district

court’s procedure,” United States v. Mendoza, 

, 1191 (10th Cir. 2008).

When a party properly objects, “we review a district court’s sentencing procedure for

abuse of discretion, evaluating factual findings for clear error and legal

determinations de novo.” 

“When the party alleging error has not

objected in the court below, however, we review only for plain error.” 

cited either in his opening or reply brief, our opinion in United

States v. Lopez-Avila, 

(10th Cir. 2011), may arguably lend support to

Tena-Arana’s claim that his appellate issue—that the district court procedurally erred

by concluding it was barred from considering his appellate waiver at sentencing—is

preserved solely by virtue of having filed a motion for a variant sentence. However,

Lopez-Avila serves only as a unique exception to the general rule regarding the

preservation of procedural sentencing errors.

      In Lopez-Avila, defendant moved for a downward variance, asking the district

court to take into consideration sentencing disparities resulting from the availability

of “fast-track” programs in some districts, while the same program was unavailable

to defendants sentenced in the District of Colorado. 

The district court

denied defendant’s request for a downward variance. 

appealed and argued that the district court erred in concluding it

was precluded from considering sentencing disparities created by fast-track

programs. 

claimed that we should review for plain error

because defendant did not object at sentencing to the district court’s alleged

procedural error. 

the government’s argument and concluded

defendant adequately preserved his issue for appeal, as “the issue was properly raised

prior to the sentencing hearing, the judge was familiar with the argument, and the

argument was addressed by the judge.” 

      The key distinction between Lopez-Avila and the case before us is that in

Lopez-Avila defendant’s argument in his motion for a variance was essentially

identical to the one he later advanced on appeal. The only argument made in

Lopez-Avila’s presentence motion was that the district court should impose a

non-guideline sentence because of sentencing disparities created by fast-track

programs. And, at the heart of Lopez-Avila’s motion was his claim that sentencing

disparities created by fast-track programs are an appropriate consideration at his own

sentencing as a matter of law. Prior to sentencing, Lopez-Avila had explicitly raised

and fully presented—including arguments and authorities in support—the procedural

question raised on appeal. See, e.g., Motion for Non-Guideline Statutory Sentence at

2–3, United States v. Lopez-Avila (D. Colo. Mar. 24, 2010) (No. 09-cr-456-WYD),

ECF No. 24.4 We were confident the district court understood Lopez-Avila’s


      4
          This is a publicly-filed document of which we may take judicial notice.

                                            8
argument and had before it the relevant universe of information. Given the specific

focus of defendant’s motion for a variance, we concluded that to require the

defendant to re-assert the procedural issue he had already briefed and argued “would

require defense counsel to perform a superfluous and futile gesture and would take

the time of the district courts for this meaningless charade.” 

. The case at bar is distinguishable.

      Tena-Arana did not fully contemplate and brief before the district court the

procedural issue he now raises on appeal, i.e., whether the district court is

“categorically barred” from considering his appellate waiver within its sentencing

deliberation. Tena-Arana’s motion for a variant sentence does not center on why his

appellate waiver is an appropriate sentencing consideration. Rather, Tena-Arana’s

motion focuses on why a downward variance from the advisory guideline range

would adequately achieve sentencing objectives. Tena-Arana discusses the nature of

his offense, its seriousness, his personal history and characteristics, as well as the

sentencing goals of attaining respect for the law by the defendant and protecting the

public. Tena-Arana asserts, only in a conclusory fashion, that an appellate waiver is

“an appropriate consideration” at sentencing and a “non-prohibited reason” to vary.5



      5
        In full, the arguments Tena-Arana advanced regarding his appellate waiver in
his motion for a variant sentence are as follows:

             [T]he defendant submits a departure based upon the perceived
             benefits of an appellate waiver to the trial court, to the appellate
             court and to the government which was acknowledged and agreed
                                                                          (Continued . . .)
                                            9
ROA, Vol. I, at 33. These remarks, devoid of legal support and argument, are

insufficient for the district court to have understood they allegedly formed the crux of

Tena-Arana’s motion, and, were an appeal to arise, this issue would be its

foundation. Tena-Arana is not faulted for being unable to predict a procedural error

before it occurred. But once the alleged procedural error arose, Tena-Arana was

obligated to contemporaneously object.

       As we noted in Lopez-Avila, one of the primary benefits of requiring

objections to be raised in the district court “is that a timely objection in the district

court ‘can alert the district court and opposing counsel, so that any potential error can

be corrected, obviating any need for an appeal.’” 

491 F.3d at

1177). Tena-Arana deprived the district court of this opportunity, as his procedural

objections were not “thoroughly presented to the district court.” 

(cont’d)
              upon in the plea agreement [and] is, by implication, an
              appropriate consideration for a one-level departure.

              Application Note 5 to USSG 2K2.0 provides, in part, . . . “a
              departure may be based upon justifiable, non-prohibited reasons
              for departure as part of a sentence that is recommended, or agreed
              to, in the plea agreement and accepted by the court.” Since a
              departure based upon an appellate waiver is a non-prohibited
              reason, it would be appropriate to base a one-level departure
              based thereon.

ROA, Vol. I, at 33. Defendant in Lopez-Avila fully briefed, cited to, and analyzed
United States Supreme Court and Tenth Circuit precedent, case law from other
circuits, congressional authority, and sentencing guidelines. While Tena-Arana
presents a robust analysis on appeal, he did not do so in his motion for a variance.

                                            10
      We have long held that “contemporaneous objection to procedural errors is”

required to adequately preserve a procedural challenge for appeal. 

. This is the requirement not only in our circuit, but in our sister circuits as

well. See 

(collecting opinions from the First, Third, and Ninth Circuits,

and unpublished decisions from the Sixth and Eleventh Circuits that “have allowed

only plain error review when a defendant failed to procedurally object to the district

court’s imposition of sentence below”). We believe the extraordinary facts of

Lopez-Avila created a unique exception to our contemporaneous objection

requirement for preservation of procedural errors. However, to the extent that

Lopez-Avila can be read as broadly holding a contemporaneous objection to

procedural error is not required, “we must regard the earlier decision[s] as binding.”

(citing Haynes v. Williams, 

, 900 n.4 (10th

Cir. 1996) (“[W]hen faced with an intra-circuit conflict, a panel should follow earlier,

settled precedent over a subsequent deviation therefrom.”)).

      In fact, we have recently adhered to our prior case law, when we rejected a

similar preservation argument in United States v. Wireman, 

(10th Cir.

2017). In Wireman, “Defendant ask[ed] us to apply de novo review because, by

submitting his memorandum for a downward variance to the district court, he ‘did

everything necessary to alert the district court to the need to address the . . . grounds

for [his] requested variance.’” 

We concluded “Defendant did not do

everything necessary” because he failed to object at sentencing to the alleged

procedural error raised on appeal. 

noted, “[w]e have previously held

                                            11
that even if a district court is fully apprised of a defendant’s arguments for a

below-Guidelines sentence, the defendant must still contemporaneously object in the

district court to ‘the method by which the district court arrived at a sentence, . . .’ if

he . . . hopes to avoid plain error review on appeal of any alleged procedural flaw.”

491 F.3d at 1176–77); see also 

(McKay, J.,

concurring) (“I agree with the majority’s well-reasoned opinion that plain-error

review applies here.”). We therefore held, “we cannot deviate from our prior

precedent and required standard of review,” and we reviewed for plain error.6 

       The district court asked at sentencing whether there was “[a]ny need for

clarification, further explanation, objection, or a request for continuance,” ROA, Vol.

I, at 64, and Tena-Arana “did not raise the procedural objection he now asserts,”

. Rather, Tena-Arana “object[ed] to the variance.” ROA,

Vol. III, at 65 (“I’m objecting to the variance.”). This general objection did not

inform the district court if he was objecting to the district court’s denial of his motion

for a downward variance, or if he was objecting to the district court’s upward

       6
         Tena-Arana and our dissenting colleague attempt to distinguish Wireman by
limiting our holding to the issue in Wireman—“whether a district court adequately
explained a defendant’s 

. But our holdings in Wireman
and its predecessors were broader, applying to “any alleged procedural flaw,”
including the one Tena-Arana raises on appeal. See 

see also 

(stating defendant “must object to any procedural flaws or receive, on
appeal, only plain error review” (emphasis added)). To hold otherwise would result
in different categories of procedural errors subject to different standards of review.
Our precedent does not compel this conclusion.


                                             12
variance. Moreover, Tena-Arana’s objection is unclear as to its grounds and whether

they were substantive, procedural, or both. Thus, Tena-Arana did not “specifically

object to the district court’s procedure,” 

, and we review

for plain error.7

                                            III

       To prevail, Tena-Arana must show: “(1) error, (2) that is plain, which

(3) affects substantial rights, and which (4) seriously affects the fairness, integrity, or

public reputation of judicial proceedings.” 

(quotation

omitted).


       7
        Had Tena-Arana properly preserved this issue for appeal, in which case our
review of the legal question would be de novo, United States v. Cherry, 

, 831 (10th Cir. 2009), as our dissenting colleague concludes, the result of this
case would remain unchanged.
       “If we find a procedural error, resentencing is required only if the error was
not harmless.” United States v. Sanchez-Leon, 

, 1262 (10th Cir. 2014).
Procedural error is harmless if the government can show by a preponderance of the
evidence that “the record viewed as a whole clearly indicates the district court would
have imposed the same sentence had it not relied on the procedural miscue(s).”
United States v. Kieffer, 

, 1165 (10th Cir. 2012). Moreover, “[d]espite
this court’s general reluctance to sua sponte apply harmless error review, it may be
appropriate to do so where the certainty of the harmlessness is readily apparent.”
United States v. Holly, 

(10th Cir. 2007). That is the case here.
       Although the government only argued under plain error review, it claimed that
because the district “court was determined to sentence” Tena-Arana “above the
guideline range regardless of the appellate waiver, the error did not affect his
sentence.” Aple. Br., at 4. Indeed, the district court stated it did “not intend to
impose a [within-]guideline sentence,” corresponding to Tena-Arana’s unadjusted
offense level. ROA, Vol. III, at 64. On this record, it is clear the “court would have
imposed the same sentence,” 

, even had it considered Tena-
Arana’s appellate waiver. We conclude even under de novo review that the error
alleged is harmless and our remand for resentencing would not result in a reduced
sentence.

                                            13
       We conclude the district court committed plain legal error; thus, Tena-Arana

meets the first two prongs of the plain error test. However, Tena-Arana fails at the

third prong of plain error review, as the district court’s error did not affect his

substantial rights. We therefore affirm the district court.

       A.     Error

       The district court committed legal error. “Section 3553(a) lists in broad and

general terms the factors which district courts must account for during sentencing,

and encompasses the vast majority of considerations courts have traditionally treated

as relevant in setting sentences.” United States v. Smart, 

, 803 (10th

Cir. 2008). However, under 18 U.S.C. § 3661, “‘[n]o limitation shall be placed on

the information’ a sentencing court may consider ‘concerning the [defendant’s]

background, character, and conduct.’” Pepper v. United States, 

, 488

(2011) (quoting what is now 18 U.S.C. § 3661).

       Consistent with this broad directive, the government agrees with Tena-Arana’s

claim “that a court can consider the existence of an appellate waiver in sentencing a

defendant.” Aple. Br., at 6. But, contrary to Tena-Arana’s argument, the

government contends the district court did not believe it was “barred” from

contemplating Tena-Arana’s waiver of appellate rights. Rather, the government

argues the district court knew it could take Tena-Arana’s appellate waiver into

account and did reflect on it. According to the government, the district court merely

chose not to afford it any weight because “[t]he effect of Tena-Arana’s repeated

violations of the law on several § 3553(a) factors—promoting respect for the law,

                                            14
protecting the public, and deterrence—outweighed any other factors for the court,”

including the appellate waiver. 

       The record does not support the government’s view that the district court

considered Tena-Arana’s appellate waiver in the § 3553 equation, choosing to give it

“little or no weight.” 

Based on the district court’s statements at sentencing,

we conclude the district court legally erred by determining that § 3553 barred

consideration of Tena-Arana’s appellate waiver.

       We have no debate regarding the district court’s initial statements. In

acknowledging Tena-Arana’s motion for a variance, the district court stated:

              I’ll take your request for a variance under consideration in
              imposing a sentence; but I will not vary because there has been
              an appellate waiver. Any variance is because the guideline
              calculation does not satisfy the sentencing objectives of 18
              U.S.C. Section 3553.

ROA, Vol. III, at 42. Here, the district court clearly stated that it will not vary

simply by virtue of an appellate waiver or an agreement between Tena-Arana and the

government. See 

grant variances based on agreements between the

parties. That’s not the function of the parties; they do not have discretion to vary;

that is the role of the Court.”). Rather, the district court stated a variance is

appropriate if a guideline calculation fails to meet the sentencing objectives outlined

in § 3553. See 

with this view.

       However, we disagree with the district court’s later statements regarding the

appellate waiver. In denying Tena-Arana’s motion for a variant sentence based on

his appellate waiver, the district court continued:

                                            15
             Variances are, in my view, something that the Court must
             consider in the context of application of 18 U.S.C. Section 3553.
             And I note with particularity that none of the objectives and none
             of the factors in that statute concern appeals. So while it is a
             benefit to the Government to have an appellate waiver, it is not
             something that figures into a variance, which is the mismatch
             between a guideline calculation and a statutory calculation.

These statements make clear that the district court did not believe an

appellate waiver “figures into a variance,” or that an appellate waiver could serve as

a basis for a variance because “none of the objectives” or “factors in” § 3553

“concern appeals.” 

of § 3553 appears to unduly restrict the scope of

information a sentencing court may consider.

      Appellate waivers may “figure[ ] into a variance,” as they do concern and

relate to “objectives” and “factors in” § 3553, see 

defendant’s

“history and characteristics” and “the need for the sentence imposed . . . to provide

just punishment,” “afford adequate deterrence,” and “protect the public from further

crimes of the defendant.” See 18 U.S.C. § 3553(a)(1), (a)(2)(A)–(C). For example,

an appellate waiver may show acceptance of responsibility, beyond pleading guilty.

See U.S.S.G. § 3E1.1 (stating, along with comments thereto, that government should

not withhold motions for sentencing adjustments for acceptance of responsibility

based on “whether the defendant agrees to waive his or her right to appeal”); see also

United States v. Haigler, 329 F. App’x 791, 792 (10th Cir. 2009) (noting the district

court deducted one point from defendant’s offense level “for acceptance of

responsibility, based on her execution of a limited appellate waiver”). This, in turn,

may prove relevant to deciding “how severe a sentence is necessary to provide

                                           16
deterrence and punishment.” United States v. Severino, 

, 211 (3d Cir.

2006); see United States v. Hahn, 

, 1318 (10th Cir. 2004) (stating

appellate waivers “benefit defendants, the government, and society at large”).

      Of course, the district court was not required to vary downward based on

Tena-Arana’s appellate wavier. If it chose, the district court did not have to afford it

any weight at all. However, the district court “may at least sometimes find” appellate

waivers “relevant to the sentencing factors Congress has expressly directed it to

consider when sentencing.” United States v. Smith, 

, 1192 (10th Cir.

2014). The district court erred in concluding that consideration of Tena-Arana’s

appellate waiver was not even in the mix of information it could consider under

§ 3553.

      B.     Plain Error

      Moreover, the district court’s error is plain. For an error to be plain “the error

must be ‘clear or obvious’ under ‘current, well-settled law.’” United States v. Story,

, 1248 (10th Cir. 2011) (quoting United States v. Whitney, 

, 1308–09 (10th Cir. 2000)). “‘In general, for an error to be contrary to

well-settled law, either the Supreme Court or this court must have addressed the

issue.’” 

States v. Ruiz-Gea, 

, 1187 (10th Cir.

2003)).

      In Pepper, the Eighth Circuit “concluded . . . that the District Court, when

resentencing petitioner after his initial sentence had been set aside on appeal, could

not consider evidence of petitioner’s rehabilitation since his initial sentencing.” 

. That is, the Eighth Circuit determined that “post-sentencing

rehabilitation is an impermissible factor to consider in granting a downward

variance.” 

      The Supreme Court vacated the Eighth Circuit’s decision, holding “that when

a defendant’s sentence has been set aside on appeal, a district court at resentencing

may consider evidence of the defendant’s postsentencing rehabilitation and that such

evidence may, in appropriate cases, support a downward variance from the . . .

Guidelines range.” 

In so holding, the Court reiterated “that ‘the broad

language of § 3661’ does not provide ‘any basis for the courts to invent a blanket

prohibition against considering certain types of evidence at sentencing.’” 

(quoting United States v. Watts, 

, 152 (1997)). Indeed, the Court noted

that the Eighth Circuit’s “conclusion conflict[ed] with longstanding principles of

federal sentencing law and Congress’ express directives in §§ 3661 and 3553(a).” 

      We have also addressed whether certain information can be excluded from

consideration at sentencing. In Smith, defendant was convicted of two robbery

counts and two counts of using a gun “during and in relation to” the 

(quoting 18 U.S.C. § 924(c)). The district court first concluded that

§ 924(c) mandated defendant be sentenced to a minimum of 35 years’ in prison for

his use of a gun during the robberies. 

setting an appropriate sentence on

defendant’s two robbery counts, the district court concluded it must disregard the

§ 924(c) gun convictions and the associated sentences it had just imposed. 

the Supreme Court’s lead in Pepper, we too refused “to bar sentencing

courts from considering an entire category of information about” a defendant, 

vacating the sentence and holding that “sentencing courts may examine and

consider the impact of contemporaneously issued sentences,” 

We noted,

“the relevant statutes permit a sentencing court to consider a defendant’s § 924(c)

conviction and sentence just as they permit a sentencing court to consider most any

other salient fact about a defendant.” 

This is because “[u]nder a

longstanding American tradition embodied in § 3661 and § 3553(a), federal courts

seeking a just sentence may look to the whole of the defendant’s person, character,

and crimes.” 

      Similarly, refusing to consider a defendant’s appellate waiver based on the

impression that it does not “figure[ ] into a variance” because “none of the

objectives” or “factors in” § 3553 “concern appeals,” ROA, Vol. III, at 59, “would

directly contravene Congress’ expressed intent in § 3661,” 

,

and directives in § 3553(a), 

court’s error was therefore plain in light

of §§ 3661 and 3553(a), the Court’s decision in Pepper, and our opinion in Smith.

      C.     Plain Error that Affects Substantial Rights

      Although Tena-Arana met the first two prongs of plain error review, he fails at

the third prong. The plain error did not affect Tena-Arana’s substantial rights.

      “For an error to have affected substantial rights, ‘the error must have been

prejudicial: It must have affected the outcome of the district court proceedings.’”

United States v. Trujillo-Terrazas, 

, 819 (10th Cir. 2005) (quoting

                                           19
United States v. Olano, 

, 734 (1993)). Tena-Arana “must demonstrate

that, ‘but for the claimed error, [his] sentence would have been . . . different.’”

United States v. Begaye, 

, 471 (10th Cir. 2011) (quoting United States

v. Uscanga-Mora, 

, 1295 (10th Cir. 2009)).

      Tena-Arana argues in his reply brief that had the district court considered the

appellate waiver “there is a substantial likelihood that it would have granted the

motion”—i.e., sentenced him with a one-level reduction and within a sentencing

range of 15–21 months. Reply, at 9. Tena-Arana has not demonstrated on the record

presented that there was a substantial likelihood his sentence would have been

different had the appellate waiver been considered. Nor has he shown a substantial

likelihood that consideration of the waiver would have caused the district court to

grant his motion for a downward variance and sentence him within a 15–21 month

range.8

      The district court was very clear in its ruling that a sentence above the

guideline range corresponding to Tena-Arana’s unadjusted offense level (18–24

months) was necessary, regardless of his appellate waiver. Thus, the error did not

affect Tena-Arana’s sentence. The district court noted that Tena-Arana’s criminal

history “spans a 30-year period.” ROA, Vol. III, at 60. Tena-Arana “illegally

entered the United States five times, [and] was removed four times.” 

      8
        While our dissenting colleague presents a number of hypothetical effects
consideration of the appellate waiver may have had, Tena-Arana did not make any of
these arguments in his briefing.

                                            20
court was “concern[ed] . . . greatly . . . that there is a clear pattern of [Tena-Arana’s]

understanding that [he] should not be here, that [he] cannot be here legally, and, yet,

[he] come[s] back.” 

Further, the district court was “concern[ed] that every

time that [Tena-Arana is] here, [he is] convicted of crimes.” 

district court emphasized that Tena-Arana’s last conviction,

which “resulted in a 24-month sentence, followed by three years of supervised

release,” 

“did nothing . . . to deter [Tena-Arana’s] reentry into the United

States,” 

Thus, the district court stated that it did “not intend to impose a

[within-]guideline sentence” corresponding to Tena-Arana’s unadjusted offense level,

it would not be sufficient to (i) “promote respect for the law,”

(ii) “provide just punishment,” (iii) “deter criminal conduct,” and (iv) “protect the

public,” 

cannot show the district court’s refusal to

consider his appellate waiver affected his sentence, or that the district court would

have determined that a lower, variant sentence would be adequate. See United States

v. Warren, 

, 1286 (10th Cir. 2013) (“Warren cannot show that his

rights have been substantially affected as required under prong three,” and “nothing

[in the record] suggests a different sentence would result.”).

       Because Tena-Arana fails at the plain error test’s third prong, we need not and

do not address the fourth prong.




                                            21
                                IV

We AFFIRM the district court.


                                 Entered for the Court


                                 Mary Beck Briscoe
                                 Circuit Judge




                                22
United States v. Tena-Arana, No. 17-1345
BACHARACH, J., dissenting.

      The majority concludes that Mr. Tena-Arana failed to preserve his

appellate argument and that he cannot show plain error. I agree with the

majority’s analysis of the first two prongs of the plain-error standard,

concluding that the district court committed an obvious error. But in my

view, Mr. Tena-Arana preserved the issue through a motion for a

downward variance in district court. As a result, I believe that we should

engage in de novo review rather than confine our review to the plain-error

standard. Under de novo review, I would reverse and remand for

resentencing in light of the district court’s error.

      Preservation. To preserve an appellate argument, the Federal Rules

of Criminal Procedure require that the appellant “inform[] the court—when

the court ruling or order is made or sought—of the action the party wishes

the court to take.” Fed. R. Crim. P. 51(b). Mr. Tena-Arana satisfied this

requirement by moving for a downward variance based on his appellate

waiver. After the district court declined to grant a variance, Mr. Tena-

Arana had no need to renew his objection. See Fed. R. Crim. P. 51(a)

(“Exceptions to rulings or orders of the court are unnecessary.”). To

require a contemporaneous objection in this circumstance would simply

require the defendant to repeat what he had already argued in his motion.

United States v. Lopez-Avila, 

, 1217–18 (10th Cir. 2011); see
also United States v. Gallant, 

, 1243 n.27 (10th Cir. 2008)

(stating that an appellant need not repeat an objection at sentencing after

bringing the problem to the court’s attention and making clear the action

that is desired). Preservation does not require redundancy.

      Notwithstanding compliance with the Federal Rules of Criminal

Procedure, the government argues that Mr. Tena-Arana failed to preserve

his challenge because he did not object after the court had announced the

sentence. In most cases, a “contemporaneous objection to procedural

errors” is required to preserve an argument for reversal. United States v.

Romero, 

, 1177 (10th Cir. 2007). But as the majority

explains, United States v. Lopez-Avila, 

(10th Cir. 2011),

created an exception. Maj. Op. at 7, 10. In my view, our case falls within

this exception.

      Lopez-Avila concerned a district court’s categorical refusal to

consider a ground for variance previously requested in a motion to vary

–19. There the defendant moved for a

downward variance based on sentencing disparities created by the

availability of “fast-track” programs. 

The district court denied

the motion, concluding that these disparities could not be considered as a

basis to vary downward. 

did not renew his objection

after the district court had ruled; nonetheless, we considered the argument



                                      2
preserved because it had been properly raised prior to sentencing and the

district court had understood and addressed the argument. 

      The government contends that Lopez-Avila is distinguishable because

there the defendant’s motion for a variance expressly argued that the

district court had the authority to consider the sentencing disparities

created by fast-track programs. This interpretation of Lopez-Avila is

questionable. The Lopez-Avila opinion does not reference the defendant’s

argument that the court had the power to vary downward. The opinion

states only that the defendant had moved for a downward variance based on

disparities in fast-track programs. 

      But even under the government’s reading of Lopez-Avila, the issue

was preserved here. In his motion for a downward variance, Mr. Tena-

Arana argued that the court had the power to impose a variant sentence

based on an appellate waiver. 1 In the course of making this argument, he

contended that the appellate waiver was “an appropriate consideration” for

a variance because the waiver would benefit the trial court, the appellate

court, and the government. R. Vol. I, at 33. He concluded by stating that a

variant sentence “based on an appellate waiver is a non-prohibited reason.”

manner, Mr. Tena-Arana unambiguously informed the district


1
      As the majority explains, Mr. Tena-Arana sometimes referred to his
request as one for a variance and sometimes as one for a departure. Thus,
some of Mr. Tena-Arana’s arguments cite the departure section of the
sentencing guidelines.
                                      3
court of his argument that the district court could vary downward based on

an appellate waiver. 2

      In seeking to distinguish Lopez-Avila, the majority cites United

States v. Wireman, 

(10th Cir. 2017). There too the defendant

unsuccessfully moved for a downward variance. 

.

But the appeal did not relate to the denial of a downward variance; instead,

the defendant appealed the district court’s failure to adequately explain the

sentence. 

On this challenge to the adequacy of the district

court’s explanation, we held that the appellate challenge was unpreserved

because the defendant had failed to object at sentencing. 

      Wireman involved a preservation issue different from ours. There the

defendant needed to object after the district court had ruled because the

error could not have been presented in the pre-sentence motion for a

downward variance. See United States v. Gantt, 

, 1247 (10th

Cir. 2012) (distinguishing Lopez-Avila because the defendant had never

raised the issue in district court). Here the error could have been—and

was—presented in the pre-sentence motion. Thus, the district court was


2
       The majority points out that Mr. Tena-Arana’s appellate argument is
more detailed than it had been in district court. But the Federal Rules of
Criminal Procedure do not require detail; the appellant need only bring the
problem to the court’s attention and make clear the action that is desired.
See United States v. Gallant, 

, 1243 n.27 (10th Cir. 2008)
(stating that the appellant had preserved the issue under Federal Rule of
Criminal Procedure 51(b) even though the argument at sentencing had not
been detailed).
                                      4
aware of Mr. Tena-Arana’s argument without its repetition at sentencing.

See United States v. Lopez-Avila, 

, 1218 (10th Cir. 2011)

(explaining that case law requiring an objection after sentencing “applies

only to alleged procedural errors at sentencing that were not properly

raised in the district court”).

      The majority also suggests that my interpretation of Lopez-Avila

would create an intra-circuit conflict based on an inconsistency with

United States v. Romero, 

(10th Cir. 2007). Maj. Op. at 10. I

respectfully disagree. In Lopez-Avila, the court distinguished Romero.

–19. We should hesitate to find an intra-

circuit conflict when the more recent opinion expressly distinguished the

older opinion. See United States v. Old Dominion Boat Club, 

, 1045 (D.C. Cir. 2011) (stating that “courts must be careful when

invoking [the principle that the earlier decision is binding when an intra-

circuit conflict arises], lest [the courts] too readily discard a later

precedent that distinguished . . . an earlier decision”).

      In Lopez-Avila, the court drew a reasonable distinction with Romero,

recognizing a narrow exception to the general requirement of

contemporaneous objections. This exception would apply only when the

defendant has properly raised the issue prior to sentencing and the district

court has understood and addressed the issue. 

This

exception would not apply in cases like Romero or Wireman, where the

                                        5
appellate challenge involved the explanation for the sentence. In these

cases, the defendants could not have raised their arguments until after the

district courts had explained the sentences.

      But the Lopez-Avila exception squarely applies here, where the

defendant moved for a downward variance and the district court

categorically refused to consider a variance based on an understanding that

no such authority existed. Under the Lopez-Avila exception, Mr. Tena-

Arana’s appellate argument is considered preserved.

      Harmlessness. As a result, I would engage in de novo review. 

The majority concludes that even under de novo review, we should

treat the district court’s error as harmless. Maj. Op. at 13 n.7. I

respectfully disagree because the government did not raise harmlessness.

      We can consider harmlessness sua sponte in limited circumstances.

United States v. Holly, 

, 1307–08 (10th Cir. 2007). In

deciding whether to use our discretion to address harmlessness, we

consider three factors:

      1.     “‘the length and complexity of the record,’”

      2.    “‘whether the harmlessness of the errors is certain or
            debatable,’” and

      3.    “‘whether a reversal would result in protracted, costly, and
            futile proceedings in the district court.’”

(quoting United States v. Samaniego, 

, 1225

(10th Cir. 1999)). The first factor supports sua sponte consideration of

                                       6
harmlessness, but the second and third factors weigh against sua sponte

consideration.

      The first factor supports sua sponte consideration. Because the

sentencing transcript is short and straightforward, our harmlessness inquiry

would not entail deep immersion into a lengthy, complex transcript.

      But the second factor cuts strongly against sua sponte consideration

of harmlessness. “[W]e generally undertake harmless error analysis sua

sponte only if the harmlessness of the error is certain.” United States v.

Little, 

, 1183 n.4 (10th Cir. 2016). In my view, we lack the

necessary certainty on the effect of the district court’s error.

      At sentencing, the district court refused to consider the appellate

waiver and calculated the guideline range as 18 to 24 months’

imprisonment. The district court explained that 24 months’ imprisonment

was an insufficient deterrent. To create a more effective deterrent, the

court decided to vary upward by 6 months, which resulted in a 30-month

sentence.

      But what if the district court had considered both the appellate

waiver and the need to vary upward to create an effective deterrent? See

United States v. Harotunian, 

, 1043 (1st Cir. 1990) (stating

that the circumstances for a departure “may well pull in opposite

directions”). In considering both, the court might have given greater

weight to the parties’ positions on the cumulative impact. In considering

                                       7
the parties’ positions, the district court might reasonably have looked to

the plea agreement, where the government stated that it

          did not object to a downward variance of one level based on the
           appellate waiver and

          recommended a sentence within the guideline range after
           incorporation of a one-level downward variance.

     Taking the downward variance into account, the government

effectively recommended a sentence no higher than 21 months. Starting

from that point, an upward variance of six months would have resulted in a

sentence of 27 months. The court said that 24 months was not enough to

deter Mr. Tena-Arana, but the court might have considered 27 months

enough of a deterrent. Thus, even with an upward variance of six months to

create an effective deterrent, the ultimate sentence might have been less

than 30 months if the district court had not categorically refused to

consider the appellate waiver.

     The third factor also weighs against sua sponte consideration of

harmlessness because the remand would require little of the district court. 3

The court would only have to refresh itself on the short sentencing

transcript and determine how much, if any, the 30-month sentence should

be reduced based on the appellate waiver. In these circumstances, reversal

3
     This court has questioned the relevance of the third factor. See
United States v. Holly, 

, 1308 n.8 (10th Cir. 2007). But even
without this factor, sua sponte consideration of harmlessness would be
inappropriate based on uncertainty over what sentence the district court
would have imposed without the error.
                                      8
would not result in substantial cost or time. Though the remand might

ultimately prove futile, the only person who knows whether that is the case

is the sentencing judge. As a result, I would remand for resentencing rather

than sua sponte consider the harmlessness of the district court’s error.

      Conclusion. As explained by the majority, the district court erred in

determining that it could not vary downward based on Mr. Tena-Arana’s

appellate waiver. Thus, I would reverse the sentence and remand for

resentencing. Because the majority affirms the sentence, I respectfully

dissent.




                                      9