UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

_________________________________ 

UNITED STATES OF AMERICA, 

 Plaintiff - Appellee, 

v. 

JULIO CASTANDEDA-RUIZ, 

 Defendant - Appellant. 

No. 19-3037 

(D.C. No. 6:18-CR-10115-JWB-1) 

(D. Kan.) 

_________________________________ 

ORDER AND JUDGMENT*

_________________________________ 

Before LUCERO, O’BRIEN, and CARSON, Circuit Judges. 

_________________________________ 

Julio Castandeda-Ruiz challenges the procedural and substantive

reasonableness of his sentence. Exercising jurisdiction under 28 U.S.C. § 1291, we 

affirm. 

I 

Castandeda-Ruiz pled guilty to one count of felony illegal reentry of a 

previously removed or deported alien in violation of 8 U.S.C. § 1326(a). His 

 * After examining the briefs and appellate record, this panel has determined 

unanimously to honor the parties’ request for a decision on the briefs without oral 

argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore 

submitted without oral argument. This order and judgment is not binding precedent, 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. 

FILED 

United States Court of Appeals 

Tenth Circuit 

October 22, 2019

Elisabeth A. Shumaker 

Clerk of Court
2 

presentence investigation report (“PSR”), listed a total offense level of 6 and a 

criminal history category of I, resulting in an advisory Guidelines range of 0 to 6 

months’ imprisonment. The PSR also noted Castandeda-Ruiz was convicted of 

misdemeanor illegal reentry in 2017 and had illegally entered the United States on 

eight occasions between 2005 and 2016. 

 Neither the government nor Castandeda-Ruiz objected to the PSR. The district 

court accepted the PSR’s calculations as correct but advised the parties it was 

considering an upward variance because Castandeda-Ruiz had “unlawfully entered 

the United States ten times.” Both the government and defense counsel requested 

Castandeda-Ruiz, who had been in custody for seven months, be sentenced to time 

served. The district court considered the sentencing factors under 18 U.S.C. 

§ 3553(a) and announced a tentative sentence of 18 months’ imprisonment as 

follows: 

[The] Court’s required pursuant to [§] 3553(a) to impose a sentence 

that is sufficient but not greater than necessary to comply with the purposes 

of sentencing identified in that statute. . . . [T]he Court has considered the 

. . . Guidelines which promote uniformity in sentencing and assists the 

Court in determining an appropriate sentence by weighing the basic nature 

of the offense, as well as aggravating and mitigating factors. 

 . . . . 

[The] Court . . . notes that this defendant has at least ten separate 

occurrences of being removed from the United States, counting this 

offense, within the last 13 years. It is this Court’s opinion that the 

defendant has failed to understand the severity of his conduct as 

demonstrated by his continual disregard of the laws of the United States 

applicable to entering into this country. 

In enumerating a little more precisely the sentencing factors under 

[§] 3553, I find that the defendant’s criminal history does not reflect the 
3 

presence of these other unlawful entries. As I say, based on the [PSR], this 

is the tenth time he’s come back into the United States unlawfully. It 

happens over and over, and so I am taking that into account. 

I also want to reflect the seriousness of the offense, promote respect 

for the law, provide just punishment, because I expect these laws to be 

followed. . . . [Also,] I think I need a sentence that is going to afford 

adequate future deterrence, and thus far, this defendant’s experience with 

our criminal justice system and immigration system has failed to provide 

sufficient deterrence. 

And I’m also not unaware of the need to avoid unwanted sentencing 

disparities. I know that . . . two of the other individuals who were arrested 

at the same time as this defendant . . . received a time served sentence 

which is what is being requested here, but these individuals . . . had one 

prior unlawful reentry as compared to ten with this defendant. 

And so to apply a time served sentence with this person’s history of 

violating these types of laws seems to me to be unjust and so after 

considering all these factors, the advisory sentencing guidelines, the nature 

and circumstances of the offense, the defendant’s history and 

characteristics, the Court intends to vary from the applicable guideline 

range and sentence the defendant to a term of 18 months imprisonment. . . . 

 . . . . 

 The Court believes that such a sentence is sufficient but not greater 

than necessary to reflect the seriousness of the offense, promote respect for 

the law, and provide just punishment for the offense. Further, the sentence 

should afford adequate deterrence to criminal conduct and protect the 

public from further crimes of the defendant. 

In response to the district court’s explanation for the proposed variance, 

Castandeda-Ruiz’s counsel argued his client did not have a history of violence or 

drug trafficking and only came to this country to work to help support his family. He 

also maintained that the taxpayers would save money if he were given a time-served 

sentence. Nonetheless, counsel said he “underst[ood] the Court’s reasoning behind 

[the] . . . sentence.” The court imposed the 18-month sentence. Castandeda-Ruiz 

timely appealed. 
4 

II 

“On appeal, we review sentences for ‘reasonableness,’ which has both 

procedural and substantive dimensions.” United States v. Martinez-Barragan, 

545 F.3d 894, 898 (10th Cir. 2008). “That is, we consider both the length of the 

sentence, as well as the method by which the sentence was calculated.” Id. 

(quotation omitted). 

A 

As to procedural reasonableness, a defendant must “contemporaneously object 

in the district court to the method by which the district court arrived at a sentence, 

including arguments that the sentencing court failed to explain adequately the 

sentence imposed, if he or she hopes to avoid plain error review on appeal of any 

alleged procedural flaw.” United States v. Wireman, 849 F.3d 956, 961 (10th Cir. 

2017) (quotation omitted). “We will find plain error only when there is (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.” Id. at 962 

(quotation omitted). The defendant bears the burden to establish all four factors. See

United States v. Dominguez Benitez, 542 U.S. 74, 82 (2004). 

After the district court announced the tentative 18-month sentence and the 

reasons for it, the court asked the parties if they objected. Castandeda-Ruiz 

responded with substantive arguments regarding his sentence but did not object to the 

adequacy of the court’s explanation of the sentence. Accordingly, our review is for 

plain error. See Wireman, 849 F.3d at 961. 
5 

 Castandeda-Ruiz maintains the district court failed to adequately explain its 

substantial variance and failed to consider his material, non-frivolous arguments. 

“To satisfy the third prong of plain-error review, a defendant generally must 

demonstrate that an error was prejudicial, meaning that there is a reasonable 

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

been different.” United States v. Bustamante-Conchas, 850 F.3d 1130, 1138 

(10th Cir. 2017) (en banc) (quotation omitted). “[A] reasonable probability is a 

probability sufficient to undermine confidence in the outcome.” Id. (quotation 

omitted). We conclude Castandeda-Ruiz has not shown a reasonable probability that 

his arguments would have caused the district court to impose a lesser sentence. The 

court was required to “adequately explain the chosen sentence to allow for 

meaningful appellate review and to promote the perception of fair sentencing,” Gall 

v. United States, 552 U.S. 38, 50 (2007), and did so when it gave a lengthy and 

detailed explanation of its justification for the sentence. 

B 

“[W]e review the length of [a] sentence for an abuse of discretion.” MartinezBarragan, 545 F.3d at 905 (quotation omitted). “Under a deferential abuse-ofdiscretion standard, we deem a sentence unreasonable only if it is arbitrary, 

capricious, whimsical, or manifestly unreasonable.” United States v. Gantt, 679 F.3d 

1240, 1249 (10th Cir. 2012) (quotation omitted). 

Castandeda-Ruiz argues that his eighteen-month sentence is substantively 

unreasonable because the district court: (1) gave too much weight to his criminal 
6 

history; (2) failed to adequately weigh his characteristics; (3) placed improper weight 

on each of his past removals despite their differences; and (4) did not provide a 

supportable rationale for a major variant sentence that placed him well outside 

national sentencing norms. We disagree. 

Even if a district court settles on a sentence that varies from the recommended 

Guidelines sentence, “we must give due deference to the district court’s decision that 

the § 3553(a) factors, on a whole, justify the extent of the variance.” United States v. 

Smart, 518 F.3d 800, 808 (10th Cir. 2008) (quotation omitted). “Although a major 

departure should be supported by a more significant justification than a minor one, 

we no longer require that extraordinary circumstances justify a sentence outside the 

Guidelines range. . . .” United States v. Huckins, 529 F.3d 1312, 1317 (10th Cir. 

2008) (citation and quotation omitted). And under 18 U.S.C. § 3553(a)(6), a 

sentencing court need only consider “unwarranted sentence disparities.” Id. 

(emphasis added). 

We disagree with Castandeda-Ruiz that the upward variance was an abuse of 

discretion. To the contrary, the court noted, among other things, this was the tenth 

time Castandeda-Ruiz had entered the United States illegally. Although he disagrees 

with the manner in which the court weighed the § 3553(a) sentencing factors, this 

does not mean the sentence is substantively unreasonable. “[I]t is not the job of an 

appellate court to review de novo the balance struck by a district court among the 

factors set out in § 3553(a).” United States v. Sells, 541 F.3d 1227, 1239 (10th Cir. 

2008). Rather, “as long as the balance struck by the district court among the factors 
7 

set out in § 3553(a) is not arbitrary, capricious, or manifestly unreasonable, we must 

defer to that decision even if we would not have struck the same balance in the first 

instance.” Id. 

III 

AFFIRMED. 

 

Entered for the Court 

Carlos F. Lucero 

Circuit Judge