UNITED STATES CO URT OF APPEALS FOR THE TENTH CIRCUIT

__________________ _______________ UNITED STATES OF AMERICA, Pl aintiff - Appellee,

v.RODOLFO ANASTACIO VARGASORTEGA, a/k/a Rodolfo Anastacio Vargas, De fendant - Appellant. No. 17-1433 (D.C. No. 1:17- CR-00133-MSK-1) (D. Colo.)

__________________ _______________ ORDER AND JUDGMENT *

__________________ _______________ Before BACHARACH , KELLY , and MORITZ , Circuit Judges.

__________________ _______________ Mr. Rodolfo Anastacio Vargas-Ort ega pleaded guilty to unlawful reentry and possession of a firearm and ammunition by an alien who is illegally in the Un ited States. 8 U.S.C. § 1326( a); 18 U.S.C. § 922(g)(5). Prior to sentencing, Mr. Vargas-Ort ega filed a motion for a downward variance, urging a sentence below the fl oor of the guidelin e range based on his personal history and characteristics, in cluding his family circumstances. The district court deni ed the motion. The court could have

* This order and judgme nt does not constitute bi nding precedent except under the doctrines of law of the case, res judicata, and collateral estoppel. But this order and judgment may be cited for its persuasive value under Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. FILED United States Court of Appeals Tenth Circuit 

### June 11, 2018 Elisabeth A. Shumaker Clerk of Court2 denied the motion based on an exercise of discreti on. But the court didn’t. Instead, the court reasone d that family circumstan ces were not a proper basis to grant a variance. This reason ing entailed a legal error on the scope of the court’s authority, requiri ng us to reverse and remand for resentencing. I. Interpreting the District Court’s Explanation We must first interpret the district court’s explanation for declining to vary downward. The government contends that the district court recognized that it could vary downward based on family circumstances but simply declined to do so. We disagree. The district court stated: I do not consider hi s family circumstance s, and I don't for several reasons. It's not because it isn't important to him. It's because it is not a factor or an objective under 18 U.S.C. Section 3553. Some defendants ar e fortunate to have loving families. Other defendants ar e not so fort unate. Some defendants who have loving families behave in ways that [are] destructive to their fa mily members. Other defendants, such as this defendant, [hav e] behaved in a res ponsible fashion in taking care of his family. But th e existence of his family and the importance of his family to him do not bear upon any of the sentencing objectives or sent encing factors. I think he's fortunate to have a loving fam ily, and I’m hopeful that they will be able to work something out once he is relocated in Mexico. R., vol. 3 at 73. This language reflects th e district court’s unders tanding that family circumstances could not s upport a variance because they did not relate to3 the statutory sentencing factors. This understanding is apparent in the court’s statement that “the existence of [Mr. Varg as-Ortega’s] family and the importance of his fami ly to him do not bear upon any of the sentencing objectives or sentencing factors.” Id. Based on this unde rstanding, the court stated that it would not consider family circ umstances when selecting the sentence. Id. Through this statem ent, the district court expressed its understanding that a vari ance could not be based on the defendant’s family circumstances. II. Preservation Before addressing whet her this understanding is correct, we must consider whether Mr. Vargas-Ortega preserved his appellate challenge. According to the government, Mr. Varg as-Ortega failed to preserve this challenge because he did not object after the district court announced the sentence. We disagree. In his motion, Mr. Vargas-O rtega argued that the district court should vary downward based on his fami ly circumstances. 1
We consider the sufficien cy of this argument under the standard in Federal Rule of Criminal Procedure 51( b). This rule states that a party preserves a claim “by informing the cour t-when the court ruling or order is made or sought-of the acti on the party wishes the court to take.” Fed. R.

1 The government concedes that the motion for a dow nward variance was “based on several factors, incl uding [Mr. Vargas-Ortega’s] ‘family circumstances.’” Appellee’s Resp. Br. at 8.4 Crim. P. 51(b). To comply with this requirement, Mr. Vargas-Ortega contended in his motion that the court should impose a sentence below the guideline range based on his family circumst ances. Through this contention, he informed the district court of the action that he wanted; because this contention sa tisfied Rule 51(b), he di dn’t need to do anything further to preserve his objection. See Fed. R. Crim. P. 51(a) (“Exceptions to rulings or orders of the court are unnecessary.”). Preservation does not require redundancy. The government relies on a line of cas e law requiring a contemporaneous objection when the ap peal involves a district court’s failure to adequately explain the sentence. United States v. Romero , 491 F.3d 1173, 1176-78 ( 10th Cir. 2007); United States v. Mendoza , 543 F.3d 1186, 1190–92 (10th Cir. 2008 ). We require a cont emporaneous objection in this circumstance because the sent encing court would not otherwise have an opportunity to consider the party’s argument. See United States v. Gantt , 679 F.3d 1240, 1247 (1 0th Cir. 2012). But we have not requ ired a contemporaneou s objection when the defendant is appealing the district cour t’s categorical refusal to consider an argument previously made in a motion for a downward variance. United States v. Lopez-Avila , 665 F.3d 1216, 1217–19 (10th Cir. 2011). To require a contemporaneous objectio n in this circumstance would simply require a defendant to repeat wh at had already been st ated in the motion. See id. ; see5 also Gantt , 679 F.3d at 1247 (expla ining that a contemporaneous objection, after the denial of a motion for downward variance, would needlessly require the party to repeat what it had already argued in the motion). We addressed a similar situation in United States v. Lopez-Avila , 665 F.3d 1216, 1217–19 (10th Ci r. 2011). There the de fendant moved for a downward variance, urging a sentence below the guidelin e range based on disparities in the availability of “fast-track” programs. Lopez-Avila , 665 F.3d at 1217. In denying this motion, the district court concluded that it could not consider thes e disparities as a ground to vary downward. Id. The defendant did not renew his objection. But we held that the issue had been preserved, reasoning that the issue ha d been properly raised prior to the sentencing and that the district court had unders tood the argument and addressed it. Id. at 1217–18. The government contends that Lopez-Avila is distinguishable because there the defendant moved for a dow nward variance, arguing that the district court “could legally consider” whether to vary downward based on disparities in the availa bility of fast-track pr ograms. Letter from the Government to the Cour t Clerk at 1 (May 22, 2018). The government’s interpretation is questionable. There is no reference in the Lopez-Avila opinion to the defendant’s argument th at the court had th e power to vary downward; we stated on ly that the defendant had moved for a downward variance based on disparities in fast-track programs. Lopez-Avila , 665 F.3d6 at 1217. Nonetheless, the government has submitted the motion for a variance filed by the defendant in Lopez-Avila . In this motion, the defendant argued that the district court could vary downward based on the disparities caused by the availability of fast-track programs. Letter from the Government to th e Court Clerk, Attach ment A at 42–44, 51–65, 81–87 (May 22, 2018). In the opinion itself, the court never refe rred to this aspect of the defendant’s motion. Nonetheless, the governm ent contends that “ Lopez-Avila stands for the following: Where partie s have already raised an d argued an issue, the losing party is not also re quired to object after the court d ecides the issue.” Letter from the Governme nt to the Court Clerk at 2 (May 22 , 2018). Even if we were to look be yond the opinion itself and consider the defendant’s motion for a variance, Lopez-Avila ’s holding on preser vation would apply here. In the motion, Mr. Vargas-Orteg a argued that his “personal history and characteristics warrant[ed] a downwar d variance.” R., vo l. 1 at 113. He then discussed his family circumstan ces and explained how they showed that he “does not belong in prison.” Id . In arguing that the district court should consider his family circumst ances, Mr. Vargas-Ortega alerted the court to his argument that family circumstances could be considered. Thus, even if we were to expand our inquiry beyond th e opinion itself, Mr. Vargas-Ortega preserved his argument that a court ca n vary downward based on family circumstances.7 III. Merits Because he preserved the issue, we engage in de novo review. United States v. Lopez-Avila , 665 F.3d 1216, 1218 (10th Cir. 2011). Exercising de novo review, we conclude th at the district court erre d in determining that it could not vary downw ard based on Mr. Varg as-Ortega’s family circumstances. The government concedes that the di strict court could vary downward on this basis, for

 a district court can vary downward based on anything relating to the defendant’s background, character, or conduct and

 we have acknowledged that fam ily circumstance s bear on a defendant’s “history and charact eristics,” which courts must consider under 18 U. S.C. § 3553(a)(1). 18 U.S.C. § 3661; United States v. Muñoz-Nava , 524 F.3d 1137, 1148 (10th Cir. 2008). Thus, the district court erre d in stating that it could not vary downward based on family circumstances. IV. Disposition We reverse the sentence and remand for resentencing . In selecting the new sentence, the district cour t has discretion whether to vary downward based on Mr. Vargas-Ort ega’s family circumstances.8 The Court directs the Clerk to issue the mandate forthwith.

Entered for the Court

Robert E. Bacharach Circuit Judge