UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

_________________________________ 

UNITED STATES OF AMERICA, 

 Plaintiff - Appellee, 

v. 

RODOLFO ANASTACIO VARGASORTEGA, a/k/a Rodolfo Anastacio 

Vargas, 

 Defendant - 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-Ortega pleaded guilty to unlawful 

reentry and possession of a firearm and ammunition by an alien who is 

illegally in the United States. 8 U.S.C. § 1326(a); 18 U.S.C. § 922(g)(5). 

Prior to sentencing, Mr. Vargas-Ortega filed a motion for a downward 

variance, urging a sentence below the floor of the guideline range based on 

his personal history and characteristics, including his family 

circumstances. The district court denied the motion. The court could have 

 

*

 This order and judgment does not constitute binding 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 Court
2 

denied the motion based on an exercise of discretion. But the court didn’t. 

Instead, the court reasoned that family circumstances were not a proper 

basis to grant a variance. This reasoning entailed a legal error on the scope 

of the court’s authority, requiring 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 his family circumstances, 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 are fortunate to have loving 

families. Other defendants are not so fortunate. Some 

defendants who have loving families behave in ways that [are] 

destructive to their family members. Other defendants, such as 

this defendant, [have] behaved in a responsible fashion in 

taking care of his family. But the existence of his family and 

the importance of his family to him do not bear upon any of the 

sentencing objectives or sentencing factors. I think he's 

fortunate to have a loving family, 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 the district court’s understanding that family 

circumstances could not support a variance because they did not relate to 
3 

the statutory sentencing factors. This understanding is apparent in the 

court’s statement that “the existence of [Mr. Vargas-Ortega’s] family and 

the importance of his family to him do not bear upon any of the sentencing 

objectives or sentencing factors.” Id. Based on this understanding, the 

court stated that it would not consider family circumstances when selecting 

the sentence. Id. Through this statement, the district court expressed its 

understanding that a variance could not be based on the defendant’s family 

circumstances. 

II. Preservation 

Before addressing whether this understanding is correct, we must 

consider whether Mr. Vargas-Ortega preserved his appellate challenge. 

According to the government, Mr. Vargas-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-Ortega argued that the 

district court should vary downward based on his family circumstances.1

 

We consider the sufficiency 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 court-when the court ruling or order is 

made or sought-of the action the party wishes the court to take.” Fed. R. 

 

1

 The government concedes that the motion for a downward variance 

was “based on several factors, including [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 circumstances. Through this 

contention, he informed the district court of the action that he wanted; 

because this contention satisfied Rule 51(b), he didn’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 case law requiring a 

contemporaneous objection when the appeal 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 contemporaneous objection 

in this circumstance because the sentencing court would not otherwise have 

an opportunity to consider the party’s argument. See United States v. 

Gantt, 679 F.3d 1240, 1247 (10th Cir. 2012). 

But we have not required a contemporaneous objection when the 

defendant is appealing the district court’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 objection in this circumstance would simply require a 

defendant to repeat what had already been stated in the motion. See id.; see 
5 

also Gantt, 679 F.3d at 1247 (explaining 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 Cir. 2011). There the defendant moved for a 

downward variance, urging a sentence below the guideline 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 these 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 had been properly raised prior to the 

sentencing and that the district court had understood the argument and 

addressed it. Id. at 1217–18. 

The government contends that Lopez-Avila is distinguishable because 

there the defendant moved for a downward variance, arguing that the 

district court “could legally consider” whether to vary downward based on 

disparities in the availability of fast-track programs. Letter from the 

Government to the Court 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 that the court had the power to vary 

downward; we stated only that the defendant had moved for a downward 

variance based on disparities in fast-track programs. Lopez-Avila, 665 F.3d 
6 

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 the Court Clerk, Attachment A at 42–44, 51–65, 81–87 

(May 22, 2018). In the opinion itself, the court never referred to this aspect 

of the defendant’s motion.

Nonetheless, the government contends that “Lopez-Avila stands for 

the following: Where parties have already raised and argued an issue, the 

losing party is not also required to object after the court decides the issue.” 

Letter from the Government to the Court Clerk at 2 (May 22, 2018). Even 

if we were to look beyond the opinion itself and consider the defendant’s 

motion for a variance, Lopez-Avila’s holding on preservation would apply 

here. In the motion, Mr. Vargas-Ortega argued that his “personal history 

and characteristics warrant[ed] a downward variance.” R., vol. 1 at 113. He 

then discussed his family circumstances and explained how they showed 

that he “does not belong in prison.” Id. In arguing that the district court 

should consider his family circumstances, 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 the opinion itself, Mr. 

Vargas-Ortega preserved his argument that a court can 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 that the district court erred in determining that it 

could not vary downward based on Mr. Vargas-Ortega’s family 

circumstances. 

The government concedes that the district 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 family circumstances bear on a 

defendant’s “history and characteristics,” 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 erred 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 court has discretion whether to vary 

downward based on Mr. Vargas-Ortega’s family circumstances. 
8 

The Court directs the Clerk to issue the mandate forthwith. 

Entered for the Court 

Robert E. Bacharach 

Circuit Judge