UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

_______________________________________ 

UNITED STATES OF AMERICA, 

 Plaintiff - Appellee, 

v. 

CESAR GONZALEZ-GURROLA, 

 Defendant - Appellant. 

No. 23-2099 

(D.C. No. 2:22-CR-01946-MIS-1) 

(D. N.M.) 

__________________________________________ 

ORDER AND JUDGMENT*

_________________________________ 

Before HARTZ, TYMKOVICH, and BACHARACH, Circuit Judges. 

_________________________________ 

 

This appeal grew out of an agreement for the defendant to plead 

guilty in return for a particular sentence. But the district court rejected the 

agreement and imposed a harsher prison term. The defendant, Mr. Cesar 

Gonzalez-Gurrola, challenges the district court’s decisions to reject the 

agreement and impose a harsher sentence. We affirm. 

* This order and judgment does not constitute binding precedent except 

under the doctrines of law of the case, res judicata, and collateral estoppel. 

But the order and judgment may be cited for its persuasive value if 

otherwise appropriate. Fed. R. App. P. 32.1(a); 10th Cir. R. 32.1(A). 

FILED 

United States Court of Appeals 

Tenth Circuit 

July 23, 2024

Christopher M. Wolpert 

Clerk of Court

Appellate Case: 23-2099 Document: 010111083299 Date Filed: 07/23/2024 Page: 1
2 

1. Mr. Gonzalez-Gurrola pleads guilty to conspiracy to transport 

undocumented immigrants.

Mr. Gonzalez-Gurrola drove two undocumented immigrants from 

Mexico to the United States. One of the immigrants was a 7-year-old girl 

traveling by herself; the other immigrant was an unrelated adult. 

Mr. Gonzalez-Gurrola pleaded guilty to conspiracy to transport 

illegal aliens. 8 U.S.C. § 1324(a)(1)(A)(v)(I). The guideline range was 4–

10 months’ imprisonment, and the parties agreed to a sentence of 4 months. 

The district court rejected the agreement and later imposed a sentence of 

32 months’ imprisonment. 

2. The district court didn’t err in rejecting the agreement. 

Mr. Gonzalez-Gurrola challenges rejection of the agreement, arguing 

that the district court erred procedurally by participating in plea 

negotiations and failing to explain the right to withdraw the guilty plea. 

a. The defendant waived his challenge involving participation 

in plea negotiations. 

Mr. Gonzalez-Gurrola argues that the district court improperly 

participated in plea negotiations1

 by expressing an intent to impose a 32-

month prison term. But the court didn’t express that intent out of thin air; 

when the district court rejected the agreement, Mr. Gonzalez-Gurrola’s 

attorney asked the court how long the sentence could be: 

1

 Fed. R. Crim. P. 11(c)(1) prohibits the district court from 

participating in plea negotiations. 

Appellate Case: 23-2099 Document: 010111083299 Date Filed: 07/23/2024 Page: 2
3 

[Mr. Gonzalez-Gurrola’s attorney]: I don't know if Your Honor 

. . . feels comfortable proposing what the proposed sentence may 

be? . . . [I]f we can have another continuance, I can discuss with 

him about, so I can lay out what his options could be? 

Supp. R. at 20. The court answered that it was tentatively considering a 

sentence of about 32 months. Id. 

At a later hearing, Mr. Gonzalez-Gurrola’s attorney again asked what 

to “expect in terms of sentencing.” R. vol. 3, at 45–46. The court pointed 

out that it had said “last time” that it “was considering 32 months.” Id. 

 Both times, the court was simply answering defense counsel’s 

question when stating that the likely sentence would be about 32 months. 

So Mr. Gonzalez-Gurrola invited any possible error by asking the court 

how long the sentence might be. See United States v. Ginyard, 215 F.3d 

83, 88 (D.C. Cir. 2000) (concluding that the defendant had invited any 

possible error by asking the district court for its opinion about an 

acceptable sentence); United States v. Mamoth, 47 F.4th 394, 398–99 (5th 

Cir. 2022) (concluding that the defendant had invited any possible error 

by asking the district court what it would accept as the sentence). Given 

Mr. Gonzalez-Gurrola’s role in inviting the alleged error, we cannot 

reverse on this basis. See United States v. Edward J., 224 F.3d 1216, 1222 

(10th Cir. 2000) (stating that a party can’t obtain reversal by inducing 

court action and then characterizing that action as erroneous). 

Appellate Case: 23-2099 Document: 010111083299 Date Filed: 07/23/2024 Page: 3
4 

b. Mr. Gonzalez-Gurrola didn’t suffer prejudice from the 

failure to explain that he could withdraw his guilty plea. 

After rejecting the agreement, the district court needed to state to 

Mr. Gonzalez-Gurrola that he could withdraw his plea. Fed. R. Crim. P. 

11(c)(5)(B)–(C). But the court didn’t make this statement, and the 

government concedes that the omission constituted error.2

 Despite the concession of error, we apply the plain-error standard 

because Mr. Gonzalez-Gurrola’s attorney didn’t object in district court. 

United States v. Uscanga-Mora, 562 F.3d 1289, 1293 (10th Cir. 2009) 

(Gorsuch, J.). Under that standard, we can reverse only if the error had 

affected Mr. Gonzalez-Gurrola’s substantial rights. United States v. 

Gonzalez-Huerta, 403 F.3d 727, 732–33 (10th Cir. 2005) (en banc). 

 Mr. Gonzalez-Gurrola bears the burden of showing an effect on his 

substantial rights. Id. He didn’t satisfy that burden because he had been 

told three times about his option to withdraw the guilty plea. 

2

 The district court also needed to inform Mr. Gonzalez-Gurrola that 

the sentence could exceed the agreed terms. Fed. R. Crim. P. 11(c)(5)(C). 

The district court didn’t inform Mr. Gonzalez-Gurrola of this possibility, 

and he states that this error affected his substantial rights. But Mr. 

Gonzalez-Gurrola does not support this statement with any argument. See 

United States v. Beckstead, 500 F.3d 1154, 1164–65 (10th Cir. 2007) 

(stating that two section headings, a single sentence, and two phrases don’t 

constitute adequate development of an argument). 

Appellate Case: 23-2099 Document: 010111083299 Date Filed: 07/23/2024 Page: 4
5 

 First, the agreement told Mr. Gonzalez-Gurrola that he could 

withdraw the guilty plea if the court were to reject the agreement, and he 

acknowledged discussing this term with his attorney. 

 Second, Mr. Gonzalez-Gurrola appeared at his plea hearing, where 

defense counsel explained the right to withdraw the guilty plea if the 

district judge were to reject the parties’ agreement on the sentence. 

Mr. Gonzalez-Gurrola then confirmed that he had the same understanding 

of the agreement. 

 Third, in a later hearing, defense counsel said in Mr. GonzalezGurrola’s presence that he would have the right to withdraw the guilty 

plea. 

 From the three disclosures, Mr. Gonzalez-Gurrola apparently knew 

that he could withdraw his guilty plea upon rejection of the agreement. 

 Even now, Mr. Gonzalez-Gurrola doesn’t suggest that he would 

have changed his plea if he had been reminded of this right. He instead 

says only that if he had been told about this possibility, he “may well have 

decided to roll the dice.” Appellant’s Reply Br. at 9. But Mr. GonzalezGurrola bore the burden of persuasion; it isn’t enough to say that he might 

have changed his plea. See United States v. Dominguez Benitez, 542 U.S. 

74, 76 (2004); accord United States v. Dixon, 308 F.3d 229, 235 (3d Cir. 

2002) (concluding that a failure to accurately advise the defendant of the 

possible sentence upon entry of a guilty plea didn’t affect his substantial 

Appellate Case: 23-2099 Document: 010111083299 Date Filed: 07/23/2024 Page: 5
6 

rights because he hadn’t “clearly and unmistakeably asserted” that he 

would have pleaded not guilty with the correct information).3

 We thus 

conclude that the district court didn’t affect Mr. Gonzalez-Gurrola’s 

substantial rights by failing to tell him that he could withdraw the guilty 

plea. 

c. The district court had discretion to reject the agreed 

sentence. 

Mr. Gonzalez-Gurrola argues that the district court shouldn’t have 

rejected the agreement. To review this argument, we apply the abuse-ofdiscretion standard. United States v. Vanderwerff, 788 F.3d 1266, 1271 

(10th Cir. 2015). 

The court had discretion to determine whether the agreement was too 

lenient. United States v. Carrigan, 778 F.2d 1454, 1462 (10th Cir. 1985). 

The court exercised this discretion, determining that a 4-month sentence 

would be too lenient because the crime had led to placement of a 7-yearold girl in a shelter. This reasoning fell within the district court’s 

discretion.4

3

 In his reply brief, Mr. Gonzalez-Gurrola argued that he might have 

wanted to plead not guilty in order to seek jury nullification. But “where 

the only possible deprivation suffered by the defendant is the possibility of 

jury nullification, the defendant’s substantial rights have not been 

violated.” United States v. Horsman, 114 F.3d 822, 829 (8th Cir. 1997) 

(citation & internal quotation marks omitted). 

4

 Mr. Gonzalez-Gurrola argues that the discretion was limited because 

the agreement partly involved a refusal to bring further charges. But the 

Appellate Case: 23-2099 Document: 010111083299 Date Filed: 07/23/2024 Page: 6
7 

3. The district court didn’t err by imposing a 32-month sentence. 

 Mr. Gonzalez-Gurrola challenges not only the district court’s 

rejection of the agreement, but also the sentence itself. These challenges to 

the sentence are both procedural and substantive. 

a. The district court didn’t err procedurally. 

The procedural challenges involve the district court’s explanation for 

the sentence. 

The applicable standard of review. When the defendant challenges 

the sufficiency of the district court’s explanation, we apply the abuse-ofdiscretion standard. United States v. Alapizco-Valenzuela, 546 F.3d 1208, 

1214–15, 1222–23 (10th Cir. 2008). But when the defendant hears the 

explanation and declines to object, we typically apply the plain-error 

standard. United States v. Uscanga-Mora, 562 F.3d 1289, 1293–94 (10th 

Cir. 2009) (Gorsuch, J.). 

Challenges to the sufficiency of the explanation. Mr. GonzalezGurrola argues that the district court didn’t adequately discuss the 

statutory sentencing factors. But Mr. Gonzalez-Gurrola didn’t object, so 

we apply the plain-error standard. 

district court didn’t reject the agreement because of the protection against 

further charges. 

Appellate Case: 23-2099 Document: 010111083299 Date Filed: 07/23/2024 Page: 7
8 

Mr. Gonzalez-Gurrola acknowledges that he didn’t object to the 

district court’s explanation for the sentence. But he insists that any 

objection would have been futile. 

In some circumstances, an objection might be futile, relieving the 

defendant of the need to establish plain error. See, e.g., United States v. 

Algarate-Valencia, 550 F.3d 1238, 1243 (10th Cir. 2008) (declining to 

apply the plain-error standard based on the futility of a further objection).

But these circumstances are limited: An objection would be futile only 

when 

 the defendant has already made the position clear to the district 

court and 

 it’s obvious that the court had already made a final decision. 

Id. at 1243 n.4. 

These circumstances weren’t present here. The district court did 

make it clear that it was going to reject the agreement. But that ruling 

didn’t involve the court’s explanation for the sentence. Before the actual 

sentencing, the court’s only comments about the likely prison term 

involved tentative responses to defense counsel’s questions: 

“[I]f [Mr. Gonzalez-Gurrola] pleads and continues to accept 

responsibility for this, it would still be an upward variance. So I 

would anticipate, I don’t know, maybe, high end is 16 months, 

maybe 32 months, something like that?” 

* * * * 

Appellate Case: 23-2099 Document: 010111083299 Date Filed: 07/23/2024 Page: 8
9 

“That is what I would consider if he continues to accept 

responsibilit[y] for what he did in this case. And I mean, you 

know, you all can continue to make arguments. I mean, I’m 

happy to do that. I don’t want to waste anybody’s time. And if 

there’s nothing we can do about this kid being an orphan now, 

there’s nothing we can do. But it’s horrific.” 

Supp. R. at 20–21. 

After hearing the court’s responses, defense counsel proposed a 

sentence of twelve months and a day. This proposal would have made little 

sense if defense counsel thought that the court had already decided on the 

sentence. Given defense counsel’s proposal and the tentative nature of the 

court’s responses, we apply the plain-error standard rather than the more 

rigorous standard for an abuse of discretion. 

We apply the plain-error standard based on seven statutory factors 

for the sentence: 

1. the nature and circumstances of the offense and the history and 

characteristics of the defendant, 

2. the need for a sentence to reflect the seriousness of the crime, 

deter future criminal conduct, protect the public and provide 

rehabilitation, 

3. the legally available sentences, 

4. the U.S. Sentencing Guidelines, 

5. the Sentencing Commission’s policy statements, 

6. the need to avoid unwarranted sentence disparities among 

defendants with similar records, and 

7. the need for restitution. 

Appellate Case: 23-2099 Document: 010111083299 Date Filed: 07/23/2024 Page: 9
10 

18 U.S.C. § 3553(a). 

But these factors don’t always bear equal weight, and the court can 

emphasize some over others. See United States v. Sanchez-Leon, 764 F.3d 

1248, 1267–68 (10th Cir. 2014) (stating that district courts need not 

equally weigh the statutory sentencing factors). Here the court focused on 

one aspect of the sentence: the seriousness of the underlying conduct. 

The court considered the conduct particularly serious because 

Mr. Gonzalez-Gurrola had picked up a 7-year-old girl, traveling alone, and 

had planned to drive her to Atlanta. The court repeatedly focused on this 

conduct when explaining the reasonableness of a sentence approximating 

32 months. 

The court also referred to other sentencing factors, but Mr. GonzalezGurrola argues that 

 these references were conclusory and 

 the explanation put too much emphasis on the impact on the 

girl. 

To resolve this argument, we consider whether the district court’s 

explanation for the sentence was obviously deficient. See United States v. 

Olano, 507 U.S. 725, 734 (1993) (stating that an error is plain only if it’s 

“clear” or “obvious”). In our view, the answer is no. 

The court discussed Mr. Gonzalez-Gurrola’s relatively clean criminal 

history, his untruthful statement to border patrol that he hadn’t been paid 

Appellate Case: 23-2099 Document: 010111083299 Date Filed: 07/23/2024 Page: 10
11 

for the trip, the need for just punishment and respect for the law, and the 

need to avoid unwarranted sentencing disparities. Given that discussion, 

the district court didn’t commit an obvious failure to adequately explain 

the sentence. 

Mr. Gonzalez-Gurrola also criticizes the district court for relying on 

the frequency of upward variances involving transportation of “very young 

unaccompanied minors.” R. vol. 3, at 59. For this criticism, Mr. GonzalezGurrola says that the district court failed to provide any factual support. 

But Mr. Gonzalez-Gurrola doesn’t argue that this statement affected his 

substantial rights. In the absence of an effect on his substantial rights, the 

district court’s statement doesn’t support reversal under the plain-error 

standard. See United States v. Gonzalez-Huerta, 403 F.3d 727, 732–33 

(10th Cir. 2005) (en banc). 

Challenges to the content of the explanation. Mr. Gonzalez-Gurrola 

challenges not only the explanation’s sufficiency but also its content. For 

the sake of argument, we can assume that Mr. Gonzalez preserved these 

challenges. With that assumption, we would apply the abuse-of-discretion 

standard and conclude that the court had acted within its discretion. United 

States v. Alapizco-Valenzuela, 546 F.3d 1208, 1214–15 (10th Cir. 2008). 

Mr. Gonzalez-Gurrola questions the reliance on his role in 

transporting the girl, arguing that the court erred by relying on just one 

sentence factor and disregarding everything else. In fact, the court relied 

Appellate Case: 23-2099 Document: 010111083299 Date Filed: 07/23/2024 Page: 11
12 

not only on the impact of the crime, but also on Mr. Gonzalez-Gurrola’s 

dishonest statements to border patrol. With these aggravating factors, the 

court considered Mr. Gonzalez-Gurrola’s cooperation with the government. 

He argues that the cooperation deserved greater weight, but the court had 

discretion to put greater weight on the harm to the girl and Mr. GonzalezGurrola’s dishonesty to border patrol. See United States v. Barnes, 890 

F.3d 910, 915 (10th Cir. 2018) (stating that a district court abuses its 

sentencing discretion only if the sentence exceeded the bounds of 

permissible choice). 

Nor did the court abuse its discretion by rejecting Mr. GonzalezGurrola’s explanation. He insists that he thought he was taking the girl to 

her family. But the district court questioned why Mr. Gonzalez-Gurrola 

would believe he was taking the girl to her family. In response, 

Mr. Gonzalez-Gurrola said that he had been told that the girl would be 

reunited with her aunt. But Mr. Gonzales-Gurrola also represented that a 

cartel had forced him to drive the two individuals. So the court could 

reasonably question why Mr. Gonzalez-Gurrola would have thought that he 

was taking the girl to her aunt. 

The court focused also on Mr. Gonzalez-Gurrola’s role in separating 

the girl from her family. He argues that by the time he picked up the girl, 

she had already been separated from her family. But Mr. Gonzalez-Gurrola 

was convicted of conspiring to illegally transport the girl. And as a 

Appellate Case: 23-2099 Document: 010111083299 Date Filed: 07/23/2024 Page: 12
13 

conspirator, Mr. Gonzalez-Gurrola bore responsibility for the acts of his 

conspirators. Pinkerton v. United States, 328 U.S. 640, 647–48 (1946). So 

the court could reasonably fault Mr. Gonzalez-Gurrola for uprooting the 

girl from her family. 

b. The court didn’t err substantively. 

 Finally, Mr. Gonzalez-Gurrola argues that his 32-month sentence was 

substantively unreasonable because it was too long. For this argument, he 

contends that 

 he didn’t get an appropriate benefit for entering into a fasttrack agreement, 

 a later guideline amendment would have retroactively reduced 

his guideline range, and 

 the upward variance rested solely on speculation that 

authorities hadn’t reunited the girl with her family. 

 For these arguments, we apply the abuse-of-discretion standard. 

United States v. Cookson, 922 F.3d 1079, 1090 (10th Cir. 2019). In our 

view, the court acted within its discretion. 

The court acknowledged entry into a fast-track agreement, but 

concluded that other factors supported an upward variance. And 

Mr. Gonzalez-Gurrola can’t show that the court had acted unreasonably by 

disregarding an amendment to the guidelines that hadn’t taken effect.5 See 

5

 Mr. Gonzalez-Gurrola was sentenced in June 2023. The guideline 

amendment took effect roughly five months later. See 88 Fed. Reg. 28,254, 

2023 WL 319918 (May 3, 2023). 

Appellate Case: 23-2099 Document: 010111083299 Date Filed: 07/23/2024 Page: 13
14 

United States v. McCoy, 804 F.3d 349, 353 (4th Cir. 2015) (concluding that 

a sentence didn’t become substantively unreasonable when a guideline 

amendment later took effect and lowered the base-offense level). Finally, 

the district court didn’t vary upward based solely on the girl’s separation 

from her family. As noted above, the court referred to various statutory 

factors when explaining the upward variance. See pp. 11–13, above. We 

thus conclude that the court didn’t abuse its discretion in imposing a 32-

month sentence. 

* * * 

 Mr. Gonzalez-Gurrola invited any potential error involving the 

district court’s participation in plea discussions. Granted, the district court 

should have told Mr. Gonzalez-Gurrola that he could withdraw his guilty 

plea. But the district court’s error didn’t affect Mr. Gonzalez-Gurrola’s 

substantial rights. 

Nor did the district court abuse its discretion in rejecting the 

agreement. The court could reasonably conclude that the agreement would 

have resulted in an overly lenient sentence. 

And the court didn’t commit reversible error in deciding on a 32-

month sentence or in explaining it. This explanation addressed the 

statutory sentencing factors, and the court could reasonably regard the 

conduct as egregious because it led to placement of a 7-year-old girl in a 

shelter. 

Appellate Case: 23-2099 Document: 010111083299 Date Filed: 07/23/2024 Page: 14
15 

We thus affirm the conviction and sentence. 

 Entered for the Court 

 

Robert E. Bacharach 

Circuit Judge 

Appellate Case: 23-2099 Document: 010111083299 Date Filed: 07/23/2024 Page: 15