UNITED STATES CO URT OF APPEALS

FOR THE TENTH CIRCUIT

______________________ _________________ UNITED STATES OF AMERICA, Plai ntiff - Appellee,

v. CESAR GONZALEZ-GURROLA, Defe ndant - Appellant. No. 23-2099 (D.C. No. 2:22- CR-01946-M IS-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 senten ce. But the district court rejected the agreement and imposed a harsher pris on term. The defe ndant, Mr. Cesar Gonzalez-Gurrola, challeng es the district court’s decisions to reject the agreement and impose a hars her 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 judgmen t may be cited for its persuasi ve 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: 12 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 im migrant was an un related 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, an d the parties agreed to a sentence of 4 months. The district court reject ed 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 reje ction of the agreement, arguing that the district cour t erred procedurally by participating in plea negotiations and failing to explain th e right to withdraw the guilty plea.

a. The defendant waived his cha llenge involving participation in plea negotiations. Mr. Gonzalez-Gurrola ar gues that the distri ct court improperly participated in plea negotiations 1 by expressing an intent to impose a 32- month prison term. But the court didn’t ex press that intent out of thin air; when the district court rejected th e 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 pl ea negotiations. Appellate Case: 23-2099 Document: 010111083299 Date Filed: 07/23/2024 Page: 23 [Mr. Gonzalez-Gurrola’ s attorney]: I don't know if Your Honor . . . feels comfortabl e proposing what the pr oposed sentence may be? . . . [I]f we can ha ve 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-Gu rrola’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” th at it “was considering 32 months.” Id. Both times, the court was si mply answering de fense counsel’s

question when stating that the likely sentence would be about 32 months. So Mr. Gonzalez-Gurrola invited any possible erro r by asking the court how long the sent ence might be. See United States v. Ginyard , 215 F.3d 83, 88 (D.C. Cir. 2000) (c oncluding that the defe ndant had invited any possible error by asking the district court fo r its opini on about an acceptable sentence); United States v. Mamoth , 47 F.4th 394, 398–99 (5th Cir. 2022) (concluding th at the defendant had in vited any possible error by asking the district court what it would accept as the sentence). Given Mr. Gonzalez-Gurrola’s ro le 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 th at a party can’t obtain reversal by inducing court action and then characterizi ng that action as erroneous). Appellate Case: 23-2099 Document: 010111083299 Date Filed: 07/23/2024 Page: 34 b. Mr. Gonzalez-Gurrola didn’t suffer prejudice from the failure to explain that he could withdraw his guilty plea. After rejecting the agreem ent, 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 th e 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-Gurrol a’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-Gurr ola’s substantial rights. United States v. Gonzalez-Huerta , 403 F.3d 727, 732–33 (10th Cir. 2005) (en banc). Mr. Gonzalez-Gurrola bears the burde n 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 withdr aw the guilty plea.

2 The district court also needed to inform Mr. Gon zalez-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-Gurrol a of this possibility, and he states that this error aff ected his substantial rights. But Mr. Gonzalez-Gurrola does not support this statement wi th any argument. See United States v. Beckstead , 500 F.3d 1154, 1164–65 (10th Cir. 2007) (stating that two sectio n headings, a sing le sentence, and two phrases don’t constitute adequate development of an argument). Appellate Case: 23-2099 Document: 010111083299 Date Filed: 07/23/2024 Page: 45 First, the agreement told Mr. Gonzalez-Gurrola that he could withdraw the guilty plea if the court we re to reject the agreement, and he acknowledged discussi ng this term with his attorney. Second, Mr. Gonzalez-Gurrola appear ed at his plea hearing, where defense counsel explained the right to withdraw the gu ilty plea if the district judge were to reject the parties’ agre ement on the sentence. Mr. Gonzalez-Gurrola then confirmed that he ha d the same understanding of the agreement. Third, in a later hearing, defe nse counsel said in Mr. GonzalezGurrola’s presence that he would have th e right to withdraw the guilty plea. From the three disclosures, Mr. Gonzalez-Gurrola apparently knew that he could withdraw his guilty plea upon reject ion 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 a bout this possibility, he “may well have decided to roll the dice.” Appellant’s Reply Br. at 9. But Mr. GonzalezGurrola bore the bu rden 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 ad vise the defe ndant 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: 56 rights because he hadn’t “clearly an d unmistakeably asserted” that he would have pleaded not guilty with the correct information). 3 We thus conclude that the district court di dn’t affect Mr. Gonzalez-Gurrola’s substantial rights by faili ng to tell him that he co uld withdraw the guilty plea.

c. The district court had discre tion to reject the agreed sentence. Mr. Gonzalez-Gurrola argu es 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 crim e had led to placement of a 7-yearold girl in a shelter. This reason ing 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 nullifi cation. 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 quo tation marks omitted).

4 Mr. Gonzalez-Gurrola argues that the discre tion was limited because the agreement partly involved a refusal to brin g further charges. But the Appellate Case: 23-2099 Document: 010111083299 Date Filed: 07/23/2024 Page: 67 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 its elf. These ch allenges to the sentence are both procedural and substantive.

a. The district court didn’t err procedurally

. The procedural challenge s involve the district court’s explanation for the sentence. The applicable sta ndard of review. When the defendant challenges the sufficiency of the dist rict court’s explanation, we apply the abuse-ofdiscretion standard. United States v. Al apizco-Valenzuela , 546 F.3d 1208, 1214–15, 1222–23 (10th Cir. 2008). But when the defe ndant 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 th e sufficiency of the explanation. Mr. GonzalezGurrola argues that the district court didn’t adequately discuss the statutory sentencing factors. But Mr. Gonzalez-Gurrola di dn’t object, so we apply the plai n-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: 78 Mr. Gonzalez-Gurrola ac knowledges that he di dn’t object to the district court’s explanation for the sentence. But he insists that any objection would ha ve been futile. In some circumstances, an objectio n 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 objectio n would be futile only when

 the defendant has already made th e 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 re ject the agreement. But that ruling didn’t involve the court’s explanati on for the sentence. Before the actual sentencing, the court’s only comments about the likely prison term involved tentative re sponses to defense c ounsel’s questions: “[I]f [Mr. Gonzalez-Gurrola] pl eads and continues to accept responsibility for this, it would s till be an upward variance. So I would anticipate, I don’t know, maybe, high end is 16 months, maybe 32 months, some thing like that?”
* * * * Appellate Case: 23-2099 Document: 010111083299 Date Filed: 07/23/2024 Page: 89 “That is what I would consider if he continues to accept responsibilit[y] for what he di d 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 respon ses, defense c ounsel proposed a sentence of twelve months and a day. This pr oposal would ha ve made little sense if defense counsel thought that the court had alread y decided on the sentence. Given defense c ounsel’s proposal and the te ntative nature of the court’s responses, we appl y 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 seriou sness of the crime, deter future criminal conduct, protect the public and provide rehabilitation,
3. the legally availa ble sentences,
4. the U.S. Sentenci ng Guidelines,
5. the Sentencing Commissi on’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: 910 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 distri ct courts need not equally weigh the statutory sentencing factors). Here the court focused on one aspect of the sent ence: the seriousness of the underlying conduct. The court considered the conduct particular ly serious because Mr. Gonzalez-Gurrola had picked up a 7- year-old girl, trav eling 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 cons ider whether the district court’s explanation for the sentence was obviously deficient. See United States v. Olano , 507 U.S. 725, 734 (1993) (sta ting that an error is plain only if it’s “clear” or “obvious”). In our view, the answer is no . The court discussed Mr. Gonzalez-Gurr ola’s relatively clean criminal history, his untruthful st atement to border patrol that he hadn’t been paid Appellate Case: 23-2099 Document: 010111083299 Date Filed: 07/23/2024 Page: 1011 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 va riances involvin g transportation of “very young unaccompanied mi nors.” R. vol. 3, at 59. Fo r this criticism, Mr. GonzalezGurrola says that the di strict court failed to pr ovide any factual support. But Mr. Gonzalez-Gurrola doesn’t argu e that this statem ent affected his substantial rights. In the absence of an effect on his substantial rights, the district court’s statemen t 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 conten t of the explanation. Mr. Gonzalez-Gurrola challenges not only the explanation’s sufficie ncy 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 cour t 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, argu ing 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: 1112 not only on the impact of the crime, but also on Mr. Gonzalez-Gurrola’s dishonest statements to border patrol . With these aggrav ating factors, the court considered Mr. Gonzalez-Gurrol a’s cooperation wi th the government. He argues that the coop eration deserved greater weight, but the court had discretion to put greater weight on th e 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 dist rict court abuses its sentencing discretion only if the sentence exceeded the bounds of permissible choice). Nor did the court abuse its discre tion 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 gi rl 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. Gonzal es-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 t hought that he was taking the girl to her aunt. The court focused also on Mr. Gon zalez-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 conspi ring to illegally trans port the girl. And as a Appellate Case: 23-2099 Document: 010111083299 Date Filed: 07/23/2024 Page: 1213 conspirator, Mr. Go nzalez-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 hi s 32-month sentence was substantively unreasonable because it was too long. For th is argument, he contends that

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

 a later guideline amendment woul d have retroactively reduced his guideline range, and

 the upward variance rested so lely on speculation that authorities hadn’t reunited th e girl with her family. For these arguments, we apply th e abuse-of-discretion standard. United States v. Cookson , 922 F.3d 1079, 1090 (10t h 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 suppo rted an upward variance. And Mr. Gonzalez-Gurrola can’t show that the court ha d acted unr easonably by disregarding an amendment to the gu idelines that hadn’t taken effect. 5 See

5 Mr. Gonzalez-Gurrola was senten ced in June 2023 . The guideline amendment took effect rough ly five months later. See 88 Fed. Reg. 28,254, 2023 WL 319918 (M ay 3, 2023). Appellate Case: 23-2099 Document: 010111083299 Date Filed: 07/23/2024 Page: 1314 United States v. McCoy , 804 F.3d 349, 353 (4th Cir. 2015) (c oncluding that a sentence didn’t become substantiv ely 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 ab use its discretion in imposi ng 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. G onzalez-Gurrola that he co uld 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 th e agreement would have resulted in an overly lenient sentence. And the court didn’t commit reversib le error in deci ding 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 egregiou s 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: 1415 We thus affirm the c onviction and sentence. Entered for the Court

Robert E. Bacharach Circuit Judge Appellate Case: 23-2099 Document: 010111083299 Date Filed: 07/23/2024 Page: 15