*

After examining the briefs and the appellate record, this three-judge panel

has determined unanimously that oral argument would not be of material

assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th

Cir. R. 34.1.9. The cause is therefore ordered submitted without oral argument.

FILED

United States Court of Appeals

Tenth Circuit

May 13, 2008

Elisabeth A. Shumaker

Clerk of Court

PUBLISH

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

ALEJANDRO ZAMORASOLORZANO,

Defendant - Appellant.

No. 07-3205

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF KANSAS

(D. Ct. No. 06-CR-20100-JWL)

Submitted on the briefs:*

David J. Phillips, Federal Public Defender, and Kirk C. Redmond, Assistant

Federal Public Defender, Office of the Federal Public Defender for the District of

Kansas, Topeka, Kansas, for the Appellant.

Eric F. Melgren, United States Attorney, and Leon Patton, Assistant United States 

Attorney, Office of the United States Attorney for the District of Kansas, Kansas

City, Kansas, for the Appellee.

Before HENRY, Chief Circuit Judge, TACHA, and LUCERO, Circuit Judges.
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TACHA, Circuit Judge.

Defendant-Appellant Alejandro Zamora-Solorzano pleaded guilty to

conspiracy to possess with intent to distribute methamphetamine, in violation of

21 U.S.C. § 841(a) and 18 U.S.C. § 2, and using a firearm in furtherance of a drug

trafficking felony in violation of 18 U.S.C. § 924(c). His resulting sentence of

270 months’ imprisonment is at the low end of the applicable range under the

United States Sentencing Guidelines (“Guidelines” or “U.S.S.G.”). Mr. ZamoraSolorzano appeals his sentence, contending that the district court afforded the

Guidelines improper weight in violation of Rita v. United States, 127 S. Ct. 2456

(2007). We have jurisdiction under 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291,

and we AFFIRM.

I. BACKGROUND

After the district court accepted Mr. Zamora-Solorzano’s guilty plea, the

United States Probation Office prepared a presentence report (“PSR”). The PSR

calculated the applicable Guidelines range for the conspiracy conviction at

210–262 months’ imprisonment. The PSR also stated that the applicable

Guidelines sentence for the firearms conviction is the statutory minimum sentence

of 60 months’ imprisonment to be served consecutively to the sentence for

conspiracy. This produced a total Guidelines range of 270–322 months. 

Mr. Zamora-Solorzano objected to the PSR’s calculation of the applicable
1

Specifically, Mr. Zamora-Solorzano argued that he was not an organizer or

leader subject to a four-level enhancement under U.S.S.G. § 3B1.1(a).

2

In addition to arguing for a variance under § 3553(a), Mr. ZamoraSolorzano also sought a departure under U.S.S.G. § 5K2.0. He does not appeal

the district court’s denial of his request for a departure.

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Guidelines range,1 and he further contended that regardless of the Guidelines

sentence for the conspiracy conviction, the statutory minimum sentence of 120

months’ imprisonment is appropriate in light of the sentencing factors set forth in

18 U.S.C. § 3553(a).2

 In conjunction with the 60-month mandatory minimum for

the firearm conviction, this produced a total sentence of 180 months’

imprisonment. 

At the sentencing hearing, which took place shortly after the Supreme

Court issued its decision in Rita, the district court heard extensive argument from

both parties regarding the applicable Guidelines range and whether a downward

variance under § 3553(a) is appropriate. The district court ultimately agreed with

the PSR’s computation of the Guidelines range of 270–322 months. It then turned

to the question of a variance, stating:

As I have evaluated the Supreme Court’s description of sentencing in

terms of the role of the advisory guidelines here, I do think it

remains my obligation to consider the guidelines and give them

considerable weight, and I do give them considerable weight because

of the, I think, very important consideration of uniformity in

sentencing. And as a result, while I don’t engage in any legal

presumption of reasonableness, I start with the notion that the

guidelines very much deserve careful consideration as to what a

sentence might look like here in terms of an attempt to sentence

individuals consistently throughout the federal courts.
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From that then I turn to the underlying factors set out in the

sentencing statute to make the evaluation as to whether or not the

court’s own view of this process accords with where a sentence ought

to go, whether within the guidelines or not.

The district court then expressly considered the factors under § 3553(a) as applied

to the facts of this case. The court ultimately concluded that the facts do not

warrant a variance and sentenced Mr. Zamora-Solorzano to 270 months’

imprisonment. Mr. Zamora-Solorzano appeals, contending that the district court

erred under Rita in giving the Guidelines sentence “considerable weight.”

II. DISCUSSION

After United States v. Booker, 543 U.S. 220 (2005), we review sentencing

decisions for an abuse of discretion, asking whether the sentence is reasonable. 

Rita, 127 S. Ct. at 2465. “Reasonableness review is a two-step process

comprising a procedural and a substantive component.” United States v. VerdinGarcia, 516 F.3d 884, 895 (10th Cir. 2008) (citing Gall v. United States, 128 S.

Ct. 586, 597 (2007)). Procedural review asks whether the sentencing court

committed any “significant procedural error, such as failing to calculate (or

improperly calculating) the Guidelines range, treating the Guidelines as

mandatory, failing to consider the § 3553(a) factors, selecting a sentence based on

clearly erroneous facts, or failing to adequately explain the chosen sentence.” 

Gall, 128 S. Ct. at 597. Substantive review “involves whether the length of the

sentence is reasonable given all the circumstances of the case in light of the
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factors set forth in 18 U.S.C. § 3553(a).” United States v. Conlan, 500 F.3d 1167,

1169 (10th Cir. 2007).

In Rita, the Supreme Court held that an appellate court may apply a

presumption of substantive reasonableness to within-Guidelines sentences. 127 S.

Ct. at 2462. The Court made clear, however, that any such presumption is

appropriate only at the appellate level; a district court may not presume that a

Guidelines sentence is substantively reasonable. Id. at 2465; see also Conlan,

500 F.3d at 1170 (remanding for resentencing because the district court applied a

presumption of reasonableness to a Guidelines sentence); United States v. Huff,

514 F.3d 818, 820–21 (8th Cir. 2008) (remanding for resentencing after Rita

because “[t]he district court imposed the sentence not as a result of the district

court’s assessment of the relevant factors and determination of the minimally

adequate sentence, as required by § 3553(a), but as a direct consequence of the

court’s incorrect conclusion it was bound . . . to accord the guidelines range

presumptive weight”). 

In this case, the district court clearly did not deem the Guidelines sentence

presumptively reasonable. The court specifically cited to the decision in Rita and

stated that the court was not “engag[ing] in any legal presumption of

reasonableness.” Nevertheless, Mr. Zamora-Solorzano contends that by giving

the Guidelines “considerable weight,” the district court “bestowed a primacy on

the guidelines calculation that Supreme Court precedent has clearly counseled
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against.” He argues that Rita effectively overruled our holding in United States v.

Terrell, 445 F.3d 1261, 1265 (10th Cir. 2006), that a district court may give the

Guidelines “heavy weight” in fashioning a particular sentence.

Because this particular objection was not brought to the attention of the

district court, we review it for plain error. See United States v. McComb, 519 

F.3d 1049, 1054 (10th Cir. 2007). “We will find plain error where there is (1)

error, (2) that is plain, (3) which affects substantial rights, and (4) which

seriously affects the fairness, integrity or public reputation of judicial

proceedings.” Id. We conclude that the district court did not err. 

To begin, Rita simply held that “the sentencing court does not enjoy the

benefit of a legal presumption that the Guidelines sentence should apply.” Rita,

127 S. Ct. at 2465 (emphasis added). Similarly, we have explained that a district

court is not required to give heightened consideration to the Guidelines as a

matter of course. See United States v. Smart, 518 F.3d 800, 808 (10th Cir. 2008). 

On the other hand, “gravitational pull [towards a Guidelines sentence at the

district court level] that reduces sentencing disparity—so long as it does not rise

to the level of mandate—is neither unconstitutional nor undesirable.” United

States v. Angel-Guzman, 506 F.3d 1007, 1014 (10th Cir. 2007) (emphasis added). 

Thus, neither Rita nor our case law suggests that a district court is precluded

from, in its individualized judgment, attributing considerable weight to a

Guidelines sentence in a given case. On this point, Terrell therefore remains
3

We also indicated in Terrell that district courts may apply a presumption

of reasonableness to Guidelines sentences. 445 F.3d at 1265 (“[J]ust as we

presume on appeal that a sentence within the applicable Guidelines range is

reasonable, so are district courts free to make the same presumption . . . .”). On

this point, Terrell is no longer good law. See Rita, 127 S. Ct. at 2465; Conlan,

500 F.3d at 1170.

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good law.3

Moreover, the Guidelines are a factor the district court must consider under

§ 3553(a), and the Supreme Court has recently explained that our abuse-ofdiscretion review requires us to give “due deference” to the weight the district

court bestows on any particular § 3553(a) factor in justifying its sentencing

decision. See Gall, 128 S. Ct. at 597–602; Smart, 518 F.3d at 808 (“We may not

examine the weight a district court assigns to various § 3553(a) factors, and its

ultimate assessment of the balance between them, as a legal conclusion to be

reviewed de novo. Instead, we must ‘give due deference to the district court’s

decision that the § 3553(a) factors, on a whole, justify the [sentence].’” (quoting

Gall, 128 S. Ct. at 597)). We find such deference appropriate here. The district

court balanced all of the § 3553(a) factors, including the policy considerations

reflected in the Guidelines. And, given the facts of the case, the district court

reasonably attached considerable weight to the applicable Guidelines range. See

Gall, 128 S. Ct. at 600, 602 (holding that the court of appeals should have

deferred to the district court’s sentencing decision when the court “quite

reasonably attached great weight” to facts supporting particular sentencing
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factors); see also United States v. Dale, 498 F.3d 604, 610–11 (7th Cir. 2007)

(stating—after Rita—that “the district court can place significant weight on the

guidelines without rendering the resulting sentence unreasonable”). The resulting

sentence is therefore reasonable.

III. CONCLUSION

For the foregoing reasons, we AFFIRM Mr. Zamora-Solorzano’s sentence.