FILED

United States Court of Appeals

Tenth Circuit

July 9, 2015

Elisabeth A. Shumaker

Clerk of Court

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

No. 14-1314

(D.C. No. 1:13-CR-00368-JLK-1)

(D. Colo.)

v.

JUAN GALLEGOS-GARCIA,

Defendant-Appellant.

ORDER AND JUDGMENT*

Before BRISCOE, Chief Judge, BALDOCK and EBEL, Circuit Judges.

After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist in the determination of this

appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is, therefore,

submitted without oral argument. 

The sole issue presented is whether the district court committed procedural error

when sentencing the defendant, Juan Gallegos-Garcia. Gallegos-Garcia pleaded guilty to

*

 This order and judgment is not binding precedent, except under the doctrines of

law of the case, res judicata, and collateral estoppel. It may be cited, however, for its

persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.

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illegal reentry of a previously deported alien following a felony conviction in violation of

8 U.S.C. §§ 1326(a) and (b)(1). As a separate matter, he also admitted to violating two

previously imposed supervised release conditions by unlawfully reentering the United

States. The district court sentenced Gallegos-Garcia to three consecutive terms of

imprisonment for a total term of imprisonment of 62 months. On appeal, Gallegos-Garcia

argues that the district court committed procedural error when the court commented at his

sentencing hearing that the sentences for his supervised release violations “ha[d] to be”

run consecutively to the sentence for his illegal reentry conviction. ROA, Vol. 3 at 32. 

Gallegos-Garcia argues that this comment demonstrates that the court misunderstood its

authority to impose concurrent sentences. Gallegos-Garcia also argues that the district

court failed to consider the sentencing factors under 18 U.S.C. § 3553(a) when

determining whether to impose consecutive sentences, as is required by 18 U.S.C.

§ 3584(b). Having jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a), we

reject both arguments and affirm.

I

Juan Gallegos-Garcia is a native and citizen of Mexico who has repeatedly entered

the United States illegally. Over the past seven years, Gallegos-Garcia has been

convicted on four separate occasions of illegally reentering the United States and has

been deported eleven times. He has also created sixteen different aliases to aid him in his

illegal pursuits.

In August 2013, just fifteen days after Gallegos-Garcia had been deported to

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Mexico for a prior conviction, he was again found in the United States without proper

documentation. After being arrested by state authorities for trespassing, Gallegos-Garcia

was transferred into federal custody and indicted for unlawfully reentering the United

States after being deported following a felony conviction in violation of 8 U.S.C.

§§ 1326(a) and (b)(1). Gallegos-Garcia subsequently pleaded guilty to this charge.

At the time Gallegos-Garcia committed his most recent illegal reentry offense, he

was still under supervised release for two of his prior illegal reentry convictions—a 2009

conviction in the District of Utah, and a 2012 conviction in the District of Nevada. Both

of his supervised releases included a requirement that he not commit another federal

crime, including the crime of illegal reentry. Accordingly, when Gallegos-Garcia

reentered the United States illegally in August 2013, he violated the terms of both

supervised releases. After revocation proceedings were initiated for both supervised

release violations, those two cases were consolidated for sentencing purposes with

Gallegos-Garcia’s illegal reentry conviction.

At the sentencing hearing, Gallegos-Garcia admitted that he violated the terms of

both of his supervised releases when he illegally reentered the United States. He then

asked for a 30-month sentence for his illegal reentry conviction and two 21-month

sentences for his supervised release violations. He requested a 51-month sentence in

total, with his two supervised release sentences running concurrently to each other but

consecutively to his illegal reentry sentence. This was the same sentence recommended

by the presentence report.

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The government, on the other hand, requested a longer sentence. The government

began by describing Gallegos-Garcia’s long criminal history, his continued disrespect for

the law, and his general disregard for the sentences which had previously been imposed

on him. The government explained that Gallegos-Garcia had received a 24-month

sentence for a prior supervised release violation, which had not deterred him from

reentering the United States illegally, and argued that as a result, Gallegos-Garcia should

receive a 27-month sentence for both of his current supervised release violations rather

than the recommended 21-month sentence. The government then asked for a 57-month

sentence in total based on a 30-month sentence for Gallego-Garcia’s illegal reentry

conviction and two 27-month sentences for his supervised release violations. Like

Gallegos-Garcia, the government requested that the two supervised release sentences run

concurrently to each other but consecutively to the illegal reentry sentence.

After hearing the parties’ arguments, the district court sentenced Gallegos-Garcia

to 62 months’ imprisonment. In reaching this result, the court imposed three prison

terms: 30 months’ imprisonment for the illegal reentry conviction, 20 months’

imprisonment for the first supervised release violation, and 12 months’ imprisonment for

the second supervised release violation. The court ordered all three sentences to run

consecutively.

II

Gallegos-Garcia challenges the district court’s decision to impose consecutive

sentences. He first contends the district court misunderstood that it had the authority to

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run his three sentences concurrently, and that as a result, the court committed procedural

error. He separately argues the district court erred by failing to consider the 18 U.S.C.

§ 3553(a) factors when sentencing him to consecutive sentences. We address each

argument in turn.

A

Gallegos-Garcia’s primary argument is that the district court committed procedural

error by misunderstanding its authority to impose concurrent sentences. He rests his

argument on a single, isolated comment the district court made at his sentencing hearing. 

The comment, which the court made as the government was presenting its requested

sentence, occurred as follows:

[GOVERNMENT]: . . . I would suggest, Your Honor, 27 months combined

to run concurrent for both [supervised release violations], Your Honor, to a

sentence of 27 months for those two to be run concurrent, but I would ask

Your Honor that those two supervised release violations be run consecutive

to [the illegal reentry offense], Your Honor.

THE COURT: I think they have to be.

[GOVERNMENT]: Well, I think it is recommended in the guidelines, but I

am ignoring that. I am setting that aside for a moment in the argument. . . . 

ROA, Vol. 3 at 32. According to Gallegos-Garcia, the district court’s comment shows

that it mistakenly thought it did not have the authority to impose concurrent sentences. 

Gallegos-Garcia argues that because the district court misunderstood it had the ability to

exercise its discretion in imposing concurrent or consecutive sentences, the district court’s

decision to impose consecutive sentences was based on an “erroneous view of the law”

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and constituted reversible error. Aplt. Br. at 4. We disagree.

Initially, we must determine our standard of review. “Ordinarily, we review a

district court’s sentencing procedure for abuse of discretion.” United States v. Mendoza,

543 F.3d 1186, 1190 (10th Cir. 2008). However, when a party fails to object on

procedural reasonableness grounds before the district court, as Gallegos-Garcia did here,

we review only for plain error.1

 See id.; United States v. Romero, 491 F.3d 1173, 1178

(10th Cir. 2007). We will only 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.” Romero, 491 F.3d at 1178.

To prevail on his procedural argument, Gallegos-Garcia must first show an error. 

He fails at this first step. Gallegos-Garcia is correct that a district court commits

procedural error when it misunderstands or misapplies the law. See Gall v. United States,

1

 Gallegos-Garcia contends that the abuse of discretion standard still applies here

because even though he did not object to the procedural reasonableness of his sentence

before the district court, the government did, thereby preserving the objection for appeal. 

Aplt. Br. at 6. We have yet to address whether a party can rely on its opponent’s

objection to preserve an issue for review, and we need not do so here. Even if we were to

assume the government could preserve this issue for Gallegos-Garcia, the government

would still need to have made a proper objection, which it failed to do. To preserve an

issue for appeal, a party’s objection “must be definite enough to indicate to the district

court the precise ground for [the] party’s complaint.” United States v. Winder, 557 F.3d

1129, 1136 (10th Cir. 2009) (internal quotation marks omitted). In this case, all the

government said after the court made its statement was: “Well, I think it is recommended

in the guidelines . . . .” ROA, Vol. 3 at 32. This is neither precise nor definite. The

government did not explicitly tell the court it was objecting, nor did it indicate it was

seeking a ruling of any kind. See U.S. Aviation Underwriters, Inc. v. Pilatus Business

Aircraft, Ltd., 582 F.3d 1131, 1142 (10th Cir. 2009). Because this “objection” falls short

of the conspicuous objection we require to preserve an issue for appeal, it too is entitled

to nothing more than plain error review.

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552 U.S. 38, 51 (2007). He is also correct that the decision of whether to impose

concurrent or consecutive sentences is left to the district court’s discretion. See 18 U.S.C.

§ 3584. However, “[w]e will only step in and find error when the record gives us reason

to think that our ordinary presumption that the district judge knew and applied the law is

misplaced.” United States v. Benally, 541 F.3d 990, 997 (10th Cir. 2008) (internal

quotation marks and citation omitted); see also United States v. Ruiz-Terrazas, 477 F.3d

1196, 1201 (10th Cir. 2007). 

Here, the record gives us no indication that the district court misunderstood or

misapplied the law. The district court made its comment during the government’s

argument at sentencing, and more specifically, right after the government had finished

discussing Gallegos-Garcia’s general disrespect for the law and disregard for the

sentences imposed on him. Given the timing and circumstances surrounding the court’s

comment, it is unlikely the court intended the comment as an indication of the scope of its

authority. The more reasonable inference to be drawn from the court’s statement is that

the court agreed with the government; it too thought concurrent sentences were

inappropriate in this case.

Moreover, when looking at the record as a whole, it is clear the district court did

not misunderstand its authority to impose concurrent or consecutive sentences. Rather,

the record shows that the court not only understood it had the authority to impose

concurrent sentences, but that it specifically chose not to do so. See ROA, Vol. 3 at 40. 

This is evidenced by the district court’s explanation of why it was imposing consecutive

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sentences:

It is the intention of the Court by these sentences that each of the two

supervised release violations shall be consecutive to the sentence imposed

in the substantive case, as well as consecutive to one another in the—one

after another in the supervised violation reports. 

And the reason I am doing that rather than just totaling it and making a

concurrent sentence of a higher sentence is because I think each violation

should be recognized as a separate violation of law.

Id. Had the district court thought it lacked the authority to impose concurrent sentences,

there would have been no reason for the court to explain why it chose the sentence it did. 

The court did not misunderstand its authority, nor did it commit any error.

B

Gallegos-Garcia separately argues that the district court erred by failing to

consider the factors set out in 18 U.S.C. § 3553(a) when imposing consecutive sentences,

as is required by 18 U.S.C. § 3584(b).2

 However, Gallegos-Garcia abandons this

argument in his reply brief, noting that the “only error” raised in this appeal is whether

the district court mistakenly thought the sentences had to run consecutively. See Aplt.

Reply Br. at 2. He also fails to mention this argument in his statement of issues or to cite

any case law supporting his position in his opening brief. Such inadequately presented

arguments do not merit appellate review. See Bronson v. Swensen, 500 F.3d 1099, 1104

(10th Cir. 2007) (“[W]e routinely have declined to consider arguments that . . . are

2

 Section 3584(b) provides: “The court, in determining whether the terms imposed

are to be ordered to run concurrently or consecutively, shall consider, as to each offense

for which a term of imprisonment is being imposed, the factors set forth in section

3553(a).” 18 U.S.C. § 3584(b).

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inadequately presented[] in an appellant’s opening brief); Utah Envtl. Cong. v. Bosworth,

439 F.3d 1184, 1192 n.2 (10th Cir. 2006) (an issue “vaguely” asserted in a party’s

opening brief, but not addressed, is deemed waived).

Nevertheless, even if we were to reach the merits of this argument, GallegosGarcia still would not prevail. Because Gallegos-Garcia failed to object to his sentence

before the district court, our review is again only for plain error. See Romero, 491 F.3d at

1178. Initially, we note that Gallegos-Garcia is correct that § 3584(b) directs a sentencing

court to consider the factors set out in § 3553(a) when determining whether to impose

concurrent or consecutive terms of imprisonment, see 18 U.S.C. § 3584(b), and he is also

correct that the district court did not specifically mention the § 3553(a) factors when

imposing its sentences. However, what Gallegos-Garcia fails to mention is that a

“sentencing court is not required to consider individually each factor listed in § 3553(a),”

nor is it required to “recite any magic words to show us that it fulfilled its responsibility

to be mindful of the factors that Congress has instructed it to consider” before imposing a

sentence. United States v. Rodriguez-Quintanilla, 442 F.3d 1254, 1258-59 (10th Cir.

2006) (internal quotation marks and citation omitted).

In this case, the district court adequately considered the relevant sentencing

factors. The court made note of Gallegos-Garcia’s lack of respect for the law, his

repeated illegal reentry convictions, and his failure to take advantage of any of the

education or job training facilities that were available to him while he was serving his

prior prison sentences. See ROA, Vol. 3 at 35-37. These concerns relate directly to “the

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nature and circumstances of the offense” and “the history and characteristics of the

defendant,” two relevant considerations under § 3553(a). See 18 U.S.C. § 3553(a)(1). 

Moreover, the court also expressed concern regarding the need to provide adequate

deterrence and respect for the law, and the public cost incurred as a result of GallegosGarcia’s actions. See ROA, Vol. 3 at 35-36. Again, these concerns relate to several of

the § 3553(a) factors. See 18 U.S.C. § 3553(a)(2)(A)-(C) (noting that courts must

consider “the need for the sentence imposed . . . to reflect the seriousness of the

offense, . . . promote respect for the law, . . . afford adequate deterrence . . . [and] protect

the public from further crimes of the defendant”). Thus, while the district court did not

explicitly reference any of the § 3553(a) factors, we are confident it considered them in

sentencing Gallegos-Garcia. Because Gallegos-Garcia cannot prove the existence of an

error, he cannot prevail under plain error review.

III

Having concluded that the district court did not commit any errors, we AFFIRM.

Entered for the Court

Mary Beck Briscoe

Chief Judge 

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