UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

________________ _________________ UNITED STATES OF AMERICA, Plaintiff - Appellee,

v.LUIS EMANUEL NEGRONHERNANDEZ, Defendant - Appellant. No. 23-2153 (D.C. No. 2:23-CR -00727-MIS-1) (D.N.M.)

________________ _________________ ORDER AND JUDGMENT *

________________ _________________ Before HARTZ , BALDOCK , and MORITZ , Circuit Judges.

________________ _________________ Luis Negron-Hernandez appeals his 24- month prison sentence for violating a condition of his supervised re lease. Because the district court adequately explained its sentence and did not otherwise abuse its discretion in imposing a sentence of this length, we affirm. Background In April 2023, deputies with the Hidal go County Sheriff’s Office conducted a

* After examining the briefs and appella te record, this pa nel has determined unanimously that oral argument would not ma terially assist in the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Ci r. R. 34.1(G). The case is therefore ordered submitted without oral argument. This order and judgment is not binding precedent, except under the doctr ines of law of the case, res judicata, and collateral estoppel. But it may be cited for its persuasive value. See Fed. R. App. P. 32.1(a); 10th Cir. R. 32.1(A). FILED United States Court of Appeals Tenth Circuit 

### August 5, 2024 Christopher M. Wolpert Clerk of Court Appellate Case: 23-2153 Document: 010111089887 Date Filed: 08/05/2024 Page: 12 traffic stop in Lordsburg, New Mexi co, on a vehicle being driven by NegronHernandez; a woman named Irene Martinez was in the front passenger seat, and two other individuals in the ve hicle were unlawfully presen t in the United States. The deputies called border-patrol agents for assi stance, and the agents arrested NegronHernandez. In a later interview, Negron-Hernandez told the agents that he had agreed with another individual to transport th e undocumented noncitizens from Lordsburg to Phoenix, Arizona, in exchange for an undi sclosed amount of money. Based on these facts, the government char ged Negron-Hernandez with conspiring to transport undocumented noncitizens, in violation of 8 U.S.C. § 1324(a)(1)(A)(ii) and (v)(I). Negron-Hernandez pleaded guilty the next month. 1 The presentence investigation report (PSR) set his sent encing range under the United States Sentencing Guidelines (U.S.S.G. or the Guid elines) at either 6 to 12 months or zero to six months, depending on whether th e district court a pplied forthcoming retroactive amendments to th e Guidelines. The PSR also not ed that despite having no prior convictions, Negron- Hernandez had criminal charges pending in two separate state-court cases. In Sept ember 2022, Maryland charged him with driving on a suspended license and later issued an arre st warrant for failur e to appear. And in March 2023, Indiana charged him with committing domestic battery against

1 In the intervening weeks, Negron-He rnandez had briefly been released on bond to live at a residentia l-reentry center. But after Negron-Hernandez attempted suicide, he was returned to federal cu stody, where he remained until sentencing. Appellate Case: 23-2153 Document: 010111089887 Date Filed: 08/05/2024 Page: 23 Martinez, ordered him to have no further c ontact with Martinez, and later issued an arrest warrant for failure to appear. 2 In an addendum, the PSR discussed wh ere Negron-Hernandez might serve any term of supervised release. It disapproved Negron-Herna ndez’s preferred location in Lordsburg, explaining that the woman o ccupying the proposed residence was under pretrial supervision for a state charge. Mo reover, the PSR relaye d that the woman had never met Negron-Hernandez in person; inst ead, she had agreed to take him in to help Martinez. Finally, the PSR noted that a residential program at a facility called Victory Ministry in Las Cruces, New Me xico, had space available and that NegronHernandez was on the waiting list for two other residential-reentry facilities. At sentencing for the conspiring-to-trans port charge, the district court accepted the PSR, decided to vary downward ba sed on the forthcoming Guidelines amendment, and set Negron-Hernandez’s Guide lines range at zero to six months in prison. Agreeing with the pa rties’ recommendations, it se ntenced him to time served and two years of supervised re lease. For that term of supe rvised release, the district court declined to allow Negron-Hernandez to live in Lordsburg a nd instead directed him to Victory Ministry. In so doing, the district court specifically cautioned NegronHernandez against absconding, expressing concern about how he had failed to appear on the pending charge in Maryland and shortly thereafter been ch arged with a crime

2 Negron-Hernandez’s failure to appear in Indiana seems to stem from his arrest for the conspiring-to-transpor t charge underlying this appeal. Appellate Case: 23-2153 Document: 010111089887 Date Filed: 08/05/2024 Page: 34 in Indiana. It additionally ordered Negron-Hernandez to participate in a mentalhealth treatment program and take prescribed mental-health medica tions as directed. Less than two weeks into his term of supervised release, Negron-Hernandez absconded from Victory Ministry. And four days later, Lordsburg law enforcement arrested him and charged him with aggrav ated battery against a household member, interference with communications, and violati on of a restraining order. In particular, the state criminal complain t alleged that Negron-Hernandez strangled Martinez, threw her to the ground, and—when she tried to call 911—seized her phone and threatened to kill her. Based on Negron-Hernandez abscondi ng from Victory Ministry, the government sought to revoke Negron- Hernandez’s supervised release. 3 At his revocation hearing, Negron-Hernandez admitte d to absconding but said that another resident had threatened to assault him if he did not leave. The probation officer confirmed that Negron-Hernand ez had reported this threat to her and said that she discussed it with the pastor at Victory Ministry, who reported that there had been a disagreement and that Negron-Hernandez had later refused to accept the other resident’s apology. Negron-Hernandez then told the district court that he had accepted the apology and further explained th at the other reside nt threatened him again the next day. He said he had reporte d this second threat to the pastor but had

3 The government also filed an ame nded petition charging a second violation for committing a new crime, but it ultima tely chose not to pursue that second violation because the state charges remained pending. Appellate Case: 23-2153 Document: 010111089887 Date Filed: 08/05/2024 Page: 45 not been able to reach his probation officer. He also said that he did not call his probation officer after arriving in Lordsburg because he had lost her card and did not remember her phone number. In deciding what sentence to impose fo r this admitted absconding violation, the district court began by noting that beca use it had “some con cerns about [NegronHernandez’s] behavior and . . . record,” it “might consider a variance” from the applicable advisory range of thr ee to nine months. R. vol. 3, 14; see also U.S.S.G. § 7B1.4(a) (providing releva nt range). The government as ked the district court to impose “at least six months’ confinement,” emphasizing that despite his lenient timeserved sentence for conspiring to transpor t, Negron-Hernandez qu ickly left Victory Ministry, just like he ha d absconded from Maryland, and was only discovered because he was arrested for other alleged crimes; the go vernment also noted that he had violated the Indiana protection order. R. vol. 3, 14. Defense counsel requested four months, highlighting that Negron-He rnandez needed mental-health treatment and would perhaps do better in a more re gulated residential pr ogram. The probation officer echoed the four-month request. In so doing, she noted that Negron-Hernandez had failed to avail himself of mental-healt h treatment at Victory Ministry and “was more interested in getting b ack to” Martinez, the victim in both the new domesticviolence case and the prior I ndiana domestic-violence case. Id. at 19. The district court ultimately followed thr ough on its inclinati on to vary upward and imposed the statutory maximum of 24 months in prison plus one year of supervised release, citing Negron-Herna ndez’s “history and how quickly he’s Appellate Case: 23-2153 Document: 010111089887 Date Filed: 08/05/2024 Page: 56 violating all the [c]ourt’s orders.” Id. at 25; see also 18 U.S.C. § 3583(e)(3). After discussing some of the sentencing factor s supporting its deci sion—including NegronHernandez’s history and characteristics, the nature of circumstances of the offense, deterrence, protecting the public, and the need to provide Negron-Hernandez with treatment, see 18 U.S.C. § 3553(a)(1), (2)(B)–(C)—the district court asked defense counsel if he “request[ed] any further explanation for any aspects of the sentence imposed,” R. vol. 3, 31. Defense counsel c onfirmed the district court’s method for calculating the one-year term of supervised re lease, and the distri ct court then asked again if defense counsel ha d “any other objections to the way the sentence was imposed or [needed] any further explanation . . . as to any aspect of the sentence.” Id. at 31–32. Defense counsel re plied affirmatively, emphasi zing that neither probation nor the government requested such a long sentence and stating th at the sentence was substantively unreasonable. Th e district court responded th at it had considered the parties’ recommendations but decided to vary upward base d on the relevant § 3553(a) sentencing factors. Negron-Hernandez now appeals. Analysis Negron-Hernandez challenges his revo cation sentence. When a defendant violates a condition of supervis ed release, the district c ourt “may revoke the term of supervised release an d impose prison time.” United States v. Vigil , 696 F.3d 997, 1002 (10th Cir. 2012). In so doing, the distri ct court must consid er a subset of the sentencing factors in § 3553(a) , as well as the policy stat ements in Chapter 7 of the Appellate Case: 23-2153 Document: 010111089887 Date Filed: 08/05/2024 Page: 67 Guidelines. United States v. Cordova , 461 F.3d 1184, 1188–89 (10th Cir. 2006). The Chapter 7 policy statements include suggest ed sentencing ranges for revocations of supervised release, but these ranges “ar e not mandatory and [are] even less compelling than estab lished Guidelines.” Vigil , 696 F.3d at 1003; see also U.S.S.G. Ch. 7, pt. A (noting that Sentencing Co mmission issued only “policy statements applicable to the revocation of . . . supervised release, ” not formal Guidelines). We typically review sentences, incl uding those imposed upon revocation of supervised release, for procedural a nd substantive reasona bleness, and NegronHernandez advances arguments on both fronts. See Vigil , 696 F.3d at 1003. “[P]rocedural reasonableness focuses on wh ether the district court committed any error in calculating or explaining the sentence.” United States v. Friedman , 554 F.3d 1301, 1307 (10t h Cir. 2009). By contrast, “[r]eview for substantive reasonableness focuses on ‘whether the length of the sentence is reasonable given all the circumstances of the case in light of th e factors set forth in . . . § 3553(a).’” Id. (quoting United States v. Alapizco-Valenzuela , 546 F.3d 1208, 1215 (10th Cir. 2008)). In either instan ce, review is generally for abuse of discretion. See United States v. Maldonado-Passage , 56 F.4th 830, 842 (10th Cir. 2022).
I. Procedural Reasonableness Negron-Hernandez argues that the district court procedurally erred by failing to adequately explain the upward varian ce. When a district court imposes a revocation sentence outside the range provi ded by the Guidelines policy statement, the district “court must state ‘the specif ic reason for the imposition of a sentence.’” Appellate Case: 23-2153 Document: 010111089887 Date Filed: 08/05/2024 Page: 78 United States v. Ortiz-Lazaro , 884 F.3d 1259, 1262 (10t h Cir. 2018) (quoting § 3553(c)(2)). Nevertheless, a district court “‘is not requi red to consider individually each factor listed in § 3553(a) ,’ nor is it required to ‘rec ite any magic words to show us that it fulfilled it s responsibility to be mindful of the factors that Congress has instructed it to consider’ before issuing a sentence.” Cordova , 461 F.3d at 1189 (quoting United States v. Rodriguez-Quintanilla , 442 F.3d 1254, 1258–59 (10th Cir. 2006)). At the outset, the government argues that we should decline to review this failure-to-explain argument because Negr on-Hernandez affirmat ively waived it. See United States v. Carrasco-Salazar , 494 F.3d 1270, 1273 (10t h Cir. 2007) (explaining that we will not review intentionally reli nquished arguments). We disagree. When the district court asked defense counsel if he had any furthe r objections, he responded in the affirmative and indicated that the sent ence was significantly l onger than what the parties had discussed or re quested. To be sure, defens e counsel used the phrase “substantively unreasonable” in his answer and did not exp licitly ask for additional explanation. But he told the district cour t that he did have a further objection and then emphasized the extent of the variance compared to the parties’ proposed sentences. We do not construe this as an affirmative wa iver of Negron-Hernandez’s appellate argument that the district court procedurally erred by failing to provide adequate explanation for its variance, so we turn to th e merits of that argument. 4 Cf.

4 In so doing, we decline to resolve th e government’s altern ative argument that Negron-Hernandez forfeited his procedur al-reasonableness arguments by failing to Appellate Case: 23-2153 Document: 010111089887 Date Filed: 08/05/2024 Page: 89 United States v. Diequez , 824 F.3d 718, 721 (8th Cir. 2016) (finding affirmative waiver of argument for additional explanat ion where defense counsel answered “no” to district court’s question a bout additional explanation). Negron-Hernandez asserts that the district court erre d by failing to explain the extent of its variance—that is, “why a term higher than [nine] months but less than 24 was not sufficient.” Aplt. Br. 10. He relatedl y faults the district court for failing to explain why the parties’ proposed sent ences or some other hybrid sentence combining a prison term with a stay at a residential re entry center would not have been appropriate here. In support, Ne gron-Hernandez emphasizes the general principle that prison sentences must be “su fficient, but not great er than necessary.” § 3553(a). But as the govern ment responds, there is no re quirement that a district court consider and reject on the record al l other possible senten ces before imposing its chosen sentence. Cf. United States v. Sanchez-Juarez , 446 F.3d 1109, 1117 (10th Cir. 2006) (noting “that there is inevitably a range of sent ences that could be held reasonable”). On the contrary , “discussions of applicable sentences before a district court following the revocation of supervis ed release should be grounded in the common understanding that th e district court may impos e any sentence within the statutory maximum.” Vigil , 696 F.3d at 1002 (quoting United States v. Burdex , 100 F.3d 882, 885 (10th Cir. 1996)). And those discussi ons require no magic words or

make them below—application of the resu lting plain-error review would not change the result in this case. See Carrasco-Salazar , 494 F.3d at 1272 (explaining that we review forfeited argumen ts for plain error). Appellate Case: 23-2153 Document: 010111089887 Date Filed: 08/05/2024 Page: 910 specific discussions of va rious possible sentences. See Cordova , 461 F.3d at 1189. So we discern no error in the district court’s failure to discuss and reject other possible

sentences. Negron-Hernandez next argues that th e district court’s explanation was inadequate because it focuse d too much on his pattern of absconding and not enough on his need for mental-health treatment. To be sure, the district court’s § 3553(a) discussion noted that the nature and circ umstances of the o ffense involved NegronHernandez quickly absconding from Victor y Ministry, failing to report both his reason for leaving and his new location to his probation officer, and ultimately being discovered due to an unrelated arre st involving alleged domestic violence. 5 See § 3553(a)(1). The district court then a dditionally noted, as to Negron-Hernandez’s characteristics, that this c onduct “fits [his] pattern of behaviors with the courts,” including absconding from Ma ryland. R. vol. 3, 26; see also § 3553(a)(1). Yet it mischaracterizes the record to say, as Negron-Hernandez does, that “[t]he district court focuse d almost exclusively on ‘absc onding’ to justify an onerous imprisonment term.” Aplt. Br. 15. The district court certai nly relied on the pattern of absconding, but it also emphasized that Negr on-Hernandez had violated the terms of the Indiana protection order at least twic e, by being in the vehicle with Martinez when initially arrested for th e underlying transporting offense and when later arrested

5 The district court explained that it wa s “not considering the allegations of the crime in Lordsburg as conclusive” and was “not sentencing based on that, but [it was] considering the nature of [Negron-He rnandez’s] behavior, his history and characteristics, and the ci rcumstances of this viol ation.” R. vol. 3, 27. Appellate Case: 23-2153 Document: 010111089887 Date Filed: 08/05/2024 Page: 1011 for alleged domestic-violence. The district court also noted that Negron-Hernandez had not been deterred by his previous le nient sentences and that a longer sentence was needed to protect the public. See § 3553(a)(2)(B)–(C). Additionally, although Negron-Hernandez seeks to highlight that he absconded because of threats and went to a known address, this attempt to dow nplay his conduct overlooks the district court’s reasonable focus on his failure to report either the relevant threat or his new address to his probation officer. Last, th e district court did not ignore NegronHernandez’s need for mental-health treatm ent; it specifically explained that the original time-served senten ce provided an opportunity for such treatment, but Negron-Hernandez failed to avail himself of it. See § 3553(a)(2)(D). So we reject Negron-Hernandez’s argument that the distri ct court’s explanation was inadequate on these bases. 6 Negron-Hernandez also contends that th e district court procedurally erred by failing to address the need to avoid unwarranted sentencing di sparities. In support, he cites statistics purporting to show that offenders with simila r criminal-history categories who abscond typically receive revocation sentences no longer than 18 months, as well as a list of other offenders and their va rious original and revocation sentences. But district cour ts are directed to avoid un warranted disparities “among

6 Negron-Hernandez also highlights that the district court imposed a lenient, time-served sentence in the first inst ance, despite knowing at that point about his previous absconding. But the district c ourt imposed the initial lenient sentence notwithstanding its express concerns that Negron- Hernandez would abscond again. So when Negron-Hernandez in fact absconde d again, the district court was free to reevaluate. Appellate Case: 23-2153 Document: 010111089887 Date Filed: 08/05/2024 Page: 1112 defendants with similar records who have been found guilty of similar conduct.” § 3553(a)(6). And on the whole, the comp arisons Negron-Herna ndez provides do not show this level of similarity. More crit ically, these comparis ons do not account for the district court’s determin ation that the facts of this case justified any sentencing disparity. For these reasons, we reject any disparity-rel ated error and conclude overall that the district court did not procedurally err.
II. Substantive Reasonableness Negron-Hernandez next asserts that his sentence is substan tively unreasonable. When considering such a challenge, we as k “whether the length of the sentence is reasonable given all the circum stances of the case in light of the factors set forth in . . . § 3553(a).” Alapizco-Valenzuela , 546 F.3d at 1215 (quoting United States v. Conlan , 500 F.3d 1167, 1169 (10th Cir. 2007)). As the government highlights, much of Negron-Hernandez’s substantivereasonableness argument overlaps with his procedural-reasonableness argument. For instance, Negron-Hernandez asserts again that the district court focused too much on his history of absconding a nd not enough on his need for mental-health treatment. But we have already detailed the district court’s thorough assessme nt of the relevant § 3553(a) factors, and this argument essentially asks us to reweigh the sentencing factors, which we will not do. See United States v. Gross , 44 F.4th 1298, 1305 (10th Cir. 2022). Negron-Hernandez additionally returns to his di sparity argument, comparing the length of his sentence to the sentences of supposedly similarly situated defendants. But we see no abuse of discretion in the district court’ s rationale that the Appellate Case: 23-2153 Document: 010111089887 Date Filed: 08/05/2024 Page: 1213 specifics of Negron-Hernandez’s conduc t—including multiple instances of absconding, violating a protective order, a nd alleged domestic violence—warranted a longer sentence. Negron-Hernandez relatedl y emphasizes the extent of the variance from the sentencing range in the Chapter 7 policy statement, but when assessing substantive reasonableness, we do not apply “a rigid mathem atical formula that uses the percentage of a departure as the sta ndard for determining the strength of the justifications required fo r a specific sentence.” Gall v. United States , 552 U.S. 38, 47 (2007). Moreover, “a court does not need to find severe or exceptional circumstances to impose a sentence above the range suggest ed in the Chapter 7 policy statements, which are not mandatory and even less co mpelling than establ ished Guidelines.” Vigil , 696 F.3d at 1002–03. In the end, “the balance struck by the di strict court among the factors set out in § 3553(a) [wa]s not arbitrary, capric ious, or manifestly unreasonable.” United States v. Sells , 541 F.3d 1227, 1239 (10th Cir. 2008). We must therefore defer to its decision to impose a 24-month revocation se ntence, “even if we would not have struck the same balance in the firs t instance.” Id.
Conclusion Because the district cour t adequately explained Ne gron-Hernandez’s 24-month Appellate Case: 23-2153 Document: 010111089887 Date Filed: 08/05/2024 Page: 1314 revocation sentence and did not otherwise a buse its discretion in imposing a sentence of this length, we affirm.

Entered for the Court
Nancy L. Moritz Circuit Judge Appellate Case: 23-2153 Document: 010111089887 Date Filed: 08/05/2024 Page: 14