Appellate Case: 22-1104 Document: 010110729737 Date Filed: 08/25/2022 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT August 25, 2022 _________________________________ Christopher M. Wolpert Clerk of Court UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v. No. 22-1104 (D.C. No. 1:17-CR-00095-RBJ-1) EMILIO VALDEZ, (D. Colo.)

Defendant - Appellant. _________________________________

ORDER AND JUDGMENT* _________________________________

Before PHILLIPS, MURPHY, and EID, Circuit Judges.** _________________________________

Emilio Valdez appeals from an order of the district court revoking his

supervised release and imposing upon him a sentence of six months’

imprisonment. 1 Valdez asserts the district court failed to consider and resolve his

motions for a downward departure and a downward variance. A review of the

* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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. ** 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 ordered submitted without oral argument. 1 Valdez’s Unopposed Motion for an Expedited Ruling is hereby Granted. Appellate Case: 22-1104 Document: 010110729737 Date Filed: 08/25/2022 Page: 2

transcript of the revocation hearing makes clear that the district court did, indeed,

fully consider and reject Valdez’s requests. Thus, exercising jurisdiction

pursuant to 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291, this court affirms the

district court’s judgment.

In 2017, Valdez pleaded guilty to a single count of willful failure to pay

interstate child support in violation of 18 U.S.C. § 228(a)(3). His offense level of

10, combined with a criminal history category of III, established an advisory

sentencing range of 10 to 16 months’ imprisonment. The district court departed

downward to a criminal history category of II, concluding Category III overstated

Valdez’s criminal history. The district court then varied downward from the

newly applicable advisory sentencing range of 8 to 14 months’ imprisonment and

imposed a five-year term of probation.

In December 2021, while Valdez was on supervised release, the United

States filed a “Petition for Summons on Person Under Supervision” in the district

court. The United States alleged that Valdez committed eight violations of

supervised release, the first five of which were for possession and use of a

controlled substance. Valdez admitted those five violations and the government

withdrew the remaining alleged violations.

Valdez filed a Motion for Downward Variance from the Guideline Range

prior to the revocation hearing. His Motion recognized that pursuant to Chapter 7

of the Guidelines, his advisory sentencing range was 8 to 14 months’

imprisonment. He requested, however, that the district court depart downward

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from the applicable Category III criminal history category to a Category II as it

did at the original sentencing proceeding. He also asked the district court to treat

his violation as falling within Grade C, rather than Grade B, based on policy

considerations. If only the first of these requested departures was granted,

Valdez’s advisory sentencing range would be 6 to 12 months’ imprisonment. If

both were granted, his advisory range would be 4 to 10 months’ imprisonment.

He then asked the district court to vary downward based on the sentencing factors

set out in § 3553(a) and impose a term of probation.

At the beginning of the sentencing hearing, the district court noted it had

read Valdez’s motion, indicated it was unlikely to grant Valdez’s request for

probation, but stated it would consider Valdez’s arguments. In response,

Valdez’s counsel acknowledged Valdez used cocaine and Ketamine, but noted

those instances were spread over a four-year period. The district court responded

as follows:

Well, the fact is that the Court gave him a big break and trusted him. I gave him a departure to no time, probation. The probation office has spent a lot of time and a lot of money, and you come back in here asking me to give him another huge break, and I’m just not interested.

Valdez’s counsel then asserted that Valdez’s drug relapses were during periods of

less intensive therapy and that a mandate for additional outpatient therapy could

ameliorate the district court’s concerns. The district court found this assertion

unconvincing:

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The probation report, I’m quoting from page six. The probation office has worked extensively with the defendant attempting to guide him back into compliance, and has spent $8,446.56 on the defendant’s dual diagnosis treatment throughout his time on probation. However, he has time and time again resorted to substance abuse. Now, that’s what this probation officer has informed the Court.

Valdez’s counsel again asserted therapy was the best way to deal with Valdez’s

lack of compliance with the conditions of his supervision. Counsel also asked the

district court to utilize the same considerations it employed when it both departed

and varied downward at the original sentencing. After hearing from both Valdez

and a witness on his behalf, the district court heard from both the prosecutor and

Valdez’s probation officer. The prosecutor argued the record demonstrated

Valdez was a “schemer” who utilized substantial resources while on supervision

while making minimal progress. The prosecutor further argued that the record

demonstrated Valdez had a history of successfully avoiding the consequences of

his misdeeds and that a sentence of probation would only continue that

unfortunate trend. Valdez’s probation officer testified that Valdez’s drug-usage

problems were not therapy related but, instead, lifestyle issues. Thus, she did not

favor further supervision or therapy. At the conclusion of the hearing, the district

court ruled as follows:

Well, I thought that I was done with child support cases when I left the state court. Little did I know that there is a federal statute about failing to pay child support, and Mr. Valdez was convicted of violating that statute in South Dakota. Our probation, and frankly the Court itself, had taken him on as an accommodation to the system in South Dakota.

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When it came before the Court in 2018, he was facing a 10-year sentence. I don’t really recall what the guidelines were. But in any event, I didn’t put him in prison at all. I went along with [defense counsel’s] request for a departure based on her statement his criminal history was overstated, put him on probation. And part of the reason was so that he could have a job and pay down that child support. It really wasn’t that much. It was 50,000 something, but it was something that the mother should have had.

To my surprise, with the consent of the mother, apparently, he got out of paying most of that after he left here. Okay. But he also committed these offenses, and as has been said by probation, the person that really knows, he has violated time and time again. I kind of agree with [the prosecutor], frankly. I think we’ve done what we can in terms of giving him breaks and paying money to provide him with therapy. I also think it’s important if a person is not a violent offender, that he be there for the birth of his child. I was there for the birth of all my children, and I look back at those experiences as some of the most amazing things that I’ve done in my life.

And I don’t want Mr. Valdez to miss that. The Court is going to sentence him to six months in federal prison, order that he report on or about June 1st, 2022. There will be no further supervised release. The Court will not impose a fine. The Court warns Mr. Valdez that if he doesn’t comply or report, when he’s brought back here, he will get a much more substantial sentence. For today, he may leave. . . .

On appeal to this court, Valdez argues the district court erred in failing to

rule on his requests for a downward variance and for a downward departure. 2 As

2 Notably, Valdez did not object on this ground before the district court and, therefore, it appears the issue is not preserved. See United States v. Romero, 491 F.3d 1173, 1175-76 (10th Cir. 2007) (holding that challenges to the method the district court employed to calculate a sentence implicate procedural reasonableness); id. at 1176-78 (noting that unpreserved challenges to the procedural reasonableness of a sentence are reviewed for plain error). Because the government did not raise the preservation issue, and because the resolution of the merits of Valdez’s appeal is so clear, this court exercises its discretion to resolve this case on the merits.

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the recitation set out above shows, Valdez’s argument in this regard is utterly

inconsistent with the transcript of the revocation hearing. The district court

specifically indicated it had reviewed both Valdez’s motion and the attachments

thereto. It demonstrated its clear understanding of the import of Valdez’s

arguments throughout the hearing. Ultimately, based on case- and defendant-

specific factors, the district court refused to grant Valdez the exaggerated

leniency he requested. The district court, nevertheless, varied downward two

months from the bottom of the applicable Chapter Seven advisory range and

imposed a sentence of six months’ imprisonment. The district court was not

obligated to engage in some type of “ritualistic incantation” or “recite any magic

words” in rejecting Valdez’s request for leniency. See United States v. Kelley,

359 F.3d 1302, 1305 (10th Cir. 2004) (quotation omitted).

The judgment of the United States District Court for the District of

Colorado is hereby AFFIRMED.

Entered for the Court

Michael R. Murphy Circuit Judge

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