United States v. Maldonado-Passage

Appellate Case: 22-6025         Document: 010110788567     Date Filed: 12/23/2022    Page: 1
                                                                      FILED
                                                          United States Court of Appeals
                           UNITED STATES COURT OF APPEALS         Tenth Circuit

                                 FOR THE TENTH CIRCUIT                    December 23, 2022
                             _________________________________
                                                                         Christopher M. Wolpert
                                                                             Clerk of Court
  UNITED STATES OF AMERICA,

            Plaintiff - Appellee,

  v.                                                            No. 22-6025

  JOSEPH MALDONADO-PASSAGE,
  a/k/a Joseph Allen Maldonado, a/k/a
  Joseph Allen Schreibvogel, a/k/a Joe
  Exotic,

            Defendant - Appellant.
                           _________________________________

                          Appeal from the United States District Court
                             for the Western District of Oklahoma
                               (D.C. No. 5:18-CR-00227-SLP-1)
                            _________________________________

 Molly Hiland Parmer, Parmer Law, Atlanta, Georgia, for Defendant – Appellant.

 Steven W. Creager, Assistant United States Attorney (Robert J. Troester, United States
 Attorney, with him on the brief), Oklahoma City, Oklahoma, for Plaintiff – Appellee.
                         _________________________________

 Before McHUGH, BALDOCK, and MURPHY, Circuit Judges.
                   _________________________________

 MURPHY, Circuit Judge.
                     _________________________________

       I.      INTRODUCTION

            In 2018, Joseph “Tiger King” Maldonado-Passage was indicted on several counts,

 including two murder-for-hire schemes in violation of 

(a). A jury

 convicted Maldonado-Passage on all counts presented and the district court sentenced
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 him to a 264-month term of imprisonment. The sentence incorporated consecutively run

 108-month terms for each § 1958(a) conviction. He appealed to this court, claiming, inter

 alia, his murder-for-hire counts should be grouped for purposes of calculating his total

 offense level. This court affirmed Maldonado-Passage’s murder-for-hire convictions, but

 held his § 1958(a) offenses shared a “common criminal objective” and should be grouped

 under § 3D1.2(b) of the United States Sentencing Guidelines. United States v.

 Maldonado-Passage (Maldonado-Passage I), 

; 1104–08 (10th Cir.

 2021). We remanded the matter to the district court for resentencing. 

 (“For the

 foregoing reasons, we affirm Maldonado-Passage’s conviction[s] but vacate the sentence

 and remand for resentencing.”).

        On remand, Maldonado-Passage filed a motion to reconsider the denial of a

 pretrial motion to dismiss one of the two § 1958(a) counts as multiplicitous. He proposed

 his counts be merged and subject to a single penalty. In its denial of the motion, the

 district court concluded Maldonado-Passage failed to demonstrate adequate grounds for

 reconsideration. Furthermore, during resentencing, the district court announced it would

 not exercise its discretion to expand the scope of sentencing beyond the grouping error

 identified by this court in Maldonado-Passage I. The district court revised Maldonado-

 Passages’ total offense level and advisory Guidelines sentencing range and accordingly

 imposed a reduced sentence of 252 months’ imprisonment. This sentence included two

 consecutively run 102-month terms for each murder-for-hire conviction.

        Maldonado-Passage brings this appeal claiming the text of § 1958(a) prohibits his

 conduct from being parsed into two offenses with consecutively run sentences. This court

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 disagrees. As a threshold matter, the district court did not abuse its discretion by limiting

 its sentencing scope and refusing to reconsider Maldonado-Passage’s previously denied

 motion to dismiss for multiplicity. Therefore, no vehicle to challenge the § 1958(a)

 components of his sentence as multiplicitous remains. Nonetheless, this court also

 confirms § 1958(a)’s “plot centric” unit of prosecution permits separate offenses and

 consecutive sentences when, as here, two unrelated hitmen are hired to kill the same

 person. See United States v. Gordon, 

 (1st Cir. 2017). Thus, exercising

 jurisdiction pursuant to 

 and 

(a), this court affirms the

 district court’s sentencing decision.

    II.      BACKGROUND

          Maldonado-Passage’s murder-for-hire attempts were born from a bitter feud with

 activist Carole Baskin over his treatment of animals at the zoo he operated in

 Wynnewood, Oklahoma. The pair’s colorful rivalry featured famously in Netflix’s 2020

 documentary series, Tiger King: Murder, Mayhem, and Madness. The impetus of

 Maldonado-Passage and Baskin’s enmity is detailed by this court’s prior decision in

 Maldonado-Passage I and need not be recapitulated in full. See Maldonado-Passage I, 4

 F.4th at 1099–1100.

          Most relevant to this appeal is the posture of Maldonado-Passage’s § 1958(a)

 convictions. The first count of the indictment describes Maldonado-Passage’s

 arrangements with zoo employee Alan Glover. Throughout November 2017, Maldonado-

 Passage solicited Glover to kill Baskin; organized Glover’s interstate travel to obtain a

 fake identification card; provided Glover with a new phone preloaded with pictures of

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 Baskin; and forwarded approximately $3000 to Glover for his travel to Florida to murder

 Baskin. Id. at 1100. At the end of November, Glover traveled from Oklahoma to Florida,

 but did not contact or attempt to kill Baskin. Id. Maldonado-Passage’s second § 1958(a)

 count articulates his agreement with an undercover FBI agent, “Mark,” to kill Baskin. Id.

 Introduced by a friend who was cooperating with an ongoing federal investigation,

 Maldonado-Passage and Mark engaged in several phone conversations from December

 2017 to March 2018 regarding Baskin’s murder. Maldonado-Passage ultimately offered

 to pay Mark $10,000 in two installments for Baskin’s murder.

        Prior to his initial trial, Maldonado-Passage filed a motion to dismiss one of the

 two § 1958(a) counts for multiplicity. He argued the two counts covered “the same

 criminal behavior” and could not be distinguished. Further, he characterized the unit of

 prosecution under § 1958(a) as “a single plot to murder a single individual.” See Gordon,

 

. Maldonado-Passage described his arrangements with Glover and Mark as

 one cohesive plot to murder Baskin which could not be separated as a matter of statutory

 interpretation. The district court denied Maldonado-Passage’s motion, concluding his

 § 1958(a) convictions were entirely distinct. According to the district court, the presence

 of a shared victim did “not alter the alleged plots’ individual natures.” After conviction,

 Maldonado-Passage was sentenced to two consecutive 108-month terms for each murder-

 for-hire count.

        Maldonado-Passage did not challenge on appeal the district court’s conclusion that

 the indictment set out two, distinct crimes. He did, however, claim that the district court

 erred in failing to group the two murder-for-hire convictions for purposes of calculating

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 his total offense level. Maldonado-Passage I, 

. We affirmed Maldonado-

 Passage’s murder-for-hire convictions against a challenge to the district court’s refusal to

 sequester a witness, but held that the district court erred when it failed to group the

 convictions pursuant to § 3D1.2(b) of the Guidelines. Id. at 1099. This court concluded

 the two schemes involved “‘substantially the same harm’” because they were “connected

 by a ‘common criminal objective’” and charged in “closely related counts.” Id. at 1104

 (quoting U.S.S.G. § 3D1.2(b)). Our interpretation of the Guidelines emphasized that the

 ends, rather than the means, of a planned murder dictate whether more than one act

 should be grouped under a common criminal objective. Id. at 1105–06. Relying on

 United States v. Norman, 

 (10th Cir. 1991), this court determined the

 shared goal between the two counts required grouping for sentencing determination.

 Maldonado-Passage I, 

. Accordingly, the case was remanded for

 resentencing under a lowered total offense level. 

.

        On remand, Maldonado-Passage filed a motion to reconsider the denial of his

 pretrial motion to dismiss one of the two murder-for-hire counts as multiplicitous. He

 offered the grouping decision in Maldonado-Passage I as support for his argument that

 the two convictions should be merged and subject to a single penalty. The district court

 rejected this theory. It first questioned whether timeliness and the mandate of this court

 allowed for such reconsideration. Even without these initial concerns, the district court

 determined Maldonado-Passage had not demonstrated a misapprehension of the law or

 facts required to show adequate grounds for reconsideration. At the subsequent

 resentencing hearing, the district court treated this court’s remand in Maldonado-Passage

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 I as limited to resentencing. The district court, however, declined to expand the scope of

 sentencing beyond the more limited grouping issue. The district court adopted its prior

 sentencing findings except for sentencing calculations necessitated by the grouping

 mandate. Maldonado-Passage was resentenced to 252 months’ imprisonment, 204 of

 which were evenly divided into consecutive sentences for his § 1958(a) convictions.

    III.   ANALYSIS

        This appeal offers two procedural and two substantive issues for review.

 Procedurally, the case requires analysis of the district court’s denial of Maldonado-

 Passage’s motion to reconsider and its limitation of resentencing to align with this court’s

 mandate in Maldonado-Passage I. Substantively, Maldonado-Passage argues his

 § 1958(a) sentences are based on multiplicitous convictions and those convictions should

 be merged into one. He also argues the district court’s decision to run his murder-for-hire

 sentences consecutively is unreasonable. We conclude the district court did not abuse its

 discretion on either procedural issue and, therefore, properly did not address anew the

 substantive issue of multiplicity. Even if Maldonado-Passage were to prevail on these

 procedural issues, however, his arguments regarding multiplicity and reasonableness

 would still fail. Maldonado-Passage’s § 1958(a) convictions are not multiplicitous

 because they involve distinct plots to kill a single person. Further, the record does not

 indicate the district court erred in its calculation or imposition of consecutive sentences.

           a. RECONSIDERATION

        This court reviews denials of motions to reconsider for abuse of discretion. See

 United States v. Warren, 

 (10th Cir. 2022). Abuse of discretion requires

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 “arbitrary, capricious, whimsical or manifestly unreasonable judgment.” Mid-Continent

 Cas. Co. v. Vill. at Deer Creek Homeowners Ass’n, Inc., 

 (10th Cir.

 2012) (quotation omitted). Grounds for reconsideration include changes in controlling

 law; new, previously unavailable evidence; and clear error or manifest injustice. See

 United States v. Christy, 

 (10th Cir. 2014). Motions for reconsideration

 should not be used as a means of revisiting issues or arguments already addressed. See

 Servants of Paraclete v. Does, 

 (10th Cir. 2000).

       Maldonado-Passage’s motion to reconsider his prior motion to dismiss for

 multiplicity reiterated his central argument that prosecution under § 1958(a) should be

 characterized by number of victims, not number of hitmen used. 1 The district court did

 not abuse its discretion in denying his motion to reconsider. No evidence indicates the

 district court misapprehended the facts, law, or Maldonado-Passage’s position as required

 for reconsideration. See Christy, 

. Maldonado-Passage failed to introduce

 any new facts to support reconsideration. His motion to reconsider largely restated the

 argument offered in his motion to dismiss, supported by the same legal authority. The

 decision in Maldonado-Passage I does not alter this analysis. There, this court remanded



 1
   Maldonado-Passage cites United States v. Wynn, 

 (6th Cir. 1993), to
 support the contention that multiple § 1958(a) counts directed at one victim cannot be
 sentenced consecutively. Wynn notes: “[S]eparate phone calls which are violations of 

 must be grouped together . . . if they are connected with the murder of one
 individual. So too, separate phone calls which relate to one plan to murder one individual
 constitute only one violation of 

.” 

. As noted infra § III.c,
 Wynn is distinguishable from the case at hand because there the Government pursued a
 unit of prosecution based on the number of interstate phone calls rather than the number
 of independent hitmen hired.
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 only for resentencing under § 3D1.2(b), while leaving Maldonado-Passage’s convictions

 intact. See Maldonado-Passage I, 

. Accordingly, Maldonado-Passage I

 provided no intervening change in law, nor did it demonstrate grounds for clear error

 warranting reconsideration. Thus, the district court did not err in refusing to reconsider at

 resentencing the merits of Maldonado-Passage’s multiplicity arguments.

           b. MANDATE

        The mandate rule is a discretion guiding principle which requires a trial court to

 conform with the appellate court’s terms of remand. See Dish Network Corp. v.

 Arrowood Indem. Co., 

 (10th Cir. 2014); United States v. Shipp, 

 (10th Cir. 2011). This court evaluates whether district courts abuse any

 measure of discretion left by an appellate mandate. See Procter & Gamble Co. v.

 Haugen, 

 (10th Cir. 2003). Unless an appellate mandate expressly

 limits discretion, the district court may determine what may be heard on remand. See

 United States v. Walker, 

 (10th Cir. 2019). Accordingly, a district

 court may expand the scope of resentencing absent an express limitation but is not

 required to do so. See United States v. West, 

 (10th Cir. 2011).

        Preliminarily, Maldonado-Passage suggests the § 3D1.2(b) grouping analysis in

 Maldonado-Passage I indicates imposing two separate sentences for his actions would be

 unconstitutional. In so arguing, he confuses the role of grouping in the sentencing

 process. Grouping under § 3D1.2(b) of the Sentencing Guidelines plays an important role

 in determining offense level but does not sequentially impact subsequent sentencing

 decisions once total punishment is set. See United States v. Garcia-Torres, 

,

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 75–76 (1st Cir. 2003). With limited exception, 2 whether counts are grouped does not bear

 on the ability of a district court to run sentences consecutively or concurrently. To the

 contrary, district courts are given broad discretion to issue consecutive sentences despite

 § 3D1.2(b) grouping requirements. See e.g., United States v. Jabateh, 

 (3d Cir. 2020) (“While the Guidelines advise that ‘[a]ll counts involving substantially the

 same harm shall be grouped together,’ U.S.S.G. § 3D1.2, they readily acknowledge a

 district court’s authority to impose concurrent or consecutive sentences, U.S.S.G.

 §§ 5G1.2(d), 5G1.3(b).”); see also United States v. Dvorak, 

 (8th

 Cir. 2010); United States v. Bonilla, 

, 1244–45 (11th Cir. 2009); United

 States v. Gigley, 

 (10th Cir. 2000). Accordingly, Maldonado-Passage

 misconstrues the “common criminal objective” analysis of § 3D1.2(b) and the mandate in

 Maldonado-Passage I as suggesting his sentences were multiplicitous.

        In Maldonado-Passage I we issued the following remand: “For the foregoing

 reasons, we affirm Maldonado-Passage’s conviction[s] but vacate the sentence and

 remand for resentencing.” Maldonado-Passage I, 

. In accordance with

 prior decisions of this circuit, the district court appropriately treated the mandate of this

 court in Maldonado-Passage I as limited to resentencing, but general as to the scope of

 resentencing proceedings. See e.g., Walker, 918 F.3d at 1143–44. Contrary to

 Maldonado-Passage’s request, the district court declined to use its discretion to expand its


 2
  See e.g., U.S.S.G. § 5G1.2 cmt. n. 2(B)(ii) (expressly including “[w]hether the
 underlying offenses are groupable under § 3D1.2” as a factor to consider when
 determining whether multiple 18 U.S.C. § 1028A convictions should be run
 consecutively or concurrently).
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  resentencing review beyond the grouping question expressly outlined by our prior

  remand. This court concludes the district court did not abuse its discretion by so limiting

  its review within resentencing to issues related to Guidelines recalculation. See id.; see

  also Haugen, 

; West, 

. Restricting the scope of the

  decision to the narrow set of issues outlined in Maldonado-Passage I is not arbitrary or

  manifestly unreasonable and therefore not an abuse of discretion.

         On appeal, Maldonado-Passage attempts to request relief that falls within the

  bounds of the district court’s resentencing review. He asks this court to remand this case

  to the district court to merge the two counts and resentence him on the remaining count.

  Such a remedy is not available here. This court has consistently held the only available

  relief for multiplicitous convictions is for the district court to use its discretion to vacate

  one of the underlying convictions. See e.g., United States v. Frierson, 

 (10th Cir. 2012); United States v. Barrett, 

 (10th Cir. 2007);

  United States v. Moore, 

 (10th Cir. 1992). In Maldonado-Passage I, we

  already affirmed Maldonado-Passage’s convictions. To now merge his counts or run his

  sentences concurrently would effectively overrule this court’s earlier affirmance of his

  convictions. The relief he proposes, therefore, falls outside the breadth of this court’s

  prior mandate to address resentencing.

             c. UNIT OF PROSECUTION

         Even if Maldonado-Passage prevailed on the procedural grounds discussed above,

  his multiplicity claim fails. His primary argument in this appeal is that § 1958(a) does not

  allow his murder-for-hire counts to be separated into two violations with consecutive

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  sentences. Maldonado-Passage contends he is being punished twice for the same crime:

  his plot to kill Baskin. See U.S. CONST. amend. V. He urges this court to adopt a unit of

  prosecution under § 1958(a) based on an “overarching” plot to kill one person, thereby

  requiring his two sentences be merged into one. This court is not persuaded by these

  arguments. Section 1958(a) substantively allows for separate offenses and consecutive

  sentences in this case.

         The Double Jeopardy Clause protects a person from receiving multiple

  punishments for the same offense. See United States v. Jackson, 

 (10th

  Cir. 2013) (“The Double Jeopardy Clause of the Fifth Amendment protects a person from

  being ‘twice put in jeopardy of life or limb.’ U.S. CONST. amend. V. Included in double

  jeopardy protections are multiple punishments for the same offense based on the total

  punishment authorized by the legislature.”). “If the same statutory violation is charged

  twice, the question is whether the facts underlying each count were intended by Congress

  to constitute separate units of prosecution.” United States v. Elliott, 

, 1313

  (10th Cir. 2019) (quotations omitted). The relevant unit of prosecution means the

  “minimum amount of activity for which criminal liability attaches” for any charge under

  an applicable criminal statute. United States v. Rentz, 

 (10th Cir.

  2015) (quotation omitted). Determining the unit of prosecution is generally a matter of

  statutory interpretation. See Elliott, 937 F.3d at 1313. Where “grievous ambiguity” exists,

  courts are urged against turning a single transaction into several offenses. See id.; see also

  Muscarello v. United States, 

 (1998).

         The substantive language of § 1958(a) reads as follows:

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                  (a) Whoever travels in or causes another (including the intended
         victim) to travel in interstate or foreign commerce, or uses or causes
         another (including the intended victim) to use the mail or any facility of
         interstate or foreign commerce, with intent that a murder be committed in
         violation of the laws of any State or the United States as consideration for
         the receipt of, or as consideration for a promise or agreement to pay,
         anything of pecuniary value, or who conspires to do so, shall be fined under
         this title or imprisoned for not more than ten years, or both; and if personal
         injury results, shall be fined under this title or imprisoned for not more than
         twenty years, or both; and if death results, shall be punished by death or life
         imprisonment, or shall be fined not more than $250,000, or both.

         Both counts against Maldonado-Passage involve the use of interstate facilities

  accompanied by the offer of money for murder of another. Count one included several

  instances of Maldonado-Passage sponsoring travel across state lines. Count two featured

  multiple telephone calls aimed at facilitating the murder. 3 The question in this case,

  however, is not whether use of interstate facilities occurred, but whether a single victim

  unites the actions as one offense under the statute. The tension between the facility-based

  and plot-based language in § 1958(a) complicates the statute’s unit of prosecution

  analysis.

         In United States v. Gordon, the First Circuit grappled with the difficulty posed by

  § 1958(a)’s language: “Those words can be read . . . to criminalize each act of travel or

  each use of the facilities of interstate commerce in service of a murder-for-hire scheme.

  But those words also can be read . . . to criminalize each plot or scheme to murder an

  individual.” 

. Gordon was charged with five counts of violating § 1958(a):



  3
    Telephone calls have regularly been found to constitute violations of § 1958(a). See e.g.,
  Gordon, 

; Wynn, 

. Maldonado-Passage does not dispute the
  interstate nature of either count he faces.
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  three telephone calls and two letters sent to an undercover agent posing as a hitman. Id. at

  29. The First Circuit emphasized the graduated sentencing scheme included in § 1958(a)

  conveyed a “clear indication of Congress’s apparent belief that the greater the harm to the

  victim, the harsher the punishment should be for the offender.” Id. at 33. The First Circuit

  further challenged the unit of prosecution offered by the Government, positing that

  counts based on the number of interstate communications does not align with the harm-

  centered congressional intent. Id. Indeed, such a scheme would expose a person who

  made ten soliciting phone calls without success to higher criminal liability than a person

  who made one which resulted in personal injury. Id. Given this reasoning, the First

  Circuit necessarily concluded both interpretations of § 1958(a)’s unit of prosecution—

  facility-based and plot-based—were linguistically plausible, but Congress could have

  only intended the plot-centric one. Id. at 34–35. The First Circuit ordered the counts be

  merged into a single count and resentenced accordingly. Id. at 38.

         The only other circuit to have weighed in on the issue has also upheld the plot-

  centric interpretation of § 1958(a)’s unit of prosecution. In United States v. Wynn, the

  Sixth Circuit held “separate phone calls which relate to one plan to murder one individual

  constitute only one violation of 

.” 

; see also United States

  v. Danforth, 

, 1084 (D. Idaho 2020) (holding § 1958(a) to be

  ambiguous and applying the rule of lenity to merge multiple counts based on telephone




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  calls). This construction implies each plot to murder an individual should be confined to a

  single § 1958(a) charge. 4

         This court agrees with the plot-centric unit of prosecution adopted by the First and

  Sixth Circuits in Gordon and Wynn. The core congressional intent of § 1958(a) is to limit

  harm to a targeted individual. The victim-based sentencing scheme, which imposes

  punishment contingent on the outcome of the plot, focuses on the resulting harm from

  conduct rather than the means taken to achieve it. See Gordon, 

. As the

  First Circuit in Gordon notes, congressional reports accompanying § 1958(a) emphasize,

  “[t]he focal point of [§ 1958(a)] was a murder plot that had a federal nexus, not the

  federal nexus itself.” Id. at 34. Section 1958(a) aimed to build upon existing state murder

  solicitation laws by applying interstate facilities as a federal hook. Accordingly, where an

  individual has made multiple interstate communications associated with the intended

  murder of one individual, there may be but one offense under § 1958(a). 5



  4
    Maldonado-Passage argues the possibility of two units of prosecution, plot-based and
  facility based, gives rise to ambiguity warranting the rule of lenity. The rule of lenity, “a
  rule of last resort,” requires courts resolve against the harsher of two punishments where
  ambiguity exists “after traditional means of interpreting the statute have been exhausted.”
  See United States v. Wilson, 

 (10th Cir. 1993). It is manifestly clear that
  Congress intended § 1958(a) to utilize a plot-centric unit of prosecution. Without such
  ambiguity the rule of lenity does not apply. See United States v. Metzener, 

 (10th Cir. 2009). Additionally and independently, as applied to the facts of this case,
  no ambiguity exists in the record as to the presence of two independent plots to murder
  Baskin.
  5
   This principle does not apply for the hiring of one person to kill multiple different
  people. That scenario results in multiple separate plots. See e.g., Hinkson v. Gomez, No.
  18-5833, 

, at *2 (6th Cir. Jan. 9, 2019) (holding a plot to murder three
  different individuals is divisible into separate counts).
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         Although we adopt the plot-centric unit of prosecution for § 1958(a), the facts of

  this case lead to a different outcome than Gordon and Wynn. Whereas both the First and

  Sixth Circuits confronted a single plot effected through multiple interstate

  communications, here there are as many plots as there are hitmen. The record indicates

  Maldonado-Passage’s contacts with his anticipated hitmen were entirely distinct.

  Although they shared a common target, evidence indicates the hitmen shared little else.

  Glover and Mark never communicated or worked together; they received different

  instructions at different times; and they had entirely separate rewards. Thus, the two

  hitmen represented two independently operating plots to kill Baskin. Under the plot-

  centric interpretation of § 1958(a), it is appropriate for the schemes to be punished

  separately.

         Maldonado-Passage’s conduct put in context with Congress’s harm-based intent

  for § 1958(a) further clarifies the unit of prosecution analysis. Unlike multiple phone

  calls to a single hitman, hiring separate hitmen to kill one person demonstrably increases

  the chance of harm to that individual. Two hitmen pursuing their reward doubles an

  individual’s risk. An additional interstate phone call to a hitman clarifying the details of

  an existing plan, however, does not necessarily do the same. Accepting a harm-centered

  unit of prosecution requires that criminal liability attach where independent sources of

  harm are identified. Two unrelated hitmen are separate sources of harm.

         The unit of prosecution proposed by Maldonado-Passage would have

  consequences at odds with the statutory purpose. Under his theory of an “over-arching

  plot to kill a single person” interpretation of § 1958(a), an individual could independently

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  hire several hitmen to kill a single person and be charged the same as someone who

  makes one phone call to solicit the murder of another. The first individual could amass a

  cavalry of independently operating killers to terrorize the intended victim without fear of

  being charged with multiple counts under § 1958(a). Similarly, Maldonado-Passage’s

  interpretation would also forbid multiple charges where an individual orchestrates

  separate murder-for-hire schemes on the same target years apart. Congressional intent

  behind § 1958(a) certainly aimed to treat separate murderous solicitations distinctly, even

  if there is but one intended victim.

            d. REASONABLENESS

         Maldonado-Passage’s final argument requests this court to reverse the district

  court’s resentencing decision as procedurally or substantively unreasonable. Review of

  sentencing reasonableness is a two-step process: first, this court ensures the district court

  did not err procedurally and, if not, analyzes the substantive reasonableness of the

  sentence. See United States v. Sanchez-Leon, 

 (10th Cir. 2014).

  Review for procedural reasonableness analyzes the method of sentence calculation,

  including whether the advisory Guidelines range was proper, whether § 3553(a)

  sentencing factors were correctly considered, and whether the sentencing decision relied

  on clearly erroneous facts. See Gall v. United States, 

 (2007). When

  reviewing a district court’s sentence, this court “review[s] the procedural reasonableness

  of [the] defendant’s sentence using the familiar abuse-of-discretion standard of review,

  under which we review de novo the district court’s legal conclusions regarding the

  Guidelines and review its factual findings for clear error.” Sanchez-Leon, 

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  1262 (quotations omitted). Substantive unreasonableness occurs when the court imposes

  a sentence that does not fairly reflect the relevant sentencing factors or circumstances of

  the defendant. See United States v. Gross, 

 (10th Cir. 2022). That is,

  substantive error most directly implicates the length of the sentence. See United States v.

  Smart, 

 (10th Cir. 2008). This court reviews the substantive

  reasonableness of a district court’s sentence for abuse of discretion, giving substantial

  deference to the district court’s application of § 3553(a) factors to the facts of the case.

  See United States v. Barnes, 

 (10th Cir. 2018); Sanchez-Leon, 

.

         Maldonado-Passage has failed to demonstrate any procedural or substantive error

  in the district court’s revised sentence. Procedurally, the district court did not

  miscalculate the Guidelines range or base its sentence on clearly erroneous findings.

  Moreover, the district court thoroughly addressed the § 3553(a) sentencing factors and

  ancillary issues such as Maldonado-Passage’s health and the government’s investigatory

  conduct. 6 Substantively, the sentence imposed fell within the parameters of the advisory

  Guidelines range and is, therefore, entitled to a presumption of reasonableness. United

  States v. Woody, 

 (10th Cir. 2022). Maldonado-Passage has failed to

  rebut this presumption. The record demonstrates the district court appropriately followed

  the input of the § 3553(a) sentencing factors and, in doing so, considered all the

  mitigating aspects advanced by Maldonado-Passage (i.e., his ill health, lack of a previous


  6
    Contrary to Mr. Maldonado-Passage’s argument, the district court adequately explained
  its reasoning for imposing consecutive sentences by relying on U.S.S.G. § 5G1.2.
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Appellate Case: 22-6025       Document: 010110788567         Date Filed: 12/23/2022     Page: 18



  criminal record, service as a police officer, etc.). Maldonado-Passage also offered

  instances in which other defendants convicted under § 1958(a) received lesser sentences.

  This court is reluctant, however, to overturn an otherwise proper sentencing decision

  based on a list of cases selected by counsel with different facts and circumstances. See

  United States v. Franklin, 

 (10th Cir. 2015). As a consequence, the

  record does not support a finding of error or an abuse of discretion by the district court in

  its resentencing decision. Maldonado-Passage did not carry the heavy burden required to

  overcome the substantial deference afforded the district court in this matter.

     IV.      CONCLUSION

           For those reasons set out above, the sentence entered by the United States District

  Court for the Western District of Oklahoma is hereby affirmed.




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