United States of America v. Cristobal Palomerez-Heredia, also known as Christobal Palomerez-Heredia, also known…

United States Court of Appeals
For the Eighth Circuit
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No. 23-2160
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United States of America
Plaintiff - Appellee
v.
Cristobal Palomerez-Heredia, also known as Christobal Palomerez-Heredia, also
known as Christobal Palmerez-Heredia, also known as Cristobal Heredia
Palomares, also known as Cristogal Heredia, also known as Cristobal Heredia
Palomeria, also known as Cristobal Heredia Palomerez, also known as Cristobal
Heredia Palmoerez, also known as Cristobal Heredia-Palmoerez, also known as
Cristobal Palomeres-Heredia
Defendant - Appellant
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Appeal from United States District Court
for the Eastern District of Arkansas - Central
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Submitted: January 8, 2024
Filed: May 22, 2024
[Unpublished]
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Before SMITH, Chief Judge,1 GRUENDER and SHEPHERD, Circuit Judges.
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PER CURIAM.
1 Judge Smith completed his term as chief judge of the circuit on March 10,
2024. See 28 U.S.C. § 45(a)(3)(A).

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After Cristobal Palomerez-Heredia was convicted of one count of illegal
reentry after removal, in violation of 8 U.S.C. § 1326(a), the district court sentenced
him to 158 months’ imprisonment, followed by 3 years of supervised release.
Palomerez-Heredia appeals, asserting that the district court procedurally erred and
that his sentence is substantively unreasonable. Palomerez-Heredia also asserts that
the district court imposed 13 standard conditions of supervised release in the written
judgment that it did not announce at the sentencing hearing, and that the conditions
therefore must be vacated. Having jurisdiction under 28 U.S.C. § 1291, we affirm
Palomerez-Heredia’s sentence but vacate the portion of the judgment imposing the
standard conditions of supervised release and remand to the district court for a
resentencing limited to the standard conditions.
I.
In September 2021, Palomerez-Heredia was charged by indictment with one
count of illegally reentering the United States after having previously been removed.
He entered a guilty plea, after which the United States Probation Office prepared a
Presentence Investigation Report (PSR) calculating Palomerez-Heredia’s United
States Sentencing Guidelines (USSG) range, when adjusted for a three-level
acceptance of responsibility reduction, as 84 to 105 months’ imprisonment. This
Guidelines range reflected (1) a four-level enhancement to Palomerez-Heredia’s
offense level, pursuant to USSG § 2L1.2(b)(1)(A), because Palomerez-Heredia
committed the crime of conviction after previously being convicted of a felony
illegal-reentry offense; (2) a four-level enhancement pursuant to USSG
§ 2L1.2(b)(2)(D) because, before he was ordered removed the first time, Palomerez-
Heredia engaged in criminal behavior resulting in a felony conviction; and (3) a ten-
level enhancement pursuant to USSG § 2L1.2(b)(3)(A) because, after he was
ordered removed the first time, he engaged in criminal behavior resulting in a felony
conviction for which the sentence imposed was five years or more.
At sentencing, the district court adopted the PSR’s calculation of the
Guidelines range and varied upward, imposing a sentence of 158 months. The

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district court stated it was varying upward based on the nature and circumstances of
the offense, noting that Palomerez-Heredia had been involved in a gunfight with
police, that he had a propensity for violence and using firearms, and had a history of
continued violations of the law. The district court ordered the sentence to run
consecutively to a 144-month state court sentence that Palomerez-Heredia was
serving for attempted first-degree murder. As to supervised release, the district court
stated that it was imposing the conditions that Palomerez-Heredia not return to the
United States if he were deported during his term of supervised release, that
Palomerez-Heredia participate in a substance abuse treatment program, and that
Palomerez-Heredia cooperate in the collection of DNA. The district court made no
mention of any other conditions of supervised release, but, when final judgment was
entered, the district court included 13 standard conditions of supervised release that
had not been mentioned at the sentencing hearing.
II.
Palomerez-Heredia appeals, arguing that the district court failed to adequately
explain his sentence, including the need for an upward variance, that the sentence
was substantively unreasonable, and that the standard conditions of supervised
release contained in the written judgment should be stricken because they were not
orally pronounced at sentencing. In reviewing a challenge to a sentence, “‘whether
inside or outside the Guidelines range, we “apply a deferential abuse-of-discretion
standard.”’ ‘We review a district court’s sentence in two steps, first reviewing for
significant procedural error, and second, if there is no significant procedural error,
we review for substantive reasonableness.’” United States v. Isler, 983 F.3d 335,
341 (8th Cir. 2020) (citations omitted).
Palomerez-Heredia first asserts that the district court procedurally erred by
failing to adequately explain his sentence. “Procedural errors include ‘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

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sentence—including an explanation for any deviation from the Guidelines range.’”
Id. (citation omitted). While we typically review a claim of procedural error for an
abuse of discretion, “[w]here, as here, the defendant fails to object timely to a
procedural sentencing error, the error is forfeited and may only be reviewed for plain
error.” Id. (alteration in original) (citation omitted). To prevail on plain-error
review, a “defendant must show: (1) an error; (2) that is plain; and (3) that affects
substantial rights.” Id. (citation omitted). Palomerez-Heredia cannot show any
error, much less one that is plain, with respect to the district court’s explanation of
his sentence. The sentencing transcript reveals that the district court described, in
detail, the reasons it believed that a within-Guidelines range sentence was
insufficient, specifically noting that Palomerez-Heredia’s criminal history was “all,
for the most part, violent,” that the nature and circumstances of the instant offense
involved “a one-way gunfight . . . with the police,” that Palomerez-Heredia had a
“propensity for violence and the use of firearms,” and that an upward variance was
necessary to reflect the seriousness of the offense, to promote respect for the law,
and to protect the public from further crimes by Palomerez-Heredia.
Palomerez-Heredia also asserts that his sentence is substantively unreasonable
because the district court improperly varied upward by giving undue weight to
factors that were already adequately accounted for in the Guidelines calculation.
“We review the sentence’s substantive reasonableness for abuse of discretion.”
United States v. Heard, 91 F.4th 1275, 1280 (8th Cir. 2024). “A district court abuses
its discretion when it (1) ‘fails to consider a relevant factor that should have received
significant weight’; (2) ‘gives significant weight to an improper or irrelevant factor’;
or (3) ‘considers only the appropriate factors but in weighing those factors commits
a clear error of judgment.’” United States v. Feemster, 572 F.3d 455, 461 (8th Cir.
2009) (en banc) (citation omitted). We are unpersuaded by Palomerez-Heredia’s
contention because “[i]t is well-settled that factors taken into account in calculating
the advisory guidelines range can form the basis of an upward variance.” United
States v. Manuel, 73 F.4th 989, 993 (8th Cir. 2023). Further, “[w]e give the
sentencing court ‘wide latitude to weigh the section 3553(a) factors in each case and
assign some factors greater weight than others.’” United States v. Hubbs, 18 F.4th

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570, 572 (8th Cir. 2021) (citation omitted). Here, in deciding to vary upward, the
district court simply placed more weight on the aggravating factors than on any
mitigating factors, which was “well within its substantial sentencing discretion.”
See id.
Finally, Palomerez-Heredia asserts that the 13 standard conditions of
supervised release included in the written judgment should be stricken because the
district court did not mention them as part of the oral pronouncement of the sentence.
Generally, “[w]e review the district court’s imposition of the terms and conditions
of supervised release for an abuse of discretion.” United States v. Drapeau, 644 F.3d
646, 655 (8th Cir. 2011) (citation omitted). However, we review de novo a claim
that the oral and written judgment conflict. See United States v. White Bull, 646
F.3d 1082, 1096 (8th Cir. 2011) (reviewing de novo a claim that
“imposing . . . supervised release conditions though a written judgment after the
district court failed to expressly state those conditions at the oral pronouncement”
violated a defendant’s double jeopardy rights); United States v. Johnson, 765 F.3d
702, 710 (7th Cir. 2014) (“We review a claim of an inconsistency between the oral
and written judgments de novo, comparing the sentencing transcript with the written
judgment to determine whether an error occurred as a matter of law.”).
We have previously enunciated the rule that “[w]here an oral sentence and the
written judgment conflict, the oral sentence controls.” United States v. Foster, 514
F.3d 821, 825 (8th Cir. 2008) (citation omitted). However, our recent opinion in
United States v. Walker, 80 F.4th 880 (8th Cir. 2023) is instructive. In Walker, the
defendant was similarly sentenced to a term of supervised release that included
several special conditions and the 13 standard conditions. Id. at 882. As here, the
district court failed to address the standard conditions of supervised release during
the oral pronouncement of the defendant’s sentence. Id. Importantly, we recognized
that “[a]s a practical matter, it would be virtually impossible to supervise a defendant
or verify compliance with the two special conditions that were orally pronounced
without at least some of the standard conditions of supervised release being
imposed.” Id. We vacated those conditions of supervised release that conflicted

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with the oral pronouncement and “remand[ed] to the district court for a resentencing,
limited to” those conditions to “determine in the first instance whether any standard
conditions of supervised release . . . are consistent with and necessarily included
within the scope of the express conditions as pronounced at
the . . . sentencing.” Id. Thus, we explained that “[t]he defendant [would] have the
opportunity to object to any of the conditions that he fe[lt] should not be imposed
upon him.” Id. Moreover, during the resentencing, “[a]ny standard conditions of
supervised release . . . which may be reimposed as part of any oral pronouncement
may then be incorporated into an amended and reconciled judgment and
commitment order.” Id. at 882-83. Because the facts of the sentencing in this case
are nearly identical to those in Walker, we follow the same approach adopted there.
III.
We therefore affirm Palomerez-Heredia’s sentence but vacate the portion of
the judgment imposing the standard conditions of supervised release. We remand
for resentencing limited to the standard conditions of supervised release. On
remand, the district court shall determine whether any of the standard conditions of
supervised release are consistent with and necessarily included within the scope of
the special conditions pronounced at sentencing. The defendant will have the
opportunity to object to any of the standard conditions that he feels should not be
imposed upon him. Any standard conditions of supervised release which may be
reimposed as part of any oral pronouncement may then be incorporated into an
amended and reconciled judgment and commitment order.
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