UNITED STATES COURT OF APPEALS May 13, 2025

Christopher M. Wolpert FOR THE TENTH CIRCUIT Clerk of Court _______________________________________ UNITED STATES OF AMERICA,

Plaintiff - Appellee, v. No. 24-2097 WILSON RENE CALDERON- PADILLA,

Defendant - Appellant. ___________________________________________

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW MEXICO (D.C. No. 2:23-CR-01805-KG-1) _________________________________________ Shira Kieval, Assistant Federal Public Defender (Virginia L. Grady, Federal Public Defender, with her on the briefs), Office of the Federal Public Defender, Denver, Colorado, on behalf of the Defendant-Appellant. James R.W. Braun, Assistant United States Attorney (Alexander M.M. Uballez, United States Attorney, with him on the briefs), District of New Mexico, Albuquerque, New Mexico, on behalf of the Plaintiff-Appellee. _________________________________________ Before BACHARACH, BALDOCK, and McHUGH, Circuit Judges. ___________________________________________ BACHARACH, Circuit Judge. ___________________________________________

This appeal involves a challenge to a criminal sentence. When sentencing a defendant, the district court must consider certain factors, Appellate Case: 24-2097 Document: 56-1 Date Filed: 05/13/2025 Page: 2

including the maximum prison term authorized by Congress. 18 U.S.C. § 3553(a); see United States v. Turner, 55 F.4th 1135, 1144 (7th Cir. 2022) (stating that the district court must consider the statutory maximum when selecting the sentence). Invoking this requirement, the defendant argues that the district court erred in determining the statutory maximum. If the defendant is right, how should we assess the possibility of prejudice? The parties give different answers: The defendant says that we should presume prejudice from the error itself; the government says that the defendant should bear the burden to show prejudice. We agree with the government. 1. The government and probation office apparently err about what the statutory maximum is.

The defendant was convicted of illegally reentering the United States. See 8 U.S.C. § 1326(b). For this conviction, the maximum sentence would turn on the defendant’s criminal history. Absent a prior felony conviction, the statutory maximum would be two years. 8 U.S.C. § 1326(a). If the defendant had at least one prior conviction for a felony, the maximum would be ten years. 8 U.S.C. § 1326(b)(1). If a prior conviction had involved an aggravated felony, the maximum would be twenty years. 8 U.S.C. § 1326(b)(2).

2 Appellate Case: 24-2097 Document: 56-1 Date Filed: 05/13/2025 Page: 3

The defendant had two prior felony convictions. 1 In district court, the government and probation office apparently assumed that one of the convictions had involved an aggravated felony, which would trigger a 20- year statutory maximum. But the parties agree on appeal that the prior convictions didn’t constitute aggravated felonies. So the statutory maximum should have been only 10 years.

The parties disagree over whether the district court made the same mistake as to the statutory maximum. We need not resolve this disagreement; we instead assume for the sake of argument that the district court mistakenly thought that the statutory maximum was 20 years. 2 2. The defendant must show prejudice.

With this assumption, we consider whether the district court’s error would have been prejudicial. We assess prejudice differently based on whether the defendant preserved th