We apply a two-step approach to appellate review of sentences. United States v. Herula, 464 F.3d 1132, 1136 (10th Cir.2006). "First, we determine whether the district court correctly calculated the applicable guideline range." Id. If so, then we determine whether the sentence imposed is "reasonable.

However, "[d]ue process limitations on the retroactive applications of judicial interpretations of criminal statutes only apply to those decisions that are unexpected and indefensible by reference to the law which had been expressed prior to the conduct in issue." United States v. Herula, 464 F.3d 1132, 1138 (10th Cir. 2006) (quotation omitted). Accordingly, the issue here is whether construing NMSA § 30-3-8 to include a shooting at a dwelling that causes death was "unexpected and indefensible" in light of the law as it existed when Mr. Varella committed the crime for which he was convicted.

United States v. DeRusse, 859 F.3d 1232, 1236 (10th Cir. 2017) (internal quotation marks omitted). In addition, we review de novo Yazzie's challenge to the validity of U.S.S.G. § 2A2.2. See United States v. Herula, 464 F.3d 1132, 1136 (10th Cir. 2006) (reviewing de novo legal questions pertaining to application of guidelines). Important to our analysis here, we presume that a prison sentence that falls within a properly calculated guideline range is substantively reasonable.

On direct appeal, Mr. Herula claimed the district court erred by computing a consolidated sentencing guideline range and that the sentence imposed was unreasonable because it was in excess of the range contemplated in the plea agreements, but we affirmed his sentence. United States v. Herula, 464 F.3d 1132, 1135, 1139 (10th Cir. 2006).

On appeal, Mr. Waseta raises a single challenge to his sentence — namely, that the district court's application of the advisory Guidelines sentencing system effected an ex post facto violation because it "greatly expanded the parameters of possible penalties, [which] was utterly unforeseeable at the time of [his] offense[, and] permitt[ed] a much lengthier sentence than he could have received [under the mandatory Guidelines]." Aplt. Opening Br. at 6. At first blush, Mr. Waseta's argument might appear to be foreclosed by our precedent, which dictates that, generally speaking, the "retroactive application of the advisory Guidelines regime does not violate the ex post facto component of the Due Process Clause."Portillo-Quezada, 469 F.3d at 1355; see United States v. Herula, 464 F.3d 1132, 1138 (10th Cir. 2006) (same); United States v. Rines, 419 F.3d 1104, 1106-07 (10th Cir. 2005) (finding no due process violation in the retroactive application of Booker, and "declin[ing] Defendant's invitation to hold that the Supreme Court ordered us to violate the Constitution"). However, as the district court noted in this case, this circuit and, most notably, the First Circuit, have specifically held open the question of whether the ex post facto principles inherent within the Fifth Amendment's due process protections are implicated when "the post- Booker sentence imposed was `higher than any that might realistically have been imagined at the time of the crime.

In United States v. Cachucha, however, we noted that although any ex post facto argument based on Booker "might appear to be foreclosed by" our precedents, none of these prior decisions involved a sentence higher than the Guidelines range, yet still within the statutory maximum. 484 F.3d 1266, 1269-70 (10th Cir. 2007) (citing Lata); see Portillo-Quezada, 469 F.3d at 1354 (defendant challenged only the imposition of a sentencing enhancement based on findings made by a preponderance of the evidence, but did not challenge any upward variance); United States v. Hernia, 464 F.3d 1132, 1135 (10th Cir. 2006) (finding no ex post facto violation when a defendant's Guidelines range was 188-235 months and his sentence was 188 months); Rines, 419 F.3d at 1106 (finding no ex post facto violation when a defendant's Guidelines range was 70-87 months and his sentence was 70 months). Thus, we have never squarely decided whether the statutory maximum alone provides adequate notice of any sentence up to that maximum, no matter how improbable the particular sentence might have been under the mandatory Guidelines.

They hold only that, under appropriate circumstances, offenses from one indictment may be required to be grouped with offenses from another indictment. See United States v. Greer, 91 F.3d 996 (7th Cir. 1996); United States v. Kellum, 372 F.3d 1141, 1144-46, supplemented o.g., 119 Fed.Appx. 32 (9th Cir. 2004); United States v. Hernia, 464 F.3d 1132, 1136-37 (10th Cir. 2006). The defendant in Griggs was charged with various conspiracy counts relating to money laundering and embezzlement; he was later separately indicted for filing false tax returns that covered the very income and time period at issue in the first case, and the second indictment, accordingly, expressly referred to the first.

In contrast, a plea agreement that does not so specify does not bind the district court to any particular sentencing range or recommendation. United States v. Hernia, 464 F.3d 1132, 1138 (10th Cir.2006) (citing Fed.R.Crim.P. 11(c)(1)(B)). The plea agreement here does not specify a particular sentencing range, nor does it specify that certain Guidelines adjustments are or are not applicable.

II. DISCUSSION Mr. Cachucha raises several substantial issues on appeal. His ex-post-facto argument might appear to be foreclosed by our decisions holding that Booker can be applied to sentences imposed for pre- Booker offenses, see United States v. Portillo-Quezada, 469 F.3d 1345, 1354-56 (10th Cir.2006) (per curiam); United States v. Herula, 464 F.3d 1132, 1138-39 (10th Cir.2006); United States v. Rines, 419 F.3d 1104, 1106-07 (10th Cir.2005); but we have not yet decided (nor, apparently, has any other circuit) a case in which the post- Booker sentence imposed was "higher than any that might realistically have been imagined at the time of the crime." United States v. Lata, 415 F.3d 107, 112 (1st Cir.2005) (distinguishing sentence under review from a sentence of the quoted type); see United States v. Barton, 455 F.3d 649, 657 (6th Cir.2006) (quoting Lata); cf. Miller v. Florida, 482 U.S. 423, 432-33, 107 S.Ct. 2446, 96 L.Ed.2d 351 (1987) (application of Florida's revised sentencing guidelines to defendant whose crimes occurred before their effective date violated Ex Post Facto Clause). And the district court's reliance on New Mexico sentencing practice would appear to contravene our recent statement that "[a]djusting federal sentences to conform to those imposed by the states where the offenses occurred would not serve the purposes of § 3553(a)(6), but, rather

"[N]otwithstanding Booker's invalidation of the mandatory nature of the sentencing guidelines, district courts must still consult the Guidelines and take them into account when sentencing." United States v. Hernia, 464 F.3d 1132, 1136 (10th Cir. 2006) (internal citations and quotations omitted). "The district courts still maintain the ability to depart downward or upward from the sentencing guideline range, so long as the sentence imposed is reasonable in light of the factors in 18 U.S.C. § 3553(a)."